Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1061

CARLOS ALMODOVAR,

Plaintiff, Appellant,

v.

DENIS RICHARD MCDONOUGH, Secretary, United States Department of Veteran Affairs,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Talwani,* District Court Judge.

Robert F. Stone for appellant. Katelyn E. Saner, Assistant United States Attorney, with whom Donald E. Clark, Acting United States Attorney, and John G. Osborn, Assistant United States Attorney, were on brief, for appellee.

December 13, 2021

* Of the District of Massachusetts, sitting by designation. KAYATTA, Circuit Judge. Carlos Almodovar alleges that,

in 2016, he was unlawfully passed over for a position within the

Maine Healthcare System of the U.S. Department of Veterans Affairs

(the "VA") both due to discrimination based on his gender and

disability status and in retaliation for reporting past

discrimination.1 The district court granted summary judgment to

the VA. Almodovar raises, in essence, two arguments on appeal,

but the first was untimely and he failed to exhaust the second.

Accordingly, we now affirm.

First, Almodovar complains that the district court

failed to permit him to amend his complaint to introduce a

memorandum written in 2012 by an employee within the VA's Equal

Employment Opportunity office who retired in January 2020. The

memo, retained by the employee but apparently never put in agency

records or shown to anyone else, discussed events that could be

read to support a race or national-origin discrimination claim by

Almodovar against his manager at the time. The parties in this

case were unaware of this 2012 memo until its author sent it to

each side shortly after her retirement, which was five months

before the VA moved for summary judgment. Nearly a month after

summary judgment briefing concluded and ten months after the

1 On appeal, he asserts that he has raised race and national- origin discrimination claims. But, because such claims were not alleged below, we do not consider them.

- 2 - parties received the memo, Almodovar filed what he styled as a

motion to amend his complaint, seeking to add an allegation that

the VA improperly withheld the memo during the course of

litigation.2 The district court denied that motion because it was

untimely. We agree. See Steir v. Girl Scouts of the USA,

(1st Cir. 2004) ("Once a scheduling order is in

place, . . . [the] standard [for amendment] focuses on the

diligence (or lack thereof) of the moving party more than it does

on any prejudice to the party-opponent."); Fed. R. Civ. P. 16(b).

Almodovar has presented no justifiable reason why he should have

been permitted to add a claim to his complaint after summary

judgment was fully briefed based on evidence that he received five

months before that briefing began. See Steir,

("Where the motion to amend is filed after the opposing party has

timely moved for summary judgment, a plaintiff is required to show

'substantial and convincing evidence' to justify a belated attempt

to amend a complaint." (quoting Resolution Tr. Corp. v. Gold,

(1st Cir. 1994))).

2 We reject Almodovar's repeated refrain that the VA, by "withholding" the memorandum, somehow violated his due process rights under Brady v. Maryland,

(1963). This is a civil case, not a criminal case, so the constitutional restrictions outlined in Brady do not apply absent exceptional circumstances not applicable here. See Fox v. Elk Run Coal Co.,

(4th Cir. 2014) (declining to apply a civil Brady rule because "only in rare instances" have courts applied Brady to civil proceedings).

- 3 - On appeal, Almodovar maintains that he mislabeled his

motion and that the district court should have considered it a

motion to introduce the memo as evidence of his claims on summary

judgment. Almodovar had originally attached the memo to his

summary judgment briefing and argued that it was relevant to his

claims of discrimination in connection with his 2016 pass-over,

even though it concerned events that occurred four years earlier

and involved different people. But, based on Almodovar's repeated

failure to follow the local rules, the district judge did not

consider his evidence, including the 2012 memo, in issuing summary

judgment for the VA. Because Almodovar does not challenge those

evidentiary rulings on appeal, we have nothing to review on that

score. Regardless, Almodovar can claim no prejudice resulting

from the 2012 memo's exclusion because, even accepting that the

memo evidences race and national-origin discrimination by a former

manager in 2012, it does not support his claims in this case. The

memo detailed activity that occurred four years prior to the

employment action challenged in this lawsuit, involved alleged

bias by a person not involved in this suit, and concerned issues

that Almodovar settled with the Equal Employment Opportunity

Commission in 2012. So, for each of these reasons, we can find no

fault in how the district court handled Almodovar's quite belated

motion.

- 4 - Second, Almodovar argues in his opening brief that the

VA violated his due process rights by failing to follow the

requirements of

, which apply to the selection of

qualifying disabled veterans for certain employment positions.

But that statutory scheme sets out a detailed process that veterans

are required to go through to vindicate their rights under its

provisions before turning to federal district court, see 5 U.S.C.

§§ 3330a–3330b, and federal courts lack jurisdiction over claims

made under that statute until that process has been followed, see

Grayton v. SSA,

(Fed. Cir. 2017). Almodovar

did not follow that process here, so he failed to exhaust any

potential claim arising under section 3318. See Conyers v.

Rossides,

, 148–49 (2d Cir. 2009) (explaining the

veteran preferences exhaustion process).3

In reply and at oral argument, Almodovar clarified that

he is not raising a claim under the statute; rather, he contends

that the failure to go through the statutorily mandated process

when passing him over -- namely, obtaining permission from the

Office of Personnel Management and providing him a chance to

respond -- is evidence that the VA's non-discriminatory reasons

for its decision are mere pretext. Since this argument was only

clearly articulated for the first time in his reply brief, however,

3 For this reason, we also reject Almodovar's contention that the VA raised exhaustion in "bad faith."

- 5 - it is waived. N. Am. Specialty Ins. Co. v. Lapalme,

(1st Cir. 2001) (arguments first raised in reply are waived);

United States v. Zannino,

(1st Cir. 1990) (arguments

not clearly developed in opening briefs are waived).

Almodovar raises no other preserved bases for

challenging the entry of summary judgment dismissing his claim.

We therefore affirm.

- 6 -