Kevin Patrick Burnett v. Federal Deposit Insurance Corporation

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN PATRICK BURNETT,
Petitioner
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent
______________________
2024-1462
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-19-0455-I-1.
______________________
Decided: October 31, 2024
______________________
KEVIN PATRICK BURNETT, Stockton, CA, pro se.
DANIEL FALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, LISA LEFANTE DONAHUE, PATRICIA M.
MCCARTHY.
______________________
Before DYK, CHEN, and HUGHES, Circuit Judges.
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BURNETT v. FDIC 2
PER CURIAM.
Kevin P. Burnett appeals from a decision of the Merit
Systems Protection Board (“Board”) denying relief under
the Veterans Employment Opportunities Act of 1998
(“VEOA”). We affirm.
BACKGROUND
Mr. Burnett served in the United States Air Force from
2000 until 2003, when he received an honorable discharge.
In 2019, he worked at the Office of the Comptroller of the
Currency within the federal government.
In January 2019, the Federal Deposit Insurance
Corporation (“FDIC”) posted two hiring announcements for
senior policy analyst positions, each one at both CG-14 and
CG-15 levels. One announcement solicited applications
through an open competitive vacancy announcement, and
the other solicited applications through a merit promotion
vacancy announcement. Both announcements required
specific qualifications, including “[s]pecialized
experience . . . analyzing policy related to financial services
or products.” S.A. 18. The CG-14 position required one
year of experience equivalent to the grade 13 level in the
federal service, and the CG-15 position required one year
of experience equivalent to the grade 14 level in the federal
service. Mr. Burnett submitted applications for both the
CG-14 and CG-15 positions.
A subject matter expert and three specialists from
Human Resources (“HR”) at the FDIC reviewed Mr.
Burnett’s applications. The deciding HR specialist, after
discussions with the subject matter expert, found that Mr.
Burnett was not qualified because he lacked the necessary
policy experience in “assisting, implementing, developing
or analyzing policy related to financial services or products,
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BURNETT v. FDIC 3
banking or financial institution[s].” ECF No. 7 at 351.1 On
March 13, 2019, the FDIC informed Mr. Burnett that he
was not selected.
On March 20, 2019, Mr. Burnett filed a complaint with
the Department of Labor. He alleged that the FDIC
violated his rights as a preference-eligible veteran under
the VEOA. The Department of Labor rejected Mr.
Burnett’s claim. Having exhausted his remedies at the
Labor Department, Mr. Burnett filed a request for
corrective action with the Board, again alleging a violation
of the VEOA.
During the proceedings before the administrative
judge (“AJ”), Mr. Burnett filed motions to compel the
agency’s responses to interrogatories and document
production requests, including requests for information
and documents concerning his application process and the
applications of other individuals. The AJ ordered the
agency to provide responses to certain relevant
interrogatories and document production requests, but
“noted that the remaining interrogatories and document
production requests were either overbroad or irrelevant to
the issues in this appeal.” ECF No. 7 at 71. After the AJ
ordered limited discovery, Mr. Burnett filed two motions for
sanctions, alleging that the agency had not provided the
discovery ordered by the AJ. The AJ denied the first
motion for sanctions. The AJ did not resolve the second
motion for sanctions.
1 ECF No. 7 refers to the appendix attached to Mr.
Burnett’s informal opening brief. Because the document
does not have consistent pagination, the page numbers
refer to the pages assigned in the online version. The
citations to S.A. refer to the government’s supplemental
appendix.
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BURNETT v. FDIC 4
The AJ’s initial decision found that “the decision of the
FDIC declining to select the appellant [in response to the
open competitive vacancy announcement] is not a violation
of the VEOA since the FDIC properly credited him with all
of his valuable experience.” ECF No. 7 at 232. The AJ did
not address Mr. Burnett’s claim with respect to the merit
promotion vacancy announcement.
Mr. Burnett petitioned the full Board for review, but
the Board denied his petition and affirmed the decision of
the AJ. The Board agreed with the initial decision that Mr.
Burnett was not entitled to corrective action for the open
competitive vacancy announcement on the merits. The
Board also found that Mr. Burnett made a claim as to the
merit promotion vacancy announcement and
acknowledged that the AJ “did not mention the merit
promotion announcement [] or any right-to-compete claim
in the initial decision.” ECF No. 7 at 69. The Board
concluded, however, that this did not provide a basis for
reversal because, even if the AJ erred, the “5 U.S.C.
§ 3304(f) opportunity-to-compete provision does not apply
to preference[-]eligible and/or veteran applicants who are
already employed in the Federal civil service.” Id. In this
respect, the Board relied on this court’s precedent in Kerner
v. Department of the Interior, 778 F.3d 1336, 1339 (Fed. Cir.
2015).
The Board also rejected Mr. Burnett’s arguments as to
the AJ’s discovery rulings. The Board found that “[a]n
administrative judge has broad discretion in ruling on
discovery matters” and concluded that there was no abuse
of discretion. Id. at 71. Finally, “[t]o the extent that the
administrative judge failed to address the appellant’s
second request for sanctions,” the Board denied the
request. Id. at 72.
This petition for review followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
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BURNETT v. FDIC 5
DISCUSSION
The Board’s decision must be affirmed unless it is
found to be “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Jones v. Dep’t of
Health and Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir.
2016).
I
A
We first consider Mr. Burnett’s claim as to the open
competitive vacancy announcement. Mr. Burnett argues
that the conclusion that he did not meet the specialized
requirements of the announcements is unsupported by the
record. The FDIC determined that his position at the
Office of the Comptroller of the Currency “indicated that he
had no experience in either policy development or analysis”
and instead showed only that he “supported people who
performed those functions.” ECF No. 7 at 304. Mr. Burnett
argues that the fact that he supported employees who
performed policy analysis proves that he “provided
assistance in developing and analyzing policy.” Appellant’s
Inf. Br. 16. He also points to his previous experience
developing handbooks, arguing that discounting this
experience as not qualifying as policy analysis “is a view
that borders on the absurd.” Id. at 19.
The Board did not err when it declined to assess the
correctness of the agency’s decision, finding that the agency
considered Mr. Burnett’s experience and found it
insufficient. The “VEOA does not authorize the [Board] to
conduct, on appeal, a substantive review of the veteran’s
qualifications and adjudicate the correctness of the
agency’s hiring decision.” Miller v. FDIC, 818 F.3d 1361,
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BURNETT v. FDIC 6
1366 (Fed. Cir. 2016). Instead, the Board is only required
to “assure that the veteran’s experience and work history
were actually considered.” Id.
Here, the record reflects that the Board reviewed the
evidence of record and found that the FDIC completed a
careful and comprehensive review of Mr. Burnett’s
applications before determining that he did not meet the
required qualifications. The agency reviewed copies of Mr.
Burnett’s resume, evidenced by notes in the margins. The
agency also provided a copy of the application review record
and presented the findings of the reviewers. The HR
specialists found that he lacked the specialized policy
analysis experience required, and the subject matter
expert made notes explicitly referencing his lack of policy
development experience. On this record, we cannot say
that the FDIC violated the VEOA by failing to consider any
of Mr. Burnett’s experience. The finding of the Board that
the agency reviewed and considered Mr. Burnett’s
experience is supported by substantial evidence.
B
Mr. Burnett argues that the AJ “abused his discretion
by not compelling the agency to comply with ordered
discovery.” Appellant’s Inf. Br. 1. Mr. Burnett contends
that the “failure to require ordered discovery or to even rule
on the motion was incredibly prejudicial to [his] ability to
effectively prepare and present [his] case.” Id. at 8–9.
“[P]rocedural matters relative to discovery and
evidentiary issues fall within the sound discretion of the
[B]oard.” Rueter v. Dep’t of Com., 63 F.4th 1357, 1364 (Fed.
Cir. 2023) (second alteration in original) (quoting Curtin v.
Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)).
“We ‘will not overturn the [B]oard on such matters unless
an abuse of discretion is clear and harmful.’” Id.
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BURNETT v. FDIC 7
Here, the AJ considered Mr. Burnett’s discovery
requests and granted his motion to compel in part, ordering
the agency to provide responses to some of the
interrogatories and to produce documents related to Mr.
Burnett’s application and the hiring process for both
vacancy announcements. However, the AJ denied Mr.
Burnett’s motion in part, finding that the remaining
requests were overbroad or irrelevant because they
concerned application materials submitted by the other
applicants that contained personally identifiable
information.
Mr. Burnett has failed to prove that there was any
error in the discovery rulings. Mr. Burnett has not shown
that the denied discovery was relevant to his case, and the
privacy concerns cited by the government further support
the Board’s ruling. As to the sanctions motions, Mr.
Burnett has made no showing that the discovery was not
provided. Finally, as to his argument that there was not a
timely decision on his discovery request, the record does
not support Mr. Burnett’s view. Only his second motion for
sanctions was not responded to by the AJ, and the full
Board denied his request in its final order. We see no abuse
of discretion in the Board’s discovery rulings.
II
We finally consider, in addition to the open competitive
vacancy announcement, the agency’s response to the merit
promotion vacancy announcement. The AJ in the initial
decision did not address the merit promotion vacancy
announcement. However, the Board found that this court’s
precedent in Kerner precluded Mr. Burnett’s arguments.
The Board concluded that Kerner held that the “5 U.S.C.
§ 3304(f) opportunity-to-compete provision does not apply
to preference[-]eligible and/or veteran applicants who are
already employed in the Federal service.” ECF No. 7 at 69.
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BURNETT v. FDIC 8
Mr. Burnett does not contest the Board’s interpretation
of Kerner but contends that Kerner “unnecessarily narrows
the protections afforded to veterans” and “requests an en
banc review or reconsideration of that decision by this
[c]ourt.” Appellant’s Inf. Br. 13. The government on the
other hand takes a different and narrower view of Kerner.
We decline to consider the scope of the Kerner decision
because, as the government points out, this would “address
a hypothetical situation.” Appellee’s Inf. Resp. Br. 21. In
this case, Mr. Burnett makes no claim that his application
in response to the merit promotion announcement did not
receive consideration from the FDIC, and the Board
concluded that this consideration satisfied the VEOA in the
context of the competitive vacancy announcement. The
VEOA requires nothing more. See Miller v. FDIC, 818 F.3d
1357, 1360 (Fed. Cir. 2016).
We have considered Mr. Burnett’s remaining
arguments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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