Bernard E. Amend v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3420
BERNARD E. AMEND,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF JUSTICE,
Intervenor.
Bernard E. Amend, of Knoxville, Tennessee, pro se.
Calvin M. Morrow, Attorney, Office of General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. Of counsel was
Rosalyn L. Wilcots.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Branch, United
States Department of Justice, for intervenor. With her on the brief were Peter D.
Keisler, Assistant Attorney General, David M. Cohen, Director, and William F. Ryan,
Assistant Director. Of counsel was Rachel Bouman, Office of Chief Counsel, United
States Bureau of Alcohol, Tobacco, Firearms & Explosives, of Washington, DC.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3420
BERNARD E. AMEND,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF JUSTICE,
Intervenor.
___________________________
DECIDED: March 8, 2007
___________________________
Before MICHEL, Chief Judge, ARCHER, Senior Circuit Judge, and DYK Circuit Judge.
PER CURIAM.
Bernard E. Amend (“Amend”) appeals a Merit Systems Protection Board
(“Board”) decision in AT315H050799-I-1 dismissing his petition for lack of jurisdiction.
We affirm.
BACKGROUND
From 1996 until March 1, 2003, Amend was employed as an Immigration
Inspector with the Immigration and Naturalization Service (“INS”), which was part of the
Department of Justice (“DOJ”). Pursuant to the Homeland Security Act of 2002, Pub. L.
No. 107-296, the INS was abolished effective March 1, 2003, and its functions
transferred to the Department of Homeland Security (“DHS”). Amend continued his

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employment as an Immigration Inspector with Immigration and Customs Enforcement, a
subdivision of DHS. On August 22, 2004, Amend was appointed to the excepted
service as an Inspector for the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”), a subdivision of DOJ. On July 15, 2005, Amend was terminated from federal
service. He appealed his termination to the Board.
Jurisdiction of the Board is granted under 5 U.S.C. § 7701(a) (2006), which
provides that “[a]n employee ... may submit an appeal to the Merit Systems Protection
Board from any action which is appealable to the Board under any law, rule, or
regulation.” Removal from employment is an appealable action where the individual is
as an “employee” at the time of removal by the agency. Van Wersch v. Dep't of Health
& Human Servs., 197 F.3d 1144, 1147 (Fed. Cir. 1999). The term “employee” is
defined by statute under 5 U.S.C. § 7511(a)(1)(B) to include “a preference eligible in the
excepted service who has completed 1 year of current continuous service in the same
or similar positions . . . in an Executive agency.”
Without ruling on the merits of Amend’s petition, an Administrative Judge (“AJ”)
ordered the parties to submit arguments and evidence on whether the Board had
jurisdiction over the appeal. Although the AJ found that Amend was “preference
eligible,” the AJ held that Amend was not an “employee” under § 7511(a)(1)(B) because
he had not been employed by “an Executive agency” for “1 year of current continuous
service” before he was terminated. The AJ interpreted § 7511(a)(1)(B) to require the “1
year of current continuous service” to “take place in a single agency.” Because Amend
had only worked for DOJ as an ATF Inspector for eleven months before he was
terminated, the AJ concluded that “the appellant did not have 1 year of current
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continuous service in the Department of Justice when he was terminated.” Therefore,
the AJ dismissed Amend’s petition for lack of jurisdiction.
Amend appealed the AJ’s dismissal to the full Board. The Board affirmed the
AJ’s decision on different grounds. The Board noted that the AJ’s decision was issued
before the Board decided Greene v. Defense Intelligence Agency, 100 M.S.P.R. 447,
¶12 (2005), which held that § 7511(a)(1)(B) does not require that the continuous year of
service be completed within a single agency. Thus, the Board held that to satisfy the 1
year requirement Amend’s prior service at DHS may be “tacked” onto his service at
DOJ. Nonetheless, the Board held that the Immigration Inspector and the ATF
Inspector (officially titled “Industry Operations Investigator”) positions are not “the same
or similar” under § 7511(a)(1)(B). The Board reasoned that the two positions held
different grades and classification series, the ATF position required top secret
clearance, the ATF position required substantial additional training, and the positions
required different knowledge and skills. Accordingly, the Board affirmed the dismissal
for lack of jurisdiction.
A timely appeal to this Court followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2006).
DISCUSSION
We review decisions of the Board regarding its own jurisdiction without
deference. McCormick v. Dep’t of Air Force, 307 F.3d 1339, 1340 (Fed. Cir. 2002).
The petitioner bears the burden of establishing Board jurisdiction by a preponderance of
the evidence. 5 C.F.R. § 1201.56(a)(2)(i); McCormick, 307 F.3d at 1340.
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Section 7701(a) provides that “[a]n employee, or applicant for employment, may
submit an appeal to the Merit Systems Protection Board from any action which is
appealable to the Board under any law, rule, or regulation.” 5 U.S.C. § 7701(a). At
issue is whether Amend is “an employee” within § 7701. Section 7511(a)(1)(B) defines
“employee” as “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 or Postal Regulatory Commission.”
Because the parties agree that Amend is “preference eligible,” we need only determine
whether Amend has otherwise demonstrated that he is an “employee” under
§ 7511(a)(1)(B).
Although on appeal the Board does not address whether service in more than
one agency satisfies the one year requirement, DOJ as Intervenor does dispute the
Board’s interpretation. DOJ Br. 11. We recognize that the Board’s interpretation that a
petitioner need not complete the “1 year of current continuous service” within a single
agency is an open question. Compare Illich v. Merit Sys. Prot. Bd., 104 Fed. App’x 171,
173 (Fed. Cir. 2004), with Greene, 100 M.S.P.R. at 451. However, we decline to reach
that issue because we agree with the Board that Immigration Inspector and ATF
Inspector are not “similar positions” under § 7511(a)(1)(B).
Amend argues that when he was hired for the ATF position, which was three
grade levels lower than the Immigration Inspector position, “ATF effectively eliminated
any doubt as to whether or not the petitioner’s prior experience as an Immigration
Inspector was ‘similar.’” Pet’r Rep. Br. 2. We disagree. This court has explained that in
“the same or similar positions” is akin to “in the same line of work.” Mathis v. U.S.
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Postal Serv., 865 F.2d 232, 234 (Fed. Cir. 1988). In other words, the positions must
“involve related or comparable work that requires the same or similar skills.” Id.
Moreover, the implementing regulations define “similar positions” to mean “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(g). We see no error in the Board’s determination that the two positions are not
the “same or similar.”
First, the two positions require different qualifications. ATF Inspectors are
expected to have knowledge of federal, state, and local alcohol, tobacco, firearm, and
explosive laws and regulations. Immigration Inspectors are required to understand
“U.S. immigration, customs, public health, and agriculture laws, regulations, and related
precedent decisions and court injunctions.” To become an ATF Inspector, applicants
must complete a seven week training course. In addition to the seven week training
course, once accepted as an ATF Inspector, the first two years of employment are
considered an “internship” before the employee “may be non-competitively converted to
a career or career-conditional position.” During these two years, employees must
engage in “various training and developmental programs.” Moreover, the ATF position
requires top secret clearance, which is not apparently required for Immigration
Inspectors. Although not dispositive, the positions were also listed at different pay
grades and classifications. The ATF Inspector was GS-9, Classification 1854, and the
Immigration Inspector was GS-11, Classification 1816. See Coradeschi v. Dep’t
Homeland Sec., 439 F.3d 1329, 1334 (Fed. Cir. 2006).
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Second, the actual work performed by an ATF Inspector is not similar to that
performed by an Immigration Inspector. According to the official job description,1 the
primary task of an ATF Inspector is to determine whether people “desiring to enter
business in the regulated industries [of alcohol, tobacco, firearms, and explosives] meet
established legal requirements for obtaining a federal permit or license.” To complete
the duties, an ATF Inspector must interview people, inspect buildings, and conduct
background investigations. The work environment of an ATF Inspector includes onsite
investigations of explosive manufacturers, explosive storage magazines, and firearms
dealers. In contrast, an Immigration Inspector “[c]onducts primary inspection or
examination of all classes of applicants for admission to the United States.” This
includes inspecting and examining arriving persons, baggage, and merchandise for the
United States Customs Service. Immigration Inspectors primarily work at seaports,
airports, and land border entry points.
Finally, Amend relies on McCormick, 307 F.3d 1339, in support of his position.
However, McCormick only involved § 7511(a)(1)(A), whereas this case involves §
7511(a)(1)(B). (emphasis added). As § 7511(a)(1)(A) does not contain the “same or
similar position” language, McCormick does not apply here.
Accordingly, we agree with the Board that the ATF Inspector and Immigration
Inspector positions are not “the same or similar” under § 7511(a)(1)(B), and therefore
Amend was not an “employee” when his position was terminated.
No costs.
1 Amend does not appear to argue that his actual duties differ from the
official job description.
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