Honea v. Merit Systems Protection Board , 524 F. App'x 623 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL A. HONEA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF HOMELAND SECURITY,
Intervenor.
______________________
2012-3199
______________________
Petition for review of the Merit Systems Protection
Board in No. DE315H110178-I-1.
______________________
Decided: April 8, 2013
______________________
MICHAEL A. HONEA, of Douglas, Arizona, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, Wash-
ington, DC, for respondent. With him on the brief were
2 MICHAEL HONEA v. MSPB
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
SHARON A. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and Claudia Burke, Assistant Director.
______________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Michael A. Honea appeals pro se from the final deci-
sion of the Merit Systems Protection Board (“Board”)
dismissing for lack of jurisdiction his appeal of his termi-
nation from the Department of Homeland Security
(“DHS”). Honea v. Dep’t of Homeland Sec., No. DE-315H-
11-0178-I-1 (M.S.P.B. Jul. 9, 2012). Because the Board
correctly dismissed Honea’s appeal, we affirm.
BACKGROUND
Honea was employed by the Bureau of Customs and
Border Protection, part of DHS, as a Telecommunication
Specialist, effective January 4, 2010. His position was a
career conditional position in the competitive service,
subject to a one-year probationary period. His normal
tour of duty was from 6:00 a.m. until 2:30 p.m. On Janu-
ary 3, 2011, the last day of his one-year probationary
period, Honea was terminated.
That day, Honea arrived at work at around 6:00 a.m.
His supervisor shortly thereafter informed him that he
was being terminated and provided him with the agency’s
letter of termination, which noted that Honea was being
terminated for a lack of technical skills and because of the
presence of unapproved software on his agency-provided
MICHAEL HONEA v. MSPB 3
thumb drive. The letter, which Honea signed acknowl-
edging receipt, stated that the effective date of termina-
tion was January 3, 2011, but did not specify a time, and
advised him of his right to appeal. Honea was then taken
through the out-processing procedures, including collect-
ing his computer, radio, badge, and other property, and
was then escorted from the facility by 9:00 a.m. Honea
was paid for a full 8 hour tour of duty for his last day.
DHS later approved a Standard Form 50 Notification of
Personnel Action (“SF-50”) documenting the termination
as effective January 3, 2011, but without mentioning a
specific termination time. Honea appealed his termina-
tion to the Board.
The administrative judge (“AJ”) issued an Acknowl-
edgment Order summarizing the appeal rights available
to both probationers and employees who have completed
an applicable probationary period. The AJ ordered Honea
to show cause why his appeal should not be dismissed for
lack of jurisdiction. Honea responded, alleging that DHS
failed to note a specific time of day on his termination
paper work, thus terminating him effective at the end of
the day. DHS moved to dismiss the appeal, arguing that
Honea was terminated during his probationary period
and hence that he had no right to appeal.
The AJ issued an order finding that Honea had made
a nonfrivolous allegation of Board jurisdiction, entitling
him to a hearing on the issue of jurisdiction. After re-
viewing additional submissions and oral argument, the
AJ issued a bench decision. The AJ found that agency
personnel actions are generally effective at midnight at
the end of the effective date unless another time is speci-
fied. Because the letter of termination and the SF-50 did
not specify a time, the AJ determined, consistent with
Stephen v. Department of the Air Force, 47 M.S.P.R. 672
(1991), that Honea’s termination was effective at mid-
night on January 3, 2011, and thus he completed his
probationary period before the effective date of the termi-
4 MICHAEL HONEA v. MSPB
nation. The AJ accordingly found that the personnel
action must be reversed because Honea was not afforded
the minimum due process rights under 5 U.S.C. § 7513.
The AJ then issued an initial decision, incorporating his
bench decision. DHS petitioned for review by the full
Board.
The Board vacated the AJ’s initial decision and dis-
missed the appeal for lack of jurisdiction. The Board
explained that Stephen did not hold that a written notice
must identify the time of separation to cause a probation-
ary termination to be on the last day of the probationary
period. Instead, the Board held that other evidence could
be used to establish the time of termination. Given the
undisputed facts, the Board concluded that Honea was
terminated before the end of his tour of duty. Because
Honea was a probationary employee at the time of termi-
nation, the Board dismissed Honea’s appeal for lack of
jurisdiction. This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). The scope
of the Board’s jurisdiction is a question of law, which we
review de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008).
A probationary employee has a limited right of review
granted by regulation. Where termination of a probation-
er is made for post-appointment reasons, the probationer
is limited to seeking review of that termination on the
grounds that it was based on partisan political or marital
MICHAEL HONEA v. MSPB 5
status reasons, none of which were alleged by Honea. See
5 C.F.R. § 315.806. If an agency terminates an individual
after he has completed that probationary period, that
individual is entitled to the due process under 5 U.S.C.
§ 7513, including: a right of appeal; 30 days’ advance
notice of termination with an opportunity to respond; a
right to representation by an attorney; and a written
decision providing reasons for the personnel action. Thus
the question on appeal is whether Honea was a proba-
tionary employee at the time of his termination. In other
words, was he terminated prior to 2:30 p.m. on January 3,
2011? If so, then the Board lacks jurisdiction over his
appeal. If not, then the Board has jurisdiction, and DHS
failed to afford Honea his due process rights under § 7513.
Honea alleges that he was terminated after complet-
ing his probationary period, and thus that the Board had
jurisdiction to hear his appeal. In support of his position,
Honea argues that under Stephen and the Office of Per-
sonnel Management’s Guide to Processing Personnel
Actions (the “GPPA”), the lack of a termination time listed
on either his SF-50 or the termination letter as well as
the fact that DHS paid him for a full tour of duty, all
support his position that he was terminated after his
probationary period had ended.
The primary case relied on by both Honea and the AJ
is Stephen, 47 M.S.P.R. 672. In Stephen, the employee
was terminated on the last day of her probationary peri-
od. Id. at 679. The Federal Personnel Manual (“FPM”)
provided that an effective pre-probationary period separa-
tion must occur prior to the end of the tour of duty on the
last day before the end of the probationary period, “since
separations are otherwise effective at midnight.” Id. As
neither the termination notice nor the SF-50 in Stephen
noted a time of termination, the Board determined that
the employee had been separated after she completed her
probationary period. Id.
6 MICHAEL HONEA v. MSPB
Here, neither the termination notice nor the SF-50
specified a termination time. In addition, the GPPA, like
its predecessor, the FPM in Stephen, cautions that “[a]ll
separations are effective at the end of the day (midnight)
unless an earlier time is indicated on the Standard Form
50.” OPM, Guide to Processing Personnel Actions 31-6 § 5
(RA 73). As a consequence, the GPPA states that, if an
agency does “terminate the employee during the proba-
tionary period, the Standard Form 50 must be effective on
a day prior to the last day of the probationary period, or
at a specific time of day before the end of the employee’s
work day on the last day of the probationary period.” Id.
at 31-6 § 5(b) (RA 73). While an agency must comply with
the instructions issued by OPM in the GPPA, 5 C.F.R.
§ 250.101, those regulations do not mandate a finding of
Board jurisdiction due to a failure to adhere to the GPPA,
5 C.F.R. § 250.103 (Failing to adhere to the GPPA can
result in an order from OPM requiring the agency take
corrective action.). The guidance given in the GPPA is
only a relevant consideration in evaluating personnel
actions, not a conclusive one. See Roman v. C.I.A., 297
F.3d 1363, 1368–69 (Fed. Cir. 2002) (noting that internal
handbooks are not given the same weight as regulations
and citing the GPPA to define “nonpay status”); Clark v.
Office of Pers. Mgmt., 95 F.3d 1139, 1140, 1144 (Fed. Cir.
1996) (citing the GPPA on how to calculate length of
service for veterans).
We agree with the Board that Honea was terminated
before the end of his probationary period. It stands to
reason that if an employee is terminated before he has
completed his probationary period, he has been terminat-
ed during his probationary period. That is what occurred
here. In this case, unlike in Stephen, the evidence is
undisputed that DHS took all the steps required to termi-
nate Honea prior to the end of his tour of duty: (1) the
termination letter was delivered and signed; (2) the
supervisor advised Honea of his termination; (3) Honea
MICHAEL HONEA v. MSPB 7
was taken through the out-processing procedures, includ-
ing collection of his computer, radio, badge, and other
property; and (4) he was escorted from the facility. The
fact that the GPPA counsels otherwise is not binding, as it
is merely cautionary guidance to the agencies from OPM,
like the FPM. See Tuggle v. Consumer Prod. Safety
Comm’n, 20 M.S.P.R. 100, 102 (1984) (“The FPM, insofar
as it includes more than a restatement of statutory and
regulatory requirements, constitutes only the Office of
Personnel Management’s official ‘guidance’ to agencies.”).
The failure to include the date on the SF-50 form or the
termination letter was at worst an oversight. There is no
doubt that, from an objective standpoint, Honea was
terminated prior to the end of his tour of duty. The fact
that Honea received a full-day’s wages is also not relevant
to whether the agency completed a personnel action. See
Hardy v. Merit Sys. Prot. Bd., 13 F.3d 1571, 1575 (Fed.
Cir. 1994). It was just a decent gesture by the agency to
pay Honea for a full day even though he only worked part
of the day.
All the facts evidence that Honea was terminated be-
fore his tour of duty ended at 2:30 p.m.; thus, the Board
properly determined that Honea was terminated before
his probationary year ended. As Honea was removed
during his probationary period, the Board was likewise
correct to dismiss his appeal for lack of jurisdiction.
We have considered Honea’s remaining arguments
and do not find them persuasive. We find no error in the
Board’s well-reasoned decision. Accordingly, we affirm.
AFFIRMED