UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CYRIL DAVID DANIEL ORAM JR.,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

AT-4324-20-0476-M-4

DATE: June 10, 2024

THIS ORDER IS NONPRECEDENTIAL1

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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

5
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

6
“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

3

 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

7
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.

8