Oram v. MSPB

O
Case: 20-2306   Document: 22     Page: 1   Filed: 05/05/2021




        NOTE: This disposition is nonprecedential.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
              ______________________

                       2020-2306
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-4324-20-0476-I-1.
                 ______________________

                  Decided: May 5, 2021
                 ______________________

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

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

     Before REYNA, SCHALL, and STOLL, Circuit Judges.
 PER CURIAM.
Case: 20-2306     Document: 22     Page: 2    Filed: 05/05/2021




 2                                               ORAM   v. MSPB



     Cyril D. Oram appealed his separation from federal
 employment requesting remedial action under the Uni-
 formed Services Employment and Reemployment Rights
 Act. Mr. Oram alleged that he was denied certain benefits
 of employment based in part on his prior military service
 and present status as a veteran. The Merit Systems Pro-
 tection Board dismissed Mr. Oram’s appeal for lack of ju-
 risdiction. Mr. Oram now petitions for review before this
 court. For the reasons below, we vacate and remand the
 Board’s decision.
                        BACKGROUND
     This is one of four appeals in this case involving similar
 facts concerning Mr. Oram’s allegations of an involuntary
 separation from federal employment. 1 Because we previ-
 ously discussed the background and the history of the case,
 see Cyril D. Oram, Jr., v. MSPB, ___ F. App’x ___ (Fed. Cir.
 2021), we provide only the following brief summary.
     On May 1, 2020, Mr. Oram filed an appeal to the Merit
 Systems Protection Board (“Board”) alleging that the Cen-
 sus Bureau of the U.S. Department of Commerce (“Census
 Bureau”) discriminated against him on the basis of his mil-
 itary status in violation of the Uniformed Services Employ-
 ment and Reemployment Rights Act of 1994 (“USERRA”).
 The administrative judge ordered Mr. Oram to file a state-
 ment addressing whether his appeal met the jurisdictional
 requirements for the Board to hear Mr. Oram’s appeal un-
 der USERRA. S.A. 39. 2 Mr. Oram responded that the Cen-
 sus Bureau denied him “retention in employment and other



     1   See also Oram v. Dep’t of Commerce, No. 20-2303
 (Fed. Cir. Dec. 1, 2020); Oram v. Dep’t of Commerce, Nos.
 20-2304 & 2305 (consolidated).
     2   Citations to “S.A. __” refer to pages of the supple-
 mental appendix appended to Respondent’s responsive
 brief.
Case: 20-2306     Document: 22    Page: 3    Filed: 05/05/2021




 ORAM   v. MSPB                                            3



 benefits” such as leave under the Family and Medical
 Leave Act (“FMLA”) and that these denials were “based in
 part on prior military service and present status as a vet-
 eran.” S.A. 51. He further alleged, in relevant part, that
 the Census Bureau altered the “terms of and conditions of
 a firm offer into an involuntary removal from federal ser-
 vice.” S.A. 52.
      In an Initial Decision issued on May 27, 2020, the Ad-
 ministrative Judge concluded that Mr. Oram failed to es-
 tablish the Board’s jurisdiction.      Oram v. Dep’t of
 Commerce, M.S.P.B. Docket No. AT-4324-20-0476-I-1 (Ini-
 tial Decision, May 27, 2020); S.A. 1–16. The Administra-
 tive Judge found that it was undisputed that Mr. Oram had
 performed duties in the uniformed service, and that he had
 made nonfrivolous allegations that the Census Bureau had
 denied him benefits of employment to which he was enti-
 tled. S.A. 5–6. The Administrative Judge concluded, how-
 ever, that Mr. Oram failed to nonfrivolously allege that his
 uniformed service was a substantial or motivating factor in
 the loss of employment benefits. S.A. 6.
     Mr. Oram now appeals the Board’s decision to this
 court.   We have jurisdiction pursuant to 38 U.S.C.
 § 4324(d)(1), 5 U.S.C. § 7703(b)(1)(A), and 28 U.S.C.
 § 1295(a)(9).
                        DISCUSSION
      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
 fact if they are supported by substantial evidence. Parrott
 v. M.S.P.B., 

519 F.3d 1328

, 1334 (Fed. Cir. 2008).
Case: 20-2306     Document: 22     Page: 4    Filed: 05/05/2021




 4                                               ORAM   v. MSPB



      In order to establish the Board’s jurisdiction over a
 USERRA discrimination claim, an individual must non-
 frivolously allege the following: (1) performance of duty in
 a uniformed service of the United States; (2) loss of a ben-
 efit of employment; and (3) that the benefit was lost due to
 the individual’s performance of duty in the uniformed ser-
 vice. 38 U.S.C. §§ 4311(a), 4324(b). See Yates v. M.S.P.B.,
 

145 F.3d 1480

, 1484 (Fed. Cir. 1998).
     Here, the Administrative Judge determined that the
 petitioner established the first and second elements based
 on his employment in a uniformed service and his allega-
 tion that the Census Bureau denied him benefits of employ-
 ment, such as his request for FMLA leave. See S.A. 5–6.
 The Administrative Judge erred, however, in finding that
 Mr. Oram did not make a nonfrivolous allegation support-
 ing the third jurisdictional element, i.e., that the loss of a
 benefit of employment was due to his military service.
 S.A. 6.
     While Mr. Oram prefers that this court not remand the
 case back to the Board, see Petitioner’s Inf. Br. 3, he con-
 tends the Board failed to consider that he made a nonfriv-
 olous allegation of USERRA bias, see

id. at 2.

The Board
 requests a remand because it contends the administrative
 judge’s decision is not in accordance with law. Respond-
 ent’s Inf. Br. 8. We agree with the Board that the proper
 course of action is to vacate the Board’s decision and re-
 mand for further proceedings for at least the following rea-
 sons.
     This court has held that the Board should take a “lib-
 eral approach in determining whether jurisdiction exists
 under USERRA.” 

Yates, 145 F.3d at 1484

. Under that ap-
 proach, the relative weakness of the specific factual allega-
 tions initially made by an appellant in his USERRA claim
 should not serve as the basis for dismissing his appeal for
 lack of jurisdiction, but if he fails to develop those allega-
 tions, his USERRA claim should simply later be denied on
Case: 20-2306      Document: 22    Page: 5   Filed: 05/05/2021




 ORAM   v. MSPB                                            5



 the merits. Patterson v. Dep’t of Interior, 

424 F.3d 1151

,
 1160 (Fed. Cir. 2005); see also 

Yates, 145 F.3d at 1485

. Be-
 cause the jurisdictional standard is quite broad, we vacate
 the Board’s decision and remand for further proceedings.
                        CONCLUSION
     We have considered Mr. Oram’s other arguments but
 find them unpersuasive. We vacate the Board’s decision
 dismissing his appeal for lack of jurisdiction under
 USERRA and remand for further proceedings.
                  VACATED AND REMANDED
                           COSTS
 No costs.

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