N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

TIFFANY S. HUGHES, Petitioner,

v.

DEPARTMENT OF HOMELA ND SECURITY, Respondent.

______________________

2013

- 3101

______________________

Petition for review of the Merit Systems Protection
Board in No. DA0752120256 -I- 1.

______________________

Decided: November 7, 2013

______________________

T IFFANY S. H UGHES

, of Cedar Hills, Texas, pro se.

M ARTIN M. T OMLINSON , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With
him on the brief were S TUART F. D ELERY , Acting Assistant
Atto rney General, J EANNE E. D AVIDSON , Director, and
D EBORAH A. B YNUM , Assistant Director.

______________________HUGHES v. DHS 2

Before N EWMAN

, C LEVENGER

, and R EYNA

, Circuit Judges.

P ER C URIAM

. Petitioner pro se , Tiffany S. Hughes, appeals the March 15, 2013 decision of the United States Merit Sy stems 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”) . H er primary duties in this role included chec king passengers and luggage for weapons and other da ngerous items. A s a TSO, Ms. Hughes underwent a two

week 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 ma chines, and how to identify dangerous items. Ms. Hughes was also
instructed not to pursue or apprehend person s that
breache d the airport security checkpoint but to instead contact other authorities, l ike 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 p ursuant 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 Ex ec . 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 week s 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 misco nduct, effective the same day. Ms. Hughes appealed her
termination to the MSPB on March 1, 2012. On March 7, 2012, the Board issued a n 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. T he Order thus a dvised 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 est ablish 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 simila r 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 techn iques to discover and prevent weapons and contraband from either (i)

82585, 82588 (Dec. 27, 2010); 77 Fed. Reg. 28194, 28213 (May 11, 2012).HUGHES v. DHS 4

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 ent itled to appeal her termination to the MSPB.

DHS argued that a TSO lacks many of the respons ibilities given to a CBPO and is thus not a “similar pos ition.” 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 sus pects. Because the se duties are distinct from those of a TSO

, DHS argued that Ms. Hughes could not use her previous experie nce 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 M s. 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 in itial decision with the full Board

. The Board d ismissed 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 proc edures required by law, rule, or regulation having beenHUGHES 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 ev idence. 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 d ismissed M s. 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 s tatute accords the right to appeal an a dverse agency act ion— such as a reduction in pay or grade, a removal, or a suspen sion 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 “e mployee” 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 appoin t ment pending conversion to the co m petitive se rvice; or

(ii) who has completed 2 years of cu r rent continuous service in the same or similar positions in an Executive agency under other than a temporary appointment li mited 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 “e mplo y-HUGHES v. DHS 6

ee” entitled to appeal her termination to the MSPB b ecause her TSO position was not similar to her CBPO position. As the Board concluded, the duties and respo nsibilities of Ms. Hughes’ s CBPO position materially
differe d 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

arrest s , seize contraband, assess fines and duties, dete rmine 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 tec hniques

, and other subjects to assist in detecting criminal ity and violations of law. On the other hand, Ms. Hughes’ s main function as a TSO was to detect weapons and da ngerous 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 t he Board is hereby

AFFIRMED

C OSTS

Each party shall bear its own costs.