THIS FINAL ORDER IS NONPRECEDENTIAL 1

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1 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL A. RAGER, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency. DOCKET NUMBER SF I-1 DATE: June 29, 2012 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Mark Conrad, Spring, Texas, for the appellant. Michele L. Kenney, San Diego, California, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER The appellant has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge. We grant petitions such as this one only when significant new evidence is presented to us 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 (c).

2 2 that was not available for consideration earlier or when the administrative judge made an error interpreting a law or regulation. The regulation that establishes this standard of review is found in Title 5 of the Code of Federal Regulations, section (5 C.F.R ). BACKGROUND The appellant is a 5-point preference eligible veteran. Initial Appeal File (IAF), Tab 3 at 6; IAF, Tab 9, Subtab 4a. In April 2007, he received an appointment in the excepted service to the GS position of Customs and Border Protection (CBP) Officer in the Bureau of CBP. IAF, Tab 9, Subtab 4h. In April 2010, upon completion of the service requirements for career tenure, the agency converted the appellant to the competitive service. Id., Subtab 4f. In May 2010, the agency converted him to an excepted service position as a Criminal Investigator, GS , in Immigration and Customs Enforcement (ICE). Id., Subtab 4e. Before entering into the position in ICE, the appellant entered into a Federal Career Intern Program [(FCIP)] Employment Agreement, in which he acknowledged that his excepted service appointment was limited to 2 years (plus any approved extensions) unless a decision was made to convert him to a competitive service position at the end of the 2 years. Id., Subtab 4g at 1. The agreement also informed the appellant that he would not necessarily retain any Board appeal rights he held prior to accepting the FCIP internship. Id. The agreement specifically explained that a preference eligible veteran in an FCIP internship would have Board appeal rights only if he had completed 1 year of current continuous service in the same or similar positions. Id. In July 2010, the agency informed the appellant that it was removing him from further participation in training programs because questions [had] arisen regarding [his] background investigation.... IAF, Tab 9, Subtab 4c. The agency subsequently terminated the appellant based on his inability to successfully complete the training programs. Id., Subtab 4b. The termination

3 3 notice specified that the issue regarding the appellant s background investigation related to his personal relationship with a foreign national. Id. at 1. The appellant filed a Board appeal challenging his termination. IAF, Tab 1. He claimed harmful procedural error. Id. at 5. He also argued that he had appeal rights under 5 C.F.R Id. at 6. He requested reinstatement to his position in ICE or, alternatively, the ability to return to his prior CBP Officer position. Id. He also argued that he had completed his 2-year probationary period. Id. at 6, 7. In her acknowledgment order, the administrative judge informed the appellant that because he was in the excepted service, the Board might not have jurisdiction over his appeal unless he was (a) a preference eligible employee who had completed one year of current, continuous service in the same or similar positions, or (b) an employee who was not serving a probationary or trial period under an initial appointment pending conversion to the competitive service or who had completed two years of current, continuous service in the same or similar positions under other than a temporary appointment limited to two years or less. IAF, Tab 2 at 2. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 9. After both parties filed additional submissions on the jurisdictional issue, the administrative judge determined that it was appropriate to hold a hearing on the jurisdictional issue. IAF, Tab 16 at 2. She identified the issue to be heard as follows: Whether the Board has jurisdiction over the appellant s termination during his FCIP trial period because he as a preference eligible veteran with prior Federal service in a same or similar position in the same agency was entitled to due process under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). IAF, Tab 24 at 2. After holding the hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 33. She found that the appellant s CBP Officer position and his Criminal Investigator position were not similar. Id. at She further found that the appellant was not

4 4 entitled to the procedures set forth at 5 C.F.R because he was in the excepted service at the time of his termination. Id. at On review, the appellant argues that the administrative judge erred in finding that he was terminated based on misconduct. Petition for Review File (PFR File), Tab 1 at 4-5. He also argues that he was entitled to the procedures set forth at 5 C.F.R , and that he was entitled to return to his former position. Id. at Finally, the appellant challenges the administrative judge s determination that his CBP Officer and Criminal Investigator positions were not similar. Id. at The agency has responded in opposition to the appellant s petition for review. PFR File, Tab 3. The appellant has filed a reply in support of his petition for review. 2 PFR File, Tab 4. ANALYSIS The administrative judge correctly found that the appellant is not an employee with Board appeal rights under 5 U.S.C. 7511(a)(1)(B). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the definition of employee at 5 U.S.C. 7511(a)(1) generally has the right to challenge his removal from the federal service by filing an appeal with the Board. See 5 U.S.C. 7512(1), 7513(d). The definition of employee includes: a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions -- (i) in an Executive agency; or (ii) in the United States Postal Service... [.] 5 U.S.C. 7511(a)(1)(B). Thus, for a preference eligible in the excepted service, the dispositive issue is whether the appellant had 1 year of current continuous service in the same or similar positions at the time of his separation. See 2 Because the Board s regulations do not provide for a reply in support of a petition for review, see 5 C.F.R , we have not considered the appellant s most recent submission in reaching our decision in this matter.

5 5 5 U.S.C. 7511(a)(1)(B); Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, 9 (2011). 3 The term current continuous service means a period of employment or service, either in the competitive or excepted service that immediately precedes an adverse action without a break in federal civilian employment of a workday. Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620, 10 (2008); 5 C.F.R (b). In the instant case, the appellant moved directly from his CBP Officer position to his position in ICE without a break in service, IAF, Tab 9, Subtab 4e, and, therefore, had completed 1 year of current continuous service at the time of his termination. Thus, the remaining question is whether the CBP Officer position and the Criminal Investigator position were similar. 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 In addition, positions may 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). Positions are similar if experience in [one] position demonstrates the knowledge, skills, and abilities required to perform the work of 3 In her initial decision, administrative judge erroneously cited the test set forth in McCrary v. Department of Navy, 103 M.S.P.R. 266, 12 (2006), for determining whether prior service may be tacked toward the completion of a probationary period for purposes of achieving employee status under 5 U.S.C. 7511(a)(1)(C)(i). See Initial Decision at 4-5. Because the appellant is a preference eligible in the excepted service, his employee status depends solely on whether he had 1 year of current continuous service in the same or similar positions at the time of his separation. See 5 U.S.C. 7511(a)(1)(B); Maibaum, 116 M.S.P.R. 234, 9. Nonetheless, the administrative judge correctly identified the dispositive jurisdictional issue in this case, i.e., whether the CBP Officer and Criminal Investigator positions are the same or similar. Consequently, her error did not affect the appellant s substantive rights.

6 6 the other job. Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1333 (Fed. Cir. 2006) (quoting Shobe v. U.S. Postal Service, 5 M.S.P.R. 466, 471 (1981)); Spillers v. U.S. Postal Service, 65 M.S.P.R. 22, 26 (1994). In conducting this analysis, the Board must consider the nature of the work actually performed. Maibaum, 116 M.S.P.R. 234, 15. The Board will consider the totality of the circumstances in determining whether positions are similar. Pagan v. U.S. Postal Service, 111 M.S.P.R. 212, 6 (2009). The appellant argues more generally that the administrative judge should have found that his CBP Officer and Criminal Investigator positions were similar. He analogizes the positions to those within a police department, where CBP Officers are the equivalent of uniformed police officers and Criminal Investigators are the detectives who conduct investigations after a first response by the uniformed personnel. PFR File, Tab 1 at However apt the appellant s analogy might be, it does not support the conclusion that his positions are similar for purposes of Board jurisdiction. The appellant testified that Criminal Investigators were charged with investigating cases that CBP Officers lacked the authority to investigate. Hearing Compact Disc (CD) 2. The Criminal Investigator position also requires significant additional training beyond that of the CBP Officer position. See IAF, Tab 33 at 9. In addition, while not dispositive, the fact that the Criminal Investigator position required a Secret security clearance, whereas such clearance was optional for the CBP Officer position, weighs in favor finding that the positions are not similar. See, e.g., Amend v. Merit Systems Protection Board, 221 F. App x 983, 985 (Fed. Cir. 2007). Furthermore, the fact that the Criminal Investigator and CBP Officer positions carry different occupational codes and pay grades, while also not dispositive, further supports a finding that the positions are not similar. See id. at ; cf. Coradeschi, 439 F.3d at Therefore, upon consideration of the totality of the circumstances, we affirm the administrative judge s finding that the appellant s CBP Officer and Criminal Investigator positions are not similar for

7 7 purposes of 7511(a)(1)(B). Accordingly, we find that the appellant was not an employee for purposes of Board jurisdiction because he did not have 1 year of current continuous service in the same or similar positions at the time of his termination. The appellant failed to establish any other basis for Board jurisdiction over his appeal. The appellant argues that he was serving a trial period at the time of his termination and that he is therefore entitled to the procedural protections set forth at 5 C.F.R PFR File, Tab 1 at 7-8. However, as the administrative judge correctly found, IAF, Tab 33 at 12-13, that regulatory provision does not apply to excepted service employees, see Mancha v. Department of Homeland Security, 112 M.S.P.R. 216, 10 (2009). We therefore find that 5 C.F.R (c) does not provide a basis for Board jurisdiction. The appellant also argues that he was entitled to be placed in another position under 5 C.F.R (o)(6)(ii) because he was terminated for reasons unrelated to misconduct or suitability. PFR File, Tab 1 at He cites the Board s decision in Scull v. Department of Homeland Security, 113 M.S.P.R. 287 (2010), in support of his argument. In Scull, the Board held that where an intern is eligible for placement under 5 C.F.R (o)(6)(ii) and otherwise has Board appeal rights under 5 U.S.C. chapter 75, the termination of his employment upon the expiration of his FCIP internship constitutes an adverse action within the Board s jurisdiction. Scull, 113 M.S.P.R. 287, 16 (emphasis added). Thus, the exception recognized in Scull does not give the Board jurisdiction over an action against an individual who does not qualify as an employee under 5 U.S.C. 7511(a)(1). Accordingly, in light of our finding above that the appellant does not qualify as an employee under 5 U.S.C.

8 8 7511(a)(1), we find that the Board s decision in Scull does not provide a basis for jurisdiction in this appeal. 4 Finally, the appellant argues that the agency failed to adequately notify him of his loss of appeal rights upon accepting the Criminal Investigator position. PFR File, Tab 1 at 15. The Board has held that an employee must receive notice from his employing agency regarding the effect of a change in position before he can relinquish an agency appointment with adverse action appeal rights to accept another appointment within the agency that lacks such appeal rights. Clarke v. Department of Defense, 102 M.S.P.R. 559, 11 (2006); Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344, (1994). However, we find that the agency provided the appellant with such notice in the form of the (FCIP) Employment Agreement he signed when applying for the Criminal Investigator position. See IAF, Tab 9, Subtab 4g. That agreement specifically informed the appellant that he would not automatically retain any appeal rights he acquired as a competitive service employee, and that a preference eligible employee could only appeal his removal from an excepted service FCIP internship if he had completed 1 year of current continuous service at the time of the removal. Id. at 1. After fully considering the filings in this appeal, we conclude that there is no new, previously unavailable, evidence and that the administrative judge made no error in law or regulation that affects the outcome. 5 C.F.R (d). Therefore, we DENY the petition for review. Except as modified by this Final Order, the initial decision of the administrative judge is the Board s final decision. 4 Because the appellant is not an employee with adverse action appeal rights, we do not reach the question of whether he was eligible for placement under 5 C.F.R (o)(6)(ii), and we therefore need not determine whether the appellant was terminated for reasons unrelated to misconduct or suitability.

9 9 NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS This is the Board's final decision in this matter. 5 C.F.R You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. 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 The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. 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). You may read this law, as well as review the Board s regulations and other related material, at our website, Additional information is available at the court's website, Of particular relevance is the court's

10 10 "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice, and Forms 5, 6, and 11. FOR THE BOARD: Washington, D.C. William D. Spencer Clerk of the Board