       NOTE: This disposition is nonprecedential.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 Litiga-
tion Branch, United States Department of Justice, Wash-
ington, 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 documenta-
tion he had previously submitted.
    Mr. Russell filed a Veterans Employment Opportuni-
ties 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 appro-
priate 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 deter-
mination that he was not qualified for the position. He
pointed to evidence indicating that the agency had previ-
ously 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 quali-
fied for the job.
    In July 2013, the Board found that DHHS had not ad-
equately explained the inconsistency of why it appeared
to have found Mr. Russell qualified in the original pro-
cess, 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 oppor-
tunity 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 explana-
tion 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 Au-
gust 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 sub-
mitted 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 qualifica-
tions 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 recon-
struction hiring process was improper, that he was enti-
tled 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, reconstruc-
tion 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 uncer-
tainty 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 pass-
over 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 neces-
sary 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 reconstruct-
ed process, DHHS found Mr. Russell unqualified. As a
result, its decision that he was not one of the three high-
est-ranking eligible candidates is supported by substan-
tial 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 Middle-
brooks 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 affirm-
ing 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 un-
qualified 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 admin-
istering workforce assessment tools such as sur-
vey/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 special-
ized 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 veter-
ans to be considered for [employment] positions for which
they are not qualified.” Lazaro v. Dep’t of Veterans Af-
fairs, 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 pur-
pose 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 incon-
sistencies 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.
