                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEROME MANSFIELD,                               DOCKET NUMBER
                  Appellant,                         PH-3330-15-0188-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 1, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL *

           Jerome Mansfield, Mount Laurel, New Jersey, pro se.

           Donald W. Taylor, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     granted the appellant’s request for corrective action under the Veterans
     Employment Opportunities Act of 1998. For the reasons discussed below, we
     GRANT the agency’s petition for review, VACATE the initial decision, and


     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In this appeal, the appellant alleged that the agency violated his veterans’
     preference rights when it failed to select him for a veterans claim examiner
     trainee position. Initial Appeal File (IAF), Tab 1. He did not request a hearing.
     Id. After considering the parties’ responses to several show cause orders seeking
     information regarding the appellant’s claim and the agency’s selection process,
     IAF, Tabs 3-11, the administrative judge found jurisdiction over the appeal and
     granted the appellant’s request for corrective action because she found that the
     agency had failed to grant the appellant a five-point preference based on his
     service in the United States Air Force from October 22, 2001, through August 18,
     2002, IAF, Tab 12, Initial Decision (ID); see IAF, Tab 4 at 3. She ordered the
     agency to reconstruct the selection process taking into account the appellant’s
     five-point veterans’ preference. ID at 5.
¶3        In its timely filed petition for review, the agency reiterates that the
     appellant was not among those deemed best qualified for the position, which was
     the only category referred to the selecting official for the position at issue.
     Petition for Review (PFR) File, Tab 1 at 3; see IAF, Tab 4 at 2, Tab 11,
     Exhibit (Ex.) 6. Under the procedures employed for the selection at issue, the
     agency argues it would not have added points to the appellant’s score in any
     event. PFR File, Tab 1 at 2-3. It explains that, under its delegated examining
     authority, qualified candidates assigned to a category do not receive points but
     are instead listed ahead of those in their category who are not preference eligible.
     Id. at 3. According to the agency, the appellant’s self-assessment placed him in
     the well-qualified category, but the agency found sufficient candidates for referral
     to the selection official in the best-qualified category, so the well-qualified
     candidates were neither reviewed nor referred.      Id.   It also contends that the
                                                                                       3

     appellant failed to submit evidence of his qualifying service with his application.
     Id. at 2. The appellant responds in opposition to the agency’s petition for review.
     PFR File, Tab 4.
¶4         According to the agency’s version of how it conducted the selection
     process, its failure to credit the appellant’s veterans’ preference appears to be
     harmless error because the record reflects that, even had the agency correctly
     done so, it still would not have selected the appellant for the position at issue.
     Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 14-15,
     aff’d, 544 F. App’x 976 (Fed. Cir. 2013).       Under 5 U.S.C. § 3319(b), if the
     agency had accorded the appellant his veterans’ preference, his name would have
     been at the top of the list of candidates rated as well qualified.      See Jones,
     119 M.S.P.R. 355, ¶ 15. As noted above, because the agency alleged that it made
     its selection from the candidates deemed best qualified, it never reached the
     appellant’s cohort, and therefore the appellant’s placement at the head of that list
     with other preference-eligible candidates deemed well qualified, which was the
     specific benefit of his veterans’ preference in this case, would not have aided him
     as the agency did not use that list to refer candidates to the selecting official to
     fill the position. IAF, Tab 11, Exs. 2, 6.
¶5         However, the existing record fails to show that the agency conducted the
     selection process in the manner it asserts, so we are unable to determine whether
     its failure to credit the appellant’s veterans’ preference was harmless error.
     Moreover, it is not clear from the record how the agency determined which
     applicants were best qualified, as opposed to well qualified. The administrative
     judge accepted the agency’s assertion that the appellant’s self-evaluation, for
     which he earned a competitive score of 93, placed him in the well-qualified
     cohort. ID at 2, 4. Yet the agency’s evidence also indicates that 11 applicants it
     deemed best qualified had scores that were either equal to or lower than the
     appellant’s score of 93, IAF, Tab 11, Ex. 6 at 5-12, including 2 of the selectees,
     id. at 7-8. Given the agency’s allegation that its delegated examining authority
                                                                                     4

     did not require it to add points to any of the applicant’s scores to account for
     veterans’ preference, it is not clear on this record why the agency deemed the
     appellant well qualified while it placed individuals with lower scores than him in
     the higher-ranked category of best qualified.
¶6        Accordingly, we must remand the appeal for further development of the
     record and a new initial decision addressing the issues identified above.

                                          ORDER
¶7        For the reasons discussed above, we remand this case to the regional office
     for further adjudication in accordance with this Remand Order.




     FOR THE BOARD:                            ______________________________
                                               William D. Spencer
                                               Clerk of the Board
     Washington, D.C.
