NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

HERBERT RUSSELL,

Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES,

Respondent

______________________ 

2015-3183

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-3330-11-0405-M-1.

______________________ 

Decided: December 15, 2015

______________________ 

 HERBERT RUSSELL, Charlotte, NC, pro se.

 SCOTT MACGRIFF, Civil Division, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN 

C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.

GILLINGHAM. 

______________________ 

Before REYNA, TARANTO, and STOLL, Circuit Judges.
2 RUSSELL v. HHS

PER CURIAM. 

Herbert Russell appeals several decisions of the Merit 

Systems Protection Board (“Board”) that affirmed the 

Department of Health and Human Services’ decision not 

to hire Mr. Russell. We affirm the Board’s decisions, 

because substantial evidence supports the Department of 

Health and Human Services’ finding that Mr. Russell was 

not qualified for the position he applied for in 2010.

BACKGROUND

The background in this case was previously described

in Russell v. Dep’t of Health & Human Servs., 591 F. 

App’x 937, 938-40 (Fed. Cir. 2014). In summary, in 2010, 

the Department of Health and Human Services (“DHHS” 

or “the agency”) advertised a job vacancy for a Social 

Science Analyst position. Mr. Russell applied for that 

position but was not hired. When he investigated why he 

was not hired, it was determined that he did not receive 

the entire ten-point hiring preference he was entitled to 

as a disabled veteran. Mr. Russell had not received the 

entire preference because he filed unnecessary paperwork 

under a fax coversheet for filing veterans preference 

documentation. This resulted in the agency’s hiring 

software overwriting the veterans preference documentation he had previously submitted. 

Mr. Russell filed a Veterans Employment Opportunities Act (“VEOA”) appeal with the Board. In 2012, the 

Board ordered DHHS to reconstruct the selection process 

using Mr. Russell’s correct veterans preference points

because “it appear[ed] that” Mr. Russell would have been 

the top-ranked applicant in the original selection process, 

had he received a 10–point preference. Russell v. Dep’t of 

Health & Human Servs., 117 M.S.P.R. 341, 342, 2012 WL 

335602 (M.S.P.B. Feb. 2, 2012). 

“[R]econstruction of the selection process is an appropriate remedy where [] ‘it is unknown whether a veteran 
RUSSELL v. HHS 3

would have been selected for a position.’” Schoenrogge v. 

Dep’t of Justice, 385 F. App’x 996, 998 (Fed. Cir. 2010) 

(quoting Marshall v. Dep’t of Health and Human Servs.,

587 F.3d 1310, 1316 (Fed. Cir. 2009)). When an agency is 

ordered to reconstruct a selection process, it must do so 

“in accordance with applicable veterans’ preference laws.” 

Phillips v. Dep’t of Navy, 24 M.S.P.R. 19, 23, 2010 WL 

1889034, *2 (M.S.P.B. Apr. 23, 2010). 

In the reconstructed process, Mr. Russell was not 

hired because the agency determined that he did not meet 

the minimum requirements for the position. Mr. Russell

appealed to the Board and challenged the agency’s determination that he was not qualified for the position. He 

pointed to evidence indicating that the agency had previously determined that he was qualified for the position, 

including a January 2011 letter that DHHS sent to the 

Department of Labor stating that Mr. Russell was qualified for the job. 

In July 2013, the Board found that DHHS had not adequately explained the inconsistency of why it appeared 

to have found Mr. Russell qualified in the original process, but unqualified in the reconstructed process. The 

Board remanded with instructions that DHHS provide

credible evidence explaining “its apparent change in its 

assessment of [Mr. Russell’s] qualifications.” Russell v. 

Dep’t of Health & Human Servs., 120 M.S.P.R. 42, 49-50, 

2013 WL 3816389, *4-5 (M.S.P.B. July 24, 2013).

On August 2, 2013, an administrative judge issued an 

order requiring DHHS to submit evidence explaining the 

inconsistency and stating a deadline for any reply from 

Mr. Russell. After receiving evidence from the agency, 

the administrative judge found that the agency had 

provided credible evidence to support its finding that Mr. 

Russell was not qualified and that the indications that 

Mr. Russell was qualified were a mistake. Russell v. Dep’t 
4 RUSSELL v. HHS

of Health & Human Servs., DC-3330-11-0405-B-1, 2013 

WL 6805808 (Sept. 30, 2013). Mr. Russell did not reply.

Mr. Russell appealed to the Board and argued that he 

did not receive the August 2013 order and had no opportunity to reply to the agency’s new evidence. On that 

basis, he submitted new evidence with his appeal. In 

April 2014, the Board affirmed that the agency’s explanation of the inconsistencies was adequate. The Board did 

not address Mr. Russell’s newly submitted evidence, or 

his argument that he had not had the opportunity to 

submit the evidence. 

Mr. Russell appealed the Board’s decision to this 

court. In November 2014, this court remanded to the 

Board to consider whether Mr. Russell received the August 2013 order and, if not, whether his substantive 

rights were prejudiced. Russell v. Dep’t of Health & 

Human Servs., 591 F. App’x 937, 942 (Fed. Cir. 2014). 

On remand, the Board reviewed the evidence that Mr. 

Russell had previously submitted to the Board in reply to 

the agency’s response to the August 2013 order. The 

Board found that most of the evidence Mr. Russell submitted was his own analysis regarding his qualifications 

for the job. On May 8, 2015, it issued a decision finding 

that “assuming arguendo that the appellant did not 

receive the August 2, 2013 order, that this error did not 

prejudice his substantive rights.” Russell v. Dep’t of 

Health & Human Servs., No. DC-3330-11-0405-M-1, 2015 

WL 2165597 (M.S.P.B. May 8, 2015). 

On appeal to this court, Mr. Russell argues that the 

2012 reconstruction was unnecessary and that the Board

(in its July 2013 decision) should have required an audit 

rather than an agency explanation of why it appeared 

that the agency’s assessment of Mr. Russell’s qualifications had changed. Mr. Russell argues that the Board’s 

April 2014 decision upholding the agency’s determination 

that he was not qualified was incorrect. He also argues 
RUSSELL v. HHS 5

that the Board should have found that DHHS officials 

made false statements and that the Board failed to rule 

on a May 29, 2015 motion to reopen the record so he could 

submit additional evidence after the Board issued its 

decision on remand from this court. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

Our review authority of Board decisions is restricted. 

We cannot review or reweigh factual findings. We only 

determine whether the agency’s actions, findings, or 

conclusions were “(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). Substantial 

evidence is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” 

Abrams v. Soc. Sec. Admin., 703 F.3d 538, 542 (Fed. Cir. 

2012) (internal quotation marks and citation omitted). 

In chief, Mr. Russell argues on appeal that the reconstruction hiring process was improper, that he was entitled to a pass-over audit, that the Board should have 

ordered him deemed qualified instead of seeking from the 

agency an explanation about inconsistencies about his 

qualifications, and that the Board’s finding that he was 

not qualified for the position was erroneous. We address 

each of these arguments in turn.

Mr. Russell argues that the Board erred in requiring a 

reconstructed hiring process and that it should have 

simply ordered that he was the highest-ranking candidate

among the 2010 applicants. As noted above, reconstruction is an appropriate remedy if it is uncertain whether a 

veteran would have been selected for a position. We find 

no fault in the Board’s determination that such an uncertainty existed. Indeed, Mr. Russell’s brief acknowledges 
6 RUSSELL v. HHS

that it is uncertain whether he would have ultimately 

been selected for the position even had he received the 

ten-point preference in the initial selection process. 

Mr. Russell further argues that the Board should 

have required an Office of Personnel Management passover audit rather than requesting that the agency explain 

inconsistencies about Mr. Russell’s qualification for the 

position. We disagree. Under 5 U.S.C. § 3318, if Mr. 

Russell had been one of the three highest-ranking eligible 

candidates, then such an audit would have been necessary before DHHS could select a lower-ranking applicant. 

Scharein v. Dep’t of Army, 91 M.S.P.R. 329, 334, 2002 WL 

960016 (M.S.P.B. Apr. 29, 2002) aff’d, No. 02-3270, 2008 

WL 5753074 (Fed. Cir. Jan. 10, 2008). In the reconstructed process, DHHS found Mr. Russell unqualified. As a 

result, its decision that he was not one of the three highest-ranking eligible candidates is supported by substantial evidence. A129-36. 

Mr. Russell next argues that the Board’s April 2014 

decision upholding the agency’s determination that he 

was not qualified was erroneous on several grounds. 

First, Mr. Russell argues that the agency applied the 

wrong disqualification standard, and in support cites to 

Middlebrooks v. Soc. Sec. Admin., 120 M.S.P.R. 572, 2014

MSPB LEXIS 1276, *9 (M.S.P.B. 2014). Mr. Russell’s 

argument appears to rely on a statement from Middlebrooks that the applicant was unqualified “[b]ecause none 

of the applicant’s prior experience was similar to the 

position she sought.” Id. He appears to argue that this 

court must first determine whether “none” of his prior 

experience is similar to the position sought before affirming a finding that he was unqualified. This argument, 

however, overlooks that even if much of applicant’s prior 

experience is similar to the position sought, an applicant 

may be unqualified for a position where the applicant 

does not meet the minimum qualifications. 
RUSSELL v. HHS 7

Here, the agency’s decision finding Mr. Russell unqualified is supported by substantial evidence. The 

position required that applicants meet one of three basic 

education requirements, and the agency determined that 

Mr. Russell’s application did not demonstrate that he met 

any of those. The position also required that applicants 

have certain specialized experience, and the agency 

determined that Mr. Russell’s application demonstrated 

that he lacked the specialized experience. 

To qualify at the GS–12 level, an applicant must have 

one year of specialized experience “developing and administering workforce assessment tools such as survey/questionnaire instruments, interview techniques and 

data collection/evaluation methods as well as conducting 

studies and analyses of data to make recommendations to 

management.” A85. To qualify at the GS–13 level, an 

applicant must have one year of specialized experience 

“using advanced principles, techniques, and methods of 

industrial and organizational psychology, organizational 

development and change management in order to develop 

measurement methods, written communication materials, 

conduct workshops, monitor progress and evaluate results 

in order to provide consultative services to groups and 

individuals in a regulatory organization.” A86. 

On his application, Mr. Russell stated that he met the 

basic educational requirements by “having a combination 

of education and experience that has provided me with 

knowledge of one or more of the behavioral or social 

sciences equivalent to a degree in the field.” A110. The 

agency determined that while Mr. Russell had taken a 

variety of different behavioral and social science courses 

in pursuit of his degrees in business and management, 

these courses did not combine with his work experience to 

show that his experience in behavioral or social science 

was equivalent to a degree in the field. 
8 RUSSELL v. HHS

The Board agreed with the agency that Mr. Russell 

did not have the required specialized experience for the 

position. His application demonstrated he had some 

experience in a few of the areas described in the specialized experience requirements, but no experience in most 

of them. A112-A113. Consequently, we affirm the 

Board’s decision that the Mr. Russell was not qualified for 

the position sought. “[T]he VEOA does not enable veterans to be considered for [employment] positions for which 

they are not qualified.” Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012). 

Mr. Russell argues that the Board should have ruled 

on a May 29, 2015 motion he filed to reopen the record so 

he could submit additional evidence on remand from this 

court. This motion was filed after the Board issued its 

May 8, 2015 final decision that Mr. Russell’s substantive

rights were not affected even if he did not receive the 

administrative judge’s August 2013 order.

This court remanded to the Board for the limited purpose of requiring the Board to consider the evidence Mr. 

Russell had submitted with his appeal brief to the Board. 

This court instructed the Board to determine whether its

decision not to review the evidence had affected Mr. 

Russell’s substantive rights. This court’s remand did not 

require that Mr. Russell be given the ability to respond to 

the August 2013 letter anew or submit new evidence. 

Finally, Mr. Russell renews his argument that the 

Board should have found that DHHS officials made false 

statements. Mr. Russell points to minor inconsistencies 

in statements by agency officials regarding how the 

original selection process and reconstructed selection 

process occurred. Mr. Russell argues that these inconsistencies indicate that the agency deliberately chose to 

find him unqualified despite his being qualified. We find 

this argument to be unpersuasive.
RUSSELL v. HHS 9

CONCLUSION

For the foregoing reasons, we affirm the decisions of 

the Board.

AFFIRMED

COSTS

No costs.