Cyril Oram v. Department of the Air Force ( 2022 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    CYRIL DAVID DANIEL ORAM, JR.,                   DOCKET NUMBER
    Appellant,                        DC-1221-17-0384-W-1
    v.
    DEPARTMENT OF THE AIR FORCE,                    DATE: September 8, 2022
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Cyril David Daniel Oram, Jr., Bellingham, Washington, pro se.
    Sandra Fortson, Joint Base Andrews, Maryland, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    Tristan L. Leavitt, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed his individual right of action (IRA) appeal for lack of jurisdiction. On
    petition for review, the appellant argues:     (1) the administrative judge should
    have included the denial of a living quarters allowance within the scope of the
    1
    A nonprecedential order is one that the Board has determined does not add
    significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative judges are not
    required to follow or distinguish them in any future decisions. In contrast, a
    precedential decision issued as an Opinion and Order has been identified by the Board
    as significantly contributing to the Board’s case law. See 
    5 C.F.R. § 1201.117
    (c).
    2
    IRA appeal; (2) the administrative judge incorrectly concluded that he failed to
    make a nonfrivolous allegation of any protected disclosure or protected activity;
    and (3) he has new evidence demonstrating that he was an employee at the time
    he filed his IRA appeal. Generally, we grant petitions such as this one only in the
    following circumstances:      the initial decision contains erroneous findings of
    material fact; the initial decision is based on an erroneous interpretation of statute
    or regulation or the erroneous application of the law to the facts of the case; the
    administrative judge’s rulings during either the course of the appe al or the initial
    decision were not consistent with required procedures or involved an abuse of
    discretion, and the resulting error affected the outcome of the case; or new and
    material evidence or legal argument is available that, despite the petitioner’s due
    diligence, was not available when the record closed. 2        Title 5 of the Code of
    Federal Regulations, section 1201.115 (
    5 C.F.R. § 1201.115
    ).                After fully
    considering the filings in this appeal, we conclude that the petitioner has not
    established any basis under section 1201.115 for granting the petition for review. 3
    2
    We have reviewed the relevant legislation enacted during the pendency of this appeal
    and have concluded that it does not affect the outcome of the appeal.
    3
    Regarding the evidence submitted by the appellant for the first time on review, while
    the Standard Form 50 showing that the appellant received a career -conditional
    appointment is dated after the issuance of the initial decision and thus was unavailable
    prior to the close of the record below, he has not shown that his employment status is
    material to the question of Board jurisdiction over this IRA appeal. Thus, the new
    evidence does not set forth a basis to grant the petition for review. Russo v. Veterans
    Administration, 
    3 M.S.P.R. 345
    , 349 (1980) (stating that the Board will not grant a
    petition for review based on new evidence absent a showing that it is of sufficient
    weight to warrant an outcome different from that of the initial decision ). Regarding the
    October 1, 2016 Office of Special Counsel (OSC) complaint submitted by the appellant
    for the first time on review, he has not explained why, despite his due diligence, he was
    unable to file this document, which he created and purportedly filed with OSC, prior to
    the close of the record below. Avansino v. U.S. Postal Service, 
    3 M.S.P.R. 211
    , 214
    (1980) (stating that the Board generally will not consider evidence submitted for the
    first time with the petition for review absent a showing that it was unavailable before
    the record was closed below).
    3
    Therefore, we DENY the petition for review and AFFIRM the initial decision,
    which is now the Board’s final decision. 
    5 C.F.R. § 1201.113
    (b).
    NOTICE OF APPEAL RIGHTS 4
    You may obtain review of this final decision. 
    5 U.S.C. § 7703
    (a)(1). By
    statute, the nature of your claims determines the time limit for seeking such
    review and the appropriate forum with which to file.               
    5 U.S.C. § 7703
    (b).
    Although we offer the following summary of available appeal rights, the Merit
    Systems Protection Board does not provide legal advice on which option is most
    appropriate for your situation and the rights described below do not represent a
    statement of how courts will rule regarding which cases fall within their
    jurisdiction.   If you wish to seek review of this final decision, you should
    immediately review the law applicable to your claims and carefully follow all
    filing time limits and requirements. Failure to file within the applicable time
    limit may result in the dismissal of your case by your chosen forum.
    Please read carefully each of the three main possible choices of review
    below to decide which one applies to your particular case. If you have questions
    about whether a particular forum is the appropriate one to review your case, you
    should contact that forum for more information.
    On September 16, 2019, the appellant filed a motion titled, “Motion to Withdraw
    Without Prejudice due to prior EEO election.” Petition for Review (PFR) File, Tab 5.
    To determine whether the appellant was seeking to withdraw his petition for review and
    to establish that his request was knowing and voluntary, the Clerk of the Board ordered
    the appellant to submit a pleading within 7 days, clarifying whether his filing was
    intended as a request to withdraw his petition for review with prejudice to refiling or to
    withdraw his Board appeal. PFR File, Tab 6 at 1-3. The order informed the appellant
    that if he failed to respond, his pleading would be treated as a request to withdraw his
    Board appeal, which would be considered in a decision following the restoration of a
    Board quorum. 
    Id. at 1-2
    . The appellant failed to respond to the order. Because we
    conclude that the administrative judge correctly dismissed the appellant’s IRA appeal
    for lack of jurisdiction, we deny the appellant’s request .
    4
    Since the issuance of the initial decision in this matter, the Board may have updated
    the notice of review rights included in final decisions. As indicated in the notice, the
    Board cannot advise which option is most appropriate in any matter.
    4
    (1) Judicial review in general. As a general rule, an appellant seeking
    judicial review of a final Board order must file a petition for review with the U.S.
    Court of Appeals for the Federal Circuit, which must be received by the court
    within 60 calendar days of the date of issuance of this decision.                 
    5 U.S.C. § 7703
    (b)(1)(A).
    If you submit a petition for review to the U.S. Court of Appeals for the
    Federal   Circuit,   you   must   submit    your   petition    to   the   court    at   the
    following address:
    U.S. Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, D.C. 20439
    Additional information about the U.S. Court of Appeals for the Federal
    Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
    relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
    contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
    If you are interested in securing pro bono representation for an appeal to
    the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
    http://www.mspb.gov/probono for information regarding pro bono representation
    for Merit Systems Protection Board appellants before the Federal Circuit. The
    Board neither endorses the services provided by any attorney nor warrants that
    any attorney will accept representation in a given case.
    (2) Judicial   or    EEOC    review     of   cases      involving   a   claim      of
    discrimination. This option applies to you only if you have claimed that you
    were affected by an action that is appealable to the Board and that such action
    was based, in whole or in part, on unlawful discrimination. If so, you may obtain
    judicial review of this decision—including a disposition of your discrimination
    claims—by filing a civil action with an appropriate U.S. district court ( not the
    U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
    5
    receive this decision.     
    5 U.S.C. § 7703
    (b)(2); see Perry v. Merit Systems
    Protection Board, 
    582 U.S. ____
     , 
    137 S. Ct. 1975 (2017)
    .          If you have a
    representative in this case, and your representative receives this decision before
    you do, then you must file with the district court no later than 30 calendar days
    after your representative receives this decision. If the action involves a claim of
    discrimination based on race, color, religion, sex, national origin, or a disabling
    condition, you may be entitled to representation by a court-appointed lawyer and
    to waiver of any requirement of prepayment of fees, costs, or other security. See
    42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
    Contact information for U.S. district courts can be found at their respective
    websites, which can be accessed through the link below:
    http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    Alternatively, you may request review by the Equal Employment
    Opportunity Commission (EEOC) of your discrimination claims only, excluding
    all other issues. 
    5 U.S.C. § 7702
    (b)(1). You must file any such request with the
    EEOC’s Office of Federal Operations within 30 calendar days after you receive
    this decision. 
    5 U.S.C. § 7702
    (b)(1). If you have a representative in this case,
    and your representative receives this decision before you do, then you must file
    with the EEOC no later than 30 calendar days after your representative receives
    this decision.
    If you submit a request for review to the EEOC by regular U.S. mail, the
    address of the EEOC is:
    Office of Federal Operations
    Equal Employment Opportunity Commission
    P.O. Box 77960
    Washington, D.C. 20013
    If you submit a request for review to the EEOC via commercial delivery or
    by a method requiring a signature, it must be addressed to:
    6
    Office of Federal Operations
    Equal Employment Opportunity Commission
    131 M Street, N.E.
    Suite 5SW12G
    Washington, D.C. 20507
    (3) Judicial     review     pursuant   to   the   Whistleblower       Protection
    Enhancement Act of 2012. This option applies to you only if you have raised
    claims of reprisal for whistleblowing disclosures under 
    5 U.S.C. § 2302
    (b)(8) or
    other protected activities listed in 
    5 U.S.C. § 2302
    (b)(9)(A)(i), (B), (C), or (D).
    If so, and your judicial petition for review “raises no challenge to the Board’s
    disposition of allegations of a prohibited personnel practice described in
    section 2302(b) other than practices described in section 2302(b)(8), or
    2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
    review either with the U.S. Court of Appeals for the Federal Circuit or any court
    of appeals of competent jurisdiction. 5 The court of appeals must receive your
    petition for review within 60 days of the date of issuance of this decision.
    
    5 U.S.C. § 7703
    (b)(1)(B).
    If you submit a petition for judicial review to the U.S. Court of Appeals for
    the Federal Circuit, you must submit your petition to the court at the
    following address:
    U.S. Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, D.C. 20439
    5
    The original statutory provision that provided for judicial review of certain
    whistleblower claims by any court of appeals of competent jurisdiction expired on
    December 27, 2017. The All Circuit Review Act, signed into law by the President on
    July 7, 2018, permanently allows appellants to file petitions for judicial review of
    MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
    for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
    The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
    
    132 Stat. 1510
    .
    7
    Additional information about the U.S. Court of Appeals for the Federal
    Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
    relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
    contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
    If you are interested in securing pro bono representation for an appeal to
    the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
    http://www.mspb.gov/probono for information regarding pro bono representation
    for Merit Systems Protection Board appellants before the Federal Circuit. The
    Board neither endorses the services provided by any attorney nor warrants that
    any attorney will accept representation in a given case.
    Contact information for the courts of appeals can be found at their
    respective websites, which can be accessed through the link below:
    http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    FOR THE BOARD:                                    /s/ for
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DC-1221-17-0384-W-1

Filed Date: 9/8/2022

Precedential Status: Non-Precedential

Modified Date: 2/22/2023