Opinion
2022-1251
06-07-2022
CYRIL D. ORAM, JR., Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
Cyril David Daniel Oram, Jr., Bellingham, WA, pro se. Katrina Lederer, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by Katherine Michelle Smith.
This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. AT-4324-20-0476-M-1.
Cyril David Daniel Oram, Jr., Bellingham, WA, pro se.
Katrina Lederer, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by Katherine Michelle Smith.
Before Lourie, Schall, and Reyna, Circuit Judges.
Per Curiam.
Cyril D. Oram, Jr. appeals from the decision of the U.S. Merit Systems Protection Board ("the Board") dismissing his appeal without prejudice. Oram v. Dep't of Com., No. AT-4324-20-0476-M-1 (M.S.P.B. Aug. 30, 2021), SAppx 1-10. For the reasons explained below, we dismiss Oram's appeal for lack of jurisdiction.
All SAppx citations refer to the supplemental appendix filed concurrently with the government's brief.
Background
On April 24, 2020, Oram filed an appeal at the Board, alleging that the Department of Commerce discriminated against him based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act. SAppx 1. The Board dismissed his appeal for lack of jurisdiction. Id. Oram appealed to this court. Id. This court vacated and remanded the case for further proceedings concerning issues not relevant to this appeal. Oram v. Merit Sys. Prot. Bd., 855 Fed.Appx. 699, 700 (Fed. Cir. 2021).
On remand, Oram requested that the administrative judge dismiss his appeal without prejudice pending the outcome of a related case. SAppx 2. The administrative judge granted Oram's request and stated that he could re-file his appeal between October 5, 2021 and January 29, 2022. Id. The administrative judge's initial decision became the decision of the Board on October 4, 2021. Id.
Subsequently, Oram appealed to this court, arguing, among other things, that the Board had "disdain" for pro se appellants and that the "agency concealed evidence." Appellant's Br. (cont.) 4, 6, 8.
Discussion
As a threshold matter, we address whether we have jurisdiction to address Orem's appeal. We conclude that we do not.
Pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9), we have jurisdiction over a "final order or final decision" of the Board. Here, the dismissal without prejudice was not a final, appealable decision because it provided Oram the option to refile his claim. See, e.g., Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) ("We have held that the final judgment rule applies to appeals from the Merit Systems Protection Board."); Strausbaugh v. Merit Sys. Prot. Bd., 401 Fed.Appx. 524, 526 (Fed. Cir. 2010) (nonprecedential) ("[T]he AJ's rulings on [appellant's] motions to dismiss without prejudice are not final, appealable orders because they leave [him] the option of refiling his claims."). Indeed, shortly after his appeal was dismissed, Oram refiled his claim and the administrative judge scheduled a hearing for May 17, 2022. SAppx 14-17. Accordingly, the dismissal did not "end[] the litigation on the merits" and "leave[] nothing for the court to do but execute the judgment," as required for finality. Weed, 571 F.3d at 1361 (quoting Allen v. Principi, 237 F.3d 1368, 1372 (Fed. Cir. 2001)). Because the decision was not final, we are without jurisdiction to address Oram's appeal.
Conclusion
We have considered Oram's remaining arguments but find them unpersuasive. For the foregoing reasons, we dismiss his appeal for lack of jurisdiction.
DISMISSED