Cyril D. Oram, Jr. v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYRIL D. ORAM, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-2306
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-20-0476-I-1.
______________________
Decided: May 5, 2021
______________________
CYRIL D. O RAM, JR., Bellingham, WA, pro se.
JEFFREY G AUGER , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, K ATHERINE M ICHELLE SMITH .
______________________
Before REYNA, SCHALL, and STOLL, Circuit Judges.
PER C URIAM.
Case: 20-2306 Document: 22 Page: 1 Filed: 05/05/2021

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ORAM v. MSPB 2
Cyril D. Oram appealed his separation from federal
employment requesting remedial action under the Uni-
formed Services Employment and Reemployment Rights
Act. Mr. Oram alleged that he was denied certain benefits
of employment based in part on his prior military service
and present status as a veteran. The Merit Systems Pro-
tection Board dismissed Mr. Oram’s appeal for lack of ju-
risdiction. Mr. Oram now petitions for review before this
court. For the reasons below, we vacate and remand the
Board’s decision.
BACKGROUND
This is one of four appeals in this case involving similar
facts concerning Mr. Oram’s allegations of an involuntary
separation from federal employment.1 Because we previ-
ously discussed the background and the history of the case,
see Cyril D. Oram, Jr., v. MSPB, ___ F. App’x ___ (Fed. Cir.
2021), we provide only the following brief summary.
On May 1, 2020, Mr. Oram filed an appeal to the Merit
Systems Protection Board (“Board”) alleging that the Cen-
sus Bureau of the U.S. Department of Commerce (“Census
Bureau”) discriminated against him on the basis of his mil-
itary status in violation of the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (“USERRA”).
The administrative judge ordered Mr. Oram to file a state-
ment addressing whether his appeal met the jurisdictional
requirements for the Board to hear Mr. Oram’s appeal un-
der USERRA. S.A. 39.2 Mr. Oram responded that the Cen-
sus Bureau denied him “retention in employment and other
1 See also Oram v. Dep’t of Commerce, No. 20-2303
(Fed. Cir. Dec. 1, 2020); Oram v. Dep’t of Commerce, Nos.
20-2304 & 2305 (consolidated).
2 Citations to “S.A. __” refer to pages of the supple-
mental appendix appended to Respondent’s responsive
brief.
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ORAM v. MSPB 3
benefits” such as leave under the Family and Medical
Leave Act (“FMLA”) and that these denials were “based in
part on prior military service and present status as a vet-
eran.” S.A. 51. He further alleged, in relevant part, that
the Census Bureau altered the “terms of and conditions of
a firm offer into an involuntary removal from federal ser-
vice.” S.A. 52.
In an Initial Decision issued on May 27, 2020, the Ad-
ministrative Judge concluded that Mr. Oram failed to es-
tablish the Board’s jurisdiction. Oram v. Dep’t of
Commerce, M.S.P.B. Docket No. AT-4324-20-0476-I-1 (Ini-
tial Decision, May 27, 2020); S.A. 1–16. The Administra-
tive Judge found that it was undisputed that Mr. Oram had
performed duties in the uniformed service, and that he had
made nonfrivolous allegations that the Census Bureau had
denied him benefits of employment to which he was enti-
tled. S.A. 5–6. The Administrative Judge concluded, how-
ever, that Mr. Oram failed to nonfrivolously allege that his
uniformed service was a substantial or motivating factor in
the loss of employment benefits. S.A. 6.
Mr. Oram now appeals the Board’s decision to this
court. We have jurisdiction pursuant to 38 U.S.C.
§ 4324(d)(1), 5 U.S.C. § 7703(b)(1)(A), and 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless we find it
to be (1) arbitrary, capricious, an abuse of discretion, 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). We decide de novo whether the Board
has jurisdiction, while accepting the Board’s findings of
fact if they are supported by substantial evidence. Parrott
v. M.S.P.B., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
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ORAM v. MSPB 4
In order to establish the Board’s jurisdiction over a
USERRA discrimination claim, an individual must non-
frivolously allege the following: (1) performance of duty in
a uniformed service of the United States; (2) loss of a ben-
efit of employment; and (3) that the benefit was lost due to
the individual’s performance of duty in the uniformed ser-
vice. 38 U.S.C. §§ 4311(a), 4324(b). See Yates v. M.S.P.B.,
145 F.3d 1480, 1484 (Fed. Cir. 1998).
Here, the Administrative Judge determined that the
petitioner established the first and second elements based
on his employment in a uniformed service and his allega-
tion that the Census Bureau denied him benefits of employ-
ment, such as his request for FMLA leave. See S.A. 5–6.
The Administrative Judge erred, however, in finding that
Mr. Oram did not make a nonfrivolous allegation support-
ing the third jurisdictional element, i.e., that the loss of a
benefit of employment was due to his military service.
S.A. 6.
While Mr. Oram prefers that this court not remand the
case back to the Board, see Petitioner’s Inf. Br. 3, he con-
tends the Board failed to consider that he made a nonfriv-
olous allegation of USERRA bias, see id. at 2. The Board
requests a remand because it contends the administrative
judge’s decision is not in accordance with law. Respond-
ent’s Inf. Br. 8. We agree with the Board that the proper
course of action is to vacate the Board’s decision and re-
mand for further proceedings for at least the following rea-
sons.
This court has held that the Board should take a “lib-
eral approach in determining whether jurisdiction exists
under USERRA.” Yates, 145 F.3d at 1484. Under that ap-
proach, the relative weakness of the specific factual allega-
tions initially made by an appellant in his USERRA claim
should not serve as the basis for dismissing his appeal for
lack of jurisdiction, but if he fails to develop those allega-
tions, his USERRA claim should simply later be denied on
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ORAM v. MSPB 5
the merits. Patterson v. Dep’t of Interior, 424 F.3d 1151,
1160 (Fed. Cir. 2005); see also Yates, 145 F.3d at 1485. Be-
cause the jurisdictional standard is quite broad, we vacate
the Board’s decision and remand for further proceedings.
CONCLUSION
We have considered Mr. Oram’s other arguments but
find them unpersuasive. We vacate the Board’s decision
dismissing his appeal for lack of jurisdiction under
USERRA and remand for further proceedings.
VACATED AND REMANDED
COSTS
No costs.
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