The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS LAMONT SUTTON, DOCKET NUMBER
Appellant, DC-3443-14-0467-I-1
v.
DEPARTMENT OF VETERANS DATE: August 5, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Travis Lamont Sutton, Stafford, Virginia, pro se.
Xan DeMarinis, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed an appeal challenging the agency’s decision not to select
him for the vacant position of Supervisory Contract Specialist. Initial Appeal
File (IAF), Tab 1. After reviewing the appellant’s application package, the Office
of Personnel Management (OPM) determined that the appellant’s Defense
Acquisitions Workforce and Improvement Act (DAWIA) transcript was not
sufficient documentation of the requisite educational background for the position.
Id. at 5. The agency deemed the appellant “ineligible” for the position and did
not give him any further consideration in the hiring process. IAF, Tab 9 at 29.
On appeal, the appellant explained that the DAWIA transcript he submitted to
OPM with his application for the position reflected his training, education, and
experience in acquisitions, per the DAWIA. The appellant challenged OPM and
the agency’s determination that the DAWIA transcript was not equivalent to an
unofficial college transcript, and he asserted that his nonselection was improper
and that it violated his veterans’ preference rights. IAF, Tab 1 at 5. The
administrative judge denied the appellant’s request for corrective action, finding
that the appellant failed to establish that he was denied the right to compete for
3
the Supervisory Contract Specialist position or that the agency violated any legal
provision regarding his veterans’ preference.
¶3 On review, the appellant argues that the administrative judge erred when
she denied his request for corrective action. The appellant asserts that he met all
of the requirements for the Supervisory Contract Specialist position when he
submitted his Standard Form (SF)-15, SF-50, resume, application, DD-214,
DAWIA transcript, and other documentation reflecting his Level III Certification
in Contracting, and he reasserts that the agency and OPM failed to properly credit
his experience and training. 2
¶4 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence. However, the applicable law
and the record evidence support the administrative judge’s findings that the
appellant has not established that he was denied the right to compete for the
position at issue or that the agency violated any legal provisions regarding his
veterans’ preference. Thus, we discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding
no reason to disturb the administrative judge’s findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶5 Specifically, the administrative judge considered the fact that the vacancy
announcement for the Supervisory Contract Specialist position required all
applicants to have either: “(A) [Completion of] a 4-year course of study leading
to a Bachelor’s Degree, that included or was supplemented by at least 24 semester
2
The appellant has also raised an argument that OPM engaged in an improper
employment practice in violation of 5 C.F.R. Part 300. IAF, Tab 1. However, because
the administrative judge docketed a separate appeal to adjudicate that claim we have not
addressed his arguments in this appeal.
4
hours in any combination of the following fields: accounting, business, finance,
law, contracts, purchasing, economics, industrial management, marketing,
quantitative methods, or organization and management; OR (B) [Employment] in
a GS-1102-14 position since January 1, 2000.” IAF, Tab 1 at 10. The
administrative judge also considered the application requirement that all
candidates must include official or unofficial transcripts to verify educational
requirements. Id. at 11. The vacancy announcement stated further that “[o]nly
attendance and/or degrees from schools accredited by accrediting institutions
recognized by the U.S. Department of Education may be credited” and that failure
to provide the required materials, particularly the appropriate transcript “will
result in an ineligible rating.” Id. at 14, 16.
¶6 Here, the appellant included a document entitled “DAWIA Transcript” with
his application. IAF, Tab 9 at 22. However, the appellant’s DAWIA transcript
does not identify any educational institutions, and, while it identifies the Defense
Acquisition University training and the “continuous learning” the appellant has
received, the document is not a transcript from a 4-year course of study leading to
a bachelor’s degree. Id. Because the record reflects that the appellant was
allowed to apply for the position but was found ineligible because he did not
comply with the application requirement, we agree with the administrative
judge’s determination that the agency and OPM considered his application and
thus he was not denied the right to compete.
¶7 To the extent that the appellant also reasserts his argument that the agency
violated his rights under a statute or regulation when it failed to follow the
provisions of an Office of Management and Budget (OMB) memorandum “which
determined that all agencies shall recognize DAWIA transcripts,” the
administrative judge thoroughly addressed this argument and we find no reason to
disturb the administrative judge’s findings. Initial Decision at 8-9; Broughton,
33 M.S.P.R. at 359. Specifically, the OMB memorandum does not constitute a
statute or regulation, and thus, the administrative judge correctly found that any
5
allegation of a violation of the memorandum is not a nonfrivolous allegation that
the agency violated a law, rule or regulation. See IAF, Tab 11 at 4; see Graves v.
Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 9 (2012) (OPM VetGuide
does not constitute a law, rule, or regulation relating to veterans’ preference
under the Veterans’ Employment Opportunities Act (VEOA)); Coates v. U.S.
Postal Service, 111 M.S.P.R. 268, ¶ 14 (2009) (a Postal Service handbook is not a
statute or regulation relating to veterans’ preference under VEOA).
¶8 Finally, it appears that the appellant may be arguing for the first time on
review that he met the requirements for the Supervisory Contract Specialist
position based on his work history. PFR File, Tab 1 at 5, Tab 2 at 5, 7. However,
the Board will not normally consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Moreover, in order to
be eligible based on work history instead of education, the vacancy announcement
required employment in a GS-1102-14 position since January 1, 2000. The
records reflect that the appellant has only been employed in a GS-14 position
since December 2013. IAF, Tab 3 at 8-9. Accordingly, the appellant has shown
no basis upon which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
6
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.