Eric J. Sutula, a former U.S. Navy employee who returned to federal service in 2021, was terminated by the Department of Commerce two days before completing his first year of service. He appealed the termination to the Merit Systems Protection Board (MSPB), but the Board dismissed the appeal for lack of jurisdiction. The dismissal turned on a threshold question: whether Sutula qualified as an 'employee' under 5 U.S.C. § 7511(a)(1) at the time of his termination. Federal employees generally lack MSPB appeal rights if they are serving an initial probationary period or have not completed one year of continuous service. Sutula argued he was not probationary because he had already completed a probationary period during his prior Navy service, which he claimed exempted him from a new one. The Administrative Judge and the Board concluded Sutula was probationary because he was selected from a 'certificate' of eligibles, a competitive list that triggers a mandatory one-year probation under 5 C.F.R. § 315.801. This conclusion relied on a remark in an original SF-50 form that was later cancelled and contradicted by subsequent correction forms stating his initial probationary period was completed.
The Federal Circuit, in a nonprecedential opinion by Judge Reyna, focused on the 'non-frivolous allegation' standard required to trigger a jurisdictional hearing. Under 5 C.F.R. § 1201.4(s), an appellant is entitled to a hearing if they make allegations that are more than conclusory, plausible on their face, and material to the legal issues. The court found that Sutula met this threshold by alleging he was exempt from a new probationary period due to prior service and by pointing to a 'Corrected SF-50' form that explicitly stated 'Initial Probationary Period Completed.' The court held that the Board erred in two key ways. First, the Board's finding that Sutula was hired from a competitive list lacked substantial evidence because the actual certificate was not in the record, and the original form containing that remark had been cancelled. Second, and more critically, the Board exceeded its authority at the jurisdictional stage by weighing conflicting evidence. The court cited precedent establishing that an Administrative Judge may not resolve disputed factual assertions or weigh evidence when an appellant has made a non-frivolous allegation of jurisdiction. Because the record contained confusing and contradictory SF-50 forms, the Board could not resolve the dispute on documentary submissions alone and was required to hold an evidentiary hearing.
The decision mandates that the MSPB conduct a jurisdictional hearing to determine Sutula's employment status at the time of termination. This ruling reinforces the principle that federal agencies and the Board cannot dismiss termination appeals on jurisdictional grounds without first allowing the employee to prove their status through an evidentiary hearing if they have made a plausible, non-frivolous allegation. It clarifies that conflicting agency documentation does not justify a summary dismissal of jurisdictional claims; rather, it necessitates a fact-finding process. The case remains open on the merits of the termination once the jurisdictional status is resolved.
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