NOTE: This disposition is nonprecedential.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 represented 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 Systems 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 veterans’ preference rights provided by the Veterans Employment 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 Specialist position with the VA. After reviewing his application, 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 explained 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 affirming the initial dismissal for lack of jurisdiction. The 

final decision also explained that, to the extent Mr. Sutton 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 jurisdiction 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 jurisdiction over his employment practices claim, Mr. Sutton 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 regulation as any practice that affects “the recruitment, measurement, ranking, and selection of individuals for initial 

appointment and competitive promotion in the competitive service.” 5 C.F.R. § 300.101. The term “employment 

practice” is to be construed broadly, but it does not encompass 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 challenge any OPM employment practice. He does not contend 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 determination 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 employment practice, the Board correctly found that it lacks 

jurisdiction over his appeal. To the extent that Mr. Sutton 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 allegations 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-ingrade restrictions, which is a challenge to employment 

practices).