  United States Court of Appeals
      for the Federal Circuit
                ______________________

            ROBERT MICHAEL MILLER,
                   Petitioner

                           v.

FEDERAL DEPOSIT INSURANCE CORPORATION,
                 Respondent
           ______________________

                      2014-3137
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-3330-13-0504-I-1.
                ______________________

                 Decided: April 8, 2016
                ______________________

   ROBERT MICHAEL MILLER, Fairfax, VA, pro se.

   MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
STEVEN J. GILLINGHAM.
                ______________________

 Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
2                                           MILLER   v. FDIC



NEWMAN, Circuit Judge.
    Robert M. Miller appeals the decision of the Merit
Systems Protection Board (MSPB or Board) denying his
request for relief under the Veterans Employment Oppor-
tunities Act (VEOA) resulting from his non-selection for a
vacancy advertised by the Federal Deposit Insurance
Corporation (FDIC). We affirm the Board’s decision. 1
                      BACKGROUND
    Mr. Miller served on active duty from June 2003 until
July 21, 2007. He has a Veteran’s Administration disabil-
ity 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.
    On September 7, 2012 the FDIC posted vacancy an-
nouncements for a CG-13 Financial Economist position in
Washington, D.C. The FDIC posted two vacancy an-
nouncements, the first open to all U.S. citizens and the
second for status candidates. Mr. Miller submitted appli-
cations under both hiring procedures.
    Mr. Miller was one of three applicants selected for an
interview. Mr. Kupiec, the selecting official, and two
other senior FDIC employees participated in the inter-
views. 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 interview-
ers rated his answer as “Inadequate” and one interviewer



    1 Miller v. FDIC, No. DC-3330-13-0505-I-1, 2014
WL 5304936 (MSPB. Apr. 17, 2014) (MSPB Op.).
MILLER   v. FDIC                                           3



rated his answer as “Outstanding.” The other two candi-
dates also received some “Inadequate” ratings. No candi-
date was selected, and the vacancy was cancelled.
    Mr. 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.
    Mr. 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 discrim-
inatory practices.
    The 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 veter-
ans’ preference, and thus the Board lacked jurisdiction.
The AJ also found the allegation of bad faith to be unsup-
ported.
    The 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 veter-
ans’ preference rights was sufficient to confer jurisdiction
over a VEOA appeal. However, the Board held that Mr.
Miller had not established a violation of his veterans’
preference rights.
4                                              MILLER   v. FDIC



    Specifically, the Board found that the FDIC “conduct-
ed a thorough, structured interview of each of the candi-
dates” and “none of the interviewees possessed the
requisite skills and knowledge for the position.” MSPB
Op. at *3. An agency is “not required to hire a preference
eligible veteran, if . . . it does not believe that the candi-
date is qualified or possessed the necessary experience.”
Id. (citing Abell v. Dep’t of the Navy, 343 F.3d 1378, 1384
(Fed. Cir. 2003)).
    Mr. Miller appeals.
                          DISCUSSION
    We review the Board’s decision to ascertain whether it
was (1) arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; (2) obtained with-
out following the procedures required by law; or (3) un-
supported by substantial evidence. 5 U.S.C. § 7703(c); see
Barrett v. Soc. Sec. Admin., 309 F.3d 781, 785 (Fed. Cir.
2002). Factual findings of the Board are sustained unless
they are not supported by substantial evidence. See
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998).
    The Veterans’ Preference Act of 1944 (VPA), Pub. L.
No. 359, ch. 287, 58 Stat. 390, established the principle of
veterans’ preference, whereby preference eligible veterans
receive certain advantages when seeking federal employ-
ment. The VPA is codified in scattered sections of Title 5
of the U.S. Code. See, e.g., Lazaro v. Dep’t of Veterans
Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012) (discussing
some of the statutes and regulations enacted to provide
veterans with their preference rights); Joseph v. FTC, 505
F.3d 1380, 1381 (Fed. Cir. 2007) (same). The VEOA
provides preference eligible veterans with an administra-
tive challenge for an agency hiring decision violating a
veteran’s rights under a statute or regulation relating to
veterans’ preference. 5 U.S.C. § 3330a.
MILLER   v. FDIC                                            5



    “Federal agencies generally use two types of selection
to fill vacancies: (1) the open ‘competitive examination’
process and (2) the ‘merit promotion’ process.” Joseph,
505 F.3d at 1381 (citations omitted). The competitive
examination process is typically open to the public. 5
C.F.R. § 332.101. The merit promotion process is used
when the position is to be internally filled by a current
agency employee or a “status” applicant, such as a prefer-
ence eligible veteran. Id. § 335.103(b)(1). Veterans re-
ceive certain advantages under both processes, but the
advantages differ.
     In merit promotion procedures, preference eligible
veterans receive the ability to apply for vacancy an-
nouncements otherwise open only to current agency
employees. Veterans “may not be denied the opportunity
to compete for vacant positions for which the agency
making the announcement will accept applications from
individuals outside its own workforce under merit promo-
tion procedures.” 5 U.S.C. § 3304(f)(1). When applying
under merit promotion procedures, we have held that a
preference eligible veteran does not receive any additional
advantage beyond the ability to apply. Joseph, 505 F.3d
at 1383 (“All that [5 U.S.C. § 3304(f)(1)] entitles veterans
to is ‘the opportunity to compete for vacant positions’ to be
filled . . . .”). An agency may accept applications under
both procedures and retains “the discretion to fill a vacant
position by any authorized method.” Id. at 1384 (citations
omitted).
    Although he does not explicitly invoke 5 U.S.C.
§ 3304(f)(1), Mr. Miller applied under merit promotion
procedures and all of his cited authority interprets 5
U.S.C. § 3304(f)(1) (“Preference eligibles or veterans . . .
may not be denied the opportunity to compete for vacant
positions for which the agency making the announcement
will accept applications from individuals outside its own
workforce under merit promotion procedures.”) (emphasis
added).
6                                            MILLER   v. FDIC



     On appeal, Mr. Miller argues that the Board erred by
ruling as a matter of law that the FDIC did not violate his
right to compete by cancelling the Financial Economist
position. He contends that the Board abused its discre-
tion in ruling on his VEOA petition although discovery
was not complete. He states that he had raised plausible
bad faith rationales for the cancellation of the position,
and was denied the opportunity to rebut the declaration of
Mr. Kupiec, the selecting official. He argues that the
Board incorrectly applied the “no genuine issue of materi-
al fact” standard when evaluating the merits of his case.
    Non-selection for a position is not an appealable ac-
tion unless certain statutory violations are at issue, such
as veterans’ preference or whistleblower retaliation. The
Board may “determine whether an agency has violated a
statutory or regulatory provision relating to veteran
preference.” Ruffin v. Dep’t of Treasury, 89 M.S.P.R. 396
¶¶ 12–13 (MSPB. Aug. 29, 2001). This court has ex-
plained that such violation requires a relation between
the agency’s action and a veteran’s preference rights.
Lazaro, 666 F.3d at 1320. When an agency acts under
merit promotion procedures, a preference eligible veteran
is not entitled any additional veterans’ preference. Jo-
seph, 505 F.3d at 1383–84; see also Abell v. Dep’t of Navy,
343 F.3d 1378, 1383 (Fed. Cir. 2003) (holding that while
the VEOA ensures the right to compete, “the VEOA did
not ensure that his application would be successful”).
    Precedent has established that the opportunity to
compete, as required by 5 U.S.C. § 3304(f)(1), is satisfied
by participation in the selection process on the same
grounds as other candidates. Joseph, 505 F.3d at 1384
(“The fact that he was not selected does not mean that he
did not have a full ‘opportunity to compete’; it means only
that, after such competition, he was not selected.”). Here,
Mr. Miller filed his application and was one of three
applicants interviewed. The fact that he was not hired
does not mean that he was denied the opportunity to
MILLER   v. FDIC                                          7



compete, merely that “after such competition, he was not
selected.” Id.
    The Board held that there was no evidence that the
FDIC’s cancellation of the vacancy violated a statute or
regulation relating to veterans’ preference, or was other-
wise related to Mr. Miller’s veteran’s status or rights.
“The VEOA does not enable veterans to be considered for
positions for which they are not qualified.” Lazaro, 666
F.3d at 1319. Moreover, “an agency may cancel a vacancy
announcement for any reason that is not contrary to law.”
Abell, 343 F.3d at 1383–84.
    The record contains substantial evidence to support
the FDIC’s position and the Board’s finding that the
cancellation of the vacancy was predicated on a lack of
appropriately qualified candidates. Mr. Miller states that
his non-selection was due to a series of lawsuits he pur-
sued against the FDIC and personal animus by supervi-
sors within the FDIC. The Board ruled that non-selection
due to personal animus or reprisal for lawsuits, even if
substantiated, does not establish a violation of veteran’s
preference rights, and did not override the agency’s right
to cancel the vacancy announcement.
    Mr. Miller argues that he should have been permitted
to raise discrimination and retaliation as affirmative
defenses or as evidence of bad faith on the part of the
agency. The Board found that the asserted discrimination
and retaliation were not related to Mr. Miller’s veteran
status. This finding is supported, for there was no evi-
dence of any relation between the asserted discrimination
and retaliation and Mr. Miller’s veteran’s preference
rights. Furthermore, nothing in the record suggests that
additional discovery would change this result because Mr.
Miller had the opportunity to compete and did compete,
and the FDIC was not required to fill the position. See
Abell, 343. F.3d at 1384. Although Mr. Miller criticizes
the Board’s failure to strike evidence of his litigiousness
8                                          MILLER   v. FDIC



and ongoing grievances, Mr. Miller did not move before
the AJ to strike this evidence, and he has not shown that
it would change the outcome of this case.
    We discern no reversible error in the Board’s ruling
that VEOA violation was not shown.
                      AFFIRMED
    No costs.
