              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                        is not citable as precedent.

  United States Court of Appeals for the Federal Circuit

                                    04-3373

                             CLEA B. EFTHIMIADIS,

                                                             Petitioner,

                                        v.

                        DEPARTMENT OF THE ARMY,

                                                             Respondent.

                        ___________________________

                        DECIDED: March 14, 2005
                        ___________________________

Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST,
Circuit Judge.

RADER, Circuit Judge.

                               I. INTRODUCTION

      The Merit Systems Protection Board (Board) decided that the Department

of the Army (Army) did not violate veterans’ preference law when it did not select

petitioner Clea B. Efthimiadis for the position of Attorney-Advisor, United States

Army Garrison-Miami. Clea B. Efthimiadis v. Dep’t of Army, No. AT-0330-03-

0349-I-1 (MSPB June 26, 2003) (“Initial Decision”); Clea B. Efthimiadis v. Dep’t

of Army, No. AT-0330-03-0349-I-1 (MSPB May 27, 2004) (Final Order). Because

the Board’s conclusions are supported by substantial evidence, this court affirms

the decision of the Board.
                                II. BACKGROUND

       Ms. Efthimiadis joined the Navy in 1985 and received an honorable

discharge in 1992.     In July 2001, the United States Army South Base Ops

Support, Office of the Commander in Miami, Florida, advertised an available

position in the excepted service as an attorney at the U.S. Army Garrison-Miami,

Florida. The advertisement included a requirement that applicants include a DD-

214 Certificate of Release or Discharge from Active Duty, or equivalent, “if

claiming 5-point veteran preference” or a DD-214, SF-15, and VA/Service

Document certifying service-connected disability” if claiming 10-point Veterans

Preference [sic].”    Ms. Efthimiadis, who was one of twenty-three applicants for

this position, included a DD-214 Certificate with her application.

       The selecting official was Colonel James Willey, Commander, U.S. Army

Garrison-Miami.      Col. Willey sought the help of the Office of the Staff Judge

Advocate of U.S. Southern Command in the selection process. The Staff Judge

Advocate established a three-member panel, including two attorneys, to rank the

candidates and identify the best four or five. In making its recommendations the

panelists considered only legal qualifications, not service or disability history.

Each panel member evaluated the candidates using a numerical matrix system.

Once the reviews were completed, the scores given by each panelist were

averaged and the applications ranked.        Appellant placed ninth in this panel

ranking.

       Col. Willey reviewed the scores for all applicants and decided that only the

five highest-rated individuals would be interviewed by his Deputy, Michael




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Norman. After conducting the interviews, Mr. Norman made recommendations to

Col. Willey, whose choice of the successful candidate was based on several

merit factors relating to legal experience and research and writing skills. The top

four applicants were preference-eligible veterans.      In December, 2001, Col.

Willey selected Victoria Sheffield, who had ranked fourth and was a disabled

veteran, for the position.

        Ms. Efthimiadis subsequently received information regarding the reasons

for her non-selection for the attorney position through a Freedom of Information

Act request related to a concurrent complaint of age discrimination with the Equal

Employment Opportunity Commission.          Because none of the information she

obtained explicitly indicated the application of veterans’ preference during the

selection process, Ms. Efthimiadis then filed a complaint with the Department of

Labor     claiming that the application of veterans’ preference in the selection

process was “unclear,” and asked that an investigation be made as to whether

the Army had “complied with the law.” After an investigation, the Department

notified Ms. Efthimiadis in January 2003 that her claim had no merit. Ms.

Efthimiadis then appealed to the Board, alleging under the Veteran Employment

Opportunities Act of 1998 (VEOA) that her veterans’ preference rights under the

Veterans’ Preference Act of 1944 (VPA) had been violated, and that the Army

had violated 5 C.F.R. § 301.010(c) (2000) by not providing her with the reason

she was not selected. She also argued, citing 5 C.F.R. § 302.101(c), that the

application of the principle of veterans’ preference in attorney hiring had

improperly been left to the Army’s discretion by the Office of Personnel




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Management (OPM). In its Initial Decision, the Board administrative judge found

no violation of Ms Efthimiadis’s veterans’ preference rights..       Regarding the

propriety of OPM’s regulations, the Board found “that the Army has the discretion

to determine the procedure that it will follow in filling such positions so long as

they do not deprive a preference eligible of an opportunity to compete for the

position” (citing Ramsey v. Office of Pers. Mgmt., 87 M.S.P.R. 98, ¶ 9 (2000)

(plain language of VEOA statute only prohibits the Army from denying a

preference eligible or veteran the opportunity to compete)). Furthermore, the

Board found that 5 C.F.R. § 302.101(c) “does not require the Army to apply the

procedures to positions which have been expressly exempted by the regulations,

even if by doing so the appellant would have gained an advantage.” Cf. Whitney

v. Dep’t of Army, 92 M.S.P.R. 423, ¶ 10 (2002) (actions taken under merit

promotion plan are not subject to veterans’ preference). Thereafter, the Board

issued a Final Order, denying Ms. Efthimaidis’ petition for review and upholding

the Initial Decision as final. This appeal followed.

                                   III. Analysis

       This court affirms a decision of the Board unless it is arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000); Marino v.

Office of Pers. Mgmt., 243 F.3d 1375 (Fed. Cir. 2001).

       Ms. Efthimiadis alleges generally a violation of her veterans’ rights under

VPA, and brings her claim under VEOA, which creates a right of redress for




04-3373                                  4
actions taken after October 30, 1998 that violate an individual’s veterans’

preference rights. 5 U.S.C. § 3330a(a) and (d) (2000); see also Campion v. Merit

Sys. Prot. Bd., 326 F.3d 1210 (Fed. Cir. 2003).

       People may be employed in the Army in the “competitive service” or the

“excepted service.”      Veterans eligible for preferences are defined in 5 U.S.C.

§ 2108(3) (2000) as “preference eligible” and in the competitive service, five

points may be added to added to a veteran’s quantitative total, and ten to a

disabled veteran’s total, in an evaluation for a position.        5 U.S.C. § 3309(1)

(2000) and 5 C.F.R. § 337.101(b) (2000).

       Ms. Efthimiadis argued to the Board that, as a preference-eligible veteran,

points should have been given to her during the evaluation of her application.

Initial Decision, slip op. at 2. However, such a specific preferential method is not

required in the excepted service.      Section 5 of the C.F.R. 302.101(c)(9) states

that for     attorney positions,   “the principle of veteran preference [should be

followed] as far as administratively feasible . . . :” The legislative history of the

       The Board’s final judgment must be sustained if this court determines that

substantial evidence supports the Board’s conclusion that the Army has proven

its case by a preponderance of the evidence. See 5 U.S.C. § 7703(c); see also

5 C.F.R. § 1201.56(a)(1)(ii) (2004); Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,

620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). This court finds, by a preponderance

of the evidence, that substantial evidence supports the Board’s decision that the

Army did follow “the principle of veteran preference as far as administratively

feasible.”




04-3373                                    5
        The VPA establishes veterans’ preference in 5 U.S.C § 1302 (2000),

stating that “preference shall be given to preference eligibles . . . in appointment

. . . in the excepted service.” The legislative history of VPA supports a flexible,

nonprocedural standard for attorney hiring practices. see, e.g., Report of the

President’s Committee on Civil Service Improvement, H. Doc. 118, 77th Cong., 1st

Sess.

In discussing the relationship of § 302.101(c) to Ms. Efthimiadis’s case,         the

Board stated, “In sum, the agency complies with the law by considering a

preference eligible’s service as a positive factor in her application, even if it does

not assign points to veterans in ranking applicants for attorney positions.” Initial

Decision, slip op. at 3. The Board did not, however, cite any explicit evidence in

the record that shows the Army viewed Ms. Efthimiadis’s veterans’ preference

eligibility (or that of any other candidate) as a “positive factor.” Ms. Efthimiadis

was ranked ninth during the selection process; like her, the top four candidates

were also preference-eligibles. The application of the principle of veterans’

preference to Ms. Efthimiadis would not have changed her position in relation to

the top four candidates during the selection process. Therefore, Ms. Efthimiadis

was not harmed by the ultimate decision. See 5 C.F.R. § 1201.56(c)(3) (2004)

(definition of harmful error); see also 5 U.S.C. § 7701(c)(2)(A) (2000).

        Because the Initial Decision of the Board is supported by substantial

evidence, the decision of the Board is affirmed.




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