Case: 22-1545 Document: 25 Page: 1 Filed: 12/08/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CYRIL DAVID DANIEL ORAM, JR.,
`Petitioner
`
`v.
`
`MERIT SYSTEMS PROTECTION BOARD,
`Respondent
`______________________
`
`2022-1545
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DC-3330-22-0003-I-1.
`______________________
`
`Decided: December 8, 2022
`______________________
`
`CYRIL DAVID DANIEL ORAM, JR., Bellingham, WA, pro
`
`se.
`
` ELIZABETH W. FLETCHER, Office of General Counsel,
`United States Merit Systems Protection Board, Washing-
`ton, DC, for respondent. Also represented by KATHERINE
`MICHELLE SMITH.
`______________________
`
`Before LOURIE, CLEVENGER, and STARK, Circuit Judges.
`PER CURIAM.
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`

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`Case: 22-1545 Document: 25 Page: 2 Filed: 12/08/2022
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`ORAM v. MSPB
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`Cyril David Daniel Oram, Jr. seeks review of the final
`decision of the Merit Systems Protection Board (“Board”)
`denying his request for corrective action under the Veter-
`ans Employment Opportunities Act of 1998 (“VEOA”).
`Oram v. Dep’t of the Air Force, Docket No. DC-3330-22-
`0003-I-1 (M.S.P.B. Jan. 10, 2022) (Board Decision). For the
`reasons set forth below, we affirm the Board’s final deci-
`sion.
`
`I
`The VEOA provides that preference eligibles and other
`veterans “may not be denied the opportunity to compete for
`vacant positions for which the agency making the an-
`nouncement [of a vacancy] will accept applications from in-
`dividuals outside its own workforce under merit promotion
`procedures.” 5 U.S.C. § 3304(f)(1). The term “preference
`eligible” is defined in 5 U.S.C. § 2108(3) to include certain
`veterans, and it is undisputed that Mr. Oram qualifies as
`a preference eligible. The VEOA does not guarantee that a
`preference eligible will win the competition for a vacant po-
`sition. Instead, it guarantees that a preference eligible has
`the right to compete for the vacancy, free from any agency
`action that violates a preference eligible’s rights under
`“any statute or regulation relating to veterans’ preference.”
`5 U.S.C. § 3330a(a)(1)(A). A preference eligible who be-
`lieves an agency has violated the person’s rights under any
`statute or regulation relating to veterans’ preference may
`file a complaint with the Department of Labor; if the De-
`partment of Labor does not resolve the complaint, the ag-
`grieved person may appeal the alleged violation to the
`Board; and if the Board finds a violation, it must order the
`agency to comply with the relevant veterans’ preference
`law provisions and award compensation for any loss of
`wages or benefits suffered by the individual whose veter-
`ans’ preference rights were violated.
` See 5 U.S.C.
`§§ 3330a(a)(1)(A), 3330c(a). But in order for an aggrieved
`preference eligible to pursue these rights, the complaint to
`the Secretary of Labor must be timely filed “within 60 days
`after the date of the alleged violation,” unless an untimely
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`ORAM v. MSPB
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`filing can be excused by application of equitable tolling.
`5 U.S.C. § 3330a(a)(2)(A); Kirkendall v. Dep’t of Army, 479
`F.3d 830, 844 (Fed. Cir. 2007).
`II
`The Department of the Air Force (the “Agency”) con-
`ducted a job competition for a GS-2210-12 IT Specialist po-
`sition at Ramstein Air Force Base in Germany. Board
`Decision at 2. On June 21, 2016, the Agency made a tenta-
`tive offer to Mr. Oram for said position. Id. On September
`12, 2016, Mr. Oram accepted the job offer and accepted an
`entry on duty (“EOD”) date of October 3, 2016. Id. On Sep-
`tember 26, 2016, Mr. Oram informed the Agency that he
`could not meet the EOD date because he had to attend a
`hearing related to a labor dispute with his former em-
`ployer. Id. Two days later, the Agency told Mr. Oram that
`his EOD date would not be extended and that he would be
`placed on absent without leave (“AWOL”) status if he failed
`to report for duty on time. Id. Mr. Oram responded by
`explaining in more detail the pending labor dispute, and in
`turn the Agency acknowledged his response but informed
`him that if he failed to report on time, the Agency would
`rescind the job offer, instead of more severely holding him
`to his acceptance and charging him with AWOL. Id. Mr.
`Oram did not report for duty on time, and on October 5,
`2016, the Agency notified him that the job offer was with-
`drawn due to his failure to comply with the EOD date. Id.
`On September 11, 2021, Mr. Oram filed a complaint
`with the Department of Labor, alleging violation of his
`VEOA rights in October 2016 when the Agency withdrew
`its offer of employment. Board Decision at 4; Compl. at
`SAppx. 29 (Sept. 11, 2021).1 His complaint sought
`
`“SAppx.” citations herein refer to the appendix
`1
`filed concurrently with Respondent’s brief. Additionally,
`because the Petitioner’s complaint is not paginated, cita-
`tions herein are to the version of the complaint included in
`the aforementioned appendix, which has consistent
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`Case: 22-1545 Document: 25 Page: 4 Filed: 12/08/2022
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`ORAM v. MSPB
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`corrective action from the Agency. Compl. Form at SAppx.
`28. His complaint stated he applied for and was selected
`for a position advertised to preference eligible veterans and
`current Federal employees. Id. at 29. He averred that the
`Agency only wanted to hire a current Federal employee for
`the position, and when the Agency realized he was instead
`a preference status veteran, “the Agency immediately took
`actions to invalidate my selection and take actions to influ-
`ence withdrawal from competition with pretext.” Id. Ac-
`cording to Mr. Oram, the Agency failed to assist him in
`making travel arrangements that would have permitted
`him to meet his EOD date and failed to provide required
`assistance to bring his dependents to Germany, all being
`acts that allegedly influenced him to “withdraw” from the
`job offer by not meeting his EOD date. Id. Mr. Oram’s
`complaint also alleged that in addition to the alleged un-
`lawful acts by the Agency in connection with the October 5,
`2016, recission notice, he discovered on September 7,
`2021,2 four days before filing his complaint, that the
`Agency in 2017 “went on to hire an individual without 10-
`point veterans preference status,” allegedly in further vio-
`lation of his VEOA rights. Compl. at SAppx. 31.
`On September 20, 2021, the Department of Labor noti-
`fied Mr. Oram that it had closed his complaint because it
`was not timely filed, and he had not provided any reason to
`excuse his failure to satisfy the sixty-day filing require-
`ment. Letter from Jordan Saunders, Assistant Dir./Inves-
`tigator, Dep’t of Lab. to Mr. Oram (Sept. 20, 2021) at
`SAppx. 35. Mr. Oram timely appealed that September 20,
`2021 decision to the Board. MSPB Form 185-2: Appeal of
`
`pagination—e.g., Compl. at SAppx. 29 would be to the first
`page of Mr. Oram’s complaint.
`2 Agency File and Motion to Dismiss at 9 (Oct. 24,
`2021), Oram v. Dep’t of the Air Force, Docket No. DC-3330-
`22-0003-I-1 (M.S.P.B. Jan. 10, 2022). This document is ref-
`erenced as “TAB 4 . . . Agency – Agency Representative Ad-
`dition” on SAppx. 18.
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`ORAM v. MSPB
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`Agency Personnel Action of Decision (Non-retirement) at
`SAppx. 24. His appeal was assigned to an Administrative
`Judge in the Washington Regional Office of the Board.
`III
`On October 24. 2021, the Agency filed a Motion to Dis-
`miss Mr. Oram’s appeal.3 Agency File and Motion to Dis-
`miss (Oct. 24, 2021). The Agency argued for dismissal on
`
`
`3 The Agency’s Motion to Dismiss recites that Mr.
`Oram was hired on May 31, 2017, as an IT Specialist under
`Vacancy
`Announcement
`FY17-BC033-1935010-RB.
`Agency File and Motion to Dismiss at 3. When told the
`starting grade and salary for the position would be set at
`GS-7, Step 1, Mr. Oram expressed his desire for a higher
`grade and salary. Id. The Agency offered to increase the
`rate of pay to GS-7, Step 10, and in response, Mr. Oram
`asked if the Agency would pay him a “23% or any recruit-
`ment bonus” for the first two to three years of his appoint-
`ment. Id. at 3-4. The Agency rejected his request, and on
`June 12, 2017, Mr. Oram declined the position citing “per-
`sonal reasons and salary considerations.” Id. at 4. Then,
`on August 9, 2017, Mr. Oram filed a request for corrective
`action with the Department of Labor alleging the Agency’s
`grade and pay decision violated mandatory pay and grade
`statutes and regulations. Id. The Department of Labor
`rejected his request for corrective action, and on timely ap-
`peal, an administrative judge in an Initial Decision found
`against Mr. Oram because he failed to prove by a prepon-
`derance of the evidence that the Agency violated his rights
`under a statute or regulation relating to veterans’ prefer-
`ence. Id. (citing Initial Decision, Oram v. Dep’t of the Air
`Force, Docket No. DC-3330-18-0056-I-1 (M.S.P.B. Dec. 22,
`2017)). Mr. Oram appealed the adverse Initial Decision to
`the Board, which issued its Final Order in the case on Sep-
`tember 8, 2022, affirming the Initial Decision. Final Order,
`Oram v. Dep’t of the Air Force, Docket No. DC-3330-18-
`0056-I-1 (M.S.P.B. Sept. 8, 2022).
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`ORAM v. MSPB
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`two grounds: first, that Mr. Oram failed to identify any
`statute or regulation relating to veterans’ preference that
`the Agency allegedly violated; and second, that, even if Mr.
`Oram had made non-frivolous allegations of VEOA viola-
`tions, Mr. Oram’s complaint to the Department of Labor
`was untimely filed, and the untimeliness was not excusa-
`ble, either for equitable tolling under Kirkendall, or by ap-
`plication of the discovery rule. Agency File and Motion to
`Dismiss at 8-13. The Agency understood Mr. Oram to have
`invoked the discovery rule by arguing that the sixty-day
`filing time did not begin to run until he discovered the
`Agency allegedly awarded an IT position to another person
`who lacked Mr. Oram’s standing as a preference eligible.
`Id. at 9-10.
`On January 10, 2022, the Administrative Judge issued
`the Board Decision4 denying Mr. Oram’s request for correc-
`tive action under VEOA on the ground that he failed timely
`to present his complaint to the Department of Labor.
`Board Decision at 1-7. The Board Decision elided the first
`ground of the Agency’s motion to dismiss and focused on
`the second ground. Id. at 4-7. The Administrative Judge
`held that Mr. Oram received notice on October 5, 2016, that
`his job offer was withdrawn but waited nearly five years
`before filing his VEOA complaint on September 11, 2021.
`Id. at 4-5. Further, Mr. Oram failed to identify factual
`grounds sufficient to justify invocation of equitable tolling.
`Id. at 5-6 (citing Kirkendall, 479 F.3d at 843-44; Irwin v.
`Veterans Admin., 498 U.S. 89, 96 (1990)). The decision ad-
`dressed Mr. Oram’s argument that the sixty-day period
`should only begin to run from when he discovered that the
`Agency had awarded an IT position to a person with alleged
`less veterans’ preference. Board Decision at 6. The
`
`4 This was technically an Initial Decision. However,
`because Mr. Oram did not appeal the Initial Decision to the
`Board, by force of law the Initial Decision on February 14,
`2022, became the final decision of the Board, subject to
`timely review by this Court. Board Decision at 7-8.
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`ORAM v. MSPB
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`argument was inconsistent with the language of the stat-
`ute, which unambiguously keys the prescribed time to the
`“date of the alleged violation,” and equally unambiguously
`leaves no room for an interpretation that would key the
`prescribed time to the date of discovery of the alleged vio-
`lation. Id. Further, even assuming that the discovery rule
`could apply to VEOA complaints, the decision held that in
`this case the rule would be unavailing because the award
`of an IT job to another person in 2017 did not invoke VEOA
`rights in Mr. Oram, and even if it did, the record did not
`show that the other person was less veterans’ preference
`qualified than Mr. Oram. Id. at 6-7.
`IV
`Mr. Oram timely petitioned this Court for review. We
`have jurisdiction under 28 U.S.C. § 1295(a)(9). Our au-
`thority to review a final Board decision is limited by law.
`We may not set aside a final Board decision unless we de-
`termine that it is “(1) arbitrary, capricious, an abuse of dis-
`cretion, or otherwise not in accordance with law; (2)
`obtained without procedures required by law, rule, or reg-
`ulation having been followed; or (3) unsupported by sub-
`stantial evidence[.]”
` 5 U.S.C. § 7703(c); see also
`Bridgestone/Firestone Rsch., Inc. v. Auto. Club de l’Ouest
`de la France, 245 F.3d 1359, 1361 (Fed. Cir. 2001).
`V
`On appeal, Mr. Oram does not challenge the Board’s
`finding that his VEOA complaint was untimely or its hold-
`ing that absent a timely filing, his request for corrective
`action under VEOA must be denied. He recognizes that to
`prevail, he must convince us that he is entitled to equitable
`tolling or application of the discovery rule.
`With regard to equitable tolling, the Board correctly
`noted that the doctrine requires more than ordinary ne-
`glect to invoke its application. See Irwin, 498 U.S. at 96.
`Mr. Oram has not shown that the Agency somehow prohib-
`ited him from filing his complaint within sixty days from
`the date his acceptance was rescinded, or that he met the
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`Case: 22-1545 Document: 25 Page: 8 Filed: 12/08/2022
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`ORAM v. MSPB
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`filing date with a defective complaint, or any other reason
`to apply equitable tolling.
`With regard to the discovery rule, the Board correctly
`focused on the language of the statute, which expressly
`keys the sixty-day time rule to the date of the alleged vio-
`lation, not the date upon which the alleged violation was
`discovered by a complainant. In Rotkiske v. Klemm, the
`Supreme Court explained that the discovery rule comes in
`two iterations. __ U.S. __, 140 S. Ct. 355, 360 (2019).
`First, as a matter of statutory interpretation, a court
`looks to the relevant statute to determine whether, for the
`specified filing time, Congress has triggered the start of the
`filing time from the date of an alleged violation of law, or
`from the date of discovery of the alleged violation. Id. If
`Congress has unambiguously identified the trigger date as
`the date of the alleged violation of law, there is no room for
`the discovery rule to operate. Id. at 360-61. The VEOA
`unambiguously triggers the running of the sixty-day filing
`time from the date of the alleged violation.
` See
`5 U.S.C. § 3330a(a)(2)(A) (“A complaint under this subsec-
`tion must be filed within 60 days after the date of the al-
`leged violation.” (emphasis added)). Mr. Oram gains no
`benefit from this iteration of the discovery rule.
`Second, when a complainant has been fraudulently in-
`duced to miss a required time deadline, a separate and dis-
`tinct equitable, fraud-specific discovery rule may excuse
`failure to meet a required time deadline. Rotkiske, __ U.S.
`at __, 140 S. Ct. at 361. This iteration of the discovery rule
`traces from Bailey v. Glover, 88 U.S. 342 (1875), and has
`been recognized by the Supreme Court in a long line of
`cases, cited in Rotkiske. Rotkiske, __ U.S. at __, 140 S. Ct.
`at 361. Because Mr. Oram did not argue at the Board, or
`in his brief here, for relief under the fraud-specific discov-
`ery rule, the issue is not before us, and he cannot rely on
`this doctrine to excuse his otherwise untimely filing. And
`even if the issue were before us, Mr. Oram cites to no evi-
`dence in the record that would support a claim that the
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`ORAM v. MSPB
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`Agency fraudulently induced Mr. Oram to miss his filing
`deadline at the Department of Labor.
`Mr. Oram’s other grounds for relief lack merit. First,
`he notes that he has filed a complaint against the Agency
`under the Uniformed Services Employment and Reemploy-
`ment Rights Act of 1994 (“USERRA”), a law that protects
`military service members and veterans from employment
`discrimination on the basis of their service. Pet’r’s Opening
`Br. Continuation at 13-24. He avers that his USERRA
`complaint is related to his VEOA complaint, and therefore,
`he should have no duty to pursue his VEOA complaint
`through exhaustion of the Department of Labor process.
`Id. at 27. Mr. Oram cites no legal authority for negating
`the specific terms of the VEOA statute, and we know of
`none.
`Second, Mr. Oram argues that the Board committed re-
`versible error when it denied his discovery requests for fur-
`ther information about the veterans’ preference status of
`the candidate who was awarded the IT position in 2017 to
`bolster his claim to benefit from the discovery rule. Id. at
`29-33. We review the Board’s discovery rulings for abuse
`of discretion and will not “second-guess the trial tribunal
`on procedures except where the abuse of discretion is clear
`and harmful or where exceptional circumstances are pre-
`sent.” Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169,
`173 (Fed. Cir. 1986). We discern no abuse of discretion in
`the Board’s denial of Mr. Oram’s discovery request.
`Third, Mr. Oram broadly challenges the facts found by
`the Board: “the Board accepted biased evidence authored
`completely by the Agency,” and the “Board used one sided
`evidence.” Pet’r’s Opening Br. Continuation at 25. His
`challenge lacks specificity and does not address the facts
`relevant to the appeal, namely the facts that demonstrate
`untimely filing at the Department of Labor, all of which are
`supported by substantial evidence in the record.
`Finally, Mr. Oram alleges at numerous places in his
`brief that the Administrative Judge assigned to his case is
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`ORAM v. MSPB
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`biased against him and that his case should be assigned to
`another judge in the event we remand the case for further
`proceedings. Id. at 37. The Board’s docket for this case
`shows no motion by Mr. Oram to disqualify the Adminis-
`trative Judge under 5 C.F.R. § 1201.42(b). Thus, the issue
`is not preserved for judicial review. See Generette v. Merit
`Sys. Prot. Bd., 681 F. App’x 929, 933 (Fed. Cir. 2017). Even
`were the issue before us, Mr. Oram claims bias in rulings
`adverse to him, and such alleged bias is insufficient to war-
`rant disqualification. See Shu v. Merit Sys. Prot. Bd., 845
`F. App’x 934, 937 (Fed. Cir. 2021) (finding prior rulings ad-
`verse to petitioner were insufficient to demonstrate judicial
`bias). And since we affirm, the issue is moot.
`CONCLUSION
`After careful review of Mr. Oram’s brief on appeal, the
`record of the proceedings before the Board, and all of Mr.
`Oram’s arguments, we are unable to discern any material
`error of fact or law, or abuse of discretion in the Board’s
`decision. We therefore affirm the Board’s denial of Mr.
`Oram’s request for corrective action under VEOA.
`AFFIRMED
`COSTS
`
`No costs.
`
`