Case: 20-2304 Document: 33 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NOTE: This disposition is nonprecedential.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 ______________________ 2020-2304, 2020-2305 ______________________ Petitions for review of the Merit Systems Protection Board in Nos. AT-1221-20-0566-W-1, AT-0752-20-468-I-1. ______________________ Decided: May 5, 2021 ______________________ CYRIL D. ORAM, JR., Bellingham, WA, pro se.

DEANNA SCHABACKER, 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.

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Cyril D. Oram appealed his separation from federal employment alleging that it was an involuntary resigna- tion and amounted to reprisal for his protected whistle- blowing activity. The Merit Systems Protection Board dismissed Mr. Oram’s appeal for lack of jurisdiction. Mr. Oram now petitions for review before this court. For the reasons below, we affirm the Board’s decision.

BACKGROUND Mr. Oram was initially employed in Japan by the De- partment of the Navy (“Navy”) as a GS-12 Information Technology Specialist (“ITS”), effective May 1, 2017. Oram v. Dep’t of Commerce, M.S.P.B. No. AT-0752-20-0468-I-1, 2020 WL 4048443 (Initial Decision, July 15, 2020); S.A.

2. 1,2 On October 29, 2017, Mr. Oram transferred to the De- partment of the Army (“Army”), in the same position, as a GS-11 subject to a two-year probationary period. S.A. 2.

Mr. Oram was subsequently terminated during his proba- tionary period effective July 27, 2018. Id. Just prior to the effective date of his termination, Mr. Oram filed a complaint with the Office of Special Counsel (“OSC”) complaining that his termination resulted from certain whistleblowing activities. Id. In August 2018, pur- suant to a settlement agreement, Mr. Oram’s removal ac- tion was expunged and his transportation costs to the United States, up to the statutory limit, were covered. Id. Mr. Oram agreed to exercise his return rights to his previ- ous GS-12 position with the Navy in Norfolk, VA. Id.

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However, Mr. Oram never returned to his position with the Navy. Id. Instead, on August 9, 2018, the Census Bureau of the U.S. Department of Commerce (“Census Bureau”) made an offer to Mr. Oram of a GS-12 ITS position in the Atlanta Regional Census Center, which Mr. Oram accepted. Mr. Oram was first scheduled to start on the pay period begin- ning in early September, but his start date was delayed un- til September 30, 2018, due to a funding issue. S.A. 43–47.

Because the Census Bureau needed additional time to com- plete Mr. Oram’s background check, his start date became November 13, 2018. S.A. 3.

On November 12, 2018, Mr. Oram informed the Census Bureau that he would need to “withdraw from considera- tion” unless he could take Family and Medical Leave Act (“FMLA”) leave at the start of his appointment (November 13, 2018) due to a medical emergency in the family. Id. The Census Bureau notified Mr. Oram that his FMLA re- quest was denied because he was not an employee. Id.; S.A. 60. The Census Bureau also accepted his withdrawal from consideration. S.A. 60. Subsequently, on January 15, 2019, the Census Bureau sent a letter to Mr. Oram indicat- ing that Mr. Oram had himself declined further considera- tion under the previous job offer for the Atlanta ITS position. S.A. 3; S.A. 58. 3 On April 24, 2020, Mr. Oram filed an appeal alleging that the Census Bureau forced him to resign by denying his request for FMLA leave. S.A. 3. In a subsequent pleading, Mr. Oram stated that he intended his appeal to be con- strued as an individual right of action (“IRA”) appeal,

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noting that OSC had terminated its investigation into a complaint he filed in July 2018, just prior to his initial ter- mination with the Army, and that he filed his involuntary resignation appeal at the Board within sixty days of receiv- ing the OSC’s April 9, 2020 closure letter. S.A. 83.

On July 15, 2020, the Merit Systems Protection Board (“Board”) determined that Mr. Oram did not have statutory appeal rights because he was not an “employee” under U.S.C § 7511(a)(1) and had no regulatory appeal rights under 5 C.F.R. §§ 315.804–06. S.A. 5–11. Thus, the Board concluded that it could not decide whether Mr. Oram’s al- leged resignation was involuntary. In addition, the Board found that Mr. Oram did not establish jurisdiction over his whistleblower claim because Mr. Oram did not make any protected disclosures alleging violation of law, rule, or reg- ulation prior to the date on which the Census Bureau de- nied his FMLA request. S.A. 14–15. The Board also made an alternative finding that even if Mr. Oram’s alleged whis- tleblowing disclosure amounted to protected disclosure, Mr. Oram did not show that he raised and exhausted it with the OSC. S.A. 15. Accordingly, the Board dismissed Mr. Oram’s appeal.

Mr. Oram now petitions for review of the Board’s deci- sion. We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).

DISCUSSION I 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 Case: 20-2304 Document: 33 Page: 5 Filed: 05/05/2021

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fact if they are supported by substantial evidence. Parrott v. M.S.P.B., 519 F.3d 1328, 1334 (Fed. Cir. 2008).

A The Board has limited jurisdiction under 5 U.S.C. § 7701. An involuntary resignation constitutes a construc- tive removal that is appealable to the Board. Mintzmyer v. Dep’t of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996). But, while removal from employment in the service is appeala- ble, it is generally appealable only if an individual qualifies as an “employee” under 5 U.S.C. § 7511(a)(1) at the time of removal. McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002).

Under § 7511(a)(1) subsection (A), an individual in the competitive service is an “employee” if he is “not serving a probationary or trial period under an initial appointment” or “has completed 1 year of current continuous service.”

“Current continuous service” refers to a period of employ- ment immediately preceding an adverse action without a break in federal civilian employment of a workday. 5 C.F.R. § 752.402.

Under § 7511(a)(1) subsection (B), an individual in the excepted service is an “employee” if the individual is “pref- erence eligible” 4 and “has completed 1 year of current con- tinuous service in the same or similar positions . . . in an Executive agency . . . .” 5

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Furthermore, a regulatory right of appeal set forth in 5 C.F.R. § 315.806 has been provided for probationary em- ployees in the competitive service that have been (1) termi- nated for post-appointment reasons who make a non- frivolous allegation that the agency’s action was based on partisan political reasons or marital status discrimination, or (2) terminated for pre-appointment reasons who make a non-frivolous allegation that the agency did not follow reg- ulatory procedures. See 5 C.F.R. §§ 315.804–06.

Mr. Oram argues that the Board failed to consider that he had a history of service and was technically an employee because he was merely transferring between federal agen- cies. Petitioner’s Inf. Br. 2; see also S.A. 93–99. Mr. Oram also argues that he showed up for duty on September 30, 2018, which was his original start date, but was told he could not start because his background check was not yet complete. Petitioner’s Inf. Br. 8. Mr. Oram further con- tends that the background check, which further delayed him, was unauthorized because he had an existing active clearance and executive agencies are mandated to provide reciprocity across agencies. Id.; see also S.A. 93–99. Be- cause we do not have jurisdiction over this appeal, we are not able to resolve the arguments Mr. Oram makes.

The Board concluded that Mr. Oram did not have stat- utory appeal rights because he was not an “employee” un- der 5 U.S.C § 7511(a)(1). Specifically, Mr. Oram was not a competitive service “employee” with adverse action appeal rights under § 7511(a)(1)(A) because he was serving a two- year probationary period with an agency under the Depart- ment of Defense when he resigned from Federal civilian employment before January 15, 2019. S.A. 8–11. In addi- tion, the Board found Mr. Oram was not an “employee” un- der section § 7511(a)(1)(B), which applies to preference eligible employees in the excepted service, because Mr. Oram never entered on duty to the excepted service ITS position with the Census Bureau. S.A. 6–8. Last, the Board found that Mr. Oram had no regulatory right of Case: 20-2304 Document: 33 Page: 7 Filed: 05/05/2021

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appeal under 5 C.F.R. §§ 315.804–06, which grants limited appeal rights to probationary employees terminated from the competitive service. S.A. 11. We agree.

Mr. Oram was at no time employed by the Census Bu- reau. While it is true that the Census Bureau made an offer of employment to Mr. Oram, and that his start date was originally on September 30, 2018, his start date was delayed to allow for completion of a background check. A hiring agency is permitted to conduct background checks even for temporary employees “as it deems appropriate to ensure the suitability of the person.” 5 C.F.R. § 731.104(c); see also S.A. 6 n.5. He was made a final offer on November 1, 2018, to start that month, but effectively declined to ac- cept the offer unless his request for FMLA leave was granted. S.A. 6–7. The Census Bureau confirmed on No- vember 13, 2018, and January 15, 2019, that Mr. Oram was withdrawing from consideration. There is no evidence of record indicating that Mr. Oram was ever formally ap- pointed to the Census Bureau. Accordingly, we affirm the Board’s finding that Mr. Oram was not an “employee” un- der section § 7511(a)(1)(B).

Further, because Mr. Oram was never formally ap- pointed to the Census Bureau, he would have been still em- ployed by the Army until he resigned. However, because he was an individual serving a two-year probationary pe- riod in the Army, he was not a competitive service “em- ployee” with adverse action appeal rights under § 7511(a)(1)(A). Accordingly, we conclude that Mr. Oram was not an employee as contemplated by § 7511(a)(1) and, therefore, the Board did not have jurisdiction over Mr. Oram’s involuntary resignation appeal.

Mr. Oram further failed to non-frivolously allege con- structive termination for purposes of 5 C.F.R. §§ 315.804–06, for reasons similar to those set forth above.

Namely, Mr. Oram was never employed by the Census Bu- reau and thus the it could not have terminated his Case: 20-2304 Document: 33 Page: 8 Filed: 05/05/2021

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employment. Rather, Mr. Oram was offered a position but then withdrew from consideration. Therefore, the Board also lacked jurisdiction over Mr. Oram’s involuntary resig- nation appeal under the aforementioned regulatory provi- sions.

B Under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act, the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the OSC and makes non-frivolous allegations of the following: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected dis- closure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See Yunus v. Dep’t of Veterans Af- fairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Dep’t of Interior, 123 M.S.P.R. 230, 233 (M.S.P.B. Feb. 22, 2016); see also 5 U.S.C. §§ 1221(e)(1), 2302(b)(8), 2302(b)(9).

With respect to his whistleblowing claim, Mr. Oram ar- gues that his appeal should have been construed as an IRA because he filed a complaint with the OSC and the OSC had terminated its investigation on April 9, 2020. S.A. 83; see also S.A. 42–48. Thus, he argues, he timely filed his involuntary resignation appeal within the sixty-day filing limit after receiving OSC’s closure letter. Id. A review of an appellant’s allegations is limited to the precise grounds of his charge, sufficiently pled to the OSC, and cannot be extended to recharacterizations of his charges, or additional allegations. 5 U.S.C. § 1214(a)(3); see Ward v. M.S.P.B, 981 F.2d 521, 526 (Fed. Cir. 1992).

An appellant bears the burden of proving he exhausted his administrative remedies with the OSC by preponderant ev- idence. 5 C.F.R. § 1201.57(c)(1). The Board issued an IRA jurisdictional order requesting that Mr. Oram provide a Case: 20-2304 Document: 33 Page: 9 Filed: 05/05/2021

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copy of his OSC complaint. S.A. 4. Mr. Oram failed to pro- vide a copy of the complaint and instead provided only the closure letter dated April 9, 2020. Id. Based on the con- tents of the letter, the Board concluded that the only per- sonnel action the appellant raised with OSC involved the Census Bureau’s decision not to grant Mr. Oram’s request for FMLA leave because he was not an employee. We agree.

Mr. Oram failed to provide any evidence of the precise alleged protected disclosures that he raised before the OSC, despite the Board’s explicit jurisdictional order re- questing the same. Accordingly, we find that Mr. Oram failed to demonstrate OSC exhaustion and, therefore, the Board did not have jurisdiction over his IRA appeal.

CONCLUSION We have considered Mr. Oram’s other arguments but find them unpersuasive. Accordingly, we affirm the Board’s decision dismissing his appeal for lack of jurisdic- tion.

AFFIRMED COSTS No costs.