Graves v. Department of the Navy , 534 F. App'x 942 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL B. GRAVES,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2013-3077
______________________
Petition for review of the Merit Systems Protection
Board in No. SF3330100788-X-1.
______________________
Decided: August 9, 2013
______________________
MICHAEL B. GRAVES, of Carson, California, pro se.
RYAN M. MAJERUS, 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, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
DEBORAH A. BYNUM, Assistant Director.
______________________
Before RADER, Chief Judge, LOURIE and PROST, Circuit
Judges.
2 MICHAEL GRAVES v. NAVY
PER CURIAM.
Michael B. Graves appeals pro se from the final deci-
sion of the Merit Systems Protection Board (the “Board”)
dismissing his petition for enforcement regarding his
claim that the Department of the Navy (the “Navy”) had
failed to comply with an earlier order from the Board with
respect to his rights under a provision of the Veterans
Employment Opportunity Act of 1998 (“VEOA”), 5 U.S.C.
§ 3330a. Graves v. Dep’t of the Navy, No. SF-3330-10-
0788-X-1 (M.S.P.B. Dec. 27, 2012) (Final Order) (“Graves
IV”). Because the Board’s decision was supported by
substantial evidence, not arbitrary and capricious, and
not an abuse of discretion, we affirm.
BACKGROUND
Graves is a Vietnam veteran with a 20% service-
connected disability. Graves has filed a number of ap-
peals from the Board to this court over the years. See
Graves v. Dep’t of the Navy, No. 2012-3128, 494 F. App’x
68 (Fed. Cir. 2012) (unpublished); Graves v. Dep’t of the
Navy, No. 2011-3150, 451 F. App’x 931 (Fed. Cir. 2011)
(unpublished); Graves v. Dep’t of Veterans Affairs, No.
2011-3095, 425 F. App’x 897 (Fed. Cir. 2011) (un-
published); Graves v. Dep’t of the Air Force, No. 2011-
3099, 424 F. App’x 957 (Fed. Cir 2011) (unpublished); In
re Graves, Nos. 2011-M988, -M991, 447 F. App’x 225 (Fed.
Cir. 2011) (unpublished). Similar to his other prior Board
appeals, this appeal deals with Graves’s applications for
employment submitted to multiple agencies in response to
medical records technician (“MRT”) vacancies. At the
time of his applications, Graves had a total of ten months
of medical coding experience (nine prior to completing an
American Health Information Management Association
(“AHIMA”) Certified Coding Specialist–Physician Based
course with one month post-certification work as a “cod-
er”) and one year and nine months of work as a medical
claims examiner.
MICHAEL GRAVES v. NAVY 3
On March 11, 2009, and in response to Open and Con-
tinuous Announcement (OCA) DON-0675, the Navy
received applications from Graves for a number of MRT
positions in several geographic locations, including for
GS-04 and GS-05 level positions in San Diego, California.
Graves indisputably met the minimum qualifying criteria
for the GS-04 MRT positions. However, the GS-04 MRT
positions also required, as “highly qualifying” criteria,
knowledge of medical records and medical terminology.
The GS-05 MRT position required, as a minimum qualifi-
cation, one year of specialized experience as a MRT
equivalent to at least a GS-04 MRT position. Graves was
not selected for any of the positions.
On June 21, 2010, Graves filed a complaint with the
Department of Labor (the “DOL”), alleging that the Navy
violated his veterans preference rights by not considering
him for positions under the three vacancy announce-
ments. As the vacancy announcements were still open,
DOL notified Graves that he was not eligible for redress
under the VEOA and notified him of his right to appeal to
the Board. Graves then appealed to the Board, claiming a
violation of his VEOA rights and seeking corrective action
and reconsideration. In addition, Graves alleged that the
Navy violated his VEOA rights by filling 158 unidentified
MRT vacancies, which he learned of through a Freedom of
Information Act request.
On October 22, 2010, the administrative judge (“AJ”)
granted in part and denied in part Graves’s request.
Graves v. Dep’t of the Navy, No. SF-3330-10-0788-I-1
(M.S.P.B. Oct. 22, 2010) (Initial Decision) (Graves I). The
AJ declined to reach an alleged violation of Graves’s
VEOA rights for 158 MRT vacancies that were not ap-
pealed to DOL, determining that the Board lacked juris-
diction over those claims. Id. at 17. However, the AJ
ordered the Navy to take corrective action to determine
whether Graves was qualified for the GS-04 and GS-05
MRT positions, to reconstruct the selection process for the
positions for which he was qualified, and to afford him the
4 MICHAEL GRAVES v. NAVY
right to compete for those positions. Id. at 22–24. Graves
petitioned for review of the AJ’s initial decision.
On April 30, 2012, the Board issued a final order
denying Graves’s petition for review. Graves v. Dep’t of
the Navy, No. SF-3330-10-0788-I-1 (M.S.P.B. April 30,
2012) (Final Order) (Graves II). The Board affirmed the
initial decision with respect to the OCA DON-0675 posi-
tions in San Diego and also concluded that the AJ had not
abused his discretion in denying Graves additional dis-
covery with respect to the 158 MRT positions and that the
initial decision was not unenforceable for not establishing
a deadline for compliance. Id. at 5–6. The Board for-
warded the AJ the remaining compliance issues, requiring
the Navy to show that it had determined whether Graves
was qualified for the GS-04 and GS-05 MRT positions in
San Diego and to retain his application until March 10,
2012, for those positions for which he was qualified. Id. at
6. Graves did not appeal that final Board decision. 1
On August 29, 2012, after reviewing the compliance
issues forwarded by the Board, the AJ issued a “recom-
mended” decision that found that the Navy had complied
with most of the Board’s order based on declarations
submitted by the Navy. Graves v. Dep’t of the Navy, No.
SF-3330-10-0788-C-1 (M.S.P.B. Aug. 29, 2012) (Recom-
mendation) (Graves III). The AJ found that the Navy was
not required to reconstruct its selection process for either
1 Graves had also submitted applications for MRT
positions in Newport, Rhode Island (NEOA-0675-04-
GROOO883-DE), and Camp Pendleton, California (SWO-
0675-08-PD7098681-DE), which he included in his initial
appeal to the Board. Graves I, at 17. The Board subse-
quently dismissed his appeal with respect to those claims
for lack of jurisdiction for failure to exhaust his DOL
remedies. Graves II, at 3–4. Graves did not appeal that
dismissal.
MICHAEL GRAVES v. NAVY 5
the GS-05 or GS-04 MRT positions under OCA DON-0675
because Graves was not minimally qualified for the GS-05
MRT vacancies as he did not have one year of specialized
experience equivalent to a GS-04 MRT position and did
not meet the “highly qualifying” criteria for the GS-04
MRT vacancies under OCA DON-0675 as he lacked
knowledge of medical records and medical terminology.
Id. at 5–7. The AJ found that the Navy was not in full
compliance only because it failed to demonstrate that it
had considered Graves’s application for vacancies filled
prior to the October 22, 2010, initial decision. Id. at 7–8.
The AJ then ordered the Navy to address this oversight.
Id. at 8.
Graves filed a petition for review challenging the AJ’s
recommendation on compliance, arguing that he was
qualified for the contested vacancies because he was
certified as a coding specialist by AHIMA. The Navy filed
its response to the AJ’s recommendation discussing the
pre-October 22, 2010, vacancies.
The Board, reviewing the AJ’s recommendation and
the Navy’s response, issued its final order, finding the
Navy in compliance with the AJ’s August 2012 recom-
mendation and dismissing Graves’s petition. Graves IV,
at 2. The Board concurred with the AJ’s determination
that Graves did not meet the “highly qualifying” criteria
for the two GS-04 MRT positions under OCA DON-0675
regarding knowledge of medical records and medical
terminology despite his coding experience and AHIMA
certification. Id. at 6–8. The Board also agreed with the
AJ that Graves was not minimally qualified for the two
GS-05 MRT positions under OCA DON-0675 because he
did not have one year of specialized experience. Id. at 8–
9. Thus, the Board noted, the Navy was not required to
reconstruct the selection process for the two GS-04 MRT
positions or the two GS-05 MRT positions.
Graves appealed to this court. We have jurisdiction
pursuant to and 28 U.S.C. § 1295(a)(9).
6 MICHAEL GRAVES v. NAVY
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). We
review the Board’s discovery rulings for abuse of discre-
tion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378
(Fed. Cir. 1988).
Graves argues that the Navy failed to consider his
AHIMA coding certification, alleging that this certifica-
tion demonstrated that Graves had more than the mini-
mum required knowledge for MRT vacancies at both
grades GS-04 and GS-05. Graves also asserts that the
Navy failed to apply the so-called “rule of three” and “pass
over” requirements. In addition, Graves argues, as he did
in prior appeals, see, e.g., Graves, 494 F. App’x at 71;
Graves, 451 F. App’x at 934; Graves, 424 F. App’x at 957–
58, that the Board abused its discretion in refusing him
additional discovery in violation of Baird v. Department of
the Army, 517 F.3d 1345 (Fed. Cir. 2008) and his Due
Process rights. Graves also contends that the Board
failed to follow the procedural requirements of 5 C.F.R.
§ 1201.183 in response to his petition for enforcement and
that the Navy’s failure to respond to his “application for
enforcement” filed with this court renders the appeal
moot. Finally, Graves argues that the Navy’s informal
brief was untimely served and filed.
First, in considering whether Graves was qualified for
the GS-04 and GS-05 MRT positions under OCA DON-
0675, the Board did acknowledge his coding experience
and AHIMA certification. Graves IV, at 6–7; Graves III,
at 5–6. The Board reviewed Graves’s resume, the vacancy
announcement, and the qualification standards, which
required “a practical knowledge of medical records” and
MICHAEL GRAVES v. NAVY 7
“medical terminology.” Graves IV, at 6–7. But the Board
found that that certification and experience was insuffi-
cient for the two levels of positions because he still lacked
experience with or knowledge of medical records or medi-
cal terminology and did not have one year of specialized
experience equivalent to a GS-04 MRT position. Id. at 6–
10. As a consequence, the Board, deferring to the Navy’s
determinations, found that, although minimally qualified,
he did not meet the “highly qualifying” criteria required
by the agency for the GS-04 MRT positions nor did he
meet the minimum requirements for the GS-05 MRT
positions. Id. We see no error in those determinations.
Second, Graves’s “rule of three” and “pass over” re-
quirement arguments are likewise without merit. The
“rule of three” is based on an Office of Personnel Man-
agement regulation that provides that an applicant who
has been rejected three times for a position need not be
considered for the same position again. See Lackhouse v.
Merit Sys. Prot. Bd., 773 F.3d 313, 316 (Fed. Cir. 1985).
The “pass over” rule applies when an agency proposes to
pass over a preference-eligible veteran on a certificate to
select a person who is not preference eligible. 5 U.S.C.
§ 3318(a), (b)(1); Dow v. Gen. Servs. Admin., 590 F.3d
1338, 1339–40 (Fed. Cir. 2010). Graves does not explain
how either rule is relevant to this case. Indeed, neither
rule appears implicated in this case because Graves was
not rejected three times or passed over. Instead, he was
simply ineligible for employment in the first place due to
his lack of qualifications.
Third, turning to Graves’s assertions that the AJ de-
nied him additional discovery in violation of Baird and
Graves’s Due Process rights, Graves failed to file a motion
to compel during the compliance proceedings at issue in
this appeal; thus there is nothing to review. At best, the
record shows that, during his initial appeal, the AJ denied
a motion to compel discovery filed by Graves for failing to
comply with the requirements of 5 C.F.R. § 1201.73,
which is not currently before us. Graves v. Dep’t of the
8 MICHAEL GRAVES v. NAVY
Navy, No. SF-3330-10-0788-I-1 (M.S.P.B. July 19, 2010)
(Order). There is no indication in the record of the sub-
stance of this motion to compel. The AJ only noted that
the motion to compel lacked the required response from
the Navy and statement that Graves met and conferred
with opposing counsel, and, instead, only contained
conclusory statements of relevancy and materiality. Id. at
2. However, Graves chose not to appeal the April 30,
2010, final decision of the Board reviewing that determi-
nation. And, unlike in Baird, Graves does not identify
what discovery has been denied or what evidence is
missing from the record, nor does he establish how any
alleged discovery error could have caused substantial
harm or prejudice to his rights that could have affected
the outcome in this case. See Baird, 517 F.3d at 1351;
Curtin, 846 F.2d at 1379. Instead, what is clear from the
record is that there is no evidence that Graves, at any
point, filed a proper motion to compel. Thus, on the
record before us, we cannot conclude that the Board
abused its discretion in denying Graves’s discovery re-
quest or that Graves’s Due Process rights were violated.
Fourth, Graves alleges that the Board and the Navy
failed to follow 5 C.F.R. § 1201.183 (Procedures for pro-
cessing petitions for enforcement). Graves, however,
offers no specific allegations of how the Board or the Navy
violated this regulation. That regulation requires an
agency accused of non-compliance to come forward with
evidence of compliance. Id. As far as can be determined
from the record, the Navy provided ample evidence of
compliance in the form of multiple declarations in compli-
ance with 5 C.F.R. § 1201.183. Graves IV, at 4–5, 6, 8;
Graves III, at 2–3, 5–7.
Fifth, Graves argues in his briefing that the Board de-
cision is “moot” because the Navy failed to answer his
“application for enforcement” pursuant to Fed. R. App.
Proc. 15(b), filed with this court on February 20, 2013.
Rule 15(b) allows an applicant to seek to enforce an
agency order to which the respondent has 21 days to file
MICHAEL GRAVES v. NAVY 9
and to serve an answer on the applicant. If the respond-
ent fails to answer in time, the court enters judgment
against them pursuant to Rule 15(b)(2). In his February
2013 filing, Graves alleged, as he does in the merits
briefing, that the Board failed to consider his AHIMA
certification, failed to apply the “rule of three” and “pass
over” requirements, violated his due process rights, and
failed to follow 5 C.F.R. § 1201.183. He subsequently filed
a related motion for relief on March 14, 2013, alleging
that because the government failed to respond to his
application, judgment should be entered against it under
Rule 15(b)(2). In denying his motion, we noted that
Graves had filed a petition for review of the Board’s
December 27, 2012, final order and that, to the extent he
is arguing the merits of his case, such arguments belong
in his briefs on the merits of his petition for review.
Graves v. Dep’t of the Navy, No. 2013-3077 (Fed. Cir. June
13, 2013), ECF No. 18 (Order). However, in his briefing,
Graves does not identify any order that he wishes to
actually enforce. The February 20, 2013, filing, in sub-
stance, only sought to review, not to enforce, the Board’s
December 2012 decision. The underlying merits argu-
ments, now properly presented in the merits briefing for
his petition for review, have already been addressed.
Finally, Graves argues in his reply that the Navy
failed to file and serve its informal brief within 21 days of
service of his informal brief as required by Fed. R. App.
P. 31(e)(2) (requiring service within 21 days after peti-
tioner’s informal brief is served). Graves served his brief
on April 8, 2013, delivered a few days later. The Navy
served its response 24 days after that service on May 2,
2013. While this is outside the 21-day time period in
Rule 31(e)(2), Fed. R. App. P. 26(c) allocates an additional
3 days when a party must act within a specified time after
service and the paper was not delivered on the date of
service, just as in this case. Thus, the Navy’s brief was
timely served and filed within the extended 24-day service
window.
10 MICHAEL GRAVES v. NAVY
We have considered Graves’s remaining arguments
and do not find them persuasive. We find no error in the
Board’s well-reasoned decision. Accordingly, we affirm.
AFFIRMED