                      NOTE: This disposition is nonprecedential.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
                           NOTE: This disposition is nonprecedential.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
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



2006-3420
                                          2
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.




2006-3420
                                         3
      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.



2006-3420
                                         4
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).



2006-3420
                                         5
       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.
2006-3420
                                          6
