UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TRAVIS LAMONT SUTTON,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

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

DATE: April 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board