NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

TIFFANY S. HUGHES,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

______________________ 

2013-3101

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA0752120256-I-1.

______________________ 

Decided: November 7, 2013

______________________ 

TIFFANY S. HUGHES, of Cedar Hills, Texas, pro se. 

MARTIN M. TOMLINSON, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

DEBORAH A. BYNUM, Assistant Director. 

______________________ 
2 HUGHES v. DHS

Before NEWMAN, CLEVENGER, and REYNA, Circuit 

Judges.

PER CURIAM. 

Petitioner pro se, Tiffany S. Hughes, appeals the 

March 15, 2013 decision of the United States Merit Systems Protection Board (“MSPB” or “Board”) denying her 

petition for review for lack of jurisdiction on the basis of 

the administrative judge’s (“AJ”) determination that Ms. 

Hughes was not an “employee” pursuant to 5 U.S.C. 

§ 7511(a)(1)(C)(ii). We affirm. 

I.

In November 2002, Ms. Hughes began working in an 

excepted service position as a transportation security 

screener, later renamed a Transportation Security Officer 

(“TSO”) within the Department of Homeland Security 

(“DHS”). Her primary duties in this role included checking passengers and luggage for weapons and other dangerous items. As a TSO, Ms. Hughes underwent a twoweek training course followed by on-the-job training, 

which largely focused on how to use the various machines 

during the screening process, such as x-ray machines, and 

how to identify dangerous items. Ms. Hughes was also 

instructed not to pursue or apprehend persons that 

breached the airport security checkpoint but to instead 

contact other authorities, like airport police, for assistance 

in making the arrest. 

On February 15, 2009, Ms. Hughes left her position as 

a TSO and received a two-year internship as a Customs 

and Border Patrol Officer (“CBPO”), also within DHS,

through the Federal Career Intern Program pursuant to 5 

C.F.R. § 213.3202(o).1 Ms. Hughes’s position could be 

1 The Federal Career Intern Program has since 

been eliminated. See Exec. Order 13562 § 8, 75 Fed. Reg. 

 
HUGHES v. DHS 3

converted to a career or career-conditional appointment 

upon satisfactory completion of the two-year internship. 

Ms. Hughes’s training for the CBPO position included 

sixteen weeks at the Federal Law Enforcement Training 

Center, followed by eight weeks of on-the-job training. 

These trainings covered subjects like constitutional law, 

agriculture, immigration law, and suspect interview 

techniques, among other things. As a CBPO, Ms. Hughes 

had the authority to make arrests, seize contraband, 

assess fines and duties, determine immigrant status, 

handle a firearm, and use body armor. 

On October 12, 2010, DHS notified Ms. Hughes that it 

was terminating her employment as a CBPO for misconduct, effective the same day. Ms. Hughes appealed her 

termination to the MSPB on March 1, 2012. On March 7, 

2012, the Board issued an Acknowledgement Order 

noting that Ms. Hughes was a non-preference eligible 

excepted service employee with less than two years of 

experience in her current position. The Order thus advised Ms. Hughes that the Board’s jurisdiction over her 

appeal was questionable and provided an opportunity for 

Ms. Hughes to submit additional evidence and argument 

to establish jurisdiction. 

In response, Ms. Hughes asserted that she was an 

“employee” as defined by 5 U.S.C. § 7511 at the time of 

her release because, through her experience as a TSO, she 

“completed 2 years of current continuous service in the 

same or similar positions in an Executive agency. . . .” 5 

U.S.C. § 7511(a)(1)(C)(ii). Ms. Hughes asserted that her 

position as a TSO involved the same line of work as her 

CBPO position because the objective of both jobs “was to 

protect America” by using various techniques to discover 

and prevent weapons and contraband from either (i) 

82585, 82588 (Dec. 27, 2010); 77 Fed. Reg. 28194, 28213 

(May 11, 2012). 

 
4 HUGHES v. DHS

entering an aircraft; or (ii) entering the United States. 

Ms. Hughes also noted that she was required to take the 

same oath to uphold the Constitution in both positions. 

Therefore, Ms. Hughes argued that she should be considered an “employee” under 5 U.S.C. § 7511 who was entitled to appeal her termination to the MSPB.

DHS argued that a TSO lacks many of the responsibilities given to a CBPO and is thus not a “similar position.” In particular, DHS noted that, unlike a TSO, a 

CBPO must be qualified to carry a firearm and has the 

authority to detain and arrest suspects. Because these 

duties are distinct from those of a TSO, DHS argued that 

Ms. Hughes could not use her previous experience as a 

TSO to meet the time-in-service requirement of 5 U.S.C. 

§ 7511(a)(1)(C)(ii).

After a hearing, the AJ found that Ms. Hughes’s TSO 

position did not entail the same or similar duties and 

responsibilities as her CBPO position and thus concluded 

that Ms. Hughes was not an “employee” under 5 U.S.C. 

§ 7511. Accordingly, the AJ dismissed the appeal for lack 

of jurisdiction. 

Ms. Hughes filed a petition for review of the AJ’s initial decision with the full Board. The Board dismissed

Ms. Hughes’s petition because it found that the AJ did not 

commit error when it concluded that Ms. Hughes was not 

an “employee” under 5 U.S.C. § 7511 and dismissed the 

petition for lack of jurisdiction. 

This appeal followed. We have jurisdiction under 28 

U.S.C. § 1295(a)(9).

II.

This Court shall hold unlawful and set aside any 

Board action, findings, or conclusions found to be “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 
HUGHES v. DHS 5

followed; or (3) unsupported by substantial evidence.” 

5 U.S.C. § 7703(c). Whether the Board has jurisdiction is 

a question of law reviewed de novo. See Herman v. Dep’t 

of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). As the 

petitioner, Ms. Hughes bears the burden of establishing 

the Board’s jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2); Lazaro v. Dep’t of 

Veterans Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012).

We conclude that the Board properly dismissed Ms. 

Hughes’s petition for lack of jurisdiction. The Board’s 

jurisdiction is limited to matters for which a right to 

appeal is granted by law, rule, or regulation. 5 U.S.C. § 

7701(a). The statute accords the right to appeal an adverse agency action—such as a reduction in pay or grade, 

a removal, or a suspension for more than 14 days—only to 

“employee[s]” of the Federal Government. 5 U.S.C. 

§ 7513(d). The Board therefore has jurisdiction over this 

appeal only if Ms. Hughes qualifies as an “employee” 

under 5 U.S.C. § 7511(a)(1). 

For non-preference eligible individuals serving in the 

excepted service, 5 U.S.C. § 7511(a)(1)(C) defines “employee” in two ways: 

(C) an individual in the excepted service (other 

than a preference eligible)— 

(i) who is not serving a probationary or 

trial period under an initial appointment 

pending conversion to the competitive service; or

(ii) who has completed 2 years of current 

continuous service in the same or similar 

positions in an Executive agency under 

other than a temporary appointment limited to 2 years or less[.]

Based on our review of 5 U.S.C. § 7511 and applicable 

regulations, we agree that Ms. Hughes is not an “employ-
6 HUGHES v. DHS

ee” entitled to appeal her termination to the MSPB because her TSO position was not similar to her CBPO 

position. As the Board concluded, the duties and responsibilities of Ms. Hughes’s CBPO position materially 

differed from those of her previous TSO position, which

outweigh any minor similarities presented by Ms. 

Hughes. Her TSO position required much less training 

than her CBPO position and lacked the authority to make 

arrests, seize contraband, assess fines and duties, determine immigrant status, or carry a firearm, all of which 

are major functions of a CBPO. Ms. Hughes also received 

additional instruction as a CBPO in constitutional law, 

agriculture, immigration law, suspect interview techniques, and other subjects to assist in detecting criminality and violations of law. On the other hand, Ms. Hughes’s 

main function as a TSO was to detect weapons and dangerous items in baggage and on persons, not to detect 

criminal behavior. Therefore, because Ms. Hughes’s TSO 

and CBPO positions involved materially different duties 

and responsibilities, they cannot be considered “similar 

positions” that would entitle Ms. Hughes to qualify as an 

“employee” with Board appeal rights under 5 U.S.C. 

§ 7511(a)(1)(C)(ii). 

For the foregoing reasons, the decision of the Board is 

hereby 

AFFIRMED

COSTS

Each party shall bear its own costs.