United States Court of Appeals 

for the Federal Circuit ______________________ 

AMY J. MITCHELL,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3056

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA0752110601-I-1.

______________________ 

Decided: January 15, 2014

______________________ 

KRISTINA CAGGIANO, Duane Morris LLP, of Washington, DC, argued for petitioner. With her on the brief was 

MATTHEW C. MOUSLEY, of Philadelphia, Pennsylvania. 

MICHAEL A. CARNEY, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, argued for respondent. With him on the brief was

BRYAN G. POLISUK, General Counsel. 

______________________ 

Before PROST, REYNA, and TARANTO, Circuit Judges.
2 MITCHELL v. MSPB

Opinion for the court filed by Circuit Judge TARANTO. 

Dissenting opinion filed by Circuit Judge PROST. 

TARANTO, Circuit Judge.

This case involves a jurisdictional limit on the authority of the Merit Systems Protection Board to review an 

agency’s removal of a worker from her job. In late 2008, 

the Department of Justice hired Amy Mitchell as an 

Assistant United States Attorney. She began working 

while the required background investigation took place. 

When the investigation concluded about seven months 

later, the Department issued Ms. Mitchell a form stating

that her appointment was subject to a two-year trial 

period beginning August 2, 2009. The Department fired 

her effective July 29, 2011, a few days before the two-year 

period ended. She appealed her removal to the Board. 

The Board may hear Ms. Mitchell’s appeal only if she 

was an “employee” as an Assistant United States Attorney. The statute defines “employee” as someone “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 limited to 2 years or 

less.” 5 U.S.C. § 7511(a)(1)(C)(ii). Ms. Mitchell was an 

employee under that definition if the time during which 

her background check was pending counted toward the 

required “2 years of current continuous service.” The 

Board concluded that it did not, on the ground that Ms. 

Mitchell’s service as an Assistant United States Attorney 

before August 2, 2009, was under a “temporary appointment,” not “under other than a temporary appointment.” 

The Board dismissed the appeal. We reverse and remand 

for further proceedings. 

BACKGROUND

Ms. Mitchell began working as a government attorney 

in 1998, when she became a lawyer for the Social Security 

Administration. In 2006, the Department of Justice 
MITCHELL v. MSPB 3

appointed her as a Special Assistant United States Attorney for the Northern District of Texas—a one-year appointment during which she remained an employee of, 

and continued to be paid by, the Social Security Administration. The Department twice extended that appointment, and she served for just over two years in the Special 

Assistant position. 

Effective December 21, 2008, the Department hired 

Ms. Mitchell as an Assistant United States Attorney in 

the same office. It issued a Standard Form 50-B (Notification of Personnel Action) documenting the appointment. 

As authority for the appointment, the form invoked 28 

U.S.C. § 542, which authorizes Assistant United States 

Attorney appointments generally. The form also stated 

that the appointment was not to exceed 18 months, was 

“temporary” because of the pending background investigation, and was “subject to” the successful completion of 

that investigation. The background check concluded in 

late July 2009. In early August 2009, the Department 

provided Ms. Mitchell another Standard Form 50-B, again 

citing 28 U.S.C. § 542 as legal authority for the personnel 

action. This time, the “Remarks” section stated that Ms. 

Mitchell was subject to a two-year trial period beginning 

August 2, 2009, during which she could be removed 

without cause or appeal rights. The Department fired Ms. 

Mitchell effective July 29, 2011, days before the two-year 

period was to end, without notice or an opportunity to 

respond. 

Ms. Mitchell promptly filed an appeal at the MSPB. 

In February 2012, the administrative judge dismissed the 

appeal for lack of jurisdiction, concluding that Ms. Mitchell was not an “employee” within the meaning of 5 U.S.C. 

§ 7511(a) and therefore did not have the right to appeal. 

Ms. Mitchell filed a petition for review to the full Board, 

which denied her relief. She now appeals to this court. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 

U.S.C. § 7703(b)(1). 
4 MITCHELL v. MSPB

DISCUSSION

There is no dispute that very nearly two years’ worth

of Ms. Mitchell’s service as an Assistant United States 

Attorney—from August 2, 2009, to July 29, 2011—was 

“under other than a temporary appointment limited to 2 

years or less.” 5 U.S.C. § 7511(a)(1)(C)(ii). We must 

decide whether she held a “temporary appointment limited to 2 years or less” during the pendency of her background check in the months before August 2009. If she 

did, then those seven-plus months do not count toward

the required “2 years of current continuous service,” 

leaving her just a few days shy of the two-year threshold. 

If she did not, then she worked for more than two years in 

the same or similar positions and she comes within the 

statutory definition of an “employee” who may appeal to 

the Board. Making that “legal determination” de novo, 

Roy v. Merit Systems Protection Board, 672 F.3d 1378, 

1380 (Fed. Cir. 2012), we conclude that the second view is 

the better one.1

A 

Title 5 limits the Board’s jurisdiction over federal 

workers’ appeals based on both the nature of the personnel action being contested and the employment status of 

the individual complainant. This case is about the latter. 

1 The Board insists on de novo review of its statutory ruling, rejecting any deference under Chevron, U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837 (1984). Any Chevron deference would be to regulations of the Office of Personnel Management. See 5 

U.S.C. § 7514; Wilder v. Merit Sys. Prot. Bd., 675 F.3d 

1319, 1322 (Fed. Cir. 2012). Those regulations produce 

the same result as de novo review, which, as indicated 

infra, looks to those regulations. Accordingly, we need not 

decide whether to give Chevron deference in this case. 

 
MITCHELL v. MSPB 5

An “employee” has the right to appeal certain adverse 

actions to the Board. 5 U.S.C. §§ 7701(a), 7512, 7513(d). 

Section 7511 defines what “employee” means for such 

purposes. Id. § 7511(a). (That definition modifies, for 

adverse actions, the general definition of a federal civilservice “employee” set out in 5 U.S.C. § 2105.) It is undisputed that, for Ms. Mitchell, as a person in the “excepted service” not eligible for a preference, qualification as an 

“employee” depends on whether, upon her July 2011 

firing, she had “completed 2 years of current continuous 

service in the same or similar positions in an Executive 

agency under other than a temporary appointment limited to 2 years or less.” Id. § 7511(a)(1)(C)(ii); Van Wersch 

v. Dep’t of Health & Human Servs., 197 F.3d 1144, 1149-

50 (Fed. Cir. 1999) (discussing 1990 addition of provision). 

To calculate the length of Ms. Mitchell’s “current continuous service,” we must ask whether she was in a “temporary appointment limited to 2 years or less” during her 

first seven-plus months as an Assistant United States 

Attorney, starting in December 2008. 

Our answer starts with the text, where our task is to 

“give effect, if possible, to every clause and word of [the]

statute, avoiding, if it may be, any construction which 

implies that the legislature was ignorant of the meaning 

of the language it employed.” Inhabitants of Montclair 

Twp. v. Ramsdell, 107 U.S. 147, 152 (1883). That principle counsels against reading “temporary” to have no 

meaning beyond “limited in time” or “for a limited period.” 

Such a reading would effectively erase the term from the 

provision: the result would be the same as if the statute 

referred simply to “other than a[n] appointment limited to 

2 years or less.” The word “temporary” should be given 

independent meaning, if possible.

Several sources might provide such meaning, but the 

first and most natural place to look is in regulations of the 

agency charged with implementing the statute, OPM. See 

5 U.S.C. § 7514. It makes sense for Congress to include 
6 MITCHELL v. MSPB

the word “temporary” and allow its definition to depend, 

at least in part, on OPM determinations. In fact, the 

predominant and longstanding use of the word “temporary” in the context of federal appointments is to refer to 

appointments of one year or less. 

An OPM excepted-service regulation states: 

[W]hen agencies elect to make temporary, intermittent, or seasonal appointments in Schedule A, 

B, C, or D, those terms have the following meaning: (1) Temporary appointments, unless otherwise specified in a particular Schedule A, B, C, or 

D exception, are made for a specified period not to 

exceed 1 year and are subject to the time limits in 

paragraph (b) of this section. Time-limited appointments made for more than 1 year are not 

considered to be temporary appointments, and are 

not subject to these time limits. 

5 C.F.R. § 213.104(a). When OPM promulgated the 

regulation, it made clear that it was newly making uniform a one-year standard for “temporary” appointments 

that already appeared in OPM regulations. The first 

sentence of the “Summary” announced that OPM was 

“revising its regulations governing use of temporary 

appointments (i.e., appointments limited to 1 year or less) 

to set a uniform service limit for such appointments in 

both the competitive and the excepted service at 1 year 

with no more than one 1-year extension (24 months total 

service).” 59 Fed. Reg. 46,895-01 (Sept. 13, 1994) (emphasis added); see Stern v. Dep’t of the Army, 699 F.2d 1312, 

1313 (Fed. Cir. 1983) (“It was a temporary appointment 

(i.e., one year or less, 5 C.F.R. § 316.401 (1982)) . . . .”) 

(emphasis added). This understanding has persisted. 

See, e.g., 63 Fed. Reg. 63,781, 63,783 (Nov. 17, 1998) 

(“Excepted appointments not-to-exceed 1 year are defined 

in 5 CFR 213.104(a)(1) as temporary and are subject to 

the maximum time limits [of] 5 CFR 213.104(b)(1).”). 
MITCHELL v. MSPB 7

OPM has long distinguished “temporary” appointments from others—given labels like “term” and “timelimited”—made for different but still limited periods. For 

example, when adding the last sentence of 5 C.F.R. 

§ 213.104(a), which refers to “[t]ime-limited appointments,” the agency explained both that “[t]he existing 

regulations provide that if the appointments are for 1 

year or less, by definition, they are temporary appointments” and, in addition, “that agencies continue to have 

the ability to make appointments with time limits of more 

than 1 year[ and that t]hese time-limited appointments 

are not subject to the restrictions for temporary appointments.” 62 Fed. Reg. 18,505 (Apr. 16, 1997). These 

distinctions existed long before the relevant provision of 5 

U.S.C. § 7511(a) was added to the statute in 1990. In 

1968, for instance, OPM regulations provided that “[a]n 

agency may make a temporary limited appointment only 

for a definite period of 1 year or less,” 33 Fed. Reg. 12,402, 

12,423 (Sept. 4, 1968) (5 C.F.R. § 316.401), and that “[t]he 

Commission may authorize an agency to make a term 

appointment for a period of more than 1 year on request 

of the agency and after determination . . . that the employment need is for a limited period of 4 years or less,” 

id. (5 C.F.R. § 316.301). See also Stern, 699 F.2d at 1313 

(discussing 1982 regulation); 45 Fed. Reg. 8,541, 8,544 

(Feb. 8, 1980) (“time limited” appointments in the Senior 

Executive Service). 

If we were to rely entirely on the longstanding regulatory meaning of “temporary,” the conclusion would be that 

Ms. Mitchell never held a “temporary” appointment, 

because (as is undisputed) her appointment as an Assistant United States Attorney was never limited to a period 

of one year or less. Even the December 2008 Standard 

Form 50-B stated that her appointment, subject to a 

background investigation, was not to exceed 18 months, 

not one year. But we need not rely entirely on the regula-
8 MITCHELL v. MSPB

tory treatment, because the conclusion is further supported by two additional considerations.

First, nothing indicates that the Department of Justice ever contemplated that the job it was giving Ms. 

Mitchell, even in December 2008, was a short-term job. 

Rather, it invoked the same legal authority, 28 U.S.C. 

§ 542, for Ms. Mitchell’s appointment as an Assistant 

United States Attorney throughout her tenure in that 

position, from December 2008 onward. The reason for the 

time limit in the December 2008 Standard Form 50-B was 

not any “expectation” that the need for Ms. Mitchell’s 

service in the job would come to an end. See H.R. Rep. 

No. 101-328, at 4 (1989) (focusing on “expectation of 

continuing employment”). It simply reflected the fact 

that, operating under its waiver of the “preappointment 

investigative requirement,” the Department had only “a 

limited period” to complete the background investigation 

when appointing Ms. Mitchell. 5 C.F.R. § 732.202(a)(1)

(emphasis added); see also Dep’t of Justice, Oversight of 

Background Investigations by the Security and Emergency 

Planning Staff, Report No. I-97-06, at App. II (July 1997). 

Those circumstances are quite different from her appointments as a Special Assistant United States Attorney 

under 28 U.S.C. § 543, one-year appointments that were 

made to fill short-term needs. 

Second, determining that Ms. Mitchell did not hold a 

“temporary” appointment after December 2008 serves the 

statute’s purpose. The reason for the two-year trial 

period in § 7511(a)(1)(C)(ii) is to “‘ensure that the agency 

can fully judge an employee’s performance and yet vest 

these employees with important job protections.’” Van 

Wersch, 197 F.3d at 1149. Here, the parties stipulated 

that Ms. Mitchell held the “same or similar” positions 

from December 2008 through her termination, indicating

that nothing meaningful about her job duties changed 

once the background investigation was completed. There 

is thus no reason to think that the Department lacked the 
MITCHELL v. MSPB 9

contemplated amount of time for judging Ms. Mitchell’s 

performance within the two-year period starting on 

December 21, 2008.

In sum, the statute and regulations, and the particulars of Ms. Mitchell’s tenure as an Assistant United 

States Attorney, lead us to conclude that she spent no 

part of that tenure in a “temporary” appointment as that 

term is used in § 7511(a). 

B 

The Board’s arguments in support of its contrary conclusion are unpersuasive. The Board has relied on certain 

statements from our precedents. But it has given the

statements unduly broad effect by taking them out of 

context. 

In at least two instances, we have said that a complainant fell outside § 7511(a)(1)(C)(ii) because that 

person had not spent two continuous years in a “permanent” position. See Roy, 672 F.3d at 1382; Forest v. Merit 

Sys. Prot. Bd., 47 F.3d 409, 411-12 (Fed. Cir. 1995). 

Those decisions, however, cannot be taken to establish 

that time spent in a “permanent” position is the only time 

that qualifies under § 7511(a)(1)(C)(ii). There are various 

types of federal appointments—some without end dates, 

like permanent, seasonal, or intermittent, and some with 

end dates, like temporary, term, or time-limited. See, e.g., 

5 C.F.R. § 213.104(a). The statute excludes only those 

which are “temporary,” which is not the only alternative 

to “permanent.” None of our precedents had occasion to 

address these distinctions, as none actually involved a 

dispute about whether the appointment at issue was or 

was not “temporary,” or considered the meaning of “temporary” in § 7511(a) alongside 5 C.F.R. § 213.104 and 

other OPM regulations. See Roy, 672 F.3d at 1382; Carrow v. Merit Sys. Prot. Bd., 626 F.3d 1348, 1352 (Fed. Cir. 

2010); Forest, 47 F.3d at 411-12. (Weidel v. Department of 

Justice, 230 F.3d 1380 (Fed. Cir. 2000) (table), involved a 
10 MITCHELL v. MSPB

similar issue, but the decision is non-precedential, and 

the court recognized that the arguments were not fully 

developed.) Precedent thus does not establish a conclusion different from the one we reach here.

The Board urges us to discount the significance of 5 

C.F.R. § 213.104 on the ground that OPM did not invoke 

§ 7511(a) in promulgating it. That is not a sufficient 

reason to eschew reliance on the regulation in interpreting and applying “temporary” in the statute. The alternative interpretation on offer would run afoul of the general 

rule against nullifying words in the statute, and the 

regulation embodies an interpretation deeply embedded 

in federal personnel law and a policy promoting a uniform 

application of that interpretation. At least where other 

considerations support the same conclusion, it makes good 

sense to construe the statute in accordance with this 

regulation. Cf. Pauley v. BethEnergy Mines, Inc., 501 U.S. 

680, 706 (1991) (adopting interpretation that harmonizes 

statute with regulations). 

The Board highlights the fact that the December 2008

Standard Form 50-B (SF-50) used the term “temporary” 

to refer to Ms. Mitchell’s appointment “pending adjudication of a full-field background check.” But we have held 

that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights.” 

Grigsby v. U.S. Dep’t of Commerce, 729 F.2d 772, 776 

(Fed. Cir. 1984). And we think that, as between the label 

“temporary” and the actual stated term of 18 months for 

the particular job of Assistant United States Attorney, the 

latter must control. We need not go any further, or offer 

an affirmative view of the correct label to apply to the preAugust 2009 portion of Ms. Mitchell’s tenure as an Assistant United States Attorney. Cf. Weidel, 230 F.3d 1380 

(expressing “doubt as to the source of authority for [a 

‘temporary’] appointment” as an Assistant United States 

Attorney). 
MITCHELL v. MSPB 11

Finally, the Board observes that Ms. Mitchell served 

for only seven-plus months while her background check 

was pending, suggesting that even if “temporary” appointments are appointments for one year or less, that 

standard makes no difference here because seven-plus 

months is still less than a year. But the regulatory and 

statutory scheme requires that the nature of Ms. Mitchell’s appointment be judged at the outset, without regard 

to service ultimately completed. 

OPM regulations, for example, define a temporary 

appointment based on the time limit imposed when the 

appointment is “made.” 5 C.F.R. § 213.104(a)(1). This 

makes good sense. Allowing a federal appointment to 

change character over time based on time served—if, say, 

a permanent appointment became seasonal or temporary 

when an employee lasts only a few months—would conflict with § 7511(a)’s express provision for so-called “tacking” of time in consecutive jobs. Section 7511(a) permits 

employees to combine time spent in “the same or similar” 

jobs, if one immediately follows the other, in order to get 

to the requisite two years of “current continuous service.” 

But under the Board’s suggestion, someone who spends 

twenty years in one permanent position and then ten 

months in a “similar,” permanent position before being 

terminated, see, e.g., Mathis v. United States Postal 

Service, 865 F.2d 232 (Fed. Cir. 1988), would be a “temporary” employee based on the final ten months of service, 

and would be stripped of all appeal rights. That cannot be 

how the statute is supposed to work. Cf. Grigsby, 729 

F.2d at 775 n.9 (counseling against “reduc[ing] an employee’s appointment to a form manipulable at any time 

by the agency”). The length of time that Ms. Mitchell 

actually served before the background investigation was 

completed, therefore, does not alter our analysis of 

whether she held a “temporary” appointment at the time.

In so concluding, we do not depart from “the doctrine 

of harmless error.” Dissent at 2. That doctrine does not 
12 MITCHELL v. MSPB

apply to the only question we must answer, namely, the 

character of the Department’s appointment action, which 

determines whether Ms. Mitchell was an “employee” and 

hence whether the Board erred in its jurisdictional ruling. 

There is no doubt that, if Ms. Mitchell was an “employee,” 

the Board’s jurisdictional ruling was a harmful error, as it 

deprived Ms. Mitchell of a hearing on her rights regarding 

her removal. But on the threshold assessment of the 

Department’s appointment, “harmless error” has no role.

As all of the cases cited by the dissent confirm, the 

subject of the harmless-error doctrine, and of 5 U.S.C. 

§ 7701(c)(2), is “error” in the specific sense of a violation of 

legal requirements. In that event, the court must inquire, 

under proper standards, into whether the bottom-line 

result would have been different had the requirements 

been met. But there has been no suggestion here, by 

anyone, that the Department’s December 2008 appointment committed any violation of legal requirements. It 

simply made a choice about the terms of the appointment. 

Although the Department may now wish that it had made 

a different choice, our jurisdictional analysis must ask 

about the character of the appointment actually made—

specifically, whether it was a “temporary” appointment. 

There being no legal violation, there is no basis for us to 

ask what result would have occurred in the absence of 

such a violation. “Harmless “error” analysis is thus a 

mismatch for the issue currently before us. Of course, to 

the extent that Ms. Mitchell’s claim on the merits before 

the Board concerns an alleged Department failure to 

follow procedures required when an employee is removed, 

a harmless error analysis may be appropriate, but that is 

for the Board to consider on remand. 

CONCLUSION

We conclude that Ms. Mitchell did not hold a “temporary appointment limited to 2 years or less” during her 

roughly two-and-a-half years as an Assistant United 
MITCHELL v. MSPB 13

States Attorney. Accordingly, she was an “employee” 

under § 7511(a) and had the right to contest her removal 

at the Board. We therefore reverse and remand for further proceedings. 

REVERSED AND REMANDED 
United States Court of Appeals 

for the Federal Circuit ______________________ 

AMY J. MITCHELL,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3056

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA0752110601-I-1.

______________________ 

PROST, Circuit Judge, dissenting.

I respectfully dissent from the majority’s opinion reversing the Merit Systems Protection Board’s (“Board’s”)

decision on Ms. Mitchell’s appeal rights. The majority 

concludes that since Ms. Mitchell’s eighteen month appointment exceeded the twelve month limit set forth in 5 

C.F.R. § 213.104(a)(1), her initial appointment cannot be 

classified as temporary. Even accepting the majority’s 

view that 5 C.F.R. § 213.104(a)(1) applies to 5 U.S.C. 

§ 7511(a)(1)(C)(ii), the fact remains that Ms. Mitchell only 

served less than eight months of her initial eighteen 

month appointment, making the Department of Justice’s 

(“DOJ’s”) alleged error in granting Ms. Mitchell a temporary eighteen month appointment harmless. Therefore, I 

conclude that Ms. Mitchell’s eight months served pending 
2 MITCHELL v. MSPB

the successful completion of her background check should

not be tacked on to her time served in a permanent position for purposes of determining appeal rights. 

The majority insists that “the regulatory and statutory scheme requires that the nature of Ms. Mitchell’s 

appointment be judged at the outset, without regard to 

service ultimately completed.” Majority Op. at 11. Thus, 

the majority fails to recognize that the government should 

benefit from the doctrine of harmless error. This court

routinely requires employees to not only show that the 

agency erred but also to show that the error was harmful. 

See, e.g., Ward v. U.S. Postal Serv., 634 F.3d 1274, 1281-

82 (Fed. Cir. 2011) (requiring plaintiff to show harmful 

error in an agency’s procedure in order to establish reversible procedural error); Diaz v. Dep’t of the Air Force, 

63 F.3d 1107, 1109 (Fed. Cir. 1995) (“[W]e have previously 

held that an employee challenging an agency action has 

the burden to prove that a violation of a statutory procedure was harmful.”); Handy v. U.S. Postal Serv., 754 F.2d 

335, 337–38 (Fed. Cir. 1985) (“It is insufficient simply to 

show that a statutory procedure was not followed at the 

agency level. Harmful error must be shown.”). And in 

this case Ms. Mitchell has failed to show that the DOJ’s 

error in using an eighteen month temporary appointment

rather than a twelve month appointment was harmful to 

her, given that she served less than eight months under 

the initial temporary appointment. The DOJ’s alleged 

error is rendered even more inconsequential by the fact 

that 5 C.F.R. § 213.104(b)(1) authorizes agencies to extend temporary appointments for an additional twelve

months, for a total period that exceeds the eighteen 

month temporary appointment at issue here. Thus, I 

conclude that Ms. Mitchell has failed to show that the 

DOJ’s error was harmful. 

The majority further relies on other “considerations” 

surrounding the nature of Ms. Mitchell’s position to 

support its conclusion, stating that “nothing indicates 
MITCHELL v. MSPB 3

that the [DOJ] ever contemplated that the job it was 

giving Ms. Mitchell, even in December 2008, was a shortterm job.” Majority Op. at 8. The majority also concludes 

that determining that Ms. Mitchell did not hold a “temporary” appointment after December 2008 serves the statute’s purpose to “ensure that the agency can fully judge 

an employee’s performance and yet vest these employees 

with important job protections.” Id. (citing Van Wersch v. 

Dep’t of Health & Human Servs., 197 F.3d 1144, 1149 

(Fed. Cir. 1999)).

However, I do not find these considerations persuasive. The DOJ’s alleged intent of continuing Ms. Mitchell’s employment is diminished by the fact that the agency 

noted in both the SF-50 and SF-52 forms that it considered her initial appointment to be temporary. Further, 

while the legislative history does indicate that it was 

Congress’s intent to give employees in similar positions 

appeal rights after two years of service, if Congress had 

intended to count temporary service in that calculation, it 

would not have clearly excluded such service in 5 U.S.C. 

§ 7511(a)(1)(C)(ii). 

For the foregoing reasons, I conclude that Ms. Mitchell’s time served pending the completion of her background check was time served in a temporary position. 

Since Ms. Mitchell has failed to show that, prior to her 

termination, she completed two years in an excepted 

service position that was not temporary, I would not grant 

appeal rights under 5 U.S.C. § 7511(a)(1)(C)(ii). Therefore, I would affirm the final order of the Board.