Sophia X. Hart v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SOPHIA X. HART,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2026-1241
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-22-0558-B-1.
______________________
Decided: July 10, 2026
______________________
S OPHIA XENIA HART , Arrowsmith, IL, pro se.
ELIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by
K ATHERINE M ICHELLE SMITH .
______________________
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HART v. MSPB 2
Before L OURIE and P ROST , Circuit Judges, and
SUBRAMANIAN, District Judge.1
P ER CURIAM .
Sophia X. Hart petitions for review of a Merit Systems
Protection Board (“Board”) decision dismissing her appeal
for lack of jurisdiction. We affirm.
BACKGROUND
Effective December 6, 2020, the U.S. Department of
Agriculture (“agency”) appointed Ms. Hart to a Support
Services Specialist position in the excepted service under
the Schedule A hiring authority of 5 C.F.R. § 213.3102(u).
Less than two years later, on July 8, 2022, the agency ter-
minated her.
Ms. Hart appealed her termination to the Board. The
administrative judge (“AJ”) dismissed the appeal for lack
of jurisdiction, finding that Ms. Hart had not adequately
alleged that she was an “employee” entitled to appeal to the
Board. Specifically, the AJ reasoned that, because
Ms. Hart was in the excepted service and not a preference
eligible,2 she could be an “employee” with appeal rights
only under 5 U.S.C. § 7511(a)(1)(C). That provision offers
two possible definitions of “employee”; the individual can
either (i) be “not serving a probationary or trial period un-
der an initial appointment pending conversion to the com-
petitive service,” or (ii) have “completed 2 years of current
continuous service in the same or similar positions in an
1 Honorable Arun Subramanian, District Judge,
United States District Court for the Southern District of
New York, sitting by designation.
2 The term “preference eligible” is defined at 5 U.S.C.
§ 2108(3), and it generally means certain veterans or their
family members.
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HART v. MSPB 3
Executive agency under other than a temporary appoint-
ment limited to 2 years or less.” § 7511(a)(1)(C)(i), (ii) (for
convenience, we refer to these definitions simply as (C)(i)
and (C)(ii)). The AJ, upon finding that Ms. Hart had not
adequately alleged that she met either definition, dis-
missed her Board appeal for lack of jurisdiction.
Ms. Hart filed a petition for review with the Board. The
Board granted that petition, vacated the AJ’s dismissal,
and remanded for further adjudication. Although the
Board agreed that Ms. Hart could not be a (C)(ii) “em-
ployee” (because she had not alleged completion of “2 years
of current continuous service in the same or similar posi-
tions”), the Board deemed Ms. Hart’s allegations regarding
(C)(i) adequate at that stage of the proceedings. See
App’x 51.3 It therefore remanded to the AJ for further ad-
judication as to whether Ms. Hart could prove that she met
that latter definition.
On remand from the Board, the AJ conducted further
proceedings to determine whether Ms. Hart could prove
that she was a (C)(i) “employee.” The AJ ultimately found
that she did not prove as much, because she failed to prove
that she was not serving a probationary or trial period. See
App’x 18–20. While the AJ acknowledged that the agency
“could have been clearer” about the nature of Ms. Hart’s
appointment, App’x 18, the AJ relied on the agency’s stated
policy—in materials both public-facing and internal—that
Schedule A appointments are subject to a probationary or
trial period of two years if the individual is not a preference
eligible, see App’x 19. And, “[c]onsidering the record as a
whole,” the AJ found that Ms. Hart “did not meet her bur-
den of showing that . . . she was somehow different from
other Schedule A appointments that are subject to a 2-year
trial period.” App’x 19. Because the AJ found that
3 “App’x” refers to the appendix included with the
government’s informal brief.
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HART v. MSPB 4
Ms. Hart’s appointment was indeed subject to a two-year
trial period, and because she was terminated while still
serving that trial period, the AJ determined that Ms. Hart
was not a (C)(i) “employee” and dismissed her appeal for
lack of jurisdiction accordingly. App’x 18–21.
Ms. Hart again filed a petition for review with the
Board, and she also sought to submit new evidence. The
Board denied Ms. Hart’s attempt to submit new evidence,
because she had not “establish[ed] that the material she
[sought] to submit was unavailable before the record closed
on review despite her due diligence.” App’x 3 (citing,
among other authorities, 5 C.F.R. § 1201.115(d), which ref-
erences “[n]ew and material evidence . . . that, despite the
petitioner’s due diligence, was not available when the rec-
ord closed”). And it otherwise affirmed the AJ’s post-re-
mand dismissal, which became the Board’s final decision.
App’x 2 (citing 5 C.F.R. § 1201.113(b)).
Ms. Hart timely petitioned this court for review of the
Board’s final decision. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
D ISCUSSION
We review the Board’s jurisdictional determinations de
novo and its underlying fact findings for substantial evi-
dence. Parrott v. MSPB, 519 F.3d 1328, 1334 (Fed. Cir.
2008). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Jones v. MSPB, 98 F.4th 1376, 1380 (Fed. Cir.
2024) (cleaned up). We review the Board’s evidentiary de-
cisions for abuse of discretion. See, e.g., Cerwonka v. Dep’t
of Veterans Affs., 915 F.3d 1351, 1360 (Fed. Cir. 2019).
Ms. Hart, as the petitioner, bears the burden of establish-
ing reversible error in the Board’s final decision. E.g., Sis-
tek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir.
2020).
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HART v. MSPB 5
For the Board to have possessed jurisdiction over
Ms. Hart’s appeal of her termination, she must have been
an “employee” as defined in § 7511(a)(1). See, e.g., Roy v.
MSPB, 672 F.3d 1378, 1380 (Fed. Cir. 2012); see also
5 U.S.C. § 7513(d) (“An employee against whom an action
is taken under this section is entitled to appeal to the
[Board] under [§] 7701 of this title.”); § 7511(a)(1) (defining
“employee” for purposes relevant here). The Board cor-
rectly concluded that Ms. Hart’s only route to being such
an “employee” was through the (C)(i) definition, given that
her appointment was in the excepted service, she was not
a preference eligible, and she had not alleged completion of
two years of current continuous service in the same or sim-
ilar positions. And it found that Ms. Hart had not met her
burden of proving (C)(i) status, because (1) the agency’s
stated policy was that Schedule A appointments would be
subject to a two-year trial period if the individual was not
a preference eligible; (2) she had not proven that “she was
somehow different from other Schedule A appointments
that are subject to a 2-year trial period”; and (3) she was
still serving that two-year trial period when she was termi-
nated. App’x 18–19.
Ms. Hart does not demonstrate that the Board’s juris-
dictional determination (and resultant dismissal) was un-
supported by substantial evidence or otherwise erroneous.
Instead, she makes two main arguments—neither of which
directly concerns the Board’s jurisdictional determination.
First, Ms. Hart contests the Board’s decision not to al-
low her to submit new evidence. See Pet’r’s Informal Br. 3.4
In disallowing the new evidence, the Board determined
that Ms. Hart failed to establish that such evidence “was
unavailable before the record closed on review despite her
4 When citing specific pages of petitioner’s filings at
this court, we cite the page numbers supplied by the elec-
tronic filing system in the header of the document.
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HART v. MSPB 6
due diligence.” App’x 3 (citing, among other authorities,
5 C.F.R. § 1201.115(d)). Ms. Hart does not explain, nor do
we see, how the Board abused its discretion in this regard.
Second, Ms. Hart seems to contest the merits of her ter-
mination. For example, she maintains that her termina-
tion did not comply with due process. Pet’r’s Informal
Br. 3. And, by referencing the Douglas factors, she sug-
gests that her termination was unwarranted in the first
place. See id. (referencing Douglas v. Veterans Admin.,
5 M.S.P.R. 280 (1981)). But these arguments would be rel-
evant only if the Board had jurisdiction to adjudicate
them—which, for the reasons described above, it did not.
CONCLUSION
We have considered Ms. Hart’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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