Graves v. Department of the Air Force , 494 F. App'x 68 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MICHAEL B. GRAVES,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2012-3128
__________________________
Petition for review of the Merit Systems Protection
Board in case no.SF3330100696-I-3.
__________________________
Decided: September 10, 2012
__________________________
MICHAEL B. GRAVES, Carson, California, pro se.
DANIEL B. VOLK, 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 DONALD
R. KINNER, Assistant Director.
__________________________
GRAVES v. AIR FORCE 2
Before DYK, CLEVENGER, and WALLACH, Circuit Judges.
CLEVENGER, Circuit Judge.
The petitioner, Michael B. Graves, appeals the final
order of the Merit Systems Protection Board (“Board”)
denying his petition for review. Graves v. Dep’t of the Air
Force, No. SF-3330-10-0696-I-3, 2012 MSPB LEXIS 1157
(M.S.P.B. Mar. 2, 2012). Since we find no error in the
Board’s decision, we affirm.
I
Mr. Graves is a Vietnam veteran and has a twenty
percent service-related disability. In 2009, Mr. Graves
submitted applications for a medical records technician
(“MRT”) position in response to several vacancies posted
in vacancy announcement AFPC236837GS-675-03-07MD
(“the AFPC236837 announcement”) issued by the Air
Force. However, Mr. Graves was not selected for any of
the positions filled under the AFPC236837 announce-
ment, and he appealed his non-selection to the Board.
The Board determined that the Air Force did not violate
Graves’s veterans’ preference rights. Graves v. Dep’t of
the Air Force, No. SF-3330-09-0383-I-1, 2009 MSPB
LEXIS 5601 (M.S.P.B. Aug. 14, 2009); Graves v. Dep’t of
the Air Force, No. SF-3330-09-0383-I-1, 2009 MSPB
LEXIS 7054 (M.S.P.B. Oct. 8, 2009). In this proceeding,
the Board determined that Mr. Graves’s challenges to
positions filled under the AFPC236837 announcement
had been resolved by his prior case and were not at issue
here. Graves v. Dep’t of the Air Force, No. SF-3330-10-
0696-I-3, 2011 MSPB LEXIS 6467 (M.S.P.B. Nov. 15,
2011) (“Initial Decision”).
This case involves the approximately four dozen MRT
positions that the Air Force filled under vacancy an-
nouncements other than the AFPC236837 announcement
3 GRAVES v. AIR FORCE
in 2009 and 2010. The agency did not consider Mr.
Graves for any of these positions. Mr. Graves argues that
the Air Force has violated his veterans’ preference rights
by not keeping his 2009 applications on file and consider-
ing him for each vacancy arising during the three years
following his 2009 applications. The Board determined
that it possessed jurisdiction to entertain Mr. Graves’s
claim under the Veterans Employment Opportunities Act
of 1998 (“VEOA”); however, the Board determined that
Mr. Graves had not submitted an application in response
to the vacancy announcements that are the subject of this
appeal. Initial Decision at *14. Next, the Board deter-
mined that the Air Force had no obligation to keep Mr.
Graves’s previous applications on file for three years. The
Board noted that Mr. Graves did not “identif[y] any
provision of the United States Code or the Code of Federal
Regulations that would have required the agency to keep
his AFPC236837 application in a special file and to con-
sider it for future MRT vacancies not filled through that
announcement.” Id. at *15.
Before the Board, Mr. Graves’s argument appears to
have been based on a section of the Office of Personnel
Management’s (“OPM’s”) VetGuide about a veteran’s right
to file a late application for certain vacancies, which
states:
A 10-point preference eligible may file a job appli-
cation with an agency at any time. If the applicant
is qualified for positions filled from a register, the
agency must add the candidate to the register,
even if the register is closed to other applicants. If
the applicant is qualified for positions filled
through case examining, the agency will ensure
that the applicant is referred on a certificate as
soon as possible. If there is no immediate opening,
the agency must retain the application in a special
GRAVES v. AIR FORCE 4
file for referral on certificates for future vacancies
for up to three years.
OPM, VetGuide,
http://www.opm.gov/staffingportal/vetguide.asp. The
basis for Mr. Graves’s argument before the Board seems
to be the last sentence, which states: “If there is no imme-
diate opening, the agency must retain the application in a
special file for referral on certificates for future vacancies
for up to three years.” The Board, which assumed that
the VetGuide was a statute or regulation enforceable to
the Board under the VEOA, stated that Mr. Graves had
not shown a violation. Initial Decision, at *14-15. The
Board stated that Mr. Graves’s situation did not involve a
late-filed application, but rather his timely submission of
an application for an announced vacancy for which he was
not accepted. The Board found that “[b]ecause the agency
did in fact consider [Mr. Graves] for at least some of the
vacancies for which he timely applied, the VetGuide
provision did not require the agency to hold his applica-
tion on file for future vacancies.” Id. at *15. Thus, the
Board concluded that the Air Force did not violate Mr.
Graves’s veterans’ preference rights under the VEOA by
failing to consider him for positions for which he did not
apply.
The Board also addressed Mr. Graves’s requests for
discovery. Mr. Graves sought discovery over factual
information such as how the Air Force announced vacan-
cies and how it filled them, which the Board allowed.
However, the Board did not allow Mr. Graves to discover
information “about, for example, the race and age of each
individual hired to an MRT position and the agency’s
affirmative-action plan.” Id. at *21. The Board rejected
Mr. Graves’s request for this discovery because it found
the information was not relevant to Mr. Graves’s VEOA
claim.
5 GRAVES v. AIR FORCE
Mr. Graves filed a petition for review by the full
board, which was denied. This appeal followed. This
court has jurisdiction over appeals from final decisions of
the Board. 28 U.S.C. § 1295(a)(4). As to Mr. Graves’s
VEOA argument, our task is to determine whether the
Board’s decision was arbitrary, capricious, an abuse of
discretion, not in accordance with the law, or unsupported
by substantial evidence. 5 U.S.C. § 7703(c); Sandel v.
Office of Pers. Mgmt., 28 F.3d 1184, 1186 (Fed. Cir. 1994).
If not, then we must affirm the final ruling of the Board.
As to Mr. Graves’s discovery argument, we review the
Board’s discovery rulings for abuse of discretion. Curtin
v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir.
1988). “If an abuse of discretion did occur with respect to
the discovery and evidentiary rulings, in order for peti-
tioner to prevail on these issues he must prove that the
error caused substantial harm or prejudice to his rights
which could have affected the outcome of the case.” Id. at
1379.
II
On appeal, Mr. Graves argues that the Board erred
by: (1) violating his due process rights by denying his
discovery attempts contrary to Baird v. Department of the
Army, 517 F.3d 1345 (Fed. Cir. 2008), and (2) finding that
he had not shown a VEOA violation, and thereby dismiss-
ing his VEOA claim.
A
First, Mr. Graves argues that the Board erred by re-
fusing his discovery requests and cites Baird, 517 F.3d
1345, in support. However, Mr. Graves makes only vague
assertions regarding the discovery he seeks, and he fails
to establish how any alleged discovery error could have
caused “substantial harm or prejudice to his rights which
could have affected the outcome” in this case. Curtin, 846
GRAVES v. AIR FORCE 6
F.2d 1379. Also, unlike in Baird, in which the petitioner
filed two motions to compel discovery concerning emails
directly related to her claims, in this case, Mr. Graves
seeks discovery of information that is not relevant to his
VEOA claim. Accordingly, Mr. Graves cannot show that
the Board abused its discretion in denying his discovery
requests.
B
Second, Mr. Graves apparently claims that the Board
erred in dismissing his VEOA claim. Mr. Graves makes
vague reference to this source of error in his opening brief,
but he more succinctly states the source of error in his
reply brief, stating that the agency was “required by
statute and regulations to maintain qualified disabled
veteran Graves’ application in a special file for considera-
tion” for “each and all of the subsequent MRT job vacan-
cies which became open during the subsequent three
years.” Reply Brief, at 2. Since this court liberally con-
strues pro se pleadings, we think that Mr. Graves has
preserved his argument that the Board erred by finding
no VEOA violation. See Hughes v. Rowe, 449 U.S. 5, 9-10
(1980); Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir.
2002) (en banc).
Nonetheless, the Board did not err in finding that Mr.
Graves failed to show a violation of the VEOA. We need
not reach the issue of whether the VetGuide is a statute
or regulation enforceable under the VEOA. For the
purpose of deciding this appeal, we assume that the
VetGuide is enforceable. Under the clear language of the
relevant VetGuide provision, an agency is only required to
retain an application in a special file when “there is no
immediate opening” for a position. Here, in contrast, Mr.
Graves filed a timely application for open positions. The
agency considered Mr. Graves for at least some of the
7 GRAVES v. AIR FORCE
vacancies for which he applied, so the VetGuide provision
did not require the agency to hold his application on file
for future vacancies. As such, the Board’s decision is not
an abuse of discretion and is supported by substantial
evidence
III
For the reasons discussed above, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.