Background
Sophia Xenia Hart, proceeding pro se, was appointed to a Support Services Specialist position with the United States Department of Agriculture in December two thousand twenty under the Schedule A hiring authority for the excepted service. She was not a preference eligible. In July two thousand twenty-two, the agency terminated her employment. Hart appealed the termination to the Merit Systems Protection Board, but an administrative judge dismissed the appeal for lack of jurisdiction, finding she did not meet the definition of an employee entitled to appeal. The Board initially vacated the dismissal and remanded the case, but after further proceedings, the administrative judge found Hart had not proven she was exempt from the two-year trial period. The Board affirmed the dismissal, and Hart petitioned the Federal Circuit for review.
The court’s reasoning
The court reviewed the Board’s jurisdictional determination de novo and its fact findings for substantial evidence. The court explained that for the Board to have jurisdiction, Hart must qualify as an employee under Section seven thousand five hundred eleven of Title five. Because Hart was in the excepted service and not a preference eligible, she could only qualify under the definition for individuals not serving a probationary or trial period. The court found the Board’s conclusion that Hart was subject to a two-year trial period was supported by substantial evidence, as the agency’s policy clearly stated that Schedule A appointments for non-preference eligibles are subject to such a period. Hart failed to prove she was different from other Schedule A appointments subject to the trial period. The court also rejected Hart’s arguments regarding the denial of new evidence and the merits of her termination, noting those issues were irrelevant absent jurisdiction.
What it means going forward
This decision clarifies that federal employees in the excepted service under Schedule A who are not preference eligible must complete a two-year trial period before gaining the right to appeal adverse actions to the Merit Systems Protection Board. It reinforces that agencies may rely on established policies regarding probationary periods for such appointments.