UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHAMIS HARVEY,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DE-315H-13-0102-B-1

DATE: February 11, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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 
3

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. 
4

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 
5

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 
6

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. 
8

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
9

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