Travis Lamont Sutton v. Department of Veterans Affairs ( 2016 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
3
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).
5
¶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
6
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).
8
¶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.