       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                TIFFANY S. HUGHES,
                     Petitioner,

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
           ______________________

                      2013-3101
                ______________________

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

              Decided: November 7, 2013
               ______________________

   TIFFANY S. HUGHES, of Cedar Hills, Texas, pro se.

    MARTIN M. TOMLINSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
DEBORAH A. BYNUM, Assistant Director.
                  ______________________
2                                              HUGHES   v. DHS



        Before NEWMAN, CLEVENGER, and REYNA, Circuit
                        Judges.
PER CURIAM.
    Petitioner pro se, Tiffany S. Hughes, appeals the
March 15, 2013 decision of the United States Merit Sys-
tems 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”). Her primary duties in this role included check-
ing passengers and luggage for weapons and other dan-
gerous items. As 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 machines, and
how to identify dangerous items. Ms. Hughes was also
instructed not to pursue or apprehend persons that
breached the airport security checkpoint but to instead
contact other authorities, like 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 pursuant 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 Exec. 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 weeks 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 miscon-
duct, effective the same day. Ms. Hughes appealed her
termination to the MSPB on March 1, 2012. On March 7,
2012, the Board issued an 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. The Order thus ad-
vised 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 establish 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 similar 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 techniques to discover
and prevent weapons and contraband from either (i)


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



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 consid-
ered an “employee” under 5 U.S.C. § 7511 who was enti-
tled to appeal her termination to the MSPB.
     DHS argued that a TSO lacks many of the responsi-
bilities given to a CBPO and is thus not a “similar posi-
tion.” 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 suspects. Because these
duties are distinct from those of a TSO, DHS argued that
Ms. Hughes could not use her previous experience 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 Ms. 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 ini-
tial decision with the full Board. The Board dismissed
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 proce-
dures required by law, rule, or regulation having been
HUGHES   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 evi-
dence. 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 dismissed Ms.
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 statute accords the right to appeal an ad-
verse agency action—such as a reduction in pay or grade,
a removal, or a suspension 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 “em-
ployee” 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 appointment
         pending conversion to the competitive ser-
         vice; or
         (ii) who has completed 2 years of current
         continuous service in the same or similar
         positions in an Executive agency under
         other than a temporary appointment lim-
         ited 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 “employ-
6                                            HUGHES   v. DHS



ee” entitled to appeal her termination to the MSPB be-
cause her TSO position was not similar to her CBPO
position. As the Board concluded, the duties and respon-
sibilities of Ms. Hughes’s CBPO position materially
differed 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
arrests, seize contraband, assess fines and duties, deter-
mine 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 tech-
niques, and other subjects to assist in detecting criminali-
ty and violations of law. On the other hand, Ms. Hughes’s
main function as a TSO was to detect weapons and dan-
gerous 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 the Board is
hereby
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
