Eric J. Sutula v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERIC J. SUTULA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1818
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-22-0299-I-1.
______________________
Decided: March 24, 2026
______________________
D EBRA D’A GOSTINO, Federal Practice Group, Washing-
ton, DC, argued for petitioner.
D EANNA SCHABACKER , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, argued for respondent. Also represented by
ALLISON J ANE BOYLE, K ATHERINE M ICHELLE SMITH .
______________________
Case: 24-1818 Document: 63 Page: 1 Filed: 03/24/2026

-- 1 of 9 --

SUTULA v. MSPB 2
Before REYNA and CHEN, Circuit Judges, and F REEMAN,
District Judge.1
REYNA, Circuit Judge.
Eric J. Sutula challenges the Merit Systems Protection
Board’s (“Board”) dismissal of his termination appeal for
lack of jurisdiction. The Board affirmed an initial determi-
nation that Mr. Sutula failed to non-frivolously allege that
he satisfied one of the definitions of “employee” set forth in
5 U.S.C. § 7511(a)(1), which is a requirement for Board ju-
risdiction. Because we determine Mr. Sutula non-frivo-
lously alleged that he was an “employee,” we reverse and
remand for a jurisdictional hearing.
BACKGROUND
The merits of Mr. Sutula’s termination claim before the
Board are not at issue on appeal. Rather, we are faced with
a threshold jurisdictional question: Did Mr. Sutula non-
frivolously allege that he was non-probationary at the time
of his termination such that he met the “employee” status
necessary to have appeal rights to the Board?
To establish Board jurisdiction, an appellant must
demonstrate, among other things, that he or she satisfied
one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1)
at the time of his or her termination. See 5 U.S.C.
§ 7513(d). This means he or she must have either (1) “not
[been] serving a probationary or trial period under an ini-
tial appointment,” or (2) have “completed 1 year of current
continuous service.” Id. § 7511(a)(1). Mr. Sutula does not
dispute that he completed less than 1 year of current con-
tinuous service at the time of his termination. Thus, the
question is whether he was probationary at the time of his
1 Honorable Beth Labson Freeman, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
Case: 24-1818 Document: 63 Page: 2 Filed: 03/24/2026

-- 2 of 9 --

SUTULA v. MSPB 3
termination. Pursuant to 5 C.F.R. § 315.801(a)(1), the
“first year of service” of an employee who is “appointed
from a competitive list of eligibles,” also known as a “regis-
ter,”2 is probationary.
Mr. Sutula worked for the U.S. Department of the
Navy from 2001 until 2019, during which time he com-
pleted an initial one-year probationary period. He left the
Navy to take a job in the private sector and returned to
federal service on February 16, 2021, when the Depart-
ment of Commerce (“agency”) appointed him to the compet-
itive service as a Supervisory General Engineer.
Upon his appointment, the agency processed a SF-50
form (“Original SF-50”) identifying Mr. Sutula as a “career-
cond[itional]” employee. J.A. 52. The Original SF-50 listed
the legal authority for Mr. Sutula’s hiring as 5 C.F.R.
§ 337.201, which permits agencies to use direct-hiring au-
thority (“DHA”) if “OPM determines that there is either a
severe shortage of candidates or a critical hiring need for
such positions.” The Remarks section (Box 45) of the Orig-
inal SF-50 indicated that Mr. Sutula was “selected from
certificate3 #20201030-CBPM-001” and that his appoint-
ment was “subject to completion of one-year initial proba-
tionary period beginning 02/16/2021.” J.A. 52–53.
After reviewing the Original SF-50, Mr. Sutula con-
tends he contacted human resources to correct his
2 Applicants who qualify for the competitive service
are listed in registers, which are known as lists of eligibles.
5 U.S.C. § 3313.
3 The Board construed the Original SF-50’s refer-
ence to a “certificate” as synonymous with a “competitive
list of eligibles” or “register.” J.A. 3–4. Mr. Sutula does not
challenge that finding on appeal. Appellant Reply Br. 3
(“Mr. Sutula does not quibble that the words ‘list’ and ‘cer-
tificate’ may be used interchangeably in this context . . . .”).
Case: 24-1818 Document: 63 Page: 3 Filed: 03/24/2026

-- 3 of 9 --

SUTULA v. MSPB 4
employment classification and probationary status.
J.A. 86–87. Mr. Sutula contends he told human resources
that his prior service with the Navy made him a tenured,
career employee, and exempted him from serving another
initial probationary period under 5 C.F.R. § 315.801. Id.
The agency subsequently issued three additional SF-50
forms backdated to February 16, 2021—two “corrections”
and one “cancellation.” Because each form was backdated,
the chronology of these correction and cancellation actions
is unclear. Nonetheless, there are several material
changes present in these forms. The cancellation SF-50
(“Cancellation SF-50”), J.A. 55, revoked, at least in part,
the Original SF-50, which was the only SF-50 form indicat-
ing that Mr. Sutula was hired from a “certificate.” Further,
one of the correction SF-50s (“Corrected SF-50”)4, J.A. 56,
changed Mr. Sutula’s appointment to a career appointment
with permanent tenure and revised the remarks to read
“Initial Probationary Period Completed.”5 Both the Can-
cellation SF-50 and Corrected SF-50 maintained that Mr.
Sutula was hired using DHA.
The agency terminated Mr. Sutula two days shy of his
one-year work anniversary. Notwithstanding the remark
on the Corrected SF-50 that his initial probationary period
had been completed, the SF-50 processing Mr. Sutula’s ter-
mination (“Termination SF-50”) indicates he was termi-
nated for “failure to pass probationary period.” J.A. 143.
4 The other correction SF-50 does not make changes
material to our opinion.
5 The Corrected SF-50 maintained that Mr. Sutula’s
appointment was subject to a separate probationary period
“for assignment to supervisory or managerial position.”
J.A. 56. Unlike an initial probationary period, that proba-
tionary period does not deprive Mr. Sutula of MSPB appeal
rights.
Case: 24-1818 Document: 63 Page: 4 Filed: 03/24/2026

-- 4 of 9 --

SUTULA v. MSPB 5
Mr. Sutula appealed his termination to the Board. An
Administrative Judge (“AJ”) issued an initial decision de-
termining Mr. Sutula failed to non-frivolously allege juris-
diction before the Board. Specifically, the AJ determined
that Mr. Sutula had no Board appeal rights because, hav-
ing been selected from a register, he was required to serve
a probationary period under 5 C.F.R. § 315.801, and there-
fore did not meet either definition of an “employee” under
5 U.S.C. § 7511.
The AJ did not rely on the remark in the Original SF-50
regarding Mr. Sutula’s selection from a “certificate” in
reaching her determination that Mr. Sutula was a proba-
tioner. See J.A. 15 (“As SF-50 forms are not conclusive ev-
idence and because of the contradicting information
contained on all of the forms at issue, I find these forms
offer no value in determining the issues in this case.”). Ra-
ther, she cited Mr. Sutula’s concession in briefing that “he
was appointed from a register.”6 J.A. 16. In affirming the
AJ’s initial decision, however, the Board relied on the “cer-
tificate” remark from the Original SF-50 and Mr. Sutula’s
ignorance of his hiring process. J.A. 3–4. The certificate
itself was not a part of the record before the Board. Oral
Arg., 18:43–54, https://www.cafc.uscourts.gov/oral-argu-
ments/24-1818_01082026.mp3 (Q: “Is there, in fact, a cer-
tificate number 20201020?” A: “It wasn’t provided into the
record.”).
6 In his Petition for Review of the AJ’s initial deci-
sion, Mr. Sutula argued the AJ erred by stating he “con-
cedes that he was appointed from a register.” J.A. 182.
Mr. Sutula argued that he has “no knowledge of how he
was selected” aside from what was stated “in the position
advertisement and in his letter of termination, both of
which state that the hiring mechanism was Direct-Hire
Authority.” Id.
Case: 24-1818 Document: 63 Page: 5 Filed: 03/24/2026

-- 5 of 9 --

SUTULA v. MSPB 6
Mr. Sutula appealed the Board’s final decision to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
L EGAL STANDARD
The Board’s jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or
regulation. 5 U.S.C. § 7701(a); Prewitt v. Merit Sys. Prot.
Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). Relevant to this
appeal, for the Board to have jurisdiction, an appellant
must be an “employee,” which 5 U.S.C. § 7511(a)(1) defines
as an individual who is either (1) “not serving a probation-
ary or trial period under an initial appointment;” or (2) “has
completed 1 year of current continuous service.” Where an
appellant makes non-frivolous allegations that, if true, can
establish Board jurisdiction, the appellant is entitled to a
hearing on the jurisdictional question. Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1330 (Fed. Cir. 2006). A
nonfrivolous allegation is one that is more than conclusory,
is plausible on its face, and is material to the legal issues
in the appeal. 5 C.F.R. § 1201.4(s). An AJ may not weigh
evidence or resolve conflicting assertions of the parties
when an appellant non-frivolously alleges an otherwise ad-
equate prima facie showing of jurisdiction. Dumas v. Merit
Sys. Prot. Bd., 789 F.2d 892, 893–94 (Fed. Cir. 1986).
S TANDARD OF REVIEW
Whether the Board has jurisdiction to adjudicate an
appeal is a question of law we review de novo. Jones v.
Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024).
We review the Board’s factual findings on which a jurisdic-
tional determination is based for substantial evidence.
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998).
D ISCUSSION
The question before us is whether Mr. Sutula non-friv-
olously alleged that he was non-probationary at the time of
his termination and is therefore entitled to a jurisdictional
Case: 24-1818 Document: 63 Page: 6 Filed: 03/24/2026

-- 6 of 9 --

SUTULA v. MSPB 7
hearing before the Board. We determine Mr. Sutula met
this threshold, and we reverse the Board’s final decision
and remand for a jurisdictional hearing.
Mr. Sutula made several allegations that, if true,
demonstrate that he was non-probationary at the time of
his termination. Mr. Sutula alleged before the Board that
he already completed an initial probationary period during
his prior federal service with the Navy and was thus, under
the law, exempted from repeating a probationary period
with the agency. E.g., J.A. 87. The AJ rejected this argu-
ment, finding Mr. Sutula failed to meet the necessary cri-
teria for his prior probationary period to apply to his new
position, J.A. 17. But Mr. Sutula alleged that this under-
standing prompted him to contact human resources to cor-
rect the agency’s Original SF-50’s statement that he was
hired subject to an initial probationary period, believing
the statement to be in error. J.A. 86–87. The agency sub-
sequently issued a series of corrective actions, including
the Corrected SF-50 which stated “Initial Probationary Pe-
riod Completed.” J.A. 87. Further, Mr. Sutula alleged that
his hiring under DHA allowed the agency to use “expe-
dited” and “non-competitive appointment,” i.e., appoint-
ment without drawing from a competitive list of eligibles.
J.A. 183. These collective allegations, if true, establish
that it is more likely than not that Mr. Sutula was non-
probationary.
The Board, however, determined that Mr. Sutula was
probationary based on its finding that he was selected from
a “certificate,” i.e., a competitive list of eligibles. J.A. 3. As
an initial matter, Mr. Sutula’s counsel conceded at oral ar-
gument that DHA did not preclude the agency from select-
ing him from a certificate. Oral Arg., 4:08–19 (Q: “An
employee could still be hired from a certificate of eligibles
through the direct hire process, did I hear you acknowledge
that before?” A: “Yes.”). His counsel also conceded that,
had Mr. Sutula been selected from a certificate, he would
have been required to serve a one-year probationary
Case: 24-1818 Document: 63 Page: 7 Filed: 03/24/2026

-- 7 of 9 --

SUTULA v. MSPB 8
period. Id. at 7:34–44 (Q: “If [the agency] did in fact use [a
certificate], then the fact that it was through a direct hire
doesn’t seem to make a difference?” A: “I would concede
that they certainly could . . . .”); see 5 C.F.R.
§ 315.801(a)(1).
The Board’s finding that Mr. Sutula was selected from
a competitive list of eligibles was improper for two reasons.
First, the Board’s finding lacks substantial evidence. The
Board relied only on the “certificate” remark from the can-
celled Original SF-50 and the agency’s reference in briefing
to the same. J.A. 3; Appellant Br. 14–15. The actual “cer-
tificate” was not before the Board. Appellant Br. 15; Oral
Arg., 18:43–54 (counsel for the Board agreeing the certifi-
cate was not of record). And the cancellation of the Origi-
nal SF-50 means that form, in whole or in part, was no
longer in force. The Board’s finding is therefore unsup-
ported by substantial evidence.
Second, the Board lacks authority to weigh evidence
and resolve disputed issues of the parties at the non-frivo-
lous allegation of jurisdiction stage. See Dumas, 789 F.2d
at 893–94; Thorne v. Merit Sys. Prot. Bd., 681 F. App’x 923,
926–27 (Fed. Cir. 2017) (citation omitted). While the Board
can consider the agency’s documentary submissions, the
Board cannot consider mere factual contradiction of
Mr. Sutula’s non-frivolous allegations without holding a ju-
risdictional hearing. Id. That is exactly what the Board
did here. The Board weighed the assertion that Mr. Sutula
was hired via a “certificate” against Mr. Sutula’s allegation
that he was not required to complete an initial probation-
ary period as indicated by his Corrected SF-50. J.A. 3.
Even assuming the “certificate” remark on the Original
SF-50 was not cancelled, the “agency’s series of SF-50
forms” are, at a minimum, “confusing and contain[] contra-
dictory information,” as aptly noted by the AJ. J.A. 15. It
is impossible to ascertain, from the record, whether the
agency erred when it stated Mr. Sutula was hired from a
Case: 24-1818 Document: 63 Page: 8 Filed: 03/24/2026

-- 8 of 9 --

SUTULA v. MSPB 9
“certificate,” or whether it erred when it found that Mr. Su-
tula was not required to complete an initial probationary
period. Where, as here, a determination cannot be made
on the documentary submissions alone, the Board should
hold an evidentiary hearing to resolve the jurisdictional
question. See Stephens v. Merit Sys. Prot. Bd., 986 F.2d
493, 497 (Fed. Cir. 1993) (restating prior precedent that “it
would be appropriate for the [Board] to honor a request for
hearing where a petitioner’s allegations raise non-frivolous
issues of fact relating to jurisdiction which cannot be re-
solved simply on submissions of documentary evidence.”)
(citation modified). Under these circumstances, Mr. Sutula
is entitled to a jurisdictional hearing.
CONCLUSION
For the foregoing reasons, we reverse and remand to
the Board to hold a jurisdictional hearing.
REVERSED AND REMANDED
COSTS
No costs.
Case: 24-1818 Document: 63 Page: 9 Filed: 03/24/2026

-- 9 of 9 --