Michael B. Graves v. Department of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

MICHAEL B. GRAVES,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.

2011-3095

Petition for review of the Merit Systems Protection
Board in case no. SF3330100617-I-1.

MICHAEL B. GRAVES,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.

2011-3099

<!-- PageBreak -->

<!-- PageHeader="GRAVES v. VA" -->

## Petition for review of the Merit Systems Protection Board in case no. SF3330100696-I-1.

### ON MOTION

Before GAJARSA, MAYER, and PROST, Circuit Judges.
PER CURIAM.

### ORDER

In case no. 2011-3095, Michael B. Graves submits mo-
tions requesting, inter alia, "stay and retraction" of vari-
ous actions and requesting an order to direct the
Department of Veterans Affairs and the Merit Systems
Protection Board to comply with Baird v. Army, 517 F.3d
1345 (Fed. Cir. 2008). The respondent opposes. In case
no. 2011-3099, Graves also submits several motions
requesting, inter alia, a stay of agency action, to direct the
service of the certified list, to immediately file his brief,
and to find the Clerk of the Board, the Clerk of this court,
and the Department of Justice in contempt. The respon-
dent opposes the motions to stay and moves to dismiss
2011-3099. Graves opposes dismissal and moves to strike
the respondent's motion.

In 2011-3095, Graves seeks this court's review of the
administrative judge's decision that denied a request for
corrective action under the Veterans Employment Oppor-
tunities Act of 1998 (VEOA) and the Board's order that
denied his petition for review of that administrative
judge's decision. Without fully briefing the matter,
Graves requests this court to direct the Department of
Veterans Affairs to not appoint non-veterans to positions
pending resolution of his case. Graves also seeks to
compel the Board to grant his requests for discovery. We
determine that Graves has not shown entitlement to the

<!-- PageBreak -->

<!-- PageHeader="GRAVES v. VA" -->

relief he seeks by motion and that arguments concerning
the merits of 2011-3095 should be placed in the parties'
briefs.

Case no. 2011-3099 arose out of a separate VEOA ap-
peal. In that case, the administrative judge dismissed the
appeal without prejudice to refiling. While a petition for
review was pending before the Board, the Chief Adminis-
trative Judge refiled the appeal and assigned it to herself
for resolution. The Board then ordered that the case be
forwarded the appeal back to the regional office to be
adjudicated.

The Department argues that the Board's order for-
warding the appeal back to the regional office is not a
final decision and cannot be reviewed at this time. In
Weed v. Social Sec. Admin., 571 F.3d 1359 (Fed. Cir.
2009), this court held that a Board order forwarding an
appeal to a regional office was not immediately appeal-
able. We noted that the case was not finally adjudicated
and the decision of the Board did not dispose of the entire
action. This court dismissed that petition for lack of
jurisdiction.

Here, Graves also seeks this court's review of an order
forwarding the matter back to the regional office for
adjudication of his case. We agree with the respondent
that the order is not a final order or decision. When the
Board issues a final decision or order that disposes of the
entire action, Graves may then seek review if that deci-
sion or order is adverse to him.

Concerning Graves' motion for contempt and his other
various motions, Graves has not shown that his requested
relief is appropriate. To the extent that Graves may or
may not have received the Board's certified lists, we
attach to this order a copy of the Board's certified lists in
these two cases.

Accordingly,

<!-- PageBreak -->

<!-- PageHeader="GRAVES v. VA" -->

IT IS ORDERED THAT:

(1) Graves's motions are denied. The clerk may now
file Graves's brief in 2011-3095. The Department's brief
in 2011-3095 is due within 30 days of this order.

(2) The Department's motion to dismiss 2011-3099 is
granted.

(3) Each side shall bear its own costs in 2011-3099.

(4) All other pending motions in 2011-3099 are moot.

FOR THE COURT

MAY 26 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Michael B. Graves (Copies Of Certified Lists In 2011-
3095, 2011-3099 Enclosed)
Daniel B. Volk, Esq.

s8

ISSUED AS A MANDATE (as to 2011-3099 only):
MAY 26 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 2 6 2011

JAN HORBALY
CLERK