Cyril David Daniel Oram, Jr. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYRIL DAVID DANIEL ORAM, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1545
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-22-0003-I-1.
______________________
Decided: December 8, 2022
______________________
CYRIL D AVID D ANIEL O RAM , J R., Bellingham, WA, pro
se.
ELIZABETH W. F LETCHER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by K ATHERINE
MICHELLE SMITH .
______________________
Before L OURIE, CLEVENGER , and STARK, Circuit Judges.
P ER CURIAM .
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ORAM v. MSPB 2
Cyril David Daniel Oram, Jr. seeks review of the final
decision of the Merit Systems Protection Board (“Board”)
denying his request for corrective action under the Veter-
ans Employment Opportunities Act of 1998 (“VEOA”).
Oram v. Dep’t of the Air Force, Docket No. DC-3330-22-
0003-I-1 (M.S.P.B. Jan. 10, 2022) (Board Decision). For the
reasons set forth below, we affirm the Board’s final deci-
sion.
I
The VEOA provides that preference eligibles and other
veterans “may not be denied the opportunity to compete for
vacant positions for which the agency making the an-
nouncement [of a vacancy] will accept applications from in-
dividuals outside its own workforce under merit promotion
procedures.” 5 U.S.C. § 3304(f)(1). The term “preference
eligible” is defined in 5 U.S.C. § 2108(3) to include certain
veterans, and it is undisputed that Mr. Oram qualifies as
a preference eligible. The VEOA does not guarantee that a
preference eligible will win the competition for a vacant po-
sition. Instead, it guarantees that a preference eligible has
the right to compete for the vacancy, free from any agency
action that violates a preference eligible’s rights under
“any statute or regulation relating to veterans’ preference.”
5 U.S.C. § 3330a(a)(1)(A). A preference eligible who be-
lieves an agency has violated the person’s rights under any
statute or regulation relating to veterans’ preference may
file a complaint with the Department of Labor; if the De-
partment of Labor does not resolve the complaint, the ag-
grieved person may appeal the alleged violation to the
Board; and if the Board finds a violation, it must order the
agency to comply with the relevant veterans’ preference
law provisions and award compensation for any loss of
wages or benefits suffered by the individual whose veter-
ans’ preference rights were violated. See 5 U.S.C.
§§ 3330a(a)(1)(A), 3330c(a). But in order for an aggrieved
preference eligible to pursue these rights, the complaint to
the Secretary of Labor must be timely filed “within 60 days
after the date of the alleged violation,” unless an untimely
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ORAM v. MSPB 3
filing can be excused by application of equitable tolling.
5 U.S.C. § 3330a(a)(2)(A); Kirkendall v. Dep’t of Army, 479
F.3d 830, 844 (Fed. Cir. 2007).
II
The Department of the Air Force (the “Agency”) con-
ducted a job competition for a GS-2210-12 IT Specialist po-
sition at Ramstein Air Force Base in Germany. Board
Decision at 2. On June 21, 2016, the Agency made a tenta-
tive offer to Mr. Oram for said position. Id. On September
12, 2016, Mr. Oram accepted the job offer and accepted an
entry on duty (“EOD”) date of October 3, 2016. Id. On Sep-
tember 26, 2016, Mr. Oram informed the Agency that he
could not meet the EOD date because he had to attend a
hearing related to a labor dispute with his former em-
ployer. Id. Two days later, the Agency told Mr. Oram that
his EOD date would not be extended and that he would be
placed on absent without leave (“AWOL”) status if he failed
to report for duty on time. Id. Mr. Oram responded by
explaining in more detail the pending labor dispute, and in
turn the Agency acknowledged his response but informed
him that if he failed to report on time, the Agency would
rescind the job offer, instead of more severely holding him
to his acceptance and charging him with AWOL. Id. Mr.
Oram did not report for duty on time, and on October 5,
2016, the Agency notified him that the job offer was with-
drawn due to his failure to comply with the EOD date. Id.
On September 11, 2021, Mr. Oram filed a complaint
with the Department of Labor, alleging violation of his
VEOA rights in October 2016 when the Agency withdrew
its offer of employment. Board Decision at 4; Compl. at
SAppx. 29 (Sept. 11, 2021).1 His complaint sought
1 “SAppx.” citations herein refer to the appendix
filed concurrently with Respondent’s brief. Additionally,
because the Petitioner’s complaint is not paginated, cita-
tions herein are to the version of the complaint included in
the aforementioned appendix, which has consistent
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ORAM v. MSPB 4
corrective action from the Agency. Compl. Form at SAppx.
28. His complaint stated he applied for and was selected
for a position advertised to preference eligible veterans and
current Federal employees. Id. at 29. He averred that the
Agency only wanted to hire a current Federal employee for
the position, and when the Agency realized he was instead
a preference status veteran, “the Agency immediately took
actions to invalidate my selection and take actions to influ-
ence withdrawal from competition with pretext.” Id. Ac-
cording to Mr. Oram, the Agency failed to assist him in
making travel arrangements that would have permitted
him to meet his EOD date and failed to provide required
assistance to bring his dependents to Germany, all being
acts that allegedly influenced him to “withdraw” from the
job offer by not meeting his EOD date. Id. Mr. Oram’s
complaint also alleged that in addition to the alleged un-
lawful acts by the Agency in connection with the October 5,
2016, recission notice, he discovered on September 7,
2021,2 four days before filing his complaint, that the
Agency in 2017 “went on to hire an individual without 10-
point veterans preference status,” allegedly in further vio-
lation of his VEOA rights. Compl. at SAppx. 31.
On September 20, 2021, the Department of Labor noti-
fied Mr. Oram that it had closed his complaint because it
was not timely filed, and he had not provided any reason to
excuse his failure to satisfy the sixty-day filing require-
ment. Letter from Jordan Saunders, Assistant Dir./Inves-
tigator, Dep’t of Lab. to Mr. Oram (Sept. 20, 2021) at
SAppx. 35. Mr. Oram timely appealed that September 20,
2021 decision to the Board. MSPB Form 185-2: Appeal of
pagination—e.g., Compl. at SAppx. 29 would be to the first
page of Mr. Oram’s complaint.
2 Agency File and Motion to Dismiss at 9 (Oct. 24,
2021), Oram v. Dep’t of the Air Force, Docket No. DC-3330-
22-0003-I-1 (M.S.P.B. Jan. 10, 2022). This document is ref-
erenced as “TAB 4 . . . Agency – Agency Representative Ad-
dition” on SAppx. 18.
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ORAM v. MSPB 5
Agency Personnel Action of Decision (Non-retirement) at
SAppx. 24. His appeal was assigned to an Administrative
Judge in the Washington Regional Office of the Board.
III
On October 24. 2021, the Agency filed a Motion to Dis-
miss Mr. Oram’s appeal.3 Agency File and Motion to Dis-
miss (Oct. 24, 2021). The Agency argued for dismissal on
3 The Agency’s Motion to Dismiss recites that Mr.
Oram was hired on May 31, 2017, as an IT Specialist under
Vacancy Announcement FY17-BC033-1935010-RB.
Agency File and Motion to Dismiss at 3. When told the
starting grade and salary for the position would be set at
GS-7, Step 1, Mr. Oram expressed his desire for a higher
grade and salary. Id. The Agency offered to increase the
rate of pay to GS-7, Step 10, and in response, Mr. Oram
asked if the Agency would pay him a “23% or any recruit-
ment bonus” for the first two to three years of his appoint-
ment. Id. at 3-4. The Agency rejected his request, and on
June 12, 2017, Mr. Oram declined the position citing “per-
sonal reasons and salary considerations.” Id. at 4. Then,
on August 9, 2017, Mr. Oram filed a request for corrective
action with the Department of Labor alleging the Agency’s
grade and pay decision violated mandatory pay and grade
statutes and regulations. Id. The Department of Labor
rejected his request for corrective action, and on timely ap-
peal, an administrative judge in an Initial Decision found
against Mr. Oram because he failed to prove by a prepon-
derance of the evidence that the Agency violated his rights
under a statute or regulation relating to veterans’ prefer-
ence. Id. (citing Initial Decision, Oram v. Dep’t of the Air
Force, Docket No. DC-3330-18-0056-I-1 (M.S.P.B. Dec. 22,
2017)). Mr. Oram appealed the adverse Initial Decision to
the Board, which issued its Final Order in the case on Sep-
tember 8, 2022, affirming the Initial Decision. Final Order,
Oram v. Dep’t of the Air Force, Docket No. DC-3330-18-
0056-I-1 (M.S.P.B. Sept. 8, 2022).
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ORAM v. MSPB 6
two grounds: first, that Mr. Oram failed to identify any
statute or regulation relating to veterans’ preference that
the Agency allegedly violated; and second, that, even if Mr.
Oram had made non-frivolous allegations of VEOA viola-
tions, Mr. Oram’s complaint to the Department of Labor
was untimely filed, and the untimeliness was not excusa-
ble, either for equitable tolling under Kirkendall, or by ap-
plication of the discovery rule. Agency File and Motion to
Dismiss at 8-13. The Agency understood Mr. Oram to have
invoked the discovery rule by arguing that the sixty-day
filing time did not begin to run until he discovered the
Agency allegedly awarded an IT position to another person
who lacked Mr. Oram’s standing as a preference eligible.
Id. at 9-10.
On January 10, 2022, the Administrative Judge issued
the Board Decision4 denying Mr. Oram’s request for correc-
tive action under VEOA on the ground that he failed timely
to present his complaint to the Department of Labor.
Board Decision at 1-7. The Board Decision elided the first
ground of the Agency’s motion to dismiss and focused on
the second ground. Id. at 4-7. The Administrative Judge
held that Mr. Oram received notice on October 5, 2016, that
his job offer was withdrawn but waited nearly five years
before filing his VEOA complaint on September 11, 2021.
Id. at 4-5. Further, Mr. Oram failed to identify factual
grounds sufficient to justify invocation of equitable tolling.
Id. at 5-6 (citing Kirkendall, 479 F.3d at 843-44; Irwin v.
Veterans Admin., 498 U.S. 89, 96 (1990)). The decision ad-
dressed Mr. Oram’s argument that the sixty-day period
should only begin to run from when he discovered that the
Agency had awarded an IT position to a person with alleged
less veterans’ preference. Board Decision at 6. The
4 This was technically an Initial Decision. However,
because Mr. Oram did not appeal the Initial Decision to the
Board, by force of law the Initial Decision on February 14,
2022, became the final decision of the Board, subject to
timely review by this Court. Board Decision at 7-8.
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ORAM v. MSPB 7
argument was inconsistent with the language of the stat-
ute, which unambiguously keys the prescribed time to the
“date of the alleged violation,” and equally unambiguously
leaves no room for an interpretation that would key the
prescribed time to the date of discovery of the alleged vio-
lation. Id. Further, even assuming that the discovery rule
could apply to VEOA complaints, the decision held that in
this case the rule would be unavailing because the award
of an IT job to another person in 2017 did not invoke VEOA
rights in Mr. Oram, and even if it did, the record did not
show that the other person was less veterans’ preference
qualified than Mr. Oram. Id. at 6-7.
IV
Mr. Oram timely petitioned this Court for review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9). Our au-
thority to review a final Board decision is limited by law.
We may not set aside a final Board decision unless we de-
termine that it is “(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or reg-
ulation having been followed; or (3) unsupported by sub-
stantial evidence[.]” 5 U.S.C. § 7703(c); see also
Bridgestone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest
de la France, 245 F.3d 1359, 1361 (Fed. Cir. 2001).
V
On appeal, Mr. Oram does not challenge the Board’s
finding that his VEOA complaint was untimely or its hold-
ing that absent a timely filing, his request for corrective
action under VEOA must be denied. He recognizes that to
prevail, he must convince us that he is entitled to equitable
tolling or application of the discovery rule.
With regard to equitable tolling, the Board correctly
noted that the doctrine requires more than ordinary ne-
glect to invoke its application. See Irwin, 498 U.S. at 96.
Mr. Oram has not shown that the Agency somehow prohib-
ited him from filing his complaint within sixty days from
the date his acceptance was rescinded, or that he met the
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ORAM v. MSPB 8
filing date with a defective complaint, or any other reason
to apply equitable tolling.
With regard to the discovery rule, the Board correctly
focused on the language of the statute, which expressly
keys the sixty-day time rule to the date of the alleged vio-
lation, not the date upon which the alleged violation was
discovered by a complainant. In Rotkiske v. Klemm, the
Supreme Court explained that the discovery rule comes in
two iterations. __ U.S. __, 140 S. Ct. 355, 360 (2019).
First, as a matter of statutory interpretation, a court
looks to the relevant statute to determine whether, for the
specified filing time, Congress has triggered the start of the
filing time from the date of an alleged violation of law, or
from the date of discovery of the alleged violation. Id. If
Congress has unambiguously identified the trigger date as
the date of the alleged violation of law, there is no room for
the discovery rule to operate. Id. at 360-61. The VEOA
unambiguously triggers the running of the sixty-day filing
time from the date of the alleged violation. See
5 U.S.C. § 3330a(a)(2)(A) (“A complaint under this subsec-
tion must be filed within 60 days after the date of the al-
leged violation.” (emphasis added)). Mr. Oram gains no
benefit from this iteration of the discovery rule.
Second, when a complainant has been fraudulently in-
duced to miss a required time deadline, a separate and dis-
tinct equitable, fraud-specific discovery rule may excuse
failure to meet a required time deadline. Rotkiske, __ U.S.
at __, 140 S. Ct. at 361. This iteration of the discovery rule
traces from Bailey v. Glover, 88 U.S. 342 (1875), and has
been recognized by the Supreme Court in a long line of
cases, cited in Rotkiske. Rotkiske, __ U.S. at __, 140 S. Ct.
at 361. Because Mr. Oram did not argue at the Board, or
in his brief here, for relief under the fraud-specific discov-
ery rule, the issue is not before us, and he cannot rely on
this doctrine to excuse his otherwise untimely filing. And
even if the issue were before us, Mr. Oram cites to no evi-
dence in the record that would support a claim that the
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ORAM v. MSPB 9
Agency fraudulently induced Mr. Oram to miss his filing
deadline at the Department of Labor.
Mr. Oram’s other grounds for relief lack merit. First,
he notes that he has filed a complaint against the Agency
under the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994 (“USERRA”), a law that protects
military service members and veterans from employment
discrimination on the basis of their service. Pet’r’s Opening
Br. Continuation at 13-24. He avers that his USERRA
complaint is related to his VEOA complaint, and therefore,
he should have no duty to pursue his VEOA complaint
through exhaustion of the Department of Labor process.
Id. at 27. Mr. Oram cites no legal authority for negating
the specific terms of the VEOA statute, and we know of
none.
Second, Mr. Oram argues that the Board committed re-
versible error when it denied his discovery requests for fur-
ther information about the veterans’ preference status of
the candidate who was awarded the IT position in 2017 to
bolster his claim to benefit from the discovery rule. Id. at
29-33. We review the Board’s discovery rulings for abuse
of discretion and will not “second-guess the trial tribunal
on procedures except where the abuse of discretion is clear
and harmful or where exceptional circumstances are pre-
sent.” Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169,
173 (Fed. Cir. 1986). We discern no abuse of discretion in
the Board’s denial of Mr. Oram’s discovery request.
Third, Mr. Oram broadly challenges the facts found by
the Board: “the Board accepted biased evidence authored
completely by the Agency,” and the “Board used one sided
evidence.” Pet’r’s Opening Br. Continuation at 25. His
challenge lacks specificity and does not address the facts
relevant to the appeal, namely the facts that demonstrate
untimely filing at the Department of Labor, all of which are
supported by substantial evidence in the record.
Finally, Mr. Oram alleges at numerous places in his
brief that the Administrative Judge assigned to his case is
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ORAM v. MSPB 10
biased against him and that his case should be assigned to
another judge in the event we remand the case for further
proceedings. Id. at 37. The Board’s docket for this case
shows no motion by Mr. Oram to disqualify the Adminis-
trative Judge under 5 C.F.R. § 1201.42(b). Thus, the issue
is not preserved for judicial review. See Generette v. Merit
Sys. Prot. Bd., 681 F. App’x 929, 933 (Fed. Cir. 2017). Even
were the issue before us, Mr. Oram claims bias in rulings
adverse to him, and such alleged bias is insufficient to war-
rant disqualification. See Shu v. Merit Sys. Prot. Bd., 845
F. App’x 934, 937 (Fed. Cir. 2021) (finding prior rulings ad-
verse to petitioner were insufficient to demonstrate judicial
bias). And since we affirm, the issue is moot.
CONCLUSION
After careful review of Mr. Oram’s brief on appeal, the
record of the proceedings before the Board, and all of Mr.
Oram’s arguments, we are unable to discern any material
error of fact or law, or abuse of discretion in the Board’s
decision. We therefore affirm the Board’s denial of Mr.
Oram’s request for corrective action under VEOA.
AFFIRMED
COSTS
No costs.
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