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NOTE: This disposition is nonprecedential.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
2 ORAM v. MSPB
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
4 ORAM v. MSPB
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
ORAM v. MSPB 5
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
6 ORAM v. MSPB
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.
