Bryant v. Merit Sys. Prot. Bd.

• Decision Date: 29 December 2017
• Docket Number: 2017-1245,2017-1241,2017-1243
• Parties: Rob BRYANT, Brian Ferguson, Andreas Hau, Petitioners v. MERIT SYSTEMS PROTECTION BOARD, Respondent Department of Homeland Security, Intervenor
• Court: U.S. Court of Appeals — Federal Circuit

878 F.3d 1320

Rob BRYANT, Brian Ferguson, Andreas Hau, Petitioners

v.MERIT SYSTEMS PROTECTION BOARD, Respondent

Department of Homeland Security, Intervenor

2017-1241

2017-1243

2017-1245

United States Court of Appeals, Federal Circuit.

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, Washington, DC.

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 (together, "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. , 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 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 consolidated, 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 conditions 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 denying 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 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 "humiliating," "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 afforded an opportunity to make changes or additions 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 constructive 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, separate 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 [Petitioners] 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 benefits denied ... as a result of the unlawful acts and practices 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 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 Petitioners 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. , 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 regardless. 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 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 establishing 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 environment standard. Petitioners thereafter appealed the initial decisions to the full Board.

On September 19, 2016, the Board issued a final precedential 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 nonfrivolous allegation to establish the Board's...