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
`
`2
`
`JONES v. MSPB
`
`______________________
`
`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
`
`JONES v. MSPB
`
`3
`
`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
`
`4
`
`JONES v. MSPB
`
`involuntary1 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
`
`JONES v. MSPB
`
`5
`
`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
`
`6
`
`JONES v. MSPB
`
`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
`
`JONES v. MSPB
`
`7
`
`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
`
`8
`
`JONES v. MSPB
`
`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
`
`JONES v. MSPB
`
`9
`
`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
`
`10
`
`JONES v. MSPB
`
`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
`
`JONES v. MSPB
`
`11
`
`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.
`
`
`