Bryant v. MSPB , 878 F.3d 1320 ( 2017 )

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.