                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRIAN FERGUSON,                                 DOCKET NUMBER
                  Appellant,                         SF-4324-16-0265-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 22, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brian J. Lawler, San Diego, California, for the appellant.

           Janet W. Muller, Chula Vista, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal as barred under the doctrine of collateral estoppel.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                      2

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review. Therefore, we DENY the petition for review. Except as
     expressly MODIFIED by this Final Order, to dismiss the appeal for lack of
     jurisdiction, we AFFIRM the initial decision.

                                     BACKGROUND
¶2        The appellant, a Commander in the U.S. Navy Reserve, was formerly
     employed by the agency as an Air Interdiction Agent with the Office of Air and
     Marine, Customs and Border Protection (CBP).         Ferguson v. Department of
     Homeland Security, MSPB Docket No. SF-4324-16-0265-I-1, Initial Appeal File
     (0265 IAF), Tab 1 at 3. On March 7, 2013, he filed a Board appeal under the
     Uniformed Services Employment and Reemployment Rights Act (USERRA),
     alleging that the agency had unlawfully discriminated against him on the basis of
     his military service.   Ferguson v. Department of Homeland Security, MSPB
     Docket No. SF-4324-13-0299-I-1, Initial Appeal File (0299 IAF), Tab 1.         The
     administrative judge found jurisdiction and consolidated the appellant’s appeal
     with two similar appeals, Bryant v. Department of Homeland Security, MSPB
     Docket No. SF-4324-13-0298-I-1, and Hau v. Department of Homeland Security,
     MSPB Docket No. SF-4324-13-0300-I-1, for processing and hearing. 0299 IAF,
     Tab 19.
                                                                                     3

¶3         On July 31, 2014, the administrative judge held a prehearing conference in
     the consolidated appeal. 0299 IAF, Tab 27. In his summary of the conference, he
     identified the appellants’ allegations as follows:
            The appellants here allege that the agency failed to grant them
            waivers as to certain training classes which conflicted with the dates
            and times of their military service requirements, resulting in their
            being “de-designated” from performing law enforcement duties;
            created a hostile work environment by pressuring them to attend
            training and/or cancel periods of military leave, exerting similar
            pressure on the relevant military commands, requesting written
            documentation related to military leave of less than 30 days, and
            [ratifying] negative comments related to their military status and/or
            use of military leave from co-workers and/or management officials;
            forced them to surrender their badges and weapons when performing
            military service in excess of 30 days; delayed receipt of within-grade
            pay increases; and required the use of annual, sick or other leave in
            lieu of military leave.
     Id. at 1-2.
¶4         Before the first witness was called at the hearing, the administrative judge
     asked if the parties wished to make any additions or corrections to the summary
     of the prehearing conference.      Hearing Compact Disc (HCD).         The parties
     declined the offer at that time. Id. However, in the course of the hearing, all
     three appellants testified that they had resigned from their positions, or were
     about to do so, as a result of the same hostile working conditions they previously
     had alleged. Id. At the close of the hearing, the appellants’ attorney argued that
     the appellants had been constructively discharged. Id. The administrative judge
     granted leave for the appellants to address that issue in their posthearing brief.
     Id.
¶5         Effective August 15, 2014, the appellant resigned from the agency. 0265
     IAF, Tab 7 at 10. That same day, the appellants submitted their joint closing
     statement and posthearing brief. 0299 IAF, Tab 28. At the opening of the brief,
     the appellants stated that they “were constructively discharged from their
     positions with CBP’s Office of Air and Marine (OAM) due to the harassment,
                                                                                       4

     discrimination and hostile work environments they endured based solely on their
     military affiliations and military service obligations.” Id. at 4-5. They further
     explained:
            Appellants each testified that the discriminatory and harassing
            conduct was severe and pervasive enough to materially alter the
            conditions of their work environment such that they were forced to
            quit the Agency because the workplace was poisoned. Due to the
            Agency’s discriminatory and harassing conduct, through co-workers
            and, more importantly, supervisors, the relationship between the
            Appellants and the Agency became so antagonistic that Appellants
            were left with no other choice but to resign from their positions with
            the Agency and seek employment elsewhere. Appellants joined the
            Agency with every intention to retire as OAM agents but were
            constructively discharged due to the hostile work environment.
     Id. at 9.
¶6         The administrative judge issued an initial decision denying the appellants’
     request for corrective action. 0299 IAF, Tab 31, Initial Decision (0299 ID). In
     denying the request, the administrative judge found, inter alia, that the appellants
     failed to establish that they were subjected to a hostile work environment in
     violation of USERRA. 0299 ID at 5-10. The administrative judge declined to
     adjudicate the appellants’ constructive discharge claims and advised them that
     they could pursue those claims by filing separate appeals under 5 U.S.C.
     chapter 75. 0299 ID at 12 n.6. None of the parties filed a petition for review, and
     the initial decision became final on November 4, 2015. 0299 ID at 13.
¶7         The appellant then filed the instant appeal, in which he again alleged that
     the agency constructively discharged him by creating a hostile work environment
     such that he was forced to resign. 0265 IAF, Tab 1. The appellant specified that
     his appeal was brought under USERRA, and he requested a hearing. Id. The
     administrative judge assigned to the new appeal issued an order directing the
     appellant to show cause why his appeal should not be dismissed as barred by res
     judicata or collateral estoppel.   0265 IAF, Tab 3.     In response, the appellant
     argued that his appeal was not barred by res judicata or collateral estoppel
                                                                                         5

      because the administrative judge in the earlier appeal did not rule on his
      constructive discharge claim. 0265 IAF, Tab 6. He again clarified that his appeal
      was brought under USERRA and was not intended as an adverse action appeal
      under 5 U.S.C. chapter 75. Id.
¶8          The administrative judge dismissed the appeal as barred by the doctrine of
      collateral estoppel, without conducting a hearing.      0265 IAF, Tab 15, Initial
      Decision (0265 ID).     This petition for review followed.     Petition for Review
      (PFR) File, Tab 1. The agency has responded. PFR File, Tab 3.

                                          ANALYSIS
¶9          The administrative judge did not make a finding as to whether the Board
      has jurisdiction over this appeal, and the parties have not addressed the issue on
      petition for review. 0265 ID; PFR File, Tabs 1, 3. However, the Board must
      satisfy itself that it has authority to adjudicate the matter before it and may raise
      the issue of its own jurisdiction sua sponte at any time. Metzenbaum v. General
      Services Administration, 96 M.S.P.R. 104, ¶ 15 (2004). For the reasons set forth
      below, we find that the Board lacks jurisdiction over this appeal.
¶10         This appeal arises under the antidiscrimination provision of USERRA,
      38 U.S.C. § 4311(a), which provides that:
            A person who is a member of, applies to be a member of, performs,
            has performed, applies to perform, or has an obligation to perform
            service in a uniformed service shall not be denied initial
            employment, reemployment, retention in employment, promotion, or
            any benefit of employment by an employer on the basis of that
            membership, application for membership, performance of service,
            application for service, or obligation.
      To establish Board jurisdiction over a claim arising under 38 U.S.C. § 4311(a), an
      appellant must make nonfrivolous allegations that: (1) he performed duty or has
      an obligation to perform duty in a uniformed service of the United States; (2) the
      agency denied him initial employment, reemployment, retention, promotion, or
      any benefit of employment; and (3) the denial was due to the performance of duty
                                                                                           6

      or obligation to perform duty in the uniformed service. Kitlinski v. Department of
      Justice, 123 M.S.P.R. 41, ¶ 7 (2015); see 5 C.F.R. §§ 1201.57(b), 1208.2(a). A
      claim under USERRA should be broadly and liberally construed in determining
      whether it is nonfrivolous. Lubert v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 11
      (2009).
¶11           It is undisputed that the appellant is a member of the U.S. Navy Reserve.
      As to elements (2) and (3), the appellant alleges that the agency denied him
      retention in employment by forcing him to resign due to a hostile work
      environment, which was in turn the result of harassment based on his military
      service. 0265 IAF, Tab 1 at 6-8; see Wallace v. City of San Diego, 479 F.3d 616,
      625-30 (9th Cir. 2010) (considering plaintiff’s claim that he was forced to resign
      due to intolerable working conditions as a constructive discharge claim under
      USERRA).          Thus, his allegation that the agency denied him retention in
      employment is predicated on his previously adjudicated claim that the agency
      subjected him to a hostile work environment based on his military service. See
      Ferguson     v.    Department   of   Homeland      Security,   MSPB     Docket     No.
      SF-4324-13-0299-I-1; Hau v. Department of Homeland Security, 2016 MSPB 33,
      ¶ 12.
¶12           However, the appellant is collaterally estopped from relitigating that
      underlying claim. Collateral estoppel, or issue preclusion, is appropriate when:
      (1) the issue is identical to that involved in the prior action; (2) the issue was
      actually litigated in the prior action; (3) the determination of the issue in the prior
      action was necessary to the resulting judgment; and (4) the party against whom
      issue preclusion is sought had a full and fair opportunity to litigate the issue in
      the prior action, either as a party to the earlier action or as one whose interests
      were otherwise fully represented in that action.          McNeil v. Department of
      Defense, 100 M.S.P.R. 146, ¶ 15 (2005).          The issue of whether the agency
      subjected the appellant to a hostile work environment based on his military
      service was actually litigated in his own prior USERRA appeal, and the
                                                                                             7

      administrative judge’s finding on that issue was necessary to the resulting
      judgment. Moreover, while the appellant resigned after the August 7, 2014 close
      of the record in his prior USERRA appeal, he specifically denies that the agency
      took actions after August 7, 2014, that caused him to resign, and he has not
      alleged any other acts of harassment that differ from those he relied upon in that
      appeal. 0265 IAF, Tab 11 at 4; see Mintzmeyer v. Department of the Interior,
      84 F.3d 419, 424 (Fed. Cir. 1996). The appellant is thus barred from arguing that
      the agency subjected him to a hostile work environment based on his military
      service, which is the sole basis of his constructive discharge claim. See Hau,
      2016 MSPB 33, ¶ 13.
¶13         Under these circumstances, we find that the appellant cannot make even a
      nonfrivolous allegation that the agency denied him retention in employment based
      on his military service. Hau, 2016 MSPB 33, ¶¶ 14-16. 2 We therefore conclude
      that, even under the liberal standard applicable to USERRA appeals, the appellant
      has not made allegations sufficient to establish the Board’s jurisdiction over his
      appeal.




      2
         In Hau, the Board overruled Boechler v. Department of the Interior, 109 M.S.P.R.
      619, ¶ 17 (2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009), in which we held that,
      notwithstanding our previous finding on the merits that the appellant’s alleged
      whistleblowing disclosure was not protected under 5 U.S.C. § 2302(b)(8), the appellant
      was not precluded from making a nonfrivolous allegation that the disclosure was
      protected for purposes of establishing jurisdiction over a subsequent individual right of
      action appeal. The Board also overruled Wadhwa v. Department of Veterans Affairs,
      111 M.S.P.R. 26, ¶ 6, aff’d, 353 F. App’x 434 (Fed. Cir. 2009), and Parikh v.
      Department of Veterans Affairs, 110 M.S.P.R. 295, ¶¶ 13-17 (2008), which relied on the
      holding in Boechler. In Hau, the Board found that these decisions were contrary to
      Allen v. McCurry, 449 U.S. 90, 94 (1988), which held that collateral estoppel is meant
      to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial
      resources, and, by preventing inconsistent decisions, encourage reliance on
      adjudication.”
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                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
         The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
                             United States Court of Appeals
                                 for the Federal Circuit
                               717 Madison Place, N.W.
                                Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order.           See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,     at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional         information     is    available   at   the    court’s   website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
         If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                  9

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
