Travis Lamont Sutton v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRAVIS LAMONT SUTTON, DOCKET NUMBER

Appellant, DC-300A-14-0641-I-1

v.

DEPARTMENT OF VETERANS DATE: April 12, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Travis Lamont Sutton, Stafford, Virginia, pro se.

Xan DeMarinis, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his employment practices appeal for lack of jurisdiction. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative 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, 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. Except as

expressly MODIFIED by this Final Order to address the appellant’s arguments on

review that the agency violated his veterans’ preference rights, we AFFIRM the

initial decision.

BACKGROUND

¶2 On or about January 30, 2014, the appellant applied for a GS‑1102‑14

Supervisory Contract Specialist position with the agency. Sutton v. Department

of Veterans Affairs, MSPB Docket No. DC-300A-14-0641-I-1, Initial Appeal File

(0641 IAF), Tab 6 at 44‑82, 93. The vacancy announcement provided that

applicants could satisfy a basic qualification requirement for the position through

completion of a 4-year course of study leading to a Bachelor’s Degree, which

included or was supplemented by at least 24 semester hours in a combination of

specialized fields. 2 Id. at 95. The vacancy announcement further provided that

2

Alternatively, applicants could satisfy the basic qualification requirement though

employment in a GS-1102-14 position since January 1, 2000. 0641 IAF, Tab 6 at 95.

However, in his application, the appellant only indicated that he met the basic

requirement through his education, id. at 77, and he has not asserted, either below or on

review, that he satisfied the alternative basic qualification requirement, see 0641 IAF,

Tabs 1, 4, 8; Petition for Review File, Tabs 1, 4.

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applicants were required to submit transcripts with their applications to verify

that they met the education requirement. Id. at 95, 97.

¶3 After reviewing the appellant’s application, the Office of Personnel

Management (OPM) determined that a Department of the Navy Defense

Acquisitions Workforce and Improvement Act (DAWIA) transcript that the

appellant submitted was insufficient to verify that he met the education

requirement. 3 Id. at 13, 15. Accordingly, the agency deemed the appellant

ineligible for the position, and did not consider his application further. Id. at 41.

¶4 The appellant filed a Board appeal challenging his nonselection, in which

he alleged that the agency violated the Veterans Employment Opportunities Act

of 1998 (VEOA), and that OPM engaged in an improper employment practice in

violation of 5 C.F.R. part 300. Sutton v. Department of Veterans Affairs, MSPB

Docket No. DC‑3443‑14‑0467‑I‑1, Initial Appeal File (0467 IAF), Tab 1 at 3, 5,

Tab 9 at 6‑7, 9‑13. The appellant did not request a hearing. 0467 IAF, Tab 1

at 2.

¶5 The administrative judge docketed the appellant’s employment practices

claims as a separate appeal. 0467 IAF, Tab 15 at 1; 0641 IAF, Tab 3 at 1.

Thereafter, she issued an order to show cause advising the appellant of the

elements and burden of proof necessary to establish jurisdiction over an

employment practices claim, and ordered the appellant to submit evidence and

argument establishing that the Board had jurisdiction over his appeal. 0641 IAF,

3

Under DAWIA, the Department of Defense was required to establish a process

through which persons in the acquisition workforce would be recognized as having

achieved professional status. See Defense Acquisition University, DAWIA Certification,

http://www.dau.mil/doddacm/Pages/Certification.aspx (last visited Apr. 11, 2016).

DAWIA Certification is the procedure through which a military service or Department

of Defense component determines that an employee meets the education, training and

experience standards required for a career level in any acquisition, technology, and

logistics career field. Id.

4

Tab 3. After considering the appellant’s responses, 4 0641 IAF, Tabs 4, 8, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. 0641 IAF, Tab 11, Initial Decision (ID) at 1. She found that the

appellant’s allegation that OPM had erroneously applied a valid qualification

requirement in evaluating his application was a claim of procedural error in the

application process, and did not constitute an employment practice. ID at 5‑6;

see 0641 IAF, Tab 8 at 5‑7.

¶6 The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has responded to the petition for

review, and the applied has replied. PFR File, Tabs 3‑4.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board lacks jurisdiction over the appellant’s employment practices appeal.

¶7 Under 5 C.F.R. § 300.103, each employment practice of the Federal

Government must meet the following basic requirements: (1) it must be based on

a job analysis identifying the basic duties and responsibilities of the job in

question, the knowledge, skills, and abilities required to perform those duties and

responsibilities, and the factors that are important in evaluating candidates;

(2) there must be a rational relationship between the employment practice and

performance in the position to be filled, and demonstration of this rational

relationship must include a showing that the employment practice was

professionally developed; and (3) the employment practice may not discriminate

on the basis of race, color, religion, sex, age, national origin, partisan political

affiliation, or other nonmerit factors. 5 C.F.R. §§ 300.103(a)‑(c); see Meeker v.

Merit Systems Protection Board, 319 F.3d 1368, 1372 (Fed. Cir. 2003).

4

One of the appellant’s responses indicated that he was attempting to file a petition for

review of the initial decision in his VEOA appeal. 0641 IAF, Tab 4 at 4. The Board

issued a final decision in the appellant’s VEOA appeal on August 5, 2014. Sutton v.

Department of Veterans Affairs, MSPB Docket No. DC-3443-14-0467-I-1, Final Order

(Aug. 5, 2014).

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¶8 An applicant for employment who believes that an employment practice

applied to him by OPM violates a basic requirement in 5 C.F.R. § 300.103 is

entitled to appeal to the Board. Meeker, 319 F.3d at 1373; 5 C.F.R. § 300.104(a).

The Board has jurisdiction over an employment practices appeal when two

conditions are met: (1) the appeal must concern an employment practice that

OPM is involved in administering; and (2) the appellant must make a

nonfrivolous allegation that the employment practice violated one of the “basic

requirements” for employment practices set forth in 5 C.F.R. § 300.103. Meeker,

319 F.3d at 1373; Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 403,

¶ 6 (2010).

¶9 On review, the appellant reiterates his arguments, raised below, that the

agency and OPM erred in determining that his DAWIA transcript was insufficient

to demonstrate that he met the education qualification requirement for the

position. PFR File, Tab 1 at 5‑7, Tab 4 at 3; 0641 IAF, Tab 8 at 5‑7. However,

the appellant is not challenging the validity or applicability of the qualification

requirement, but rather, is merely arguing that the agency and OPM should have

found him qualified for the Supervisory Contract Specialist position based on that

requirement. PFR File, Tab 1 at 5‑7, Tab 4 at 3. As such, the appellant is

challenging the rating and handling of his individual application, and the Board

lacks jurisdiction over such a claim. See Richardson v. Department of

Defense, 78 M.S.P.R. 58, 61 (1998) (finding that the Board lacked jurisdiction

over an employment practices appeal where an appellant failed to identify any

basic requirement that was missing from the instrument that the agency used to

evaluate her application, and instead, merely contested the agency’s handing and

rating of her individual application); Banks v. Department of

Agriculture, 59 M.S.P.R. 157, 160 (1993) (finding that an appellant’s allegations

that an agency failed to fully consider his education and experience in making a

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selection for a position did not establish jurisdiction over an employment

practices claim), aff’d, 26 F.3d 140 (Fed. Cir. 1994) (Table).

¶10 As the appellant notes on review, the Board has found that an agency’s

“misapplication” of a valid OPM requirement may constitute an employment

practice for purposes of Board jurisdiction under 5 C.F.R. § 300.104(a). PFR

File, Tab 1 at 7; see Sauser, 113 M.S.P.R. 403, ¶ 7; Mapstone v. Department of

the Interior, 110 M.S.P.R. 122, ¶ 8 (2008). However, “misapplication” in this

context does not mean that the agency or OPM inaccurately evaluated a candidate

using a valid OPM requirement. Rather, it means that the very application of the

requirement to the candidate violated one of the basic requisites of 5 C.F.R.

§ 300.103. See Dowd v. United States, 713 F.2d 720, 721-24 (Fed. Cir. 1983)

(finding jurisdiction over an employment practices appeal on the basis of a

misapplication of a valid OPM standard where the appellant asserted that the

employment practice at issue should not have applied to him at all);

Sauser, 113 M.S.P.R. 403, ¶¶ 8-10 (finding that an appellant established

jurisdiction over an employment practices appeal based on an allegation that an

agency improperly applied OPM qualification standards because he alleged that

the standards were not rationally related to performance in the position to be

filled); Mapstone, 110 M.S.P.R. 122, ¶¶ 11-15 (same). In other words,

“misapplication of a valid OPM requirement” refers to the applicability of a

requirement, rather than to the method of its application. See, e.g.,

Sauser, 113 M.S.P.R. 403, ¶¶ 8-10; Mapstone, 110 M.S.P.R. 122, ¶ 8. Here,

because the appellant does not challenge the applicability of the education

qualification requirement at issue, he has not alleged that the agency

“misapplied” that qualification requirement. See PFR File, Tab 1 at 5‑7, Tab 4

at 3. In sum, we agree with the administrative judge that the appellant failed to

establish jurisdiction over his employment practices appeal. ID at 1, 6.

7

The appellant’s claims the agency violated his veterans’ preference rights are

barred by the doctrines of res judicata and collateral estoppel.

¶11 The appellant further argues on review that the agency and OPM violated

his veterans’ preference rights when they failed to accept his DAWIA transcript

as sufficient proof that he met the education requirement. PFR File, Tab 1 at 4‑7,

Tab 4 at 3. The Board’s employment practices jurisdiction is limited to

challenges based on the three grounds set forth in 5 C.F.R. § 300.103, which do

not include violations of veterans’ preference rights. Meeker, 319 F.3d at 1374‑

75; Metzenbaum v. General Services Administration, 96 M.S.P.R. 104, ¶ 13

(2004).

¶12 To the extent that the appellant is attempting to challenge the Board’s

decision denying his petition for review in his separate VEOA appeal, see Sutton

v. Department of Veterans Affairs, MSPB Docket No. DC‑3443‑14‑0467‑I‑1,

Final Order (Aug. 5, 2014) (Final Order), we find that his claims are barred by

the doctrines of res judicata and collateral estoppel.

¶13 The doctrine of res judicata precludes parties from relitigating issues that

were, or could have been, raised in the prior action, and is applicable if: (1) the

prior judgment was rendered by a forum with competent jurisdiction; (2) the prior

judgment was a final judgment on the merits; and (3) the same cause of action

and the same parties or their privies were involved in both cases. Peartree v. U.S.

Postal Service, 66 M.S.P.R. 332, 337 (1995). Collateral estoppel, or issue

preclusion, is appropriate when: (1) the issue is identical to that involved in the

prior action; (2) the issue was actually litigated in the prior action; (3) the

determination on the issue in the prior action was necessary to the resulting

judgment; and (4) the party against whom issue preclusion is sought had a full

and fair opportunity to litigate the issue in the prior action, either as a party to the

earlier action or as one whose interests were otherwise fully represented in that

action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005).

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¶14 We find that the elements of both res judicata and collateral estoppel have

been satisfied here. The issue of whether the agency and OPM violated the

appellant’s veterans’ preference rights when they failed to accept his DAWIA

transcript was raised and decided on the merits in the appellant’s VEOA appeal.

See Final Order at 2‑5. The Board had jurisdiction to adjudicate the VEOA

appeal, the determination of whether OPM and the agency violated the appellant’s

veterans’ preference rights was necessary to the resulting final judgment, the

agency was the opposing party, and the appellant fully represented himself in that

appeal. See Fisher v. Department of Defense, 64 M.S.P.R. 509, 515 (1994)

(finding that a party’s pro se status does not preclude the application of collateral

estoppel; the “fully represented” requirement is satisfied when the party to whom

collateral estoppel is applied has had a full and fair chance to litigate the issue in

question). For these reasons, we find that res judicata and collateral estoppel bar

the appellant from relitigating the issue of whether the agency and OPM violated

his veterans’ preference rights when they failed to find that he met the education

requirement for the position based on his DAWIA transcript. See

McNeil, 100 M.S.P.R. 146, ¶ 15; Peartree, 66 M.S.P.R. at 337.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request review of this final decision by the U.S. 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,

9

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 U.S. 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 U.S. 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 an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. 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.