The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAMIS HARVEY, DOCKET NUMBER
Appellant, DE-315H-13-0102-B-1
v.
DEPARTMENT OF HOMELAND DATE: February 11, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant.
John B. Barkley, Esquire, Phoenix, Arizona, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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 interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and
authorities, 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 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 This appeal is before the Board after remand. The appellant initially
received a competitive service, career-conditional appointment to the position of
Police Officer, AD-0083-07, Pentagon Force Protection Agency (PFPA). MSPB
Docket No. DE-315H-13-0102-I-1, Initial Appeal File (IAF), Tab 12 at 35. After
serving more than 2 years in the Police Officer position, the appellant was
appointed to the position of Immigration Enforcement Agent (IEA), GL-1801-07,
with Immigration and Customs Enforcement (ICE or agency), pursuant to an
excepted service Veterans Recruitment Appointment. IAF, Tab 12 at 24-25, 30.
The appellant entered into the position on January 15, 2012, without a break in
service. The Standard Form 50 (SF-50) states that upon completion of a 2-year
trial period, the appellant would be noncompetitively converted to a
career-conditional or career appointment. Id. at 30. On December 4, 2012, the
agency notified the appellant that it was terminating his appointment effective
December 7, 2012. Id. at 30-31. The appellant then filed an appeal of the
agency’s action terminating him from the IEA position during his 2-year
probationary period. IAF, Tab 1. On appeal, the appellant argued that the
Pentagon Police Officer position and the IEA position are the same or similar and
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therefore, that he had completed at least 1 year of current continuous service in
the same or similar positions in an executive agency. IAF, Tabs 1, 12, 17.
¶3 Without holding a hearing, the administrative judge dismissed the appeal for
lack of jurisdiction finding that because the appellant’s duties in his new position
were in a substantively different field than his duties in his prior position and that
the training required was significant, the two positions are not the “same or
similar.” IAF, Tab 19, Initial Decision (ID) at 6-10. Thus, the administrative
judge found that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction. ID at 10. On review, the Board found that the appellant made a
nonfrivolous allegation that the Police Officer and IEA positions are similar for
purposes of Board jurisdiction and remanded the appeal for a jurisdictional
hearing. See MSPB Docket No. DE-315H-13-0102-I-1, Remand Order (April 10,
2014).
¶4 On remand, the administrative judge thoroughly considered the evidence
and testimony and found that, while there were similarities in the training for
both positions with overlapping courses and instructors, there were differences in
the required training and that the Spanish course requirement was unique to the
IEA position. MSPB Docket No. DE-315H-13-0102-B-1 (B-1), Remand File, Tab
34, Remand Initial Decision (RID) at 6. The administrative judge likewise found
that the two trainings were not “extremely” similar or virtually the same, and that
the differences between the trainings were not minor. RID at 7. Thus, the
administrative judge found that the appellant failed to prove by preponderant
evidence that his current continuous service was in the same or similar position.
RID at 12.
¶5 The regulations implementing 5 U.S.C. chapter 75, subchapter II, define
“similar positions” as “positions in which the duties performed are similar in
nature and character and require substantially the same or similar qualifications,
so that the incumbent could be interchanged between the positions without
significant training or undue interruption to the work.” 5 C.F.R. § 752.402.
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Positions may also be deemed “similar” if they are in the “same line of work,”
which has been interpreted as involving “related or comparable work that requires
the same or similar skills.” Mathis v. U.S. Postal Service, 865 F.2d 232, 234 (Fed
Cir. 1988); Martinez v. Department of Homeland Security, 118 M.S.P.R. 154, ¶ 9
(2012). Our reviewing court has interpreted such language to mean that positions
are similar “if experience in [one] position demonstrates the knowledge, skills,
and abilities required to perform the work of the other job.” Coradeschi v.
Department of Homeland Security, 439 F.3d 1329, 1333 (Fed. Cir. 2006); accord
Mathis, 865 F.2d at 234; Maibaum v. Department of Veterans Affairs,
116 M.S.P.R. 234, ¶ 15 (2011). In conducting an analysis into whether positions
are similar, the Board must focus on the employee’s actual duties and the work
actually performed. Davis v. Merit Systems Protection Board, 340 F. App’x 660,
663 (Fed. Cir. 2009); Martinez, 118 M.S.P.R. 154, ¶ 9; see Coradeschi, 439 F.3d
at 1333-34; Mathis, 865 F.2d at 233-35.
¶6 Here, the appellant argues that, because his prior service as a Police Officer
with the Pentagon Force is the same or similar as an IEA with ICE, his time
should be credited towards the completion of the 1-year requirement under
5 U.S.C. § 7511(a)(1)(A) and that the administrative judge erred in finding
otherwise. B-1, Remand Petition for Review (RPFR) File, Tab 1 at 18. The
appellant challenges the administrative judge’s findings and his application of
precedent regarding the “same or similar” standard. RPFR File, Tab 1. The
appellant contends that, while the administrative judge focused on the training
differences between the two positions, little consideration was given to the
similarities to the two positions’ actual duties and the only discussion of the
actual duties consisted of whether the appellant had detained suspected aliens
while working at his position at the Pentagon. RPFR File, Tab 1 at 15.
¶7 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence, and find that the applicable law
and the record evidence support the administrative judge’s findings that the
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appellant failed to prove that the duties of his Pentagon Police Officer position
were the same or similar to those of his IEA position at ICE. RID at 12. Thus,
we discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same).
¶8 In this instance, the administrative judge thoroughly considered the record
evidence, as well as the hearing testimony, when he addressed the appellant’s
allegations that the Pentagon Police Officer and ICE IEA positions are the same
or similar. For example, the appellant argued that both positions required him to
carry a firearm and make arrests and that the duties for both jobs include
apprehension, processing, and detention of “either criminal suspects or illegal or
criminal aliens.” The appellant also asserted that the training for both positions
was “extremely similar” with courses and instructors overlapping for both
trainings. See RID at 4-12. However, the administrative judge found that,
regarding apprehension and detention of criminal suspects or illegal or criminal
aliens, the appellant testified that as a Police Officer he had only “encounters”
with foreign nationals or other individuals with immigration status at the
Pentagon, and that after he “detained” an individual he would call “someone
else”—presumably ICE—for further direction. RID at 5-6. Whereas the
testimony reflected that the appellant, as an IEA for ICE, applied his expertise
and ICE’s enforcement mandate to advise other law enforcement officers who had
“detained” suspected aliens on how to further process those detained individuals.
The administrative judge found that the differences between the job duties were
more significant than the common fact that both jobs are in law enforcement and
involve some possible contact with suspected aliens. The administrative judge
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also found that, while there was some similarity between the trainings, it is
undisputed that the total training the appellant received at the Federal Law
Enforcement Training Center (FLETC) as an IEA was at least 2 weeks longer
than the training he received at FLETC as a Pentagon Police Officer. RID at 7.
In addition, the appellant was then required to complete a 5-week Spanish course
after completing the IEA training. The administrative judge found further that
both the hearing testimony and FLETC course documentation reflect that, of the
overall 14-week FLETC training course for the IEA, at least 4.5 weeks (or
180 hours) of the IEA training was unique to ICE, along with the 5-week Spanish
course, which immediately followed the appellant’s IEA FLETC training. The
administrative judge also identified specific courses and training as examples of
some of the FLETC training that was unique to the IEA position. RID at 8-9.
The administrative judge concluded that, while there were some similarities in the
training for the two positions, the additional 380 training hours for the IEA
position was significant, and the appellant could not, and did not, take his
experience as a Pentagon Police Officer and simply “hit the ground running” as
an IEA. RID at 16.
¶9 To the extent the appellant argues that the administrative judge
misconstrued the nature of the 180 training hours that he characterized as unique
to ICE, we disagree. RPFR File, Tab 1 at 16. Specifically, the appellant
contends that, while this training is not identical to the training he received for
his Pentagon position, it was substantially the same. For example, he asserts that
the firearm training for the Pentagon position required him to shoot at a
human-sized model, whereas the ICE firearms course for the IEA position
required him to shoot at a poster with a human-shaped target. Id. The appellant
argues that, because many of the other courses taught the same skills for both
positions, they were likewise substantially similar. RPFR File, Tab 1 at 16.
However, the administrative judge identified several specific examples of
ICE-unique courses taken by the appellant, i.e., 12 hours of nationality law,
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8 hours of immigrant classification training (pertaining to aliens), 2 hours of
removal charges, and 2 hours of training on the administration of the Immigration
and Nationality Act. Further, the administrative judge relied on the appellant’s
testimony that “about two-thirds” of the training was the same or similar, which
meant that about one-third of it was not, and that the appellant’s attorney stated in
closing arguments that he calculated 180 hours—about 4.5 weeks—of the
appellant’s IEA courses to be unique to ICE and the IEA position. RID at 8-9.
While the appellant disagrees with the administrative judge’s findings on review
and argues that differences in the trainings were not “significant,” he has
provided no basis upon which to disturb them.
¶10 Finally, we agree with the administrative judge’s conclusion that the two
positions are not the same or similar. As stated above, the appellant was required
to undergo extensive training for the IEA position that differed in material
respects from the training he received in his Pentagon position, and while not
dispositive, the appellant also was in a different classification series in the IEA
position. See Amend v. Department of Justice, 102 M.S.P.R. 614, ¶¶ 8, 12 (2006),
aff’d, 221 F. App’x 983 (Fed. Cir. 2007). Further, as discussed above, the
appellant was required to take a 5-week Spanish course. In addition, the SF-50s
for the two positions reflect that the appellant, while employed in the IEA
position, was covered under the special law enforcement office retirement
benefits “M” and he was not entitled to such special coverage while employed in
his Pentagon position. See IAF, Tab 13 at 29, 57, 59. Consequently, we agree
with the administrative judge that, although there are similarities between the two
positions, the fundamental nature and character of the work differ for the reasons
articulated in the initial decision. See Maibaum, 116 M.S.P.R. 234, ¶ 17. As a
result, we agree with the administrative judge’s ultimate determination that the
appellant failed to establish that he meets the definition of “employee” under
5 U.S.C. § 7511, and so the appeal should be dismissed for lack of jurisdiction.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States 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, 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 United States 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
United States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.