Sutton v. Department of Veterans Affairs ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRAVIS LAMONT SUTTON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-2205
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-300A-14-0641-I-1.
______________________
Decided: December 8, 2016
______________________
TRAVIS LAMONT SUTTON, Stafford, VA, pro se.
PETER ANTHONY GWYNNE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
BRIAN A. MIZOGUCHI.
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
2 SUTTON v. DVA
PER CURIAM.
Mr. Sutton appeals from the decision of the Merit Sys-
tems Protection Board (Board), which dismissed his
claims that the Office of Personnel Management (OPM)
engaged in improper employment practices and that the
Department of Veterans Affairs (VA) violated his veter-
ans’ preference rights provided by the Veterans Employ-
ment Opportunities Act of 1998 (VEOA). The Board
dismissed the claim on grounds that it lacks jurisdiction
to review Mr. Sutton’s employment practices appeal and
that his VEOA arguments are time barred. We agree and
therefore affirm.
BACKGROUND
Mr. Sutton applied for a Supervisory Contract Spe-
cialist position with the VA. After reviewing his applica-
tion, OPM determined that the transcripts Mr. Sutton
submitted were insufficient to verify that he met the
position’s education requirement. Accordingly, OPM
deemed Mr. Sutton ineligible for the position and did not
consider his application further. J.A. 18−19.
Mr. Sutton appealed to the Board claiming that the
VA violated the VEOA and that OPM engaged in an
improper employment practice in violation of 5 C.F.R.
part 300. The administrative judge docketed these claims
as two separate appeals. J.A. 5, 19.
In August 2015, the Board issued a final decision
denying Mr. Sutton’s VEOA appeal, finding that
Mr. Sutton did not establish that he was denied the right
to compete for the position or that the agency violated any
legal provision regarding his veterans’ preference rights. 1
Mr. Sutton did not appeal the Board’s determination.
1 The final decision provided notice that any appeal
must be made within sixty days. See Sutton v. Dep’t. of
SUTTON v. DVA 3
In December 2015, the Administrative Judge issued
an initial decision dismissing the employment practices
claim for lack of jurisdiction. The initial decision ex-
plained that petitioner’s allegations amounted to a claim
of procedural error, not improper employment practices.
J.A. 5−10.
In April 2016, the Board issued a final decision af-
firming the initial dismissal for lack of jurisdiction. The
final decision also explained that, to the extent Mr. Sut-
ton was attempting to challenge the Board’s denial of his
VEOA appeal, those claims were barred by res judicata
and collateral estoppel. J.A. 22−24. Mr. Sutton appeals,
arguing that the VA violated his veterans’ preference
rights under the VEOA and that the Board has jurisdic-
tion over his employment practices claim.
DISCUSSION
We have jurisdiction to review a final Board decision
pursuant to 28 U.S.C. § 1295(a)(9). The scope of the
Board’s jurisdiction is a question of law, which we review
de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905,
909 (Fed. Cir. 2008).
An agency’s failure to select an applicant for a vacant
position is generally not appealable to the Board. See
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.
Cir. 1998). However, an applicant who believes that OPM
applied an improper employment practice is entitled to
appeal to the Board. 5 C.F.R. § 300.104(a).
To satisfy his burden of establishing the Board’s ju-
risdiction over his employment practices claim, Mr. Sut-
ton must, among other things, establish that the actions
he challenges are employment practices. Prewitt, 133
Veterans Affairs, MSPB No. DC-3443-14-0467-I-1, Final
Order (Aug. 5, 2014).
4 SUTTON v. DVA
F.3d at 887. Employment practice is defined by regula-
tion as any practice that affects “the recruitment, meas-
urement, ranking, and selection of individuals for initial
appointment and competitive promotion in the competi-
tive service.” 5 C.F.R. § 300.101. The term “employment
practice” is to be construed broadly, but it does not en-
compass an individual agency action that is not made
pursuant to a rule or practice, such as an irregularity in
the selection process. 2
As the Board recognized, Mr. Sutton does not chal-
lenge any OPM employment practice. He does not con-
tend that the educational qualification requirements at
issue are inappropriate. Nor does he argue that OPM
should not have applied those qualification requirements
to him. Instead, he challenges OPM’s individual determi-
nation that his transcript is insufficient to establish that
he meets the education requirement. At most, this
amounts to an irregularity in the selection process.
Because Mr. Sutton does not challenge an employ-
ment practice, the Board correctly found that it lacks
jurisdiction over his appeal. To the extent that Mr. Sut-
ton argues in this appeal that the Board erred in denying
his VEOA appeal, those arguments are barred because
they were already subject to a final decision of the Board,
which was not timely appealed. 5 U.S.C. § 7703(b)(1)(A).
For these reasons, we affirm.
AFFIRMED
2 See Prewitt, 133 F.3d at 887-88 (contrasting alle-
gations that an agency failed to consider all relevant
education and experience during the selection process,
which does not amount to a challenge to employment
practices, with a challenge to an agency’s use of time-in-
grade restrictions, which is a challenge to employment
practices).