        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

            SYLVESTER GRANDBERRY,
                   Petitioner,

                            v.
    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
               __________________________

                       2010-3091
               __________________________

   Petition for review of the Merit Systems Protection
Board in consolidated Case Nos. DE3443060300-B-2 and
DE4324090104-I-1.
              ___________________________

               Decided: November 16, 2010
              ___________________________

   SYLVESTER GRANBERRY, Lincoln, Nebraska, pro se.

    SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD HUGHES, Deputy
Director.
GRANDBERRY   v. DHS                                        2


               __________________________

   Before NEWMAN, BRYSON, AND PROST, Circuit Judges.
NEWMAN, Circuit Judge.

     Sylvester Grandberry appeals a portion of the decision
of the Merit Systems Protection Board in DE3443060300-B-
2 and DE4324090104-I-1, holding that the Department of
Homeland Security (“DHS”) did not meet its obligations
under the Uniformed Services Employment and Reemploy-
ment Rights Act, 38 U.S.C. §§4301-4333 (”USERRA”), and
ordering the agency to reconstruct the hiring process for the
position of Adjudication Officer, GS-9, pursuant to vacancy
announcement FS236771. Mr. Grandberry argues that in
view of the agency’s violation of law, the correct remedy is
not reconstruction of the hiring process, but award of the
position with back pay. We affirm the Board’s decision.

                       BACKGROUND

    Mr. Grandberry is a veteran of the wars in Vietnam and
Iraq. He served with the United States Army in Vietnam
from 1966-1969, and in Iraq from 2003-2005. From 1995
until his service in Iraq, and again from 2005 until the
present, Mr. Grandberry has been employed by the Citizen-
ship and Immigration Services of the DHS in Lincoln,
Nebraska. In 1996 he was promoted to the position of
Immigration Information Officer, GS-8. During his em-
ployment at DHS, Mr. Grandberry sought promotion to the
position of Adjudication Officer, GS-9. He responded to
specific vacancy announcements, and took various agency
tests, some of which he passed and others that he did not.
Mr. Grandberry also pursued Adjudication Officer positions
through the Veterans Recruitment Act (“VRA”) by submit-
ting a general veteran’s application and completing forms
specifying his desired position.
3                                         GRANDBERRY   v. DHS


    In December 2003 Mr. Grandberry’s National Guard
unit was called to duty in Iraq. In February 2005 he re-
turned, and remained in Military service at Fort Riley,
Kansas until his demobilization on July 6, 2005. On April
18, 2005, vacancy announcement FS236771 was issued by
the DHS for positions of Adjudication Officer at numerous
locations including Mr. Grandberry’s desired location of
Lincoln, Nebraska. He was not contacted by DHS about
this opening, despite his VRA application, but he eventually
learned of it online. On July 18, 2005 Mr. Grandberry sent
a VRA application to the DHS human resources office in
South Burlington, Vermont, stating that he is a VRA appli-
cant. The application did not identify the FS236771 an-
nouncement specifically, but stated on the first line that he
was seeking the position of “Center Adjudicating Officer” in
Lincoln, Nebraska.

    On August 3, September 2, and December 1, 2005, DHS
issued certificates listing persons eligible for the Adjudica-
tion Officer positions in Lincoln. Mr. Grandberry’s name
did not appear on any of these lists. On December 8, 2005
he sent a mailgram inquiring about the status of his appli-
cation. He sent a second mailgram on January 9, 2005 that
referred to the April 2005 announcement and requested an
opportunity to file an application for the position in the
announcement. When his request was not granted, after
further correspondence he eventually appealed to the
MSPB.

     On January 20, 2010, an administrative judge deter-
mined that DHS had violated Mr. Grandberry’s rights under
the Veteran’s Employment Opportunities Act (”VEOA”), 5
U.S.C. §§3330a - 3330c, but not under the USERRA. The
determination of violation of the VEOA was reversed by the
full Board on March 7, 2008, and Mr. Grandberry’s case was
remanded for further consideration of the USERRA claims.
GRANDBERRY   v. DHS                                        4


On August 29, 2009 the administrative judge determined
that the DHS had violated Mr. Grandberry’s rights under
the USERRA, and ordered that the hiring process be recon-
structed for the position announced in FS236771. The full
Board affirmed, and repeated the order for reconstruction of
the hiring process.

    Mr. Grandberry appealed to this court, arguing that the
Board should have awarded him the Adjudication Officer
position with back pay, instead of ordering a reconstruction
of the hiring process. He states that his veteran’s prefer-
ence, superior qualifications, and the number of Adjudica-
tion Officer openings, leave “no doubt that he would have
been hired.” He also argues that, a violation having been
found, he is entitled to back pay as damages, and attorney
fees.

                        DISCUSSION

    Decisions of the Board are reviewed, as provided in 5
U.S.C. §7703, to determine whether the Board’s action,
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). Statutory con-
struction is a question of law, and receives plenary review.
Abell v. Dep't of the Navy, 343 F.3d 1378, 1383 (Fed. Cir.
2003). With respect to attorney fees, “[w]e accord broad
deference to the Board's decision to deny fees [under
USERRA].” Jacobsen v. Dep’t of Justice, 500 F.3d 1376,
1379 (Fed. Cir. 2007). Unlike some other attorney fee
provisions administered by the Board, USERRA section
4324(c)(4) assigns to the Board's discretion the decision
whether to award attorney fees, expert witness fees, and
other litigation expenses. Id. at 1380.
5                                         GRANDBERRY   v. DHS


                             A.

    This court considered the remedy of hiring reconstruc-
tion, under the VEOA, in Marshall v. Department of Health
and Human Services, 587 F.3d 1310 (Fed. Cir. 2009). The
VEOA and the USERRA contain virtually identical remedy
provisions, see 5 U.S.C. §3330c (“the Board or court (as the
case may be) shall order the agency to comply with such
provisions and award compensation for any loss of wages or
benefits suffered by the individual by reason of the violation
involved”); 38 U.S.C. §4324(c)(2) (“the Board shall enter an
order requiring the agency or Office to comply with such
provisions and to compensate such person for any loss of
wages or benefits suffered by such person by reason of such
lack of compliance.”)

     In Marshall the Department of Health and Human Ser-
vices conceded that the department had violated the vet-
eran’s preference rights and that it would have selected him
for the position “but for” the VEOA violation. Id. at 1316.
The sole question then before the Board was “whether
[hiring] reconstruction is the proper remedy under 5 U.S.C.
§3330c when (1) an agency violates a veteran's preference
rights during selection in the competitive service and (2) it
is undisputed that the agency would have selected the
veteran.” 587 F.3d at 1315-16. Because the agency admit-
ted that the veteran would have received the position were
it not for the mistake, the veteran was entitled to compensa-
tion for any loss of wages or benefits due to the violation,
from the date at which he should have been hired. Id. at
1318.

    For Mr. Grandberry, the DHS “strongly disputes” that
he would have been selected for the Adjudicative Officer
position had the error in considering his application not
been made. Appellee’s Br. at 30. According to DHS, the
GRANDBERRY   v. DHS                                        6


FS236771 vacancy announcement required that even “the
highest ranking applicants [ ] take a writing test” before
being awarded the position. Since Mr. Grandberry “had
failed such written exams in the past”, DHS argues that
there was no reasonable certainty that he would have
received the promotion, and therefore that he was properly
required to endure a reconstruction of the hiring process,
despite the errors of DHS in failing to consider his applica-
tions at the proper time.

     Under USERRA §4324 the candidate is entitled to (1)
“an order requiring the agency or Office to comply with
[USERRA] provisions” and (2) lost wages and benefits if the
losses were “by reason of the violation.” See §4324(c)(2). We
agree with the Board that reconstruction of the hiring
process as to Mr. Grandberry satisfied the first entitlement,
for, as stated in Marshall, “reconstruction may be an appro-
priate way to comply in situations where it is unknown
whether a veteran would have been selected for a position.”
Marshall, 587 F.3d at 1316. In view of the uncertainty
before the Board, reconstruction was a reasonable response
to the USERRA violation. The fact of USERRA violation
alone does not automatically require placement in the
disputed position and payment of lost wages. If it is estab-
lished that it was reasonably likely that the veteran would
have received the position but for the agency’s error or
misfeasance, then payment of lost wages and benefits would
be appropriate. The burden of going forward with recon-
struction is on the agency.

    The Board’s decision ordering reconstruction is af-
firmed. 1


    1  Although the agency states in its brief that such re-
construction has been conducted, that aspect is not before
us.
7                                        GRANDBERRY    v. DHS


                             B.

    Mr. Grandberry states that the Board erred in not
awarding attorney fees. We agree that Mr. Grandberry was
a prevailing party at the Board, for he established the
USERRA violation and obtained reconstruction of the hiring
process. Although he did not obtain the full remedy he
requested, he substantially prevailed at the Board.

    DHS points out that Mr. Grandberry had not complied
with the MSPB procedures for requesting attorney fees, of
which he was notified. However, he is not precluded from
proceeding in accordance with the rules. If Mr. Grandberry
wishes to pursue his right to attorney fees, he should direct
his fee request to the Board by filing a motion for fees
pursuant to the applicable Board procedures.

    Each party shall bear its costs of this appeal.

                       AFFIRMED
