Jones v. MSPB

Opinion

Case: 22-1788 Document: 88 Page: 1 Filed: 04/19/2024

United States Court of Appeals for the Federal Circuit ______________________

KEVIN D. JONES, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2022-1788 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0752-21-0375-I-1. ______________________

Decided: April 19, 2024 ______________________

STEPHEN B. PERSHING, Kalijarvi, Chuzi, Newman & Fitch, PC, Washington, DC, argued for petitioner. Also represented by AARON H. SZOT.

ELIZABETH W. FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, argued for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.

PARAS NARESH SHAH, Office of General Counsel, Na- tional Treasury Employees Union, for amicus curiae Na- tional Treasury Employees Union. Also represented by JULIE M. WILSON. Case: 22-1788 Document: 88 Page: 2 Filed: 04/19/2024

______________________

Before LOURIE, BRYSON, and STARK, Circuit Judges. LOURIE, Circuit Judge. Kevin D. Jones appeals from a decision of the Merit Systems Protection Board (“the Board”) dismissing his ad- ministrative appeal for lack of jurisdiction. Jones v. Dep’t. of Just., No. DC-0752-21-0375-I-1, 2022 WL 445118 (M.S.P.B. Feb. 10, 2022), J.A. 1–21 (“Decision”). For the following reasons, we affirm. BACKGROUND Jones began a term position as an Attorney, GS-0905- 14, with the U.S. Department of Agriculture (“USDA”) on April 15, 2018. Decision at J.A. 2; J.A. 35. On August 4, 2019, he transferred without a break in service to the posi- tion of Attorney, GS-0905-14, with the Department of Jus- tice’s (“DOJ”) Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Id. At USDA, Jones primarily provided advice and counsel to senior management regarding discrimination com- plaints filed against the agency. Decision at J.A. 8–10. He also litigated ensuing discrimination claims before the Equal Employment Opportunity Commission (“EEOC”), which included performing legal research, engaging in oral advocacy, and drafting pleadings, motions, discovery mate- rials, and more. Id. At ATF, Jones served as an advisor to the Professional Review Board (“PRB”) as part of a team of attorneys in the Management Division of the ATF Office of the General Counsel (“OGC”). Id. at J.A. 2. The Management Division handled legal issues in the areas of Employment, Con- tracts, Fiscal, and Ethics. Id. Jones’s primary duties were in the employment field. Id. He also served as the “alter- nate” contracts attorney, with another attorney in the Case: 22-1788 Document: 88 Page: 3 Filed: 04/19/2024

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Management Division serving as the primary contracts at- torney. Id. After Jones had been at ATF for approximately three months, his supervisor learned that the Management Divi- sion’s primary contracts attorney was leaving the agency and directed that attorney to prepare Jones to take over her contracts matters. Id. Prior to that time, Jones had not worked on any contracts matters at ATF. Id. at J.A. 7. It soon became evident that Jones did not have the contract law experience that his supervisors had thought that he had. Id. at J.A. 2–3. One of Jones’s supervisors informed him that they intended to recommend termination of his appointment and gave him the opportunity to resign. Id. Jones resigned effective December 21, 2019. Id. at J.A. 3. On March 19, 2020, Jones filed a complaint alleging that ATF had discriminated against him on the basis of his race, sex, age, disability, and reprisal when it forced him to resign. Id. He also alleged that he was effectively termi- nated without due process and that, if he was a probation- ary employee, ATF failed to follow the procedures set forth in 5 C.F.R. § 315.805. Id. at J.A. 4. On March 30, 2021, ATF issued a Final Decision finding no evidence of discrim- ination and provided Jones with notice of his right to ap- peal the decision to the Board. Id. at J.A. 3. On April 26, 2021, Jones timely appealed to the Board. Id. It was Jones’s burden to prove by a preponderance of the evidence that the Board had jurisdiction over his claim. 5 C.F.R. § 1201.56(b)(2)(i)(A); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006). Jones alleged that his resignation was involuntary and was therefore an adverse action within the Board’s jurisdiction. Decision at J.A. 4. The DOJ disputed that his resignation was Case: 22-1788 Document: 88 Page: 4 Filed: 04/19/2024

involuntary 1 and asserted that he was not an “employee” under 5 U.S.C. § 7511(a)(1)(B) for jurisdiction as required by 5 U.S.C. § 7513. Section 7511(a)(1)(B) defines an “em- ployee” as a person “who has completed 1 year of current continuous service in the same or similar positions.” Jones responded that he was an “employee” under the statute be- cause his two governmental positions had been similar. J.A. 28–31. An Administrative Judge of the Board disa- greed with Jones, holding in an Initial Decision that the Board lacked jurisdiction to hear Jones’s appeal because he had not shown that he was an “employee” as required by § 7511(a)(1)(B). Decision at J.A. 1. The AJ found that because Jones’s position at ATF “was not the same or similar to his prior position with USDA,” his four months of work at ATF did not qualify him as an “employee” for purposes of the statute. Id. at J.A. 6. The AJ noted that Jones had testified to “several distinc- tions between the actual tasks he performed for both agen- cies,” despite using the same “broad labels” of his responsibilities at each. Id. at J.A. 8. For example, the AJ found that Jones’s position at USDA required him to advo- cate before EEOC administrative judges, whereas, at ATF, he discussed matters with the PRB Chair. Id. at J.A. 9. The AJ also noted that although certain new trainings and reference materials were not “required” by ATF to perform Jones’s duties, Jones had not disputed that the training and materials “were either useful or necessary for his per- formance.” Id. The AJ found that, despite both positions falling “under the broad ‘employment law’ umbrella,” the

1 The AJ did not make a finding on whether or not Jones’s resignation was voluntary or involuntary, and the Board does not argue that theory as an alternative basis to affirm on appeal. See Oral Arg. at 26:58–28:37 available at https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22 -1788_03142024.mp3. Case: 22-1788 Document: 88 Page: 5 Filed: 04/19/2024

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record showed that Jones’s “ATF position was different from his USDA position given the distinct nature of the tasks he performed.” Id. Finding that Jones was not an “employee,” the AJ dis- missed Jones’s appeal for lack of jurisdiction. Id. at J.A. 14. Jones did not appeal the Initial Decision to the full Board, which at the time did not have a quorum, so the AJ’s Initial Decision therefore became the Final Decision of the Board on March 17, 2022. Jones appeals. We have juris- diction pursuant to 28 U.S.C. § 1295(a)(9). 2 DISCUSSION We review the Board’s jurisdictional determinations de novo and its underlying factual findings for substantial ev- idence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). Substantial evidence is “such relevant ev- idence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938). On appeal, “[t]he petitioner bears the burden of establishing error in the Board’s decision.” Har- ris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998). The Board is a tribunal having limited appellate juris- diction, only permitted to hear matters as granted by law, rule, or regulation. Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985); 5 U.S.C. § 7701(a). Pursuant to 5 U.S.C. § 7513(d), the statute enumerating various

2 The Board initially challenged our appellate juris- diction, arguing that the appeal was a mixed case and Jones had not explicitly waived his discrimination claims. Resp’t’s Br. at 15–17. But after Jones filed an updated Fed. Cir. R. 15(c) Statement Concerning Discrimination, see ECF 33, the Board agreed that his discrimination claims had been waived. Oral Arg. at 26:26–42. There is therefore no remaining dispute that we have appellate jurisdiction. Case: 22-1788 Document: 88 Page: 6 Filed: 04/19/2024

adverse actions over which the Board has jurisdiction, an “employee against whom an action is taken under this sec- tion is entitled to appeal to the Merit Systems Protection Board” (emphasis added). Section 7511(a)(1)(B), in turn, defines an “employee” as “a preference eligible in the ex- cepted service who has completed 1 year of current contin- uous service in the same or similar positions.” “Similar positions” are further defined by 5 C.F.R. § 752.402 as “po- sitions in which the duties performed are similar in nature and character and require substantially the same or simi- lar qualifications, so that the incumbent could be inter- changed between the positions without significant training or undue interruption to the work.” Positions may be deemed “similar” if they are in the “same line of work,” such as involving “related or comparable work that requires the same or similar skills.” Mathis v. U.S. Postal Serv., 865 F.2d 232, 234 (Fed. Cir. 1988). In determining similar- ity, it is essential to consider “the nature of the work per- formed in the two jobs” and “the fundamental character of the work” performed. Id. at 235. Jones argues that the AJ did not properly apply the law in determining that the Board lacked jurisdiction and that the AJ’s underlying factual findings were not supported by substantial evidence. The Board responds that the AJ’s de- cision was supported by substantial evidence and without legal error. We address both the legal and factual argu- ments in turn. I Jones alleges that the AJ misapplied the law in deter- mining whether or not he qualified as an “employee” as used in § 7513(d). Specifically, he alleges that the AJ’s analysis (1) is inconsistent with our precedent, Mathis, 865 F.2d 232; (2) erroneously relied on our nonprecedential de- cision in Amend v. Merit Systems Protection Board, 221 F. App’x 983 (Fed. Cir. 2007); and (3) erroneously relied upon voluntary training—that the DOJ allegedly admitted that Case: 22-1788 Document: 88 Page: 7 Filed: 04/19/2024

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Jones did not perform and were not required—to conclude that the positions were not similar. Jones argues that the AJ looked for “exact interchange- ability,” rather than looking at the “fundamental charac- ter” of the positions as mandated by Mathis. See Oral Arg. at 3:19–55; Pet’r’s Br. at 8–17. But Jones’s counsel also acknowledged that the AJ “never said that’s what she was doing.” Oral Arg. at 3:57–4:17. And there is no evidence that the AJ ignored or misapplied Mathis. Rather, the AJ correctly quoted that case when discussing the proper con- siderations for determining whether or not two positions are similar. Decision at J.A. 6. That the AJ did not further discuss that specific case or compare it with the facts at hand is not an error. Nor does it mean that the AJ looked for exact interchangeability between the positions. Jones’s counsel’s suggestion that the AJ “took a case out of the air, tried to match the duties, and, frankly, did so in a disingen- uous manner,” Oral Arg. at 4:30–38, is both inappropriate and inconsistent with the AJ’s decision. The AJ’s decision shows that the AJ thoroughly considered the record evi- dence to determine the fundamental character of the two positions. See, e.g., Decision at J.A. 6, 9–10. Mathis does not dictate that the two positions at issue here are “simi- lar,” and the AJ did not clearly err in finding otherwise. Jones also argues that the AJ clearly erred in relying on the nonprecedential decision in Amend to “justify the same outcome in this case.” Pet’r’s Br. at 19. But the AJ neither cited Amend as controlling nor centered her analy- sis on that case. All the AJ did was accurately cite the case as exemplary legal support for her finding that there were meaningful distinctions between the positions. Decision at J.A. 11. Pointing to a nonprecedential decision in further support of a factual finding supported by record evidence is not reversible legal error. And, indeed, we agree that Amend is informative, albeit not binding. Case: 22-1788 Document: 88 Page: 8 Filed: 04/19/2024

Jones also alleges that the AJ, in finding that the posi- tions were not similar, erred in relying on the fact that Jones had paid for a “week-long subject matter seminar at the start of his employment” and purchased reference ma- terial when the DOJ had stipulated that those were “not required” and Jones never ultimately attended the confer- ence. Decision at J.A. 9; J.A. 37, 62–63. However, the AJ recognized that those trainings and materials were not re- quired, only additionally finding that Jones did not “dis- pute that the training and materials were either useful or necessary for his performance.” Decision at J.A. 9. The AJ therefore did not misinterpret or misapprehend the evi- dence presented. It was also not the foundation for the AJ’s ultimate finding that the two positions were not similar, but merely one of several contributing factors, if a factor at all. Contrary to Jones’s position, the AJ did not hold that the training and reference material “render[ed] his DOJ position dissimilar from his USDA position.” Pet’r’s Br. at 16. We therefore see no error in the AJ having considered that additional training and reference materials may have been helpful as part of her overall analysis of similarity. II The AJ’s finding that Jones was not an “employee” as used in § 7513(d) because his two positions were not “simi- lar” is also supported by substantial evidence. It is undis- puted that Jones was preference eligible and that his service was continuous, as he transferred from USDA to ATF without a break in service. Decision at J.A. 2. The sole dispute is thus whether or not Jones’s two positions were “similar.” 5 U.S.C. § 7511(a)(1)(B). As the AJ found, and is supported by substantial evidence, the most signifi- cant distinguishing factor is that at USDA, Jones had been litigating already-filed employment discrimination cases, and that at ATF, he had been advising others on potential employment disciplinary actions. Jones’s contention that the difference between litigating and advising “is irrele- vant” is without merit. Pet’r’s Reply Br. at 4. Case: 22-1788 Document: 88 Page: 9 Filed: 04/19/2024

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Jones testified that his USDA responsibilities primar- ily consisted of litigating before the EEOC and assisting in determining settlement options after actions had occurred and a complaint had been filed. Decision at J.A. 8; J.A. 73. The USDA position description echoes that understanding, explaining that the individual holding the position repre- sents the agency “in administrative and judicial proceed- ings,” may “negotiate or participate in negotiating settlements,” and prepares various filings, such as plead- ings, motions, and briefs, “in connection with suits by and against the Government.” J.A. 49, 51; see also J.A. 73. Jones even acknowledges in his briefs that his job at USDA “was to persuade administrative judges of his position.” Pet’r’s Reply Br. at 14. Meanwhile, at ATF, Jones primarily provided advice and counsel on prospective, potential disciplinary actions, Decision at J.A. 6–7 (citing testimony of Jones’s direct su- pervisor at ATF), which is further supported by the va- cancy announcement for Jones’s ATF position, J.A. 44. That announcement explains that, among other things, “the incumbent primarily provides legal advice and recom- mendations to ATF officials in the area of employment law.” J.A. 44. Jones does not appear to have disputed his supervisor’s description of his responsibilities or the de- scription in the vacancy announcement. Indeed, his own testimony confirms that he spent the majority of his time advising the PRB Chair and BDO in connection with po- tential and proposed disciplinary actions. Decision at J.A. 8; J.A. 74. There is no dispute that Jones’s two positions were both Attorney – Advisor, GS-0905-14 positions with a gen- eral focus on employment law, but those two facts alone are not dispositive of the nature and character of the work Jones performed at each. Looking at the nature and char- acter of the duties for each position does not mean taking a bird’s eye view. Any two positions, with enough distance, may mistakenly look similar. And likewise, too granular Case: 22-1788 Document: 88 Page: 10 Filed: 04/19/2024

an approach may result in an equally incorrect outcome. Here, the record supports the finding that the two positions involved different duties and required different skills, fun- damentally affecting the nature and character of the work. As the AJ found, even if the USDA position did involve some advising, Jones was “advising on different types of employment situations appealable in different forums, with different procedural requirements, burdens of proof, and relevant legal principles.” Decision at J.A. 10. Neither party has argued that the positions are the “same” under § 7511(a)(1)(B), so it is indisputable that there are differences between them—the question is whether and how those differences affect the fundamental character of Jones’s duties. Ultimately, as with most anal- yses of this type, there are factors that weigh both in favor of and against a finding of the two positions being similar. But the record shows that there is relevant evidence ade- quate to support the AJ’s finding. In reaching its determi- nation that Jones was not an “employee” as used in § 7513(d), the AJ thoroughly considered witness testimony regarding Jones’s responsibilities at each position, along with job descriptions for each position and Jones’s own tes- timony. See, e.g., Decision at J.A. 6. It would be inappro- priate for us to reweigh that factual evidence, particularly the credibility of each witness. See, e.g., J.C. Equip. Corp. v. England, 360 F.3d 1311, 1315 (Fed. Cir. 2004) (noting that Board’s “determinations of witness credibility are vir- tually unreviewable” because it “saw the witnesses and heard the testimony” (internal quotation marks, altera- tions, and citations omitted)). The Board and Jones both spend significant portions of their briefs disputing whether or not Jones’s ATF position involved contract law duties. But we need not resolve this disagreement. The AJ did not appear to rely on his alleged contract law duties at ATF in finding distinctions between the two positions. Rather, she found that “it is undisputed that [Jones] did not actually perform any such duties Case: 22-1788 Document: 88 Page: 11 Filed: 04/19/2024

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during his ATF tenure.” Decision at J.A. 7; see also Oral Arg. at 19:55–20:11 (the Board agreeing that the AJ had not relied on the alleged contract law aspect of the ATF po- sition). If anything, the AJ found in favor of Jones on that point. We find it unnecessary to address the issue further. Even assuming Jones had no contract law duties at ATF, either actual or prospective, substantial evidence supports the AJ’s finding that the two positions were not similar. The AJ therefore did not legally err or lack substantial evidence when reaching her determination that Jones was not an “employee” as used in § 7513(d). We thus affirm the Board’s ultimate determination that it lacked jurisdiction to hear Jones’s appeal. CONCLUSION We have considered Jones’s remaining arguments and find them unpersuasive. For the foregoing reasons, we af- firm. AFFIRMED COSTS No costs.