U.S. Merit Systems Protection Board
Case Report for May 2, 2014

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Appellant:  Robert M. Miller  
Agency:  Federal Deposit Insurance Corporation
Decision Number:  2014 MSPB 31
Docket Number:  SF-3330-12-0711-I-1
Issuance Date:  April 30, 2014

Appeal Type:  VEOA Appeal 
Action Type:  Nonselection

Veterans Preference Rights Under VEOA to Consideration of Other Valuable Experience Material to Position Applied For

    The appellant applied for a position as Associate Professor for Leadership and Management (GS-14) with the agency's in house training institute.  The agency determined that the appellant was not qualified for the position because he did not meet the minimum educational requirements for the Associate Professor position.  The agency asserted that it considered the appellant's Ph.D. in economics, his prior teaching and military experience, and additional studies in other areas of expertise.  In his appeal before the Board, the appellant alleged that the agency violated his veterans' preference rights under VEOA because it failed to properly credit his experience. The administrative judge (AJ) denied corrective action, finding the appellant possessed neither the minimum educational requirements nor the requisite experience relating to educational instruction in management, leadership and the development of coursework in these fields of study.   In his petition for review (PFR), the appellant asserted that the AJ erred in not granting corrective action in accordance with 5 USC 3311(2) and 5 CFR 303.302(d) because he failed to undertake a qualitative assessment and substantive review of the weight the agency accorded the appellant's prior work experience. 

Holding:   The Board denied the appellant's petition for review, affirmed the administrative judge's initial decision and denied the request for corrective action under VEOA.

1.  Among the several preferences extended to preference-eligible veterans in federal employment is the right to credit for other valuable prior experience material to the position.  This includes credit for experience gained in religious, civic, welfare, service, and organizational activities, and is not dependent upon whether the applicant received pay for the prior experience. The Board recently explained the extent of this preference (5 USC 3311(2) and 5 303.302(d)) in Beyers v. Department of State, 120 MSPR 573 (2014).

2.   The proper application of Kirkendall v. Department of the Army, 573 F.3d 1318 (Fed. Cir. 2009) and 
Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012), does not provide a preference eligible job applicant with the substantive right to have the Board undertake a qualitative review of an agency's assessment of the applicant's experience and qualifications.  This veterans' preference right under VEOA only entitles the applicant to have a broad range of experience considered by the agency in reviewing an application for a position, but how the agency judges and weighs those experiences is beyond the purview of the Board's review.   The Board is limited to assessing whether, pursuant to 5 USC 3311(2) and 5 CFR  302.302(d), the agency considered all of an appellant's "valuable experience" which is material to the position for which the appellant has applied.  This does not, however, include a review of the weight the agency gave to a preference-eligible's prior experiences in determining that he was not qualified for a position.  Here, unlike Kirkendall and Lazaro where the agency failed to consider certain valuable experience, the agency considered all of the appellant's prior experience, including other non paid "valuable experience."  

3.   The Board has a limited role under VEOA in assessing whether an agency should have hired a preference-eligible applicant, and that role does not include a substantive review of how the agency judged the appellant's prior qualifications and experiences.  The Board instead focuses on the more limited question of whether the applicant was able to compete for the position, and not whether he should have ultimately selected for the position.   In this regard, under
5 USC 3311(2) and 5 CFR  302.302(d), the Board's authority is limited to determining as a threshold matter whether the hiring agency improperly omitted, overlooked, or excluded a portion of the applicant's experiences or work history.  These provisions do not, however, empower the Board to reevaluate the merits of an agency's ultimate determination that a preference-eligible veteran is not qualified for a position.   Here, the Board concluded that its inquiry ended after it determined that the agency credited the appellant with all of his "valuable experience" material to the Associate Professor position.

4.  In very limited circumstances not applicable here, the Board clarified its decisions in
Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) and Beyers v. Department of State, 120 MSPR 573 (2014), and held that 38 USC 4214(b) provides an additional veterans preference to eligible applicants in certain entry level positions. Here, the appellant was not applying for an entry level position and so the waiver provision of 38 USC 4214(b) is inapplicable.  

5.  The appellant's numerous challenges to the AJ's prehearing rulings did not amount to an abuse of discretion warranting a remand or a reversal because they were either unsubstantiated or based on a showing of prejudicial surprise.  

The U.S. Court of Appeals for the Federal Circuit did not issue any precedential or nonprecedential decisions prior to issuance of this weeks summary.

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