       NOTE: This disposition is nonprecedential.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 represent-
ed 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 evi-
dence, 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 announce-
ment for the MRT position listed the pay grade as “GS-
675-4/5/6/7/8.” 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 Employ-
ment Opportunities Act (“VEOA”) appeal of his non-
selection 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 ex-
plained 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 select-
ing 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 or-
dered the DVA to demonstrate it had complied with the
March 2012 Final Order and to submit a detailed expla-
nation 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 quali-
fied 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 competi-
tive 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 deter-
mining 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 applica-
tion with the requirements “for MRT grades GS-4 and GS-
5.” 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 As-
           sessment 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 as-
serts. Rather, the August 2013 order required the DVA
to:

   Submit a detailed explanation for the agency’s de-
   termination that the appellant is not qualified
   above the GS-4 level, including the relevant posi-
   tion 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 confi-
dentiality of health information and the release of infor-
mation from medical records. She acknowledged that Mr.
Graves had earned a Certified Coding Specialist-
Physician Based Certificate, but noted that it had lapsed
because Mr. Graves did not complete the required contin-
uing 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 sub-
stantial 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. Appel-
lant’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 evalua-
tions 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 sec-
ond-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 “Secre-
tary.” The DVA submitted a standard OPM form docu-
menting this personnel action to the Board. Nearly one
month after her removal, the non-preference eligible
individual was reappointed to the MRT position, as docu-
mented by a second standard OPM form the DVA submit-
ted 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.
