Petition for review of the Merit Systems Protection Board in
MICHAEL MILLER, Fairfax, VA, Pro se.
M. TOMLINSON, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for
respondent. Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., STEVEN J. GILLINGHAM.
NEWMAN, O'MALLEY, and CHEN, Circuit Judges.
M. Miller appeals the decision of the Merit Systems
Protection Board (MSPB or Board) denying his request for
relief under the Veterans Employment Opportunities Act (VEOA)
resulting from his non-selection for a vacancy advertised by
the Federal Deposit Insurance Corporation (FDIC). We
affirm the Board's decision.
Miller served on active duty from June 2003 until July 21,
2007. He has a Veteran's Administration disability rating
of 60 percent. Since 2008, Mr. Miller has been employed as an
Economic Analyst in the FDIC's Division of Research in
San Francisco. He was hired at the GS-9 level and has risen
to the GS-12 level.
September 7, 2012 the FDIC posted vacancy announcements for a
CG-13 Financial Economist position in Washington, D.C. The
FDIC posted two vacancy announcements, the first open to all
U.S. citizens and the second for status candidates. Mr.
Miller submitted applications under both hiring procedures.
Miller was one of three applicants selected for an interview.
Mr. Kupiec, the selecting official, and two other senior FDIC
employees participated in the interviews. Each interviewer
rated each candidate's answers to three questions on bank
failure prediction models as Outstanding, Good, or
Inadequate. On the first question, all three interviewers
rated Mr. Miller's response as " Good." On the
second question, two interviewers rated his answer as "
Inadequate" and one interviewer rated his answer as
" Good." On the third question, two interviewers
rated his answer as " Inadequate" and one
interviewer rated his answer as " Outstanding." The
other two candidates also received some "
Inadequate" ratings. No candidate was selected, and the
vacancy was cancelled.
Miller was notified that no one had been chosen for the
Financial Economist position. He then filed a complaint with
the Department of Labor, stating that the FDIC had cancelled
the vacancy in bad faith to avoid hiring a veteran or having
to request a " pass over" from the Office of
Personnel Management. The Department of Labor denied Mr.
Miller's claim, finding no evidence to support the charge
of violation of his veterans' preference rights.
Miller appealed to the MSPB, alleging violation of the VEOA
based on bad faith in the cancellation of the position. He
cited Willingham v. Department of the Navy, 118
M.S.P.R. 21 (2012), in which the Board held that " bad
faith in deciding to cancel a vacancy may be a factor in
determining if a cancellation affects a veteran's right
to compete." Id. at 31. He also alleged
reprisal and discriminatory practices.
administrative judge (AJ) dismissed Mr. Miller's appeal
for lack of MSPB jurisdiction. The AJ found that the charge
of bad faith in cancellation of the position did not raise a
non-frivolous allegation of violation of veterans'
preference, and thus the Board lacked jurisdiction. The AJ
also found the allegation of bad faith to be unsupported.
full Board found that the MSPB had jurisdiction over the VEOA
claim, but found no violation of the VEOA. The Board held
that the allegation of non-selection for the Senior Financial
Economist position in violation of veterans' preference
rights was sufficient to confer jurisdiction over a VEOA
appeal. However, the Board ...