NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MICHAEL B. GRAVES,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2014-3159

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-3330-09-0570-X-1.

______________________ 

Decided: July 14, 2015 

______________________ 

MICHAEL B. GRAVES, Carson, CA, pro se. 

WILLIAM PORTER RAYEL, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,

FRANKLIN E. WHITE.

______________________ 

Before PROST, Chief Judge, CLEVENGER, and MOORE,

Circuit Judges.
2 GRAVES v. DVA

PER CURIAM. 

Michael Ben Graves appeals from a July 2014 Final 

Order by the Merit Systems Protection Board (“Board”), 

which concluded that the Department of Veterans Affairs 

(“DVA”) complied with an earlier Final Order. Because 

the Board’s findings were supported by substantial evidence, we affirm.

BACKGROUND

In January 2009, Mr. Graves, a preference eligible 

veteran, applied for a position as a Medical Records 

Technician/Coder (“MRT”) at the DVA’s Long Beach, 

California Healthcare System. The vacancy announcement for the MRT position listed the pay grade as “GS675-4/5/6/7/8.” Graves v. Dep’t of Veterans Affairs, 114 

M.S.P.R. 245, 247 (2010) (“2010 Board Decision”). In 

February 2009, the DVA hired a non-preference eligible 

individual at the GS-8 level. Id. at 248, 252. Mr. Graves

was not hired.

In May 2009, Mr. Graves filed a Veterans Employment Opportunities Act (“VEOA”) appeal of his nonselection for the MRT position. Id. at 247. In an initial 

decision, the administrative judge (“AJ”) found that the 

DVA originally intended to fill two MRT positions, one at 

the GS-6/7/8 level and one at the GS-4/5 trainee level, but 

ultimately filled the higher level position only. Id. at 248. 

After the AJ found against Mr. Graves, the Board found 

that the DVA violated Mr. Graves’s veterans’ preference 

rights. Id. at 252–53. The Board identified two violations

of the veterans’ preference rules. First, the Board explained that the DVA violated 5 U.S.C. § 3317(a) by

considering only a single application for appointment—

not at least three. Id. at 253. Second, the Board found 

that the DVA violated “the pass over process” by failing to 

file written reasons for its decision with the Office of 
GRAVES v. DVA 3

Personnel Management (“OPM”) and by failing to obtain 

the OPM’s approval. Id. The Board instructed the AJ to 

order the DVA to reconstruct the selection process for the 

MRT vacancy in accordance with the veterans’ preference 

requirements. Id. The Board identified five steps that 

must be included in the reconstructed process, three of 

which are relevant in this appeal: 1) the DVA must 

remove the non-preference eligible individual from the 

MRT position; 2) the new certificate of eligibles must 

contain at least three names for appointment; and 3) if 

the DVA wanted to pass over Mr. Graves, it must comply 

with the required “pass over” procedures. Id. 

The Board issued a March 2012 Final Order requiring 

the DVA to reconstruct the selection process for the MRT 

position. Mr. Graves then filed a petition for enforcement 

of this Final Order. In response, the DVA submitted 

several documents, including an unsworn statement from 

the Acting Chief of the Human Resources Service at the 

DVA’s Long Beach facility. It stated that the DVA had 

created separate lists of eligible persons at different grade 

levels for the MRT position, that Mr. Graves qualified 

only at the GS-4 level, that the non-preference eligible 

individual qualified at the GS-8 level, and that the selecting official chose only from the GS-8 level and thus did 

not consider Mr. Graves. 

In August 2013, the Board found that the DVA failed 

to demonstrate it had removed the non-preference eligible 

individual from the MRT position or reconstructed the 

selection process as ordered. A. 18, 59. The Board ordered the DVA to demonstrate it had complied with the 

March 2012 Final Order and to submit a detailed explanation for the DVA’s determination that Mr. Graves was 

not qualified above the GS-4 level. A. 59. The DVA 

submitted documentary evidence showing it had removed 

the non-preference eligible individual from the MRT 

position and appointed her to a “temporary special needs 
4 GRAVES v. DVA

position” while it reconstructed the selection process. 

A. 19. The DVA also submitted a sworn statement from 

the Chief of Health Information Management Service at 

the DVA’s Long Beach facility (“Chief of HIMS”) that she 

compared Mr. Graves’s application with the position 

requirements and determined he did not qualify above the 

GS-4 level. The DVA explained it decided to fill the MRT 

vacancy at the GS-8 level and, because Mr. Graves qualified only at the GS-4 level, it was not required to list him 

on the GS-8 certificate of eligibles. As a result of the 

reconstructed selection process, the DVA reappointed the 

non-preference eligible individual to the MRT position.

In the July 2014 Final Order from which Mr. Graves 

appeals, the Board found the DVA in compliance with the 

March 2012 Final Order. A. 17. The Board found that 

the DVA’s removal, appointment to a “temporary special 

needs position,” and subsequent reappointment of the 

non-preference eligible individual did not invalidate the 

reconstructed selection process. A. 19-20. The Board 

found that the DVA considered Mr. Graves’s relevant 

education, experience, and other qualifications when it 

found him not qualified above the GS-4 level. A. 20-23. 

Because the DVA decided to fill the MRT vacancy at the 

GS-8 level, not GS-4, the Board found that the competitive service rules under 5 U.S.C. §§ 3317 and 3318 and 

the OPM’s “rule of three” and “pass over” requirements 

did not apply. Thus, the Board found the DVA afforded 

Mr. Graves a lawful selection process and dismissed his 

petition for enforcement. Mr. Graves timely appealed. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 

5 U.S.C. § 7703. 

DISCUSSION

We only reverse a final decision of the Board if it is 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; obtained without procedures 
GRAVES v. DVA 5

required by law, rule or regulation having been followed; 

or unsupported by substantial evidence. 5 U.S.C. 

§ 7703(c). Substantial evidence “means such relevant 

evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Consol. Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938).

Mr. Graves argues that the Board made two errors in 

its July 2014 Final Order. First, Mr. Graves argues that 

the DVA improperly assessed his qualifications by determining he was not qualified above the GS-4 level and 

failed to provide a “side-by-side, requirement issue by 

requirement issue” comparison of his resume and application with the requirements “for MRT grades GS-4 and GS5.” Appellant’s Br. 2. Second, Mr. Graves argues that the 

non-preference eligible individual was never removed 

from the MRT position, but rather was reappointed using 

a procedure that did not comply with the OPM’s “rule of 

three” and “pass over” requirements. Id. 

A. Substantial Evidence Supports the Board’s Assessment of Mr. Graves’s Qualifications 

None of the Board’s orders in this case required the 

DVA to provide a “side-by-side, requirement issue by 

requirement issue” comparison of Mr. Graves’s resume 

and application with the requirements for the MRT 

position at the GS-4 and GS-5 levels as Mr. Graves asserts. Rather, the August 2013 order required the DVA 

to: 

Submit a detailed explanation for the agency’s determination that the appellant is not qualified 

above the GS-4 level, including the relevant position description and requirements, the appellant’s 

complete application package, and a written and 

sworn determination by a qualified individual re-
6 GRAVES v. DVA

garding the appellant’s qualifications for each 

grade level advertised.

A. 59. Substantial evidence supports the Board’s finding 

that the DVA complied with this order. See A. 20–23. 

The DVA submitted a sworn statement by the Chief of 

HIMS that she reviewed Mr. Graves’s qualifications and 

determined that his application and resume did not 

demonstrate that he had three of the four knowledge, 

skills, and abilities required for the GS-5 level. For 

example, she determined Mr. Graves’s application did not 

show he had the ability to correctly apply the practical 

knowledge of laws and regulations related to the confidentiality of health information and the release of information from medical records. She acknowledged that Mr. 

Graves had earned a Certified Coding SpecialistPhysician Based Certificate, but noted that it had lapsed 

because Mr. Graves did not complete the required continuing education to maintain it. A. 20–21, 71. The Chief of 

HIMS’s statement indicates that the DVA considered Mr. 

Graves’s relevant education and experience in assessing 

his qualification for the GS-5 level and constitutes substantial evidence in support of the determination that Mr. 

Graves was not qualified above the GS-4 level.1 A. 22. 

On appeal, Mr. Graves argues that the Chief of 

HIMS’s assessment of his qualifications was not objective 

1 Because substantial evidence supports the Board’s 

determination that Mr. Graves is not qualified above the 

GS-4 level, we need not address whether the Board’s role 

in a case such as this “is limited to determining whether 

the hiring agency improperly omitted, overlooked, or 

excluded a portion of the appellant’s experiences or work 

history in assessing his qualifications for the vacancy.” 

A. 22 (citing Miller v. Fed. Deposit Ins. Corp., 121 

M.S.P.R. 88, ¶ 12 (2014)).

 
GRAVES v. DVA 7

or credible and that she was biased against him. Appellant’s Br. 4–5. The Board found otherwise, explaining 

that the Chief of HIMS’s position and her at least six 

years of experience supervising professionals in medical 

health information work qualified her to make such 

determinations, and that she was credible and unbiased. 

A. 21. “[A]n evaluation of witness credibility is within the 

discretion of the Board and . . . , in general, such evaluations are ‘virtually unreviewable’ on appeal.” Kahn v. 

Dep’t of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010). Mr. 

Graves has not presented an argument that merits second-guessing the Board. 

B. Substantial Evidence Supports the Board’s Finding 

that the DVA Removed the Non-Preference Eligible 

Individual From the MRT Position

Following the Board’s August 2013 order, the DVA 

removed the non-preference eligible individual from the 

MRT position, transferring her to a position as a “Secretary.” The DVA submitted a standard OPM form documenting this personnel action to the Board. Nearly one 

month after her removal, the non-preference eligible 

individual was reappointed to the MRT position, as documented by a second standard OPM form the DVA submitted to the Board. In addition to these forms, the DVA 

submitted a sworn statement explaining its actions. 

A. 72–74. The Board’s March 2012 Final Order required 

that the non-preference eligible individual be removed 

from the MRT position at issue; it did not require that she 

be removed from all positions at the DVA. Substantial 

evidence supports the Board’s determination that the 

DVA removed the non-preference eligible individual from 

the MRT position.

The Board did not err in determining that the “rule of 

three” and “pass over” requirements did not apply because 

Mr. Graves was not qualified for the reconstructed MRT
8 GRAVES v. DVA

position. As this Court and the Board have explained, 

“the VEOA does not enable veterans to be considered for 

positions for which they are not qualified.” Lazaro v. 

Dep’t of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 

2012) (citing Ramsey v. Office of Pers. Mgmt., 87 M.S.P.R. 

98, ¶ 9 (2000)). As discussed supra pp. 6–7, Mr. Graves 

was not qualified for the reconstructed MRT position, 

which was limited to the GS-8 level. As the Board found, 

the DVA was in compliance with the March 2012 Final 

Order when it reconstructed a lawful selection process. 

A. 24. 

CONCLUSION

For the foregoing reasons, the judgment of the Board 

is affirmed. 

AFFIRMED

COSTS

No costs.