[00:00:00] Speaker 00:
Before we get started, I'd like to welcome Judge Beth Labson-Freeman to my left.

[00:00:07] Speaker 00:
She's a United States District Court judge for the Northern District of California.

[00:00:12] Speaker 00:
And we welcome her to the Federal Circuit.

[00:00:16] Speaker 00:
And she sits here today by designation for the Supreme Court.

[00:00:20] Speaker 00:
OK, with that, let's go to our first case, Sutla versus MSPB 24-1818.

[00:00:29] Speaker 00:
Miss Augustino, Councillor Augustino, you reserve five minutes of your time for rebuttal, correct?

[00:00:35] Speaker 04:
Correct.

[00:00:36] Speaker 00:
OK.

[00:00:36] Speaker 00:
We're ready when you are.

[00:00:38] Speaker 04:
All right.

[00:00:38] Speaker 04:
May it please the court.

[00:00:40] Speaker 04:
This case concerns whether appellant made a non-frivolous allegation that the Merit Assistance Protection Board, or MSPB, has jurisdiction over his appeal of the decision of the Department of Commerce to terminate him.

[00:00:53] Speaker 04:
As the board has explained in Fernden v. Postal Service, non-privileged allegations are allegations of fact which, if proven, could establish a prima facie case that the board has jurisdiction over the matter.

[00:01:05] Speaker 04:
While the board has jurisdiction over appeals filed by employees, the board generally, except in very limited circumstances, does not have jurisdiction over appeals filed by what are called probationary employees who are typically in their first year of employment with the government.

[00:01:21] Speaker 04:
Appellant's evidence that Commerce did not require him to serve a probationary period is that while his initial appointment was what's called a career conditional appointment and the initial paperwork documenting that appointment said he had to serve a probationary period, Comerson filed a series of correction actions and actually canceled that appointment.

[00:01:42] Speaker 04:
Comerson reappointed him as a career employee.

[00:01:45] Speaker 04:
And in multiple documents called Notification of Personnel Actions or Standard Form 50s, the agency affirmatively indicated that appellant does not have to serve a probationary period.

[00:01:59] Speaker 04:
Appellant was employed by the Department of Navy for 18 years.

[00:02:02] Speaker 04:
He completed his probationary period there.

[00:02:04] Speaker 04:
And every single SF50 that commerce issued to appellant thereafter

[00:02:09] Speaker 04:
including the SF50 documenting his termination, said that he was a tenured employee.

[00:02:15] Speaker 00:
Your client was a direct hire authority, right?

[00:02:18] Speaker 00:
I'm sorry, what was that?

[00:02:19] Speaker 00:
Direct hire authority.

[00:02:21] Speaker 04:
He was a direct hire.

[00:02:23] Speaker 04:
So a direct.

[00:02:25] Speaker 00:
Doesn't that close your case for you?

[00:02:27] Speaker 04:
So a direct hire is someone who is not necessarily competitively selected, does not have to go through the competitive process, but is appointed to the competitive service.

[00:02:38] Speaker 04:
And so while the government argued that the direct hire regulation does not exempt an agency from having an employee serve a probationary period, it certainly does not require a direct hire to serve a probationary period.

[00:02:54] Speaker 01:
Just so I can make sure I understand what is the real final issue in this case, I understand your view is your client already served the required initial probationary period and completed that, and so therefore is an employee and doesn't need to serve a second probationary period.

[00:03:17] Speaker 01:
Correct.

[00:03:18] Speaker 01:
The government says Mr. Sutula here for this supervisory engineer position was hired from a certificate of eligibility.

[00:03:27] Speaker 01:
Is it your understanding that that's really the issue here as to whether or not there's jurisdiction for the board, whether or not Mr. Sutula was hired from a certificate of eligibility?

[00:03:39] Speaker 01:
And so we don't really worry about any distinctions between a career appointment versus a career conditional appointment, or was this a direct hire or not a direct hire?

[00:03:50] Speaker 01:
What this really boils down to was whether Mr. Sutula was hired from a certificate of eligibility.

[00:03:55] Speaker 01:
Am I understanding this case correctly?

[00:03:57] Speaker 04:
I would dispute that.

[00:03:58] Speaker 04:
I think that the direct hire regulation could be utilized in this circumstance.

[00:04:03] Speaker 01:
Of course.

[00:04:04] Speaker 01:
But I think, as you already said, an employee could still be hired from a certificate of eligibility through the direct hire process.

[00:04:14] Speaker 01:
Did I hear you acknowledge that before?

[00:04:17] Speaker 04:
Yes.

[00:04:18] Speaker 01:
So then even if he was hired through a direct hire system, it's still possible that he could have been hired from a certificate of eligibility.

[00:04:28] Speaker 01:
And then under the regulation 351-801A, if you're hired from a certificate of eligibility, then you have to go through a probationary period.

[00:04:39] Speaker 01:
That's my understanding of the government's position.

[00:04:42] Speaker 04:
That is the government's position.

[00:04:43] Speaker 01:
So I guess the question is, if the government is correct that Mr. Sutula was hired from a certificate of eligibility, then doesn't that mean that he has to go through the probationary period?

[00:04:58] Speaker 01:
That's what happened in Grigsby.

[00:05:00] Speaker 01:
You're familiar with Grigsby.

[00:05:02] Speaker 04:
So I think what's in conflict, though, is the non-requirement in the direct hire regulation, which derives from a statute

[00:05:11] Speaker 04:
and the now rescinded regulation, subpart H of 315, which says that if

[00:05:21] Speaker 04:
if an employee is appointed from a competitive list of eligible, they're to serve a probationary period.

[00:05:26] Speaker 04:
There is case law from the board, Calixto versus Department of Defense, that talks about how an agency in a direct hire circumstance certainly can require a probationary period.

[00:05:37] Speaker 04:
But it's not a requirement.

[00:05:39] Speaker 04:
And they didn't do so here, rather affirmatively.

[00:05:41] Speaker 04:
At no point did they cancel any of the SF50s saying that he was a tenured non-probationary employee.

[00:05:52] Speaker 01:
In the Grigsby case, Mr. Grigsby's SF50 said his probationary period was completed.

[00:06:02] Speaker 01:
But nevertheless, the government came forward with proof that Mr. Grigsby was hired from a certificate of eligibility.

[00:06:10] Speaker 01:
And so therefore, this court ruled, well, then that's the end of the game.

[00:06:15] Speaker 01:
He has to go through the probationary period.

[00:06:17] Speaker 01:
Even in the SF50 form, which is not a legally operative document, had a mistake in it.

[00:06:27] Speaker 01:
I'm not saying that happened here, but it could have happened here.

[00:06:31] Speaker 04:
In this case, the only evidence that he was selected from a certificate was a remark on a cancelled SF50.

[00:06:39] Speaker 04:
There was no information about the selection process.

[00:06:42] Speaker 04:
There was no discovery in this case.

[00:06:43] Speaker 04:
There's no affidavit saying that there was any sort of competitive process, and then he was selected from a certificate.

[00:06:49] Speaker 04:
So there is that remark.

[00:06:50] Speaker 01:
Right.

[00:06:51] Speaker 01:
Now we're debating on whether he was, in fact, hired from a certificate of eligibility.

[00:06:58] Speaker 01:
to see if I can understand that you would agree that if he was, that's all I'm asking, if he was hired from a certificate of eligibility or if there's preponderant proof to that effect, then would you agree that he then has to serve the probationary period?

[00:07:15] Speaker 04:
Yeah, I would not agree because they did use the direct hire authority and that's what is documented.

[00:07:20] Speaker 01:
But we just talked about how direct hire authority doesn't necessarily require one way or the other.

[00:07:25] Speaker 04:
Exactly.

[00:07:26] Speaker 01:
And they didn't require it.

[00:07:27] Speaker 01:
Which means that it can require it.

[00:07:28] Speaker 01:
They can if they wish to require it.

[00:07:31] Speaker 01:
I would concede that, absolutely.

[00:07:32] Speaker 01:
And so if they did, in fact, use it, then the fact that it was through a direct hire doesn't seem to make a difference.

[00:07:38] Speaker 04:
I could see that they certainly could, but they did not in this case.

[00:07:42] Speaker 01:
Right.

[00:07:42] Speaker 01:
So that's what it comes down to.

[00:07:43] Speaker 01:
This is what I've been trying to get to.

[00:07:46] Speaker 01:
Isn't the real issue here whether or not he was hired from a certificate of eligibility?

[00:07:51] Speaker 04:
I do not believe so.

[00:07:53] Speaker 04:
So the SF50 documented that his appointment was as a direct hire, not, for example, a reinstatement.

[00:08:02] Speaker 04:
If it was a reinstatement, that we'd be talking about something different.

[00:08:06] Speaker 00:
The original SF50 certificate said that Mr. Sertula was selected from certificate number, then it gives a CBM-001 number.

[00:08:19] Speaker 00:
Right.

[00:08:20] Speaker 00:
Why isn't that enough to indicate that this was a hire from a certificate?

[00:08:27] Speaker 04:
Well, because that action was canceled.

[00:08:30] Speaker 04:
And then the government issued a series of correction actions because it was an erroneous document.

[00:08:38] Speaker 04:
So there's just no other evidence that that actually happened.

[00:08:42] Speaker 00:
The subsequent corrections still referred back to the certificate.

[00:08:46] Speaker 04:
I'm sorry, what?

[00:08:47] Speaker 00:
The correction.

[00:08:49] Speaker 00:
that was issued SF50 correction.

[00:08:52] Speaker 04:
Right.

[00:08:53] Speaker 00:
That still referred back to a certificate hired, didn't it?

[00:08:56] Speaker 04:
No, it did not.

[00:08:57] Speaker 04:
The only document that refers to the certificate is the canceled action.

[00:09:03] Speaker 01:
The government argued that the... I guess what you would call the final SF50, which is an A56 labeled Exhibit 4, in the remarks section,

[00:09:20] Speaker 01:
It talks about things like corrects items 6A, 6B.

[00:09:24] Speaker 01:
5A, 5B of original action and corrects item 24 from 2.

[00:09:30] Speaker 01:
The point I'm trying to make here is in the remarks section of what is probably the final SF50 seems to be making references back to an earlier SF50 and is telling us that this current final SF50 is making corrections to those prior SF50s.

[00:09:49] Speaker 01:
And so in that way, it is referring back to an earlier form

[00:09:53] Speaker 01:
And to understand the meaning of this final form, you have to look back and take it together with an earlier SF-50, I think.

[00:10:06] Speaker 04:
I would agree that the cancellation actions were canceling the original SF-50, but there was an actual affirmative new appointment made as a career employee.

[00:10:22] Speaker 01:
We all agree with that.

[00:10:23] Speaker 01:
I'm trying to see if I can get you to agree that

[00:10:26] Speaker 01:
what these remarks, talking about correcting earlier SF50 forms, necessarily means you have to go back and look at those earlier SF50 forms to understand the intent and meaning of the final SF50.

[00:10:41] Speaker 04:
Well, I think what's very apparent is that every- I don't know.

[00:10:44] Speaker 01:
I'm just trying to get a yes or no answer.

[00:10:47] Speaker 01:
If you want to disagree with this, too, you can disagree.

[00:10:49] Speaker 01:
But I'm just trying to get a yes or no answer out of you.

[00:10:52] Speaker 04:
I don't believe that a canceled personnel action has

[00:10:56] Speaker 04:
any value.

[00:10:58] Speaker 04:
Obviously, the correction actions were focused on saying the agency is not requiring him to serve a probationary period.

[00:11:07] Speaker 04:
That's said over and over and over again.

[00:11:09] Speaker 04:
So that was a choice they made under the direct higher authority.

[00:11:14] Speaker 04:
That's a choice that they are allowed to make.

[00:11:18] Speaker 00:
You're into your rebuttal time now.

[00:11:19] Speaker 00:
Do you want to rebuttal?

[00:11:22] Speaker 00:
Just a second.

[00:11:22] Speaker 00:
Judge, do you have any questions?

[00:11:24] Speaker 03:
No.

[00:11:24] Speaker 03:
Reserved.

[00:11:26] Speaker 00:
Let's hear from the other side.

[00:11:35] Speaker 00:
And you are Counselor Schellmark.

[00:11:44] Speaker 02:
Yes, exactly.

[00:11:44] Speaker 02:
May it please the court.

[00:11:46] Speaker 02:
The petitioner did not meet his burden to non-privilegially allege board jurisdiction in this case.

[00:11:52] Speaker 02:
as Your Honors have been discussing, the SF50 submitted to the board by the petitioner himself clearly shows that he was selected from a certificate with a specific date and a specific number.

[00:12:05] Speaker 03:
But how do you interpret the cancellation?

[00:12:08] Speaker 03:
In my view, when something's canceled, we don't refer back to it anymore.

[00:12:11] Speaker 03:
It's as though it's not admitted into evidence, and therefore, it doesn't exist.

[00:12:16] Speaker 03:
What's your view of the cancellation?

[00:12:18] Speaker 02:
So the cancellation is referring to

[00:12:21] Speaker 02:
Canceling the career conditional appointment.

[00:12:24] Speaker 02:
It's not canceling the entire SF 50.

[00:12:26] Speaker 02:
How do I see that on the form?

[00:12:29] Speaker 02:
So if you the cancellation SF 50 is at page 55 Yes, the nature of the action in 5a is cancellation in the second and identified nature of the action in six is a career conditional appointment So we know that it was the career conditional appointment that was canceled Obviously you keep saying we know so how do we know that?

[00:12:51] Speaker 02:
Well, the first box, 5B, is what's happening, and the second box is what it is referring to.

[00:13:02] Speaker 01:
But that could easily mean that the entire SF50 is void ab initio.

[00:13:10] Speaker 02:
I don't think so.

[00:13:11] Speaker 01:
I know you don't think so, but I think there's at least an argument.

[00:13:15] Speaker 01:
It's not so clear to me on the face of this document that we can pick and choose which things in the original SF50 have been deemed canceled and therefore everything else is still alive and real and trustworthy.

[00:13:30] Speaker 02:
I guess I would make two points.

[00:13:32] Speaker 02:
As you were mentioning, the final SF50 does refer back to the original SF50.

[00:13:37] Speaker 02:
And supplements and corrects those remarks.

[00:13:41] Speaker 02:
There's also many other remarks on the appointment SF 50 that are never Repeated in subsequent SF 50s such as the date of his execute that he executed his service affidavit

[00:13:53] Speaker 02:
his qualifications for a supervisory engineer position.

[00:13:56] Speaker 01:
Why would the final SF50, assuming we're correctly identifying the final SF50, say in unambiguous terms, quote, initial probationary period completed, end quote?

[00:14:10] Speaker 01:
That seems to end the inquiry right there.

[00:14:14] Speaker 01:
This is a formal statement after a lot of back and forth, a tremendous amount of back and forth across a series of SF50s.

[00:14:23] Speaker 01:
OPM finally coming to rest with a single conclusion, initial probationary period completed.

[00:14:31] Speaker 01:
Doesn't that sort of end the game?

[00:14:32] Speaker 01:
Or at a minimum, raise a non-frivolous allegation that, in fact, there was no probationary period to further complete here.

[00:14:45] Speaker 02:
Well, it wasn't OPM.

[00:14:47] Speaker 02:
It was Department of Commerce HR.

[00:14:49] Speaker 02:
They made a variety of changes to the SF50s.

[00:14:52] Speaker 02:
Some of them were correct.

[00:14:53] Speaker 02:
Some of them were not.

[00:14:54] Speaker 02:
But their understanding.

[00:14:55] Speaker 01:
You would say this one is also not correct.

[00:14:57] Speaker 02:
This one is not correct.

[00:14:58] Speaker 01:
In your view.

[00:14:59] Speaker 03:
So why doesn't that then become

[00:15:02] Speaker 03:
the grounds for a non-frivolous appeal so that there can be a jurisdictional hearing.

[00:15:06] Speaker 03:
Because as I understand the law, we aren't deciding here whether or not Mr. Satula is an employee.

[00:15:14] Speaker 03:
We're deciding whether he made a non-frivolous showing that would entitle him to a jurisdictional hearing where then the board could decide whether or not he met the standards.

[00:15:25] Speaker 02:
The petitioner has a burden at the outset to make a non-filibus allegation to get a hearing.

[00:15:31] Speaker 02:
These documents that he submitted show there's a factual remark on the appointment SF50 that was never changed in the subsequent SF50s that he was appointed from this specific certificate.

[00:15:42] Speaker 02:
That's Grigsby.

[00:15:43] Speaker 02:
We can look to the SF50, even if there's other ministerial errors on it, for the fact that they were appointed by a certificate.

[00:15:50] Speaker 03:
No, it's pretty difficult to advise a jury that once a person has been mistaken in a part of their testimony, you can disregard all of it.

[00:15:58] Speaker 03:
So if you're acknowledging a mistake in this form, how are we going to decide what is accurate and what is not accurate?

[00:16:06] Speaker 03:
Why isn't that the very essence of going back for a jurisdictional hearing so that the petitioner

[00:16:12] Speaker 03:
the appellant here has the opportunity to make that proof or lose fair and square.

[00:16:18] Speaker 02:
The petitioner didn't meet their burden before the board.

[00:16:21] Speaker 02:
If the petitioner had needed more evidence to support their jurisdictional argument, he could have obtained discovery.

[00:16:28] Speaker 01:
Let me put a finer point on Judge Freeman's question.

[00:16:32] Speaker 01:
If there's conflicting evidence,

[00:16:34] Speaker 01:
in the record, then isn't that a classic situation where the petitioner has non-frivolously alleged that he's an employee?

[00:16:45] Speaker 01:
The board reasonably found that... I'm just asking you a question.

[00:16:49] Speaker 01:
Forget about the facts of this case.

[00:16:52] Speaker 01:
If there is conflicting evidence in the record, where the record of SF50 forms are Janus-based, they're pointing in opposite directions,

[00:17:03] Speaker 01:
Isn't that a classic case where there has been a non-frivolous allegation made?

[00:17:09] Speaker 02:
I don't believe so, Your Honor.

[00:17:11] Speaker 01:
Oh, even in that case.

[00:17:12] Speaker 02:
In this case.

[00:17:13] Speaker 01:
No, I'm not talking about this case anymore.

[00:17:15] Speaker 02:
Hypothetically.

[00:17:16] Speaker 01:
I'm talking about a classic case of conflicting evidence, of Janice-faced evidence pointing in opposite directions through a series of SF50 forms.

[00:17:29] Speaker 01:
Wouldn't that be a non-frivolous allegation that

[00:17:32] Speaker 01:
You know, both positions are plausibly correct.

[00:17:37] Speaker 01:
And therefore, we need a fact finder to sort it out.

[00:17:42] Speaker 02:
I think that the difference is that the regulation.

[00:17:44] Speaker 01:
If you don't know, I just need an answer to my question.

[00:17:47] Speaker 02:
I mean, I couldn't speculate on how the board would look at documentary evidence.

[00:17:51] Speaker 01:
If you want to say no, you can say no.

[00:17:53] Speaker 01:
But you have to say either yes or no.

[00:17:57] Speaker 02:
Well, can I?

[00:17:59] Speaker 02:
qualify it with one of these as a legal statement?

[00:18:02] Speaker 01:
After you say yes or no, you can say whatever you want about this case.

[00:18:07] Speaker 02:
Presumably, equally probative conflicting evidence would require further.

[00:18:13] Speaker 01:
It doesn't even have to be equally probative.

[00:18:16] Speaker 02:
Well, I can't answer your question, because the statement that the probationary period was completed was a legal implication flowing from HR's understanding of his prior creditable service.

[00:18:29] Speaker 02:
And it's not a factual evidence in the record that he was appointed from a certificate, which therefore requires him to serve a probationary reason.

[00:18:37] Speaker 01:
Let me ask you a different question.

[00:18:38] Speaker 01:
Is there in fact a certificate number 20201030?

[00:18:47] Speaker 02:
It wasn't provided into the record.

[00:18:49] Speaker 01:
So you don't know for sure whether it exists.

[00:18:53] Speaker 02:
The board found that this was creditable evidence, credible evidence, competent evidence, uncontradicted evidence that it was used.

[00:19:02] Speaker 02:
And before the administrative judge, the petitioner argued he was appointed from a register.

[00:19:09] Speaker 02:
So I think we have to take that into consideration, that he made that argument originally and then subsequently shifted over time.

[00:19:17] Speaker 01:
Was that a register?

[00:19:18] Speaker 03:
Didn't know the circumstances of?

[00:19:21] Speaker 03:
of the details of that portion of his hire?

[00:19:26] Speaker 02:
I believe that if he had needed additional evidence regarding his jurisdictional burden, it was incumbent upon the petitioner who was represented at all times to ask for discovery.

[00:19:37] Speaker 02:
They never objected to the administrative judge's order staying discovery.

[00:19:41] Speaker 02:
They didn't argue it was wrong on administrative review.

[00:19:43] Speaker 02:
That was part of his burden if he needed additional evidence regarding jurisdiction.

[00:19:51] Speaker 00:
Is there any competing evidence at all regarding the certificate of eligibility?

[00:19:58] Speaker 02:
There's no evidence suggesting one was not used.

[00:20:00] Speaker 02:
There was no subsequent reference to a certificate, nothing in the corrected SF 50s.

[00:20:06] Speaker 03:
Well, the only evidence that he was a direct hire, which is ambiguous in and of itself because it could be through a certificate of eligibility.

[00:20:14] Speaker 02:
Yes, they could have chosen not to use a certificate.

[00:20:19] Speaker 02:
But the only evidence in the record regarding the certificate shows that one was used.

[00:20:24] Speaker 02:
And the board relied on it reasonably, I think, pursuant to precedent from both the board and the court, that this factual statement in an SF50 is sufficient to find that a certificate was used.

[00:20:36] Speaker 01:
Did the board say about the final SF50's remark that initial probationary period completed?

[00:20:45] Speaker 01:
What did the board say?

[00:20:46] Speaker 01:
What did the board say about that?

[00:20:48] Speaker 01:
I mean, this is the counter evidence in the record.

[00:20:51] Speaker 01:
So the board, you would think, would have needed to acknowledge it, confront it, and address it.

[00:20:59] Speaker 02:
I think the board relied on the fact that it's... I think the board said nothing.

[00:21:04] Speaker 02:
Well, the board...

[00:21:05] Speaker 02:
The board said that SF50s are not controlling as to the legal status and rights of an employee.

[00:21:13] Speaker 02:
And so the remark about the initial probationary period is not

[00:21:19] Speaker 02:
It is a legal implication flowing from HR's understanding of the service.

[00:21:24] Speaker 03:
Well, if the SF50 is not controlling, I'm prepared to go forward with that.

[00:21:28] Speaker 03:
Then you have to actually bring the paper.

[00:21:31] Speaker 03:
This is the certificate of eligibility.

[00:21:34] Speaker 03:
And that didn't happen.

[00:21:35] Speaker 03:
I appreciate the burden is on here the appellant to make that proof.

[00:21:42] Speaker 03:
But still.

[00:21:43] Speaker 03:
In one breath, you tell us to rely on what's written in the SF50, the original one.

[00:21:48] Speaker 03:
Then you tell us it's fraught with mistakes and that the cancellation, I'm not even sure what you're telling us the cancellation should mean.

[00:21:56] Speaker 03:
I don't know where that leaves me.

[00:21:58] Speaker 03:
I'm not just going to pick the things that save you in.

[00:22:01] Speaker 02:
Well, Grigsby says that it's not controlled, the SF50 is not controlling regarding their status and rights.

[00:22:07] Speaker 03:
The real facts are what are controlling.

[00:22:09] Speaker 03:
And so we need the certificate, don't we?

[00:22:12] Speaker 02:
I believe that the specific reference to the certificate is a factual remark.

[00:22:17] Speaker 00:
How many times was the SS50 form corrected?

[00:22:21] Speaker 02:
I believe there's four in the record.

[00:22:23] Speaker 00:
And how many are out of the record?

[00:22:26] Speaker 02:
I don't know.

[00:22:28] Speaker 02:
There's probably more than four, but some of them were not relevant to.

[00:22:32] Speaker 00:
Nine?

[00:22:34] Speaker 00:
Nine times?

[00:22:35] Speaker 02:
Are there nine?

[00:22:36] Speaker 00:
The certificate was corrected?

[00:22:38] Speaker 02:
No.

[00:22:39] Speaker 02:
I believe they changed the appointment

[00:22:42] Speaker 00:
Well, I'm asking you.

[00:22:45] Speaker 02:
The agency submitted, or the petitioner submitted, three corrections.

[00:22:49] Speaker 00:
And we don't know.

[00:22:49] Speaker 00:
You're not referring to those other certificates that are not in the record.

[00:22:53] Speaker 00:
But they could be compelling in this case, right?

[00:22:56] Speaker 02:
I mean, if they were, it was incumbent upon the petitioner to submit them to the board.

[00:23:03] Speaker 00:
Compelling to your case.

[00:23:04] Speaker 02:
I'm sorry?

[00:23:05] Speaker 00:
They could be compelling to your case or dispositive to the issue that we're looking at.

[00:23:10] Speaker 02:
Oh.

[00:23:11] Speaker 00:
Dispositive to your position.

[00:23:14] Speaker 02:
I mean, if they reinforce that the certificate was used, but I don't think... You don't know that.

[00:23:21] Speaker 02:
I don't know why the agency would repeat these remarks.

[00:23:23] Speaker 00:
Why don't we just send this back and have that issue reviewed?

[00:23:29] Speaker 02:
I believe that the board's finding is supported by substantial evidence.

[00:23:32] Speaker 02:
There's nothing controverting this reference to a certificate with a specific date.

[00:23:36] Speaker 00:
Counselor, it's clear we don't have all the evidence before us.

[00:23:42] Speaker 02:
It was the petitioner's burden, Your Honor.

[00:23:44] Speaker 02:
It was his burden to provide evidence showing that if his argument hinged on him not being selected from a certificate and he needed more information, he could have requested discovery.

[00:23:53] Speaker 02:
He didn't do that.

[00:23:54] Speaker 02:
He relied on these SF50s in the record.

[00:23:56] Speaker 02:
He argued that he didn't have to be selected from a certificate.

[00:24:00] Speaker 02:
But there's nothing showing he's provided no evidence, no non-filthless allegation that he wasn't selected from a certificate.

[00:24:06] Speaker 02:
The certificate controls because the regulation requires him to serve one.

[00:24:10] Speaker 02:
reference to probationary period, it's just HR's ministerial remark.

[00:24:16] Speaker 02:
And Grigsby says that that is not controlling here.

[00:24:21] Speaker 02:
Grigsby says you can rely on the document for this information about his appointment.

[00:24:25] Speaker 02:
But we look at the totality of the circumstances, and there's nothing contradicting the certificate.

[00:24:32] Speaker 00:
OK.

[00:24:33] Speaker 02:
Thank you, Your Honor.

[00:24:34] Speaker 02:
We request that you affirm.

[00:24:38] Speaker 00:
Councillor Agustino will restore your, I believe you have five minutes of rebuttal.

[00:24:46] Speaker 04:
So fundamentally, there was no way for the administrative judge or the board to reach a decision without weighing this conflicting evidence.

[00:24:54] Speaker 04:
There is an SF50 that references a certificate.

[00:24:57] Speaker 04:
Appellant was told by the agency, which then documented over and over again that he was not a probationer.

[00:25:04] Speaker 04:
His non-frivolous allegation that he's not a probationer is because that's what the agency told him.

[00:25:09] Speaker 00:
So if there is what about the argument that your client had that he had been selected from the register?

[00:25:19] Speaker 04:
So I think fundamentally, Palin had no insight into what happened.

[00:25:24] Speaker 04:
The government did reference the certificate, I don't think from a legal standpoint.

[00:25:29] Speaker 04:
Part of the problem is that terms like register, certificate of eligibility, these are not well defined in any regulation for us to be able to tell what these are all supposed to mean.

[00:25:41] Speaker 01:
Do you happen to know which filing in which the appellant here, the petitioner, talked about being hired from a register?

[00:25:52] Speaker 01:
What filing was that?

[00:25:53] Speaker 04:
It was in his response to jurisdiction before the administrative judge.

[00:26:00] Speaker 01:
And was he referring to his initial hire from

[00:26:06] Speaker 01:
I don't know, I think it was the Navy back in the day, or is it really more about his most recent hire?

[00:26:12] Speaker 04:
No, I mean, he obviously did apply for this position, which is how he came to be selected.

[00:26:16] Speaker 01:
And so if applicants apply for a position, presumably the agency... The point I'm trying to make is maybe when he was discussing being hired from a register, it wasn't for his current position or for the supervisory engineer position, it was for

[00:26:31] Speaker 01:
his prior position before that, when I think he was hired by the Navy.

[00:26:38] Speaker 01:
And so it wasn't a concession that for this particular position, he was hired from a register, i.e.

[00:26:45] Speaker 01:
a certificate of elegance.

[00:26:47] Speaker 04:
He has no insight into the selection process at all.

[00:26:52] Speaker 04:
That is why we're requesting a remand.

[00:26:54] Speaker 04:
It does appear that there is conflicting evidence.

[00:26:57] Speaker 01:
Ask for discovery for the certificate itself.

[00:27:01] Speaker 04:
Appellant did not below.

[00:27:03] Speaker 04:
Typically, discovery before a jurisdictional finding is by request.

[00:27:11] Speaker 04:
I don't think that appellant had any reason to believe that he thought that he wasn't a probationer.

[00:27:17] Speaker 04:
Like I said, even his termination SF50 said

[00:27:20] Speaker 04:
He was a tenured employee every document he had received.

[00:27:24] Speaker 04:
So given the cancellation and then everything that happened since, I don't think he ever thought there was a question that he was anything other than a tenured employee.

[00:27:33] Speaker 03:
It seemed to me in the record that when he saw the initial SF-50, he saw mistakes on it and was the impetus for the changes.

[00:27:42] Speaker 03:
Is that correct?

[00:27:43] Speaker 03:
That is correct.

[00:27:45] Speaker 03:
And what I'm just in reading the record in your briefing, what

[00:27:50] Speaker 03:
What does the record show us caused him to seek the correction and cancellation?

[00:27:56] Speaker 04:
Because it showed he was a probationary employee.

[00:27:59] Speaker 03:
Okay.

[00:27:59] Speaker 03:
So the certificate reference in the initial SF-50 was not, you're telling me that's not something that raised red flags for him.

[00:28:07] Speaker 03:
He didn't, wasn't aware of that.

[00:28:11] Speaker 04:
Not initially.

[00:28:11] Speaker 04:
So when he saw that first appointment, SF-50,

[00:28:15] Speaker 04:
He went to HR and said, I should not be a probationary employee given my prior service.

[00:28:21] Speaker 04:
And then I was a direct hire.

[00:28:23] Speaker 04:
HR then agreed.

[00:28:25] Speaker 03:
Isn't it true though, that a prior employee, he had a lapse in service.

[00:28:29] Speaker 03:
He did.

[00:28:30] Speaker 03:
And rehired or hired to a new position if he was, even though he had previously served a period of probation, if he was hired from the certificate of eligibility, he would be required to satisfy a one year probationary period.

[00:28:46] Speaker 04:
I think this is where the direct hire regulation does give an agency a choice.

[00:28:53] Speaker 04:
And his SF50 does clearly cite that that was the authority used.

[00:28:57] Speaker 04:
Direct hire.

[00:28:58] Speaker 04:
So they didn't reinstate him.

[00:29:00] Speaker 04:
They didn't competitively select him.

[00:29:02] Speaker 04:
They specifically documented that this was a direct hire.

[00:29:04] Speaker 03:
And the form itself is in conflict if it says direct hire and certificate.

[00:29:09] Speaker 04:
I think so much was in conflict that at this point, this regulation's been rescinded.

[00:29:15] Speaker 04:
This became apparent last year that agencies were doing all sorts of different things with regard to employees coming back to government service.

[00:29:24] Speaker 04:
This is an example of one of those messes.

[00:29:31] Speaker 04:
Thank you.

[00:29:32] Speaker 00:
Thank you for your argument.

[00:29:33] Speaker 00:
We thank the party for their arguments this morning.

[00:29:36] Speaker 00:
The case will be taken to submission.