The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYRIL DAVID DANIEL ORAM JR., DOCKET NUMBER
Appellant, AT-4324-20-0476-M-4
v.
DEPARTMENT OF COMMERCE, DATE: June 10, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Cyril David Daniel Oram Jr. , Bellingham, Washington, pro se.
Janell N. Bell-Burnett , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal as untimely refiled without good cause. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
In August 2018, the agency selected the appellant, a disabled veteran, for a
GS-12 IT Specialist appointment with the Census Bureau. Oram v. Department
of Commerce, MSPB Docket No. AT-4324-20-0476-M-1, Remand File (M-1 RF),
Tab 6 at 13; Oram v. Department of Commerce, MSPB Docket
No. AT-4324-20-0476-M-4, Remand File (M-4 RF), Tab 5 at 13. Due to his
mother’s severe illness, he requested to use leave under the Family and Medical
Leave Act of 1993 (FMLA) upon entry to his position, or he would “need to
withdraw from consideration.” M-1 RF, Tab 6 at 44. The agency denied the
appellant’s FMLA request because he was not yet an employee and “accept[ed
his] withdrawal from consideration.” Id.
The appellant filed an initial appeal alleging that the agency’s actions were
due to “military affiliation animus” in violation of USERRA. Oram v.
Department of Commerce, MSPB Docket No. AT-4324-20-0476-I-1, Initial
Appeal File (IAF), Tab 1 at 6. The administrative judge issued an initial decision
that dismissed the appeal, finding that the appellant failed to nonfrivolously
allege that the Board had jurisdiction over his appeal. IAF, Tab 6, Initial
Decision at 1, 5-8.
The U.S. Court of Appeals for the Federal Circuit remanded the case,
holding that “the Board should take a ‘liberal approach in determining whether
jurisdiction exists under USERRA,’” and if the appellant does not further
“develop [his] allegations, his USERRA claim should simply later be denied on
the merits.” Oram v. Merit Systems Protection Board, 855 F. App’x 699, 701
(Fed. Cir. 2021) (per curiam) (quoting Yates v. Merit Systems Protection Board,
145 F.3d 1480, 1484 (Fed. Cir. 1998)). The Board, in turn, remanded the appeal
to the regional office. M-1 RF, Tab 3. The regional office acknowledged the
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remanded appeal. M-1 RF, Tab 4. Over the course of the following 15 months,
the administrative judge dismissed the appellant’s USERRA appeal without
prejudice 3 times at the appellant’s request. M-1 RF, Tab 8 at 4, Tab 9, Initial
Decision at 2 (dismissing the appeal without prejudice at the appellant’s request
“pending the outcome of a [related] proceeding before the Office of Personnel
Management (OPM)); Oram v. Department of Commerce, MSPB Docket
No. AT-4324-20-0476-M-2, Remand File (M-2 RF), Tab 9 at 4-5, Tab 10, Initial
Decision at 2 (granting the parties’ joint request to dismiss the appeal without
prejudice based in part “on the appellant’s having to care for his critically-ill
parent”); Oram v. Department of Commerce, MSPB Docket
No. AT-4324-20-0476-M-3, Remand File (M-3 RF), Tab 5, Tab 6, Initial
Decision at 2 (granting the appellant’s request to dismiss his appeal without
prejudice due to “his own poor health and that of his mother”).
In dismissing the case for the third time, the administrative judge instructed
the appellant that he could “re-file the appeal after November 9, 2022, and must
refile the appeal, if at all, by not later than April 4, 2023. It is the appellant’s
responsibility to re-file the appeal .” M-3 RF, Initial Decision at 2 (emphasis in
original). The appellant refiled his appeal on April 7, 2023. M-4 RF, Tab 1. The
administrative judge issued an Order on Timeliness explaining that “there [was] a
question [of] whether this appeal was refiled within the period established when it
was dismissed without prejudice. As a result, the Board might dismiss the appeal
as untimely filed without addressing the merits of the case.” M-4 RF, Tab 4 at 1.
The administrative judge ordered the appellant to file evidence and argument
showing either that he timely refiled his appeal or that good cause exists to
excuse the delay in refiling. Id. at 2.
In his response to the Order on Timeliness, the appellant argued that
because his appeal arose under USERRA, the regional office should have
“automatically refiled [his appeal] at the expiration of any time limit placed by
the [administrative judge].” M-4 RF, Tab 5 at 8-9. The appellant also argued
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that even if he was required to personally refile his appeal and missed the refiling
deadline, he established good cause for waiver. He pointed to severe illness and
death in his immediate family, his own injury and the resulting nerve damage that
impaired his ability to read and write, and delays resulting from “return[ing]”
from Maryland to Washington State. Id. at 6, 8, 14. He also noted that the delay
of 3 days was relatively short. Id. at 8. With his response, the appellant
submitted several emergency room notes showing that he had been intermittently
seen for treatment and was restricted from typing between February and
April 2023. Id. at 10-12. The agency replied, arguing the appeal should be
dismissed as untimely filed without good cause. M-4 RF, Tab 7.
The administrative judge issued an initial decision that dismissed the
appeal as untimely refiled without good cause. M-4 RF, Tab 8, Initial Decision
(ID) at 2, 5. He found that the appellant did not comply with the specific
instructions regarding refiling and that neither the death in the appellant’s
immediate family nor his physical illness were sufficient reasons for waiver.
ID at 2-5. Further, the administrative judge noted that the appellant “is an
experienced litigant before the Board, having filed many previous appeals with
several of the Board’s regional offices.” ID at 3.
The appellant has filed a timely petition for review. 2 Petition for Review
(PFR) File, Tab 3. On review, the appellant reiterates that the regional office
should have automatically redocketed his appeal and his untimeliness should have
been excused. Id. at 12. He disputes the administrative judge’s claim that he is
an experienced litigant, argues the merits of his appeal, and challenges the
fairness of the appeal process in this and his other related appeals. Id. at 5-13.
2
In an acknowledgment letter, the Office of the Clerk of the Board explained that the
petition for review was timely filed on July 7, 2023, but because Board documents
reflect the Eastern Time Zone, and the appellant was located in the Pacific Time Zone,
the filing date was reflected in the Board’s records as July 8, 2023, instead of July 7,
2023. Petition for Review (PFR) File, Tab 4 at 1. Perhaps confused by the Board’s
wording, the appellant moved for leave to file a pleading addressing the timeliness of
his petition for review. PFR File, Tab 5 at 4. We deny the appellant’s motion as
unnecessary.
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For the first time on review, the appellant requests disqualification of the
administrative judge on remand because the administrative judge was not “fair
and unbiased.” Id. at 14. The agency has filed a response to the petition for
review, and the appellant filed a reply. PFR File, Tabs 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
We deem the appeal to have been timely refiled on April 4, 2023.
Dismissal without prejudice should not become a trap to deny an appellant
the opportunity to have his case decided on the merits. Nelson v. U.S. Postal
Service, 113 M.S.P.R. 644, ¶ 8 (2010), aff’d per curium, 414 F. App’x 292 (Fed.
Cir 2011). This is especially true of USERRA appeals. In Milner v. Department
of Justice, 87 M.S.P.R. 660, ¶ 13 (2001), the Board clarified its policy that to
effectuate the USERRA statutory scheme, which contains no time limit for filing
USERRA appeals, a USERRA case that has been dismissed without prejudice to
refiling will be considered automatically refiled by the date set forth in the
dismissal order. See 5 C.F.R. § 1208.12 (stating that there is no time limit for
filing a USERRA appeal). The exception to this policy is if there is evidence that
the appellant has abandoned the appeal. Milner, 87 M.S.P.R. 660, ¶ 13; see
Gingery v. Department of the Treasury, 111 M.S.P.R. 134, ¶¶ 6-7, 13 (2009)
(finding it appropriate to apply the Board’s policy that USERRA appeals
dismissed without prejudice are automatically refiled, first announced in Milner,
to a Veterans Employment Opportunities Act of 1998 appeal that an
administrative judge dismissed sua sponte over the appellant’s objection).
On review, the appellant reargues that the administrative judge erred when
he did not automatically refile the appeal. M-4 RF, Tab 5 at 9; PFR File, Tab 3
at 12. He asserts that the appeal was effectively refiled on the date set forth in
the prior initial decision. M-4 RF, Tab 5 at 9; PFR File, Tab 3 at 12. We agree.
Although the appeal was dismissed without prejudice three times
previously, there is no indication that the appellant abandoned his USERRA
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claim. The appellant requested the three dismissals without prejudice because of
related proceedings at OPM, his responsibility in caring for a critically ill parent,
and his own physical injuries. M-1 RF, Tab 9 at 2; M-2 RF, Tab 10 at 2; M-3
RF, Tab 5, Tab 6 at 2. Nowhere across the three prior appeals, below, or before
the Board on review has the appellant indicated a desire to abandon his USERRA
claim. In contrast, at each stage of his appeal, the appellant has pursued his
USERRA claim. Oram, 855 F. App’x at 700-01; M-1 RF, Tab 7 at 4-7 (detailing
the appellant’s attempts to conduct discovery for his USERRA claim); M -2 RF,
Tab 1 at 3 (refiling his USERRA appeal, but requesting a continuance to complete
his related proceeding before OPM); M-3 RF, Tab 5 at 3 (acknowledging the
automatic refiling of his USERRA claim but requesting an extension or a
dismissal without prejudice due to his mother’s critical illness and his own
physical injuries).
Therefore, we deem the appeal to have been automatically refiled on
April 4, 2023, the date set forth in the dismissal order. In light of our finding that
the appeal was timely refiled, we do not reach the parties’ arguments as to
whether the appellant showed good cause for his purported delay or consider the
evidence that the appellant submits on review regarding the reasons for his delay.
We deny the appellant’s request for a different administrative judge on remand.
On review, the appellant requests that the Board assign a different
administrative judge to his case. PFR File, Tab 3 at 14. Recusal of an
administrative judge is required when a reasonable person, knowing all the facts,
would question the administrative judge’s impartiality. Baker v. Social Security
Administration, 2022 MSPB 27, ¶ 7 (citing 28 U.S.C. § 455(a)). Here, the
appellant made conclusory statements of bias, but did not point to evidence in the
record to support his claim of the administrative judge’s “disdain for [p]ro se
appellants.” PFR File, Tab 3 at 9. For example, the appellant argues that the
administrative judge’s bifurcation of his original appeal into separate claims
7
“made it nearly impossible for the pro se [appellant] to provide a clear and
concise set of events for which a decision could be made” or to “timely object to
the [administrative judge’s] actions.” Id. at 6. He also argues that “the assigned
[administrative judge] cannot be concluded to be providing the [a]ppellant a fair
and unbiased redress.” Id. at 14.
These conclusory statements of bias and disagreement with the
administrative judge’s procedural handling of his appeal would not lead a
reasonable person to question the judge’s impartiality. Baker, 2022 MSPB 27,
¶¶ 2-3, 18-19 (holding the administrative judge erred by not granting an
appellant’s motion for recusal when the administrative judge maintained an
ongoing and undefined personal relationship with an attorney who worked in the
same office as the appellant, the appellant had made alleged whistleblowing
disclosures to the attorney’s two coworkers that served as bases for his appeal,
and the attorney and her coworkers had negative views of the appellant).
Accordingly, the appellant’s request for disqualification of the administrative
judge is denied. Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 281 (1991) (stating
that a party must make a substantial showing of personal bias to overcome an
administrative judge’s presumed honesty and integrity, and an administrative
judge’s past ruling against a party is insufficient to warrant disqualification). 3
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In his reply to the agency’s response to his petition for review, the appellant argues
that the agency committed errors in his hiring process, he was entitled to a permanent
rather than a 2-year appointment, and he was the victim of whistleblower reprisal. PFR
File, Tab 9 at 4-18. A reply is limited to the factual and legal issues raised by another
party in the response to the petition for review. 5 C.F.R. § 1201.114(a)(4). It may not
raise new allegations of error. Id. Because the appellant’s arguments concern matters
not raised in the agency’s response, we will not consider them. See Lin v. Department
of the Air Force, 2023 MSPB 2, ¶ 8 n.3 (declining to consider arguments first raised in
the appellant’s reply). The appellant also has submitted documents with his reply. PFR
File, Tab 9 at 19-46. The Board may grant a petition for review when a party presents
new and material evidence that, despite the petitioner’s due diligence, was not available
when the record closed. 5 C.F.R. § 1201.115(d). We need not determine whether this
evidence is new, because it is not material to the dispositive timeliness issue before us.
See Alvarado v. Office of Personnel Management, 113 M.S.P.R. 407, ¶ 6 (2010)
(declining to consider documents that an appellant submitted for the first time with his
petition for review because he did not show that they were relevant to the timeliness
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ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. In light of this
Remand Order, we also dismiss as unnecessary the appellant’s motion (PFR File,
Tab 5) requesting leave to respond to the Board’s Acknowledgement letter (PFR
File, Tab 4).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
issue before the Board and that he could not have obtained them despite his due
diligence before the record closed below). Therefore, we have not considered the
appellant’s reply.