Oram v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: March 23, 2022
• Docket: 21-2307
• Status: Unpublished

Opinion

Case: 21-2307 Document: 22 Page: 1 Filed: 03/23/2022

NOTE: This disposition is nonprecedential.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 ______________________

2021-2307 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-20-0444-M-1. ______________________

Decided: March 23, 2022 ______________________

CYRIL D. ORAM, JR., Bellingham, WA, pro se.

DEANNA SCHABACKER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH. ______________________

Before MOORE, Chief Judge, CHEN and HUGHES, Circuit Judges. Case: 21-2307 Document: 22 Page: 2 Filed: 03/23/2022

PER CURIAM. Cyril D. Oram, Jr. appeals a decision of the Merit Sys- tems Protection Board that determined the Board lacks ju- risdiction to hear Mr. Oram’s case. The Board did not err in its analysis, so we affirm. I On June 29, 2016, the Department of the Air Force told Mr. Oram that it had tentatively selected him for an Infor- mation Technology Specialist position. The Air Force ad- vised Mr. Oram that he was eligible for a living quarters allowance but ultimately denied his request for one. Mr. Oram was scheduled to enter duty on September 19, 2016. The Air Force allowed him to extend this date to October 3, 2016. Mr. Oram then informed the Air Force that he could not report for duty on October 3, 2016, be- cause he had to attend hearings for a labor dispute with his former employer—which Mr. Oram alleged he had told the Air Force about before it selected him for the position. The Air Force denied any further extensions and informed Mr. Oram that it would rescind his job offer if he failed to report on October 3. When Mr. Oram did not report for duty on that date, the Air Force withdrew its job offer. On March 9, 2020, Mr. Oram filed an Individual Right of Action (IRA) appeal with the Merit Systems Protection Board. Mr. Oram alleged that the Air Force had retaliated against him for disclosing ongoing litigation against his former employer by using that information to deny his liv- ing quarters allowance, refusing to extend his entrance-on- duty date, and withdrawing his job offer. The Board dis- missed Mr. Oram’s appeal, determining that it lacks juris- diction. Mr. Oram appeals. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9). Case: 21-2307 Document: 22 Page: 3 Filed: 03/23/2022

ORAM v. MSPB 3

II We must “hold unlawful and set aside any agency . . . findings” that are “(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the 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 review de novo the Board’s determination that it lacks jurisdiction. Forest v. MSPB, 47 F.3d 409, 410 (Fed. Cir. 1995). III For the Board to exercise jurisdiction over an IRA ap- peal, an appellant must exhaust all administrative reme- dies at the Office of Special Counsel—unless the appellant has a right to appeal directly to the Board—and make a non-frivolous allegation that (1) the appellant made a pro- tected disclosure or engaged in a protected activity and (2) the disclosure or activity contributed to the agency’s de- cision to take a personnel action. 5 U.S.C. § 1221(a)–(b); Hessami v. MSPB, 979 F.3d 1362, 1367 (Fed. Cir. 2020). Mr. Oram argues that the Board (1) narrowed the scope of his claims by requiring him to exhaust all admin- istrative remedies at the Office of Special Counsel, even though he allegedly has a right to appeal directly to the Board; (2) misconstrued the jurisdictional statute—which defines “disclosure” as “any violation of any law, rule, or regulation”—to cover only violations committed by federal employees; and (3) improperly evaluated the merits of his claim when analyzing jurisdiction. A In addition to his IRA claims, Mr. Oram argued that the Air Force violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by discriminat- ing against him due to his previous military service. The Board forwarded Mr. Oram’s USERRA claim to the Board’s Washington Regional Office for separate adjudication. Case: 21-2307 Document: 22 Page: 4 Filed: 03/23/2022

Regarding his IRA claims, the Board determined that Mr. Oram had exhausted most of his claims at the Office of Special Counsel but nevertheless concluded that it lacked jurisdiction over these exhausted claims because Mr. Oram had not alleged a protected disclosure or protected activity. Mr. Oram contends that the Board’s bifurcation of his IRA and USERRA claims is improper. He asserts that his USERRA claim gives him a right to appeal directly to the Board and that, by separating his USERRA claim and then determining that he had not exhausted one of his IRA claims, the Board limited the scope of his arguments. “Importantly, in an IRA appeal to the Board, the Board’s review is limited to the merits of allegations of vi- olations of the Whistleblower Protection Act. Discrimina- tion claims may not be raised in that context.” Young v. MSPB, 961 F.3d 1323, 1327–38 (Fed. Cir. 2020) (citing 5 C.F.R. § 1209.2(c)). While Young refers to discrimination as an affirmative defense, 5 C.F.R. § 1209.2(c) clearly states that in an IRA appeal, “the only merits issues before the Board are . . . whether the appellant has demonstrated that whistleblowing or other protected activity was a con- tributing factor” in the agency’s action and, if so, whether the agency would have taken the same action regardless. We discern no error in forwarding Mr. Oram’s USERRA claim to the Board’s Washington Regional Office or in re- quiring that he exhaust all administrative remedies at the Office of Special Counsel for his IRA claims, so we affirm. B Mr. Oram disclosed to the Air Force that he believed “he was unlawfully terminated from a prior position in the United Arab Emirates . . . and he intended to participate in a complaints process to challenge the termination with the labor courts in the Middle East,” and he alleges that the Air Force used this disclosure to deny his living quar- ters allowance. Initial Decision at 8, Oram v. Dep’t of the Air Force, Docket No. DC-1221-20-04444-M-1 (MSPB June Case: 21-2307 Document: 22 Page: 5 Filed: 03/23/2022

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8, 2021) (Initial Decision). The Board determined that this disclosure is not protected because Mr. Oram did not allege that any government official committed wrongdoing. Id. In particular, Mr. Oram’s “termination from his contractor position in UAE does not involve” government officials. Id. Mr. Oram argues that the Board narrowly construed 5 U.S.C. § 2302(b)(8)(A) to cover only violations committed by federal employees. But “[t]he purpose of the [Whistle- blower Protection Act] is to encourage government person- nel to disclose government wrongdoing.” Willis v. Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998). And the amendments that Congress made in the Whistleblower Protection Enhancement Act do not “extend whistleblower protection to claims involving purely private conduct,” like Mr. Oram’s termination from his previous position in the UAE. See Aviles v. MSPB, 799 F.3d 457, 464 (5th Cir. 2015). While a disclosure of wrongdoing committed by a non-government entity can be protected in some circum- stances, those circumstances do not apply here. See Miller v. Dep’t of Homeland Sec., 99 MSPR 175, 182 (2005) (“Dis- closures of wrongdoing by a nongovernment entity may constitute protected disclosures when the government’s in- terests and good name are implicated in the alleged wrong- doing, and the employee shows that he reasonably believed that the information he disclosed evidenced that wrongdo- ing.”). Therefore, the Board did not err in determining that Mr. Oram’s disclosure is not protected because he did not allege that a government official committed wrongdoing. C Mr. Oram argues that the Board improperly evaluated the merits of his claim at the jurisdictional stage of his case. Mr. Oram contends that “jurisdiction in whistle- blower cases” is “based on whether allegations [are] facially sufficient.” Appellant’s Br. 6. As discussed above, one of the Board’s jurisdictional re- quirements is that an appellant nonfrivolously allege that Case: 21-2307 Document: 22 Page: 6 Filed: 03/23/2022

the appellant made a protected disclosure or engaged in protected activity. Hessami, 979 F.3d at 1367. Mr. Oram is correct that the allegation must not be “vague, conclusory or facially insufficient,” and the petitioner must reasonably believe it to be true. Piccolo v. MSPB, 869 F.3d 1369, 1371 (Fed. Cir. 2017) (quoting Johnston v. MSPB, 518 F.3d 905, 910 (Fed. Cir. 2008)). But the Board must still determine whether the disclosure or activity is “protected,” as defined by statute. See id. (listing the statute that defines “pro- tected disclosure”). This determination is not an evaluation of the merits—i.e., credibility determinations and weighing of the evidence—as prohibited by Piccolo. The Board did not, as Mr. Oram alleges, evaluate the merits of his allegations. Rather, it determined whether his allegations constituted protected disclosures or activities over which the Board has jurisdiction. See Initial Decision 8–9 (“Absent agency action I find the appellant has failed to establish a non-frivolous allegation that he made a pro- tected disclosure regarding this report.”); Initial Decision 9–10 (determining that the Board does not have jurisdic- tion because “[t]he substance of [Mr. Oram’s allegations] does not concern remedying an alleged violation of” 5 U.S.C. § 2302(b)(8)). We therefore affirm. IV We have considered Mr. Oram’s other arguments and find them unpersuasive: Based on the record before us, the administrative judge did not express bias in favor of the Air Force or otherwise fail to consider Mr. Oram’s objections and motions. And the pro-veteran canon that Mr. Oram in- vokes throughout his brief is a canon of statutory construc- tion that does not apply to this appeal. Because the Board lacks jurisdiction to hear Mr. Oram’s case, we affirm. AFFIRMED COSTS No costs.