         NOTE: This disposition is nonprecedential.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.
              ______________________

                        2014-3130
                  ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-3330-11-0405-B-1.
                ______________________

               Decided: November 18, 2014
                 ______________________

      HERBERT RUSSELL, of Charlotte, North Carolina, pro
se.

    ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
STEVEN J. GILLINGHAM, Assistant Director.
                 ______________________
2                                           RUSSELL   v. HHS




    Before REYNA, WALLACH, and TARANTO, Circuit Judges.
PER CURIAM.
    Herbert Russell was entitled to a veteran’s preference
in seeking a position with the Department of Health and
Human Services (HHS). When HHS failed to provide him
the preference, the Merit Systems Protection Board
ordered HHS to reconstruct the hiring process for the
position. HHS did not select Mr. Russell for the position
upon doing so. The Board has now rejected Mr. Russell’s
challenge to the adequacy of the agency reconstruction.
Russell v. Dep’t of Health & Human Servs., No. DC-3330-
11-0405-B-1 (M.S.P.B. April 1, 2014) (2014 Board Op.).
We vacate the Board’s decision and remand for the Board
to address a procedural issue raised by Mr. Russell.
                       BACKGROUND
    In October 2010, Mr. Russell applied for a position as
a Social Science Analyst (Organizational Development) at
HHS, a position assigned a General Schedule (GS) level of
12 to 13. As a disabled veteran, Mr. Russell was entitled
to a ten-point preference in the agency’s hiring decision.
But a document supporting Mr. Russell’s entitlement to
the ten-point preference was lost in the application pro-
cess, and HHS awarded him only a five-point preference.
The top three applicants, who were not preference-eligible
veterans, had scores of 99.49, 99.49, and 99.18. Mr.
Russell, when given a five-point preference, had a score of
only 94.69. A ten-point preference would have given him
the top score.
    In an initial proceeding before the Department of La-
bor, an HHS official stated, in a January 2011 letter, that
Mr. Russell met the education and experience qualifica-
tions for the position. When that proceeding ended, Mr.
Russell filed a Veterans Employment Opportunities Act
(VEOA) appeal with the Merit Systems Protection Board.
RUSSELL   v. HHS                                           3



The Board ultimately ordered HHS to reconstruct its
hiring process for the vacancy after awarding Mr. Russell
his ten-point preference. Russell v. Dep’t of Health &
Human Servs., 117 M.S.P.R. 341, 346 (2012). Upon
reconstruction, HHS did not select Mr. Russell for the job
because it concluded that he did not meet the minimum
qualifications for the position. Mr. Russell then filed a
petition for enforcement of the Board’s order requiring
reconstruction, arguing that he should have been selected
for the position and requesting an award of lost wages
and benefits.
     A Board administrative judge denied the petition,
finding that HHS conducted an adequate reconstruction
and reasonably determined that Mr. Russell was not
qualified for the Social Science Analyst position. On July
24, 2013, the Board vacated the administrative judge’s
decision and remanded for HHS to produce more evidence
that it adequately complied with the reconstruction order.
Russell v. Dep’t of Health & Human Servs., 120 M.S.P.R.
42, 49–50 (2013). The Board stated that HHS had not
shown that it had replicated the original-selection condi-
tions in conducting the reconstruction, had not explained
its change in view regarding Mr. Russell’s qualification
for the job, and had not explained how, if at all, the scores
of the top-scoring applicants in the initial selection had
been verified. Id. at 49.
    On August 2, 2013, the administrative judge issued
an Order providing for submission of new evidence. On
August 22, 2013, HHS filed affidavits from several agency
employees, including the human-resources specialist and
subject-matter expert who participated in the original and
reconstructed selection processes, as well as the Assistant
Director of the Client Services Division. The affidavits
described the reconstructed hiring process as mirroring
the initial one. And they provided explanations about the
HHS assessments of Mr. Russell’s qualification for the
position.
4                                               RUSSELL   v. HHS



    The HHS affidavits explained why the agency’s Janu-
ary 2011 letter to the Department of Labor, regarding Mr.
Russell’s job qualifications, was erroneous. HHS deter-
mined that the letter—which was written by an employee
who did not participate in the original or reconstructed
selection processes—incorrectly gave Mr. Russell credit
for 27 hours of “related coursework,” J.A. 134–35, in
declaring that he met the position’s education require-
ment. 1 Although the agency sometimes credits 24 hours
of coursework as equivalent to a major in a field, the
human-resources specialist and subject-matter expert
concluded that Mr. Russell’s variety of behavioral- and
social-science credits, when combined with experience, did
not “establish proficiency in one particular major.” J.A.
130 (emphasis added). The Assistant Director of the
Client Services Division agreed, as did the supervisor of
the author of the January 2011 letter.
   In addition to the required education, Mr. Russell
needed one year of specialized experience to qualify for
the job. 2 After reviewing Mr. Russell’s experience—



    1    To meet the education requirement, Mr. Russell
needed (1) a “[d]egree . . . [in] behavioral or social science;
or related disciplines appropriate to the position”; (2) a
“[c]ombination of education and experience—that provid-
ed [Mr. Russell] with knowledge of one or more of the
behavioral or social sciences equivalent to a major in the
field”; or (3) “[f]our years of appropriate experience that
demonstrated that [Mr. Russell] has acquired knowledge
of one or more of the behavioral or social sciences equiva-
lent to a major in the field.” 2014 Board Op. at 6–7.
     2   To qualify for the Social Science Analyst Position
at the GS-12 level, Mr. Russell needed to have one year of
“[e]xperience developing and administering workforce
assessment tools such as survey/questionnaire instru-
ments,     interview     techniques     and     data     collec-
RUSSELL   v. HHS                                           5



including years spent as a Human Resource Development
Specialist and as an Organizational Development Special-
ist—the human-resources specialist found that Mr. Rus-
sell’s history “did not involve the workforce data collection
and evaluation required” for the GS-12 level of the posi-
tion at issue. J.A. 131. She likewise determined that Mr.
Russell’s “activities . . . related to general themes of
industrial and organizational psychology as well as
change management and organizational development, are
not ample or comprehensive enough to satisfy the one
year specialized experience required at the GS-13 grade
level.” Id. The subject-matter expert concurred, as did
the Assistant Director of the Client Services Division and
the supervisor of the author of the January 2011 letter.
    Finally, the HHS affidavits explained the role of
scores used for ranking. Applicants are initially ranked
in order of their scores, calculated to include any veteran’s
preference. Starting with the highest-ranked applicant
on the list, the human-resources specialist reviews educa-
tion and specialized-experience qualifications, continuing
until three qualifying applicants have been identified.
Those applicants move to the subject-matter expert for
further review.




tion/evaluation methods as well as conducting studies and
analyses of data to make recommendations to manage-
ment.” J.A. 130. To qualify at the GS-13 level, Mr. Rus-
sell needed one year of “[e]xperience using advanced
principles, techniques, and methods of industrial and
organizational psychology, organizational development
and change management in order to develop measure-
ment 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.” Id. at 131.
6                                            RUSSELL   v. HHS



    In the present matter, during the initial selection pro-
cess, Mr. Russell’s score, with a five-point veteran’s pref-
erence, was only the 24th highest. The human-resources
specialist found three qualifying applicants before reach-
ing Mr. Russell’s application. Accordingly, she did not
review his qualifications during the initial selection
process.
     During reconstruction, HHS increased Mr. Russell’s
score to reflect the full ten-point veteran’s preference,
which placed him fifth on the list of applicants. Because
the first four applicants did not meet the position’s re-
quirements, the specialist this time reviewed Mr. Rus-
sell’s qualifications during reconstruction. At this point
she determined that Mr. Russell met neither the educa-
tion nor the specialized-experience requirements of the
position, and so she proceeded to the next applicant.
     Based on the evidence just summarized, the reviewing
administrative judge, on September 30, 2013, determined
that the agency had “fully answered the Board’s questions
raised in its remand order with credible evidence explain-
ing why it found [Mr. Russell] was not qualified” and thus
had complied with the Board’s reconstruction order. J.A.
64. Mr. Russell petitioned for review of the administra-
tive judge’s decision. The Board denied his petition on
April 1, 2014. 2014 Board Op. at 9. The Board found that
Mr. Russell’s “application did not demonstrate that he
met the basic education requirements of the position” or
“the specialized experience requirements for the position.”
Id. at 7–8. The Board also “agree[d] with the administra-
tive judge that the agency ha[d] adequately explained its
changed assessment during reconstruction of [Mr. Rus-
sell’s] qualifications.” Id. at 8.
    Mr. Russell now appeals the Board’s final decision.
We have jurisdiction under 28 U.S.C. § 1295(a)(9). Our
review of the Board decision is limited. We determine
only if, in the respects challenged, the decision is “(1)
RUSSELL   v. HHS                                         7



arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures 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).
                       DISCUSSION
    Mr. Russell presents several challenges to the Board’s
decision. One is procedural: Mr. Russell contends that he
never received a notice giving him the opportunity to
present evidence before the administrative judge during
the remand from the Board—and so failed to present such
evidence until his petition for review to the Board. The
Board has not addressed this procedural issue. It has not
determined whether Mr. Russell received notice and, if he
did not, whether the Board could properly disregard the
evidence when later submitted directly to it and whether
the record and findings might change upon consideration
of the evidence. Without addressing Mr. Russell’s other
contentions, we remand for the Board to address the
issue.
    The procedural challenge involves the new evidence
that Mr. Russell submitted to the Board in his petition for
review from the administrative judge’s September 30,
2013 decision. This evidence addressed the affidavits
HHS had submitted to the administrative judge in late
August 2013 on remand from the Board’s 2013 Order.
Fourth Petition for Review, Br. of Appellant, Russell, No.
DC-3330-11-0405-B-1 (Oct. 25, 2013). In submitting this
material, Mr. Russell “respectfully request[ed] that the
Board not consider the appendices and exhibits attached
to [his] brief [to constitute] new evidence” because he was
“not allowed by the Board in its Order to respond to the
8                                             RUSSELL   v. HHS



agency’s submission prior to the Administrative Judge’s
Decision.” Id. at 1. Mr. Russell argued that “had [he]
been allowed to present [the evidence] to the Judge prior
to the closing of the record [it] may have led the Judge to
reach a different conclusion.” Id. at 19.
     It does not appear that the Board considered Mr. Rus-
sell’s new material. The Board’s opinion, in dismissing
Mr. Russell’s petition for review, does not address the
material. 2014 Board Op. at 1–9. HHS opposed consid-
eration of the material on timeliness grounds, though it
did not say that Mr. Russell had an opportunity in Au-
gust/September 2013 to respond to HHS’s remand evi-
dence before the administrative judge (instead invoking
opportunities to submit evidence even before the Board’s
2013 remand). Agency’s Response to Appellant’s Fourth
Petition for Review at 5–6, Russell, No. DC-3330-11-0405-
B-1 (Dec. 6, 2013). The Board, for its part, stated that the
administrative judge had in fact afforded Mr. Russell an
opportunity in August/September 2013 to respond to
HHS’s submission of affidavits in the remand proceeding.
2014 Board Op. at 4 n.3. The Board cited “Remand CF,
Tab 3,” the administrative judge’s August 2, 2013 Order,
which (at page 1) instructed HHS to submit “relevant,
material and credible evidence showing that it is in
compliance with the Board’s order ordering the agency to
reconstruct the selection process” and (at page 2) declared
that Mr. Russell “may file a reply to the agency’s response
so long as it is received . . . within 10 calendar days of
service of the agency’s response.” Br. of Appellant, Appx.
F at 6–7.
    The problem is that, although the August 2, 2013 Or-
der by its terms gave Mr. Russell an opportunity to sub-
mit evidence, Mr. Russell may never have received that
Order, despite the certificate of service stating that it was
mailed to him. The course of events after the Board’s
decision lends credence to Mr. Russell’s assertion that he
RUSSELL   v. HHS                                          9



did not receive the Order.    And the Board has not ad-
dressed the question.
     Thus, on April 6, 2014, five days after the Board’s de-
cision, Mr. Russell sent a letter to the Clerk of the Board,
asking for a copy of “Remand CF, Tab 3.” Br. of Appel-
lant, Appx. F at 3. He stated in the letter that he “ha[d]
no idea what . . . the Board is referring to since the Ad-
ministrative Judge did not contact [him] at all until she
issued [her] . . . Decision.” Id. On May 9, 2014, the Clerk
of the Board responded by sending Mr. Russell a copy of
the August 2, 2013 Order issued by the administrative
judge. Id. at 4.
     In response, on May 23, 2014, Mr. Russell made a
submission to the Board asserting that he had not re-
ceived the August 2, 2013 Order during the proceedings
and asking the Board to correct its mistaken reliance on
that Order as having given him an opportunity to respond
to HHS’s evidence. Id. at 1–2. As far as we are aware,
the Board has not acted on this request, whether by
treating it as a motion to reopen or otherwise. And when
Mr. Russell made this same point in the present appeal,
Br. of Appellant at 26, the agency offered no response in
its answering brief.
    We do not think it appropriate for us to reach the
merits without a resolution of this issue. Nor do we think
that we should address the matter in the first instance.
The Board should consider the issue, including whether
Mr. Russell received the August 2, 2013 Order and, if he
did not, whether his substantive rights were prejudiced.
See Muwwakkil v. Office of Pers. Mgmt., 18 F.3d 921, 926
(Fed. Cir. 1994); Karapinka v. Dep’t of Energy, 6 M.S.P.R.
124, 127 (1981). We remand Mr. Russell’s case to the
Board for that purpose.
10                                          RUSSELL   v. HHS



                       CONCLUSION
    For the foregoing reasons, the decision of the Board is
vacated. The case is remanded for further proceedings
consistent with this opinion.
     No costs.
                 VACATED AND REMANDED
