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NOTE: This disposition is nonprecedential.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
______________________
2020-2304, 2020-2305
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. AT-1221-20-0566-W-1, AT-0752-20-468-I-1.
______________________
Decided: May 5, 2021
______________________
CYRIL D. O RAM, JR., Bellingham, WA, pro se.
D EANNA SCHABACKER , 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.
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ORAM v. MSPB 2
Cyril D. Oram appealed his separation from federal
employment alleging that it was an involuntary resigna-
tion and amounted to reprisal for his protected whistle-
blowing activity. The Merit Systems Protection Board
dismissed Mr. Oram’s appeal for lack of jurisdiction. Mr.
Oram now petitions for review before this court. For the
reasons below, we affirm the Board’s decision.
BACKGROUND
Mr. Oram was initially employed in Japan by the De-
partment of the Navy (“Navy”) as a GS-12 Information
Technology Specialist (“ITS”), effective May 1, 2017. Oram
v. Dep’t of Commerce, M.S.P.B. No. AT-0752-20-0468-I-1,
2020 WL 4048443 (Initial Decision, July 15, 2020); S.A.
2.1,2 On October 29, 2017, Mr. Oram transferred to the De-
partment of the Army (“Army”), in the same position, as a
GS-11 subject to a two-year probationary period. S.A. 2.
Mr. Oram was subsequently terminated during his proba-
tionary period effective July 27, 2018. Id.
Just prior to the effective date of his termination, Mr.
Oram filed a complaint with the Office of Special Counsel
(“OSC”) complaining that his termination resulted from
certain whistleblowing activities. Id. In August 2018, pur-
suant to a settlement agreement, Mr. Oram’s removal ac-
tion was expunged and his transportation costs to the
United States, up to the statutory limit, were covered. Id.
Mr. Oram agreed to exercise his return rights to his previ-
ous GS-12 position with the Navy in Norfolk, VA. Id.
1 The Initial Decision became final on August 19,
2020 because the parties did not petition for administrative
review. S.A. 16.
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
However, Mr. Oram never returned to his position with the
Navy. Id.
Instead, on August 9, 2018, the Census Bureau of the
U.S. Department of Commerce (“Census Bureau”) made an
offer to Mr. Oram of a GS-12 ITS position in the Atlanta
Regional Census Center, which Mr. Oram accepted. Mr.
Oram was first scheduled to start on the pay period begin-
ning in early September, but his start date was delayed un-
til September 30, 2018, due to a funding issue. S.A. 43–47.
Because the Census Bureau needed additional time to com-
plete Mr. Oram’s background check, his start date became
November 13, 2018. S.A. 3.
On November 12, 2018, Mr. Oram informed the Census
Bureau that he would need to “withdraw from considera-
tion” unless he could take Family and Medical Leave Act
(“FMLA”) leave at the start of his appointment (November
13, 2018) due to a medical emergency in the family. Id.
The Census Bureau notified Mr. Oram that his FMLA re-
quest was denied because he was not an employee. Id.;
S.A. 60. The Census Bureau also accepted his withdrawal
from consideration. S.A. 60. Subsequently, on January 15,
2019, the Census Bureau sent a letter to Mr. Oram indicat-
ing that Mr. Oram had himself declined further considera-
tion under the previous job offer for the Atlanta ITS
position. S.A. 3; S.A. 58.3
On April 24, 2020, Mr. Oram filed an appeal alleging
that the Census Bureau forced him to resign by denying his
request for FMLA leave. S.A. 3. In a subsequent pleading,
Mr. Oram stated that he intended his appeal to be con-
strued as an individual right of action (“IRA”) appeal,
3 Mr. Oram alleged before the Board that the Janu-
ary 15, 2019 letter from the Census Bureau resulted in a
retroactive and constructive resignation, effective some
date prior to January 15, 2019. S.A. 10.
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ORAM v. MSPB 4
noting that OSC had terminated its investigation into a
complaint he filed in July 2018, just prior to his initial ter-
mination with the Army, and that he filed his involuntary
resignation appeal at the Board within sixty days of receiv-
ing the OSC’s April 9, 2020 closure letter. S.A. 83.
On July 15, 2020, the Merit Systems Protection Board
(“Board”) determined that Mr. Oram did not have statutory
appeal rights because he was not an “employee” under
5 U.S.C § 7511(a)(1) and had no regulatory appeal rights
under 5 C.F.R. §§ 315.804–06. S.A. 5–11. Thus, the Board
concluded that it could not decide whether Mr. Oram’s al-
leged resignation was involuntary. In addition, the Board
found that Mr. Oram did not establish jurisdiction over his
whistleblower claim because Mr. Oram did not make any
protected disclosures alleging violation of law, rule, or reg-
ulation prior to the date on which the Census Bureau de-
nied his FMLA request. S.A. 14–15. The Board also made
an alternative finding that even if Mr. Oram’s alleged whis-
tleblowing disclosure amounted to protected disclosure,
Mr. Oram did not show that he raised and exhausted it
with the OSC. S.A. 15. Accordingly, the Board dismissed
Mr. Oram’s appeal.
Mr. Oram now petitions for review of the Board’s deci-
sion. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A)
and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
I
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
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ORAM v. MSPB 5
fact if they are supported by substantial evidence. Parrott
v. M.S.P.B., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
A
The Board has limited jurisdiction under 5 U.S.C.
§ 7701. An involuntary resignation constitutes a construc-
tive removal that is appealable to the Board. Mintzmyer v.
Dep’t of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996). But,
while removal from employment in the service is appeala-
ble, it is generally appealable only if an individual qualifies
as an “employee” under 5 U.S.C. § 7511(a)(1) at the time of
removal. McCormick v. Dep’t of the Air Force, 307 F.3d
1339, 1341 (Fed. Cir. 2002).
Under § 7511(a)(1) subsection (A), an individual in the
competitive service is an “employee” if he is “not serving a
probationary or trial period under an initial appointment”
or “has completed 1 year of current continuous service.”
“Current continuous service” refers to a period of employ-
ment immediately preceding an adverse action without a
break in federal civilian employment of a workday.
5 C.F.R. § 752.402.
Under § 7511(a)(1) subsection (B), an individual in the
excepted service is an “employee” if the individual is “pref-
erence eligible”4 and “has completed 1 year of current con-
tinuous service in the same or similar positions . . . in an
Executive agency . . . .”5
4 “Preference eligible” is defined in 5 U.S.C.
§ 2108(3) to include veterans who are disabled or who
served on active duty during certain specified time periods
or in military campaigns.
5 Since it is undisputed that Mr. Oram was prefer-
ence eligible, § 7511(a)(1)(C), which is directed toward “in-
dividuals in the excepted service (other than a preference
eligible),” has no bearing on this appeal.
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ORAM v. MSPB 6
Furthermore, a regulatory right of appeal set forth in
5 C.F.R. § 315.806 has been provided for probationary em-
ployees in the competitive service that have been (1) termi-
nated for post-appointment reasons who make a non-
frivolous allegation that the agency’s action was based on
partisan political reasons or marital status discrimination,
or (2) terminated for pre-appointment reasons who make a
non-frivolous allegation that the agency did not follow reg-
ulatory procedures. See 5 C.F.R. §§ 315.804–06.
Mr. Oram argues that the Board failed to consider that
he had a history of service and was technically an employee
because he was merely transferring between federal agen-
cies. Petitioner’s Inf. Br. 2; see also S.A. 93–99. Mr. Oram
also argues that he showed up for duty on September 30,
2018, which was his original start date, but was told he
could not start because his background check was not yet
complete. Petitioner’s Inf. Br. 8. Mr. Oram further con-
tends that the background check, which further delayed
him, was unauthorized because he had an existing active
clearance and executive agencies are mandated to provide
reciprocity across agencies. Id.; see also S.A. 93–99. Be-
cause we do not have jurisdiction over this appeal, we are
not able to resolve the arguments Mr. Oram makes.
The Board concluded that Mr. Oram did not have stat-
utory appeal rights because he was not an “employee” un-
der 5 U.S.C § 7511(a)(1). Specifically, Mr. Oram was not a
competitive service “employee” with adverse action appeal
rights under § 7511(a)(1)(A) because he was serving a two-
year probationary period with an agency under the Depart-
ment of Defense when he resigned from Federal civilian
employment before January 15, 2019. S.A. 8–11. In addi-
tion, the Board found Mr. Oram was not an “employee” un-
der section § 7511(a)(1)(B), which applies to preference
eligible employees in the excepted service, because Mr.
Oram never entered on duty to the excepted service ITS
position with the Census Bureau. S.A. 6–8. Last, the
Board found that Mr. Oram had no regulatory right of
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ORAM v. MSPB 7
appeal under 5 C.F.R. §§ 315.804–06, which grants limited
appeal rights to probationary employees terminated from
the competitive service. S.A. 11. We agree.
Mr. Oram was at no time employed by the Census Bu-
reau. While it is true that the Census Bureau made an
offer of employment to Mr. Oram, and that his start date
was originally on September 30, 2018, his start date was
delayed to allow for completion of a background check. A
hiring agency is permitted to conduct background checks
even for temporary employees “as it deems appropriate to
ensure the suitability of the person.” 5 C.F.R. § 731.104(c);
see also S.A. 6 n.5. He was made a final offer on November
1, 2018, to start that month, but effectively declined to ac-
cept the offer unless his request for FMLA leave was
granted. S.A. 6–7. The Census Bureau confirmed on No-
vember 13, 2018, and January 15, 2019, that Mr. Oram was
withdrawing from consideration. There is no evidence of
record indicating that Mr. Oram was ever formally ap-
pointed to the Census Bureau. Accordingly, we affirm the
Board’s finding that Mr. Oram was not an “employee” un-
der section § 7511(a)(1)(B).
Further, because Mr. Oram was never formally ap-
pointed to the Census Bureau, he would have been still em-
ployed by the Army until he resigned. However, because
he was an individual serving a two-year probationary pe-
riod in the Army, he was not a competitive service “em-
ployee” with adverse action appeal rights under
§ 7511(a)(1)(A). Accordingly, we conclude that Mr. Oram
was not an employee as contemplated by § 7511(a)(1) and,
therefore, the Board did not have jurisdiction over Mr.
Oram’s involuntary resignation appeal.
Mr. Oram further failed to non-frivolously allege con-
structive termination for purposes of 5 C.F.R.
§§ 315.804–06, for reasons similar to those set forth above.
Namely, Mr. Oram was never employed by the Census Bu-
reau and thus the it could not have terminated his
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ORAM v. MSPB 8
employment. Rather, Mr. Oram was offered a position but
then withdrew from consideration. Therefore, the Board
also lacked jurisdiction over Mr. Oram’s involuntary resig-
nation appeal under the aforementioned regulatory provi-
sions.
B
Under the Whistleblower Protection Act, as amended
by the Whistleblower Protection Enhancement Act, the
Board has jurisdiction over an IRA appeal if the appellant
has exhausted his administrative remedies before the OSC
and makes non-frivolous allegations of the following: (1) he
made a disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected dis-
closure or activity was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). See Yunus v. Dep’t of Veterans Af-
fairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Dep’t
of Interior, 123 M.S.P.R. 230, 233 (M.S.P.B. Feb. 22, 2016);
see also 5 U.S.C. §§ 1221(e)(1), 2302(b)(8), 2302(b)(9).
With respect to his whistleblowing claim, Mr. Oram ar-
gues that his appeal should have been construed as an IRA
because he filed a complaint with the OSC and the OSC
had terminated its investigation on April 9, 2020. S.A. 83;
see also S.A. 42–48. Thus, he argues, he timely filed his
involuntary resignation appeal within the sixty-day filing
limit after receiving OSC’s closure letter. Id.
A review of an appellant’s allegations is limited to the
precise grounds of his charge, sufficiently pled to the OSC,
and cannot be extended to recharacterizations of his
charges, or additional allegations. 5 U.S.C. § 1214(a)(3);
see Ward v. M.S.P.B, 981 F.2d 521, 526 (Fed. Cir. 1992).
An appellant bears the burden of proving he exhausted his
administrative remedies with the OSC by preponderant ev-
idence. 5 C.F.R. § 1201.57(c)(1). The Board issued an IRA
jurisdictional order requesting that Mr. Oram provide a
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ORAM v. MSPB 9
copy of his OSC complaint. S.A. 4. Mr. Oram failed to pro-
vide a copy of the complaint and instead provided only the
closure letter dated April 9, 2020. Id. Based on the con-
tents of the letter, the Board concluded that the only per-
sonnel action the appellant raised with OSC involved the
Census Bureau’s decision not to grant Mr. Oram’s request
for FMLA leave because he was not an employee. We
agree.
Mr. Oram failed to provide any evidence of the precise
alleged protected disclosures that he raised before the
OSC, despite the Board’s explicit jurisdictional order re-
questing the same. Accordingly, we find that Mr. Oram
failed to demonstrate OSC exhaustion and, therefore, the
Board did not have jurisdiction over his IRA appeal.
CONCLUSION
We have considered Mr. Oram’s other arguments but
find them unpersuasive. Accordingly, we affirm the
Board’s decision dismissing his appeal for lack of jurisdic-
tion.
AFFIRMED
COSTS
No costs.
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