Bryant v. Merit Systems Protection Board

United States Court of Appeals

for the Federal Circuit

______________________

ROB BRYANT, BRIAN FERGUSON, ANDREAS

HAU,

Petitioners

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF HOMELAND SECURITY,

Intervenor

______________________

2017-1241, 2017-1243, 2017-1245

______________________

Petitions for review of the Merit Systems Protection

Board in Nos. SF-4324-16-0265-I-1, SF-4324-16-0267-I-1,

SF-4324-16-0268-I-1.

______________________

Decided: December 29, 2017

______________________

MATTHEW JAMES DOWD, Dowd PLLC, Washington,

DC, argued for petitioners. Also represented by BRIAN J.

LAWLER, Pilot Law PC, San Diego, CA,

JEFFREY A. GAUGER, Office of the General Counsel,

Merit Systems Protection Board, Washington, DC, argued

for respondent. Also represented by BRYAN G. POLISUK,

KATHERINE M. SMITH, CALVIN M. MORROW.

2 BRYANT v. MSPB

VITO SALVATORE SOLITRO, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for intervenor. Also

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., L. MISHA PREHEIM.

______________________

Before LOURIE, REYNA, and TARANTO, Circuit Judges.

LOURIE, Circuit Judge.

Rob Bryant, Brian Ferguson, and Andreas Hau (to-

gether, “Petitioners”) seek review of the final orders of the

Merit Systems Protection Board (the “Board”), dismissing

their appeals for lack of jurisdiction. See Bryant v. Dep’t

of Homeland Sec., No. SF-4324-16-0267-I-1, 2016 WL

5372080 (M.S.P.B. Sept. 22, 2016) (“Bryant II”); Ferguson

v. Dep’t of Homeland Sec., No. SF-4324-16-0265-I-1, 2016

WL 5372124 (M.S.P.B. Sept. 22, 2016) (“Ferguson II”);

Hau v. Dep’t of Homeland Sec., No. SF-4324-16-0268-I-1,

123 M.S.P.R. 620 (2016) (“Hau II”). For the reasons that

follow, we affirm.

BACKGROUND

Petitioners were employed as air interdiction agents

by the Office of Air and Marine (“OAM” or the “Agency”),

U.S. Customs and Border Protection, which is within the

Department of Homeland Security (“DHS”). On March 7,

2013, while employed by the Agency, Petitioners appealed

to the Board, alleging that the Agency’s actions and

policies violated the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”), 38 U.S.C.

§§ 4301–4335. See Bryant v. Dep’t of Homeland Sec., No.

SF-4324-13-0298-I-1 (M.S.P.B. Mar. 7, 2013); Ferguson v.

Dep’t of Homeland Sec., No. SF-4324-13-0299-I-1

(M.S.P.B. Mar. 7, 2013); Hau v. Dep’t of Homeland Sec.,

No. SF-4324-13-0300-I-1 (M.S.P.B. Mar. 7, 2013). It is

undisputed that Bryant and Hau were members of the

BRYANT v. MSPB 3

U.S. Air Force Reserve and Ferguson was a member of

the U.S. Navy Reserve at all relevant times.

On April 20, 2014, while his appeal was pending and

before a hearing was held, Hau resigned from the Agency.

Petitioners’ appeals to the Board were thereafter consoli-

dated, and a hearing was held on August 7, 2014. On

August 15, 2014, Ferguson resigned from the Agency,

and, also on that date, Petitioners filed a post-hearing

brief arguing, inter alia, that they were “forced to quit the

Agency” due to discriminatory and harassing work condi-

tions and “constructively discharged due to the hostile

work environment.” J.A. 125. On September 20, 2014,

Bryant resigned from the Agency.

On September 30, 2015, an administrative judge

(“AJ”) issued a consolidated initial decision, finding no

violation of USERRA by the OAM, and accordingly deny-

ing corrective action. Bryant v. Dep’t of Homeland Sec.,

Nos. SF-4324-13-0298-I-1, -0299-I-1, -0300-I-1, Initial

Decision, 2015 WL 5817682 (M.S.P.B. Sept. 30, 2015)

(“Bryant I”); J.A. 29–41. The AJ rejected Petitioners’

contention that the OAM violated USERRA by failing to

grant them waivers from participating in training courses

that conflicted with their military service dates, creating

a hostile work environment, forcing them to surrender

their badges and weapons during military leaves of 30 or

more days, delaying within-grade pay increases, and

requiring them to use annual, sick, or other leave in lieu

of military leave. The AJ found, inter alia, that the

OAM’s policies and actions were pursuant to “its own

training and mission requirements” or “a legitimate basis

for the [Agency’s] security policy,” and there was an “utter

absence of any evidence that its [weapons] policy was

adopted with discriminatory intent.” J.A. 33, 39.

The AJ also found that to the extent that Petitioners

experienced incidents with others at the OAM that may

appear to support Petitioners’ hostile work environment

4 BRYANT v. MSPB

allegation, such incidents were either “‘unavoidable’

workplace friction and conflict arising from the competing

demands of agency and reserve duties” or, although

“improper and offensive,” did not rise to the level of “hu-

miliating,” “physically threatening,” or being “so frequent

and pervasive” to render their work environment hostile.

J.A. 34–38. Additionally, in a footnote the AJ stated that:

although [Petitioners] did not advance a claim of

involuntary discharge in their initial appeals, and

did not seek to have it included as a claim in my

August 1, 2014 prehearing order, despite being af-

forded an opportunity to make changes or addi-

tions to that order, all three [Petitioners] testified

at hearing that they had involuntarily resigned

from the agency, or were in process of doing so,

due to hostile working conditions. To the extent

[Petitioners] seek to pursue such claims as con-

structive removals under 5 U.S.C. § 75, they may

do so by filing separate appeals with the Board.

J.A. 40 n.6 (citations omitted). On November 5, 2015, as

no petition for review had been filed, the September 30,

2015 initial decision by the AJ in Bryant I became final.

On February 4, 2016, Petitioners filed a second, sepa-

rate set of appeals to the Board alleging violation of

USERRA by the Agency. In their appeals, Petitioners

alleged that the Agency violated USERRA “by denying

[Petitioners] benefits of employment by subjecting [Peti-

tioners] to a hostile work environment, discrimination

and harassment such that [Petitioners] [were] forced to

quit [their] job[s] with [the Agency]” and requested that

the Agency “provid[e] [Petitioners] all employment bene-

fits denied . . . as a result of the unlawful acts and prac-

tices under USERRA,” including “the hostile work

environment, discrimination and harassment resulting in

[Petitioners’] constructive discharge[s].” J.A. 56–57, 219–

20, 353–54. The next day, a second AJ issued orders to

BRYANT v. MSPB 5

show cause whether their appeals were barred by res

judicata or collateral estoppel in view of Bryant I.

On March 2, 2016, after timely responses filed by Pe-

titioners and the Agency, the AJ issued an initial decision

in Hau’s appeal, dismissing his appeal, on the ground that

his current USERRA claim was barred by res judicata.

Hau v. Dep’t of Homeland Sec., No. SF-4324-16-0268-I-1,

Initial Decision, 2016 WL 881026 (M.S.P.B. Mar. 2, 2016);

J.A. 433–41. On the same day, the AJ issued orders to

show cause in Bryant’s and Ferguson’s appeals inquiring

into any additional incidents between August 7, 2014, the

date of the hearing in Bryant I, and their respective dates

of resignation. The AJ determined that Bryant’s and

Ferguson’s current constructive discharge claims in

violation of USERRA were identical to their hostile work

environment claims in violation of USERRA in Bryant I,

which were based on the factual matters that occurred up

until August 7, 2014, the close of record date of Bryant I.

The AJ therefore concluded that Bryant’s and Ferguson’s

current constructive discharge claims up to August 7,

2014 were actually litigated and fully decided.

Bryant and Ferguson filed a consolidated response on

March 14, 2016, stating that the Agency did not commit

any relevant acts between August 7, 2014 and their

respective resignation dates that would have caused them

to resign from their positions, but they argued that their

constructive discharge claims should not be barred re-

gardless. The Agency responded that as Bryant and

Ferguson unequivocally stated that there was no further

action by the Agency after August 7, 2014, their second

USERRA appeals should be barred.

On March 24, 2016, the AJ issued orders to show

cause in Bryant’s and Ferguson’s appeals, indicating her

intent to dismiss their appeals as precluded by their

previous appeals and inquiring into any good cause not to

dismiss them. After Bryant and Ferguson responded, the

6 BRYANT v. MSPB

AJ issued initial decisions on April 5, 2016, concluding

that their constructive discharge claims were barred by

collateral estoppel, and dismissing their appeals. Bryant

v. Dep’t of Homeland Sec., No. SF-4324-16-0267-I-1,

Initial Decision, 2016 WL 1396515 (M.S.P.B. Apr. 5,

2016); Ferguson v. Dep’t of Homeland Sec., No. SF-4324-

16-0265-I-1, Initial Decision, 2016 WL 1396536 (M.S.P.B.

Apr. 5, 2016); J.A 179–88, 323–32. The AJ noted that

their constructive discharge claims were “inextricably

linked” to their previous hostile work environment claims

in Bryant I and thus barred by collateral estoppel. J.A.

184, 328. The AJ also noted that the standard for estab-

lishing constructive discharge is higher than that for

hostile work environment, and Bryant and Ferguson in

Bryant I failed to meet the even lower hostile work envi-

ronment standard. Petitioners thereafter appealed the

initial decisions to the full Board.

On September 19, 2016, the Board issued a final prec-

edential order in Hau’s appeal, vacating the March 2,

2016 initial decision that dismissed the appeal as barred

by res judicata, and dismissing the appeal for lack of

jurisdiction as barred by collateral estoppel instead. Hau

II, 123 M.S.P.R. at 622. The Board first found that Hau’s

claims were collaterally estopped because in Bryant I, the

AJ found jurisdiction to hear his USERRA claim, and the

issue of hostile work environment was actually litigated

and was necessary to the AJ’s decision that there was not

a hostile work environment in violation of USERRA. Id.

at 626. Because the Board determined that the hostile

work environment claim in Bryant I was the sole basis for

Hau’s current constructive discharge claim, the Board

concluded that Hau’s current claim was collaterally

estopped. Id.

In reaching its decision, the Board overruled its own

precedent that allowed an appellant to make a nonfrivo-

lous allegation to establish the Board’s jurisdiction even

though the appellant is raising issues that are identical to

BRYANT v. MSPB 7

those in a prior unsuccessful appeal. Id. at 626–27 (over-

ruling Boechler v. Dep’t of Interior, 109 M.S.P.R. 619

(2008), aff’d without opinion, 328 F. App’x 660 (Fed. Cir.

2009); Wadhwa v. Dep’t of Veterans Affairs, 111 M.S.P.R.

26 (2009), aff’d without opinion, 353 F. App’x 434 (Fed.

Cir. 2009); Parikh v. Dep’t of Veterans Affairs, 110

M.S.P.R. 295 (2008)). It decided that the Board lacked

jurisdiction to hear Hau’s current appeal raising the

identical issues as in Bryant I. Id.

On September 22, 2016, the Board issued final orders

in Bryant’s and Ferguson’s appeals, affirming the initial

decisions that dismissed their appeals for lack of jurisdic-

tion as barred by collateral estoppel. Bryant II, 2016 WL

5372080, ¶ 1; Ferguson II, 2016 WL 5372124, ¶ 1. Citing

Hau II, the Board concluded that because Bryant and

Ferguson specifically denied that there was any relevant

action by the Agency after August 7, 2014 and there was

no additional factual basis beyond what was decided in

Bryant I, they cannot make a nonfrivolous allegation of a

USERRA violation. Bryant II, 2016 WL 5372080, ¶¶ 12–

13; Ferguson II, 2016 WL 5372124, ¶¶ 12–13. The Board

thus concluded that it lacked jurisdiction over Bryant’s

and Ferguson’s current USERRA appeals. Bryant II,

2016 WL 5372080, ¶ 13; Ferguson II, 2016 WL 5372124,

¶ 13.

Petitioners timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

We only set aside the Board’s decision when it is “(1)

arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without proce-

dures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” 5

U.S.C. § 7703(c). Whether the Board has jurisdiction over

an appeal is a question of law that we review de novo,

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.

8 BRYANT v. MSPB

1995), and we review the Board’s underlying factual

findings for substantial evidence, Bolton v. Merit Sys.

Prot. Bd., 154 F.3d 1313, 1317 (Fed. Cir. 1998).

Under 38 U.S.C. § 4311(a), a member of a uniformed

service “shall not be denied . . . retention in employment,

promotion, or any benefit of employment . . . on the basis

of that membership [or] performance of service . . . .” To

establish the Board’s jurisdiction under USERRA, the

petitioner “must make a nonfrivolous allegation that his

military service was a substantial or motivating factor in

the agency’s action in question.” Kitlinski v. Merit Sys.

Prot. Bd., 857 F.3d 1374, 1381 (Fed. Cir. 2017) (citations

and internal quotation marks omitted); see also 5 C.F.R.

§ 1201.57(b).

On appeal, Petitioners make several arguments chal-

lenging the Board’s dismissal of their second USERRA

appeals. First, Petitioners argue that they reasonably

and detrimentally relied on the express instructions in

the footnote in Bryant I in filing the second USERRA

appeals and thus did not have a “full and fair chance to

fully litigate the issue through appeal.” Pet’rs’ Br. 17.

Second, Petitioners argue that the change-of-law excep-

tion to collateral estoppel should apply because in decid-

ing Hau II, the Board overruled its own precedent that

would have allowed them to make nonfrivolous allega-

tions in the second appeals and be heard by the Board on

the constructive discharge allegations even though they

are based on identical facts as in Bryant I. Petitioners

further argue that the rights under USERRA should be

broadly construed, that collateral estoppel is an equitable

doctrine for which fairness to Petitioners should be a

consideration, and that Petitioners should be afforded an

opportunity to be heard by the Board regardless of the

ultimate outcome on the merits.

The Board responds that Petitioners are barred from

relitigating their second USERRA appeals because all the

BRYANT v. MSPB 9

elements of collateral estoppel have been met and no

exception applies. The Board contends that Petitioners

neither sought review of the first AJ’s decision despite the

clear notice of the opportunity for review by the Board nor

filed separate involuntary resignation claims under 5

U.S.C. ch. 75 as instructed in the AJ’s footnote. The

Board also argues that the change-of-law exception to

collateral estoppel does not apply because the substantive

USERRA law did not change, the decision in Bryant I did

not apply the Board’s old law on its jurisdiction, and the

change in law does not compel a different result since

even if Petitioners were allowed to proceed, they would

have had a hearing in which they would have been pre-

cluded from presenting any evidence of the predicate

hostile work environment issue.

The DHS, as an intervenor, makes additional argu-

ments in support of finding preclusion and lack of juris-

diction. In particular, the DHS contends that a

nonfrivolous allegation of a USERRA violation cannot be

made when Petitioners cannot prevail on the collaterally

estopped issue as a matter of law, and that the Board’s

rationale in overruling its precedent was reasonable and

well explained, which took account of “‘serious reliance

interests,’” if any, by Petitioners. Intv’r’s Br. 24 (quoting

Huvis Corp. v. United States, 570 F.3d 1347, 1354–55

(Fed. Cir. 2009) (quoting FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 515 (2009))). Additionally, the DHS

argues that Petitioners’ current USERRA appeals are

barred by claim preclusion, or res judicata, because their

resignations were based on the same transactional facts,

and Petitioners could have sought to make their resigna-

tions be formally part of Bryant I as noted by the first AJ,

but did not.

We agree with the government that Petitioners’ cur-

rent USERRA appeals are precluded and that the Board

properly determined that it lacked jurisdiction to hear

Petitioners’ precluded issues. First, there is an undisput-

10 BRYANT v. MSPB

ed identity of the parties, issues, and forum, and Petition-

ers do not challenge the Board’s application of collateral

estoppel based on the repetitive and overlapping nature of

their two sets of successive USERRA appeals. Second,

Petitioners do not argue that the Board’s new precedent

on its jurisdiction in Hau II was incorrect as a matter of

law. Rather, Petitioners urge that they should not be

barred from pursuing their second USERRA appeals for

other reasons we discuss below.

Petitioners argue that they reasonably relied on the

footnote in Bryant I to their detriment, and thus should

be allowed to fully litigate the constructive discharge

claims in their current USERRA appeals. However, their

detrimental reliance argument fails, first and foremost,

because they simply did not follow the course of action

described in the footnote, which referred to a different

cause of action, namely, “constructive removals under 5

U.S.C. [ch.] 75.” 1 J.A. 40 n.6.

Moreover, even if the appropriate course of action in

view of the footnote was to file separate USERRA appeals

claiming constructive discharge, the first AJ did not direct

or order Petitioners to abandon review of Bryant I. Con-

trary to Petitioners’ assertion, the footnote did not “in-

duce[]” Petitioner to pursue a separate USERRA action,

Reply Br. 4, at the expense of forgoing review of Bryant I.

Petitioners’ apparent assumption that they could proceed

anew with a second set of identical USERRA appeals was

neither reasonable in view of, nor in actual reliance on,

the footnote, cf. Container Transp. Int’l, Inc. v. United

States, 468 F.2d 926, 930 (Ct. Cl. 1972) (declining to apply

res judicata when a plaintiff split the claim into multiple

1 Although Petitioners fault the footnote for incor-

rectly referencing “5 U.S.C. § 75,” which should have been

5 U.S.C. ch. 75, they do not argue that this inaccuracy

was in and of itself of any significance. See Reply Br. 5.

BRYANT v. MSPB 11

suits in reliance on a court precedent and deciding to

overrule its precedent prospectively).

Furthermore, the change-of-law exception to collateral

estoppel is not applicable here. Petitioners primarily rely

on Dow Chemical Co. v. Nova Chemicals Corp. (Canada),

803 F.3d 620, 629 (Fed. Cir. 2015), for the proposition that

the change-of-law exception to collateral estoppel should

apply to their current appeals. In Dow, we noted that the

change-of-law exception to collateral estoppel is applicable

when (1) the governing law is changed; (2) the prior

decision applied the old law; and (3) the change in law

compels a different result in the current case. 803 F.3d at

629–30.

Dow does not support the outcome sought by Petition-

ers. As noted by the Board and the DHS, the substantive

USERRA law did not change. Even if we look to the

change in the Board’s precedent on its jurisdiction, the

Board applied the new law to their current USERRA

appeals, and Petitioners are seeking to apply the old law

instead. Moreover, the change in law did not make a

difference to Petitioners because under the Board’s prece-

dent either before or after the change, Petitioners would

have been ultimately precluded from relitigating the

identical issue.

This case does not present a situation in which pursu-

ing a certain course of action was unavailable or other-

wise futile under the then-controlling precedent. See

Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402

U.S. 313, 350 (1971). Although the Board overruled its

own precedent and changed its law on jurisdiction in Hau

II, which may have been unexpected, that change does not

justify Petitioners’ abandoning their claims in Bryant I.

Seeking review of the first AJ’s decision was available

under the then-existing Board’s precedent. Petitioners

did not abandon review of their USERRA appeals in

Bryant I out of any futility of such pursuit under the old

12 BRYANT v. MSPB

law, but out of their apparent belief that their best course

of action was to file separate USERRA appeals including

the constructive discharge claims. Simply put, the

change-of-law exception does not save Petitioners from

their deliberate choice of action.

Similarly, Petitioners’ appeal to general equity con-

siderations also fails. Although we have noted that the

USERRA statutes are “interpreted broadly in favor of

individuals returning from military service,” Crowford v.

Dep’t of Army, 718 F.3d 1361, 1367 (Fed. Cir. 2013), such

interpretive canon favoring military members is not

relevant here. First, determining the Board’s jurisdiction

in the instant case does not involve any statutory inter-

pretation. What Petitioners are actually arguing is that

they should be given a chance to bring their second

USERRA appeals to the full Board, in view of the appar-

ent leniency afforded to military members under the

overall USERRA scheme, in further view of the first AJ’s

footnote in Bryant I and the change of the Board’s prece-

dent regarding the effect of collateral estoppel on its

jurisdiction. However, as conceded during oral argument,

Petitioners do not contend that the Board’s decision in

Hau II overruling its precedent to address preclusion at

the jurisdictional stage was incorrect. See Oral Argument

at 3:22–35, Bryant v. Merit Sys. Prot. Bd., Nos. 2017-1241,

-1243, -1245 (Fed. Cir. Nov. 9, 2017), http://oralargu-

ments.cafc.uscourts.gov/default.aspx?fl=2017-1241.mp3.

Rather, Petitioners are urging us to find an exception to

the Board’s admittedly correct law on jurisdiction and

collateral estoppel due to the peculiar circumstances of

their appeals. We decline to do so.

In general, courts do not liberally invoke exceptions to

collateral estoppel based on the particular circumstances

of a case. See 18 Charles Alan Wright & Arthur R. Miller,

Fed. Prac. & Proc. § 4426 (3d ed. 2017). Furthermore, the

Board’s precedential decision concerning its jurisdiction in

Hau II, albeit a departure from its own precedent, does

BRYANT v. MSPB 13

not constitute the kind of unforeseeable event or compel a

finding of lack of “incentive” to litigate that courts have

found may warrant applying an exception to collateral

estoppel. Id. §§ 4423, 4424. If anything, Petitioners’

filing of the second, identical USERRA appeals, with a

bare recitation of “constructive discharge” entirely predi-

cated on the previously heard and decided hostile work

environment issue, demonstrates that they acted deliber-

ately and were not unsuspecting parties unjustly preclud-

ed from being heard. In view of the admittedly identical

nature of Petitioners’ successive appeals and their volun-

tary abandonment of their first appeals, we do not find

that an exception should apply here.

We conclude that Petitioners’ second USERRA ap-

peals are barred by collateral estoppel and agree with the

Board that an appellant cannot make a nonfrivolous

allegation of a USERRA violation if its contentions are

wholly precluded. Indeed, this case illustrates the flaw in

the Board’s now-overruled precedent. As noted by the

Board, even if Petitioners had been granted a hearing in

the second, identical USERRA appeals, because they did

not make any additional allegations beyond those in

Bryant I, Petitioners would not have been able to present

any content at the hearing. See Hau II, 123 M.S.P.R. at

627 n.*. Such a hearing would have been a waste of

resources, contrary to the policies underlying the doctrine

of collateral estoppel. See Montana v. United States, 440

U.S. 147, 153 (1979); see also Morgan v. Dep’t of Energy,

424 F.3d 1271, 1275 (Fed. Cir. 2005) (finding the issue

precluded when there was “no new conduct with respect

to his claim for relief”).

We therefore conclude that the Board correctly dis-

missed Petitioners’ appeals for lack of jurisdiction because

Petitioners’ constructive discharge claims under USERRA

are precluded by collateral estoppel. We have considered

the remaining arguments and find them unpersuasive.

14 BRYANT v. MSPB

CONCLUSION

For the foregoing reasons, the decisions of the Board

are affirmed.

AFFIRMED

COSTS

No costs.