                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD
                                         2016 MSPB 33

                                 Docket No. SF-4324-16-0268-I-1

                                         Andreas Hau,
                                          Appellant,
                                               v.
                           Department of Homeland Security,
                                            Agency.
                                       September 19, 2016

           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



                                    OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed his appeal as barred by the doctrine of res judicata. For the reasons set
     forth below, we VACATE the initial decision, FIND that the appellant’s hostile
     work environment claim is barred by collateral estoppel, and DISMISS the appeal
     for lack of jurisdiction.

                                        BACKGROUND
¶2         The appellant, a Lieutenant Colonel in the U.S. Air Force Reserve, was
     formerly employed by the agency as an Air Interdiction Agent with the Office of
     Air and Marine (OAM), Customs and Border Protection (CBP).                 Hau v.
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     Department of Homeland Security, MSPB Docket No. SF-4324-16-0268-I-1,
     Initial Appeal File (0268 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.    Hau v. Department of Homeland Security,
     MSPB Docket No. SF-4324-13-0300-I-1, Initial Appeal File (0300 IAF), Tab 1.
     The administrative judge consolidated that earlier appeal in MSPB Docket No.
     SF-4324-13-0300-I-1 with two similar appeals, Bryant v. Department of
     Homeland Security, MSPB Docket No. SF-4324-13-0298-I-1, and Ferguson v.
     Department of Homeland Security, MSPB Docket No. SF-4324-13-0299-I-1, for
     processing and hearing. 0300 IAF, Tab 18.
¶3          On April 20, 2014, while the appeal was still pending in the Board’s
     regional office, the appellant resigned from his position. 0268 IAF, Tab 7 at 10.
     Subsequently, the administrative judge held a telephonic prehearing conference in
     the consolidated appeal.     0300 IAF, Tab 26.      In the administrative judge’s
     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 hearing, the administrative judge
     asked if the parties wished to make any additions or corrections to the summary
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     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          The appellants submitted their joint closing statement and posthearing
     brief. 0300 IAF, Tab 27. At the opening of the brief, the appellants stated that
     they “were constructively discharged from their positions with CBP’s [OAM] due
     to the harassment, 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. 0300 IAF, Tab 30, Initial Decision (0300 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. 0300 ID at 5-10. The administrative judge declined to
     adjudicate the appellants’ constructive discharge claims and advised them that
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     they could pursue those claims by filing separate appeals under 5 U.S.C.
     chapter 75. 0300 ID at 12 n.6. None of the parties filed a petition for review,
     and the initial decision became final. See 0300 ID at 13.
¶7         The appellant then filed the instant appeal, in which he reiterated his claim
     that the agency constructively discharged him by creating a hostile work
     environment such that he was forced to resign.         0268 IAF, Tab 1 at 7.   The
     appellant specified that his appeal was brought under USERRA, and he requested
     a hearing.    0268 IAF, Tab 1. 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.
     0268 IAF, Tab 3. In response, the appellant argued that his appeal was not barred
     by res judicata or collateral estoppel because the administrative judge in the
     earlier appeal did not rule on his constructive discharge claim. 0268 IAF, Tab 5.
     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         Based on the written record, the administrative judge dismissed the appeal
     as barred by the doctrine of res judicata. 0268 IAF, Tab 10, Initial Decision.
     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 dismissed the instant appeal as barred by res
     judicata without deciding the issue of jurisdiction.         The Board must have
     jurisdiction over an appeal to apply the doctrine of res judicata. Noble v. U.S.
     Postal Service, 93 M.S.P.R. 693, ¶ 7 (2003). However, collateral estoppel may
     be grounds for dismissing an appeal for lack of jurisdiction in certain
     circumstances.   Id., ¶ 11.   For the reasons discussed below, we find that the
     appellant’s hostile work environment claim is barred by collateral estoppel, and
     as a result, the Board lacks jurisdiction over the instant appeal.
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¶10         This appeal arises under the antidiscrimination provision of USERRA,
      38 U.S.C. § 4311(a), which provides:
            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 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 construed broadly
      and liberally 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. Air Force
      Reserve.     As to the second and third jurisdictional elements, the appellant
      contends in this appeal that the agency constructively discharged him, i.e., denied
      him retention in employment, by creating a hostile work environment based on
      his military service, which in turn forced him to resign. 0268 IAF, Tab 1 at 6-7;
      see Wallace v. City of San Diego, 479 F.3d 616, 625-30 (9th Cir. 2006)
      (considering the plaintiff’s claim that he was forced to resign due to intolerable
      working conditions as a constructive discharge claim under USERRA).
¶12         However, 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
      Hau     v.     Department     of     Homeland      Security,     MSPB      Docket
                                                                                         6

      No. SF-4324-13-0300-I-1.     Under the doctrine of collateral estoppel, once an
      adjudicatory body has decided a factual or legal issue necessary to its judgment,
      that decision may preclude relitigation of the issue in a case concerning a
      different cause of action involving a party to the initial case. Allen v. McCurry,
      449 U.S. 90, 94 (1980). 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.         Kavaliauskas v.
      Department of the Treasury, 120 M.S.P.R. 509, ¶ 5 (2014). The Board has held
      that collateral estoppel may be grounds for dismissing an appeal for lack of
      jurisdiction if a jurisdictional determination in a prior decision is afforded
      collateral estoppel effect and the appellant provides no other valid basis of Board
      jurisdiction. Noble, 93 M.S.P.R. 693, ¶ 11.
¶13         The administrative judge in the appellant’s prior USERRA appeal found
      jurisdiction under the liberal jurisdictional standard for that statutory scheme, but
      denied the appellant’s request for corrective action, finding in pertinent part that
      the appellant failed to prove that he was subjected to a hostile work environment.
      0300 ID at 1-3, 5-10. The issue of whether the agency subjected the appellant to
      a hostile work environment based on his military service was actually litigated in
      his prior USERRA appeal, and the administrative judge’s findings on that issue
      were necessary to the resulting judgment. Id. The appellant thus is barred by
      collateral estoppel 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 in this matter.
¶14         Because jurisdiction was found in the appellant’s initial USERRA appeal,
      this case is distinguishable from Noble. Nevertheless, we conclude that, in light
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      of our finding that collateral estoppel bars relitigation of the hostile work
      environment claim, and the fact that the appellant has not alleged any acts of
      harassment that differ from those he relied on in his prior appeal, the appellant
      cannot in this matter articulate a nonfrivolous allegation that the agency denied
      him retention in employment based on his military service. See Mintzmeyer v.
      Department of the Interior, 84 F.3d 419, 424 (Fed. Cir. 1996).          Accordingly,
      dismissal for lack of jurisdiction in this matter is appropriate.
¶15         We recognize that the Board has held previously that, although an appellant
      raised identical issues in two separate appeals, an earlier decision that the
      appellant did not prevail on the merits did not preclude a finding that he made a
      nonfrivolous allegation establishing jurisdiction in a subsequent appeal.
      Boechler v. Department of the Interior, 109 M.S.P.R. 619, ¶ 17 (2008), aff’d
      without opinion, 328 F. App’x 660 (Fed. Cir. 2009); see Wadhwa v. Department
      of Veterans Affairs, 111 M.S.P.R. 26, ¶ 6 (citing Boechler), aff’d without opinion,
      353 F. App’x 434 (Fed. Cir. 2009); Parikh v. Department of Veterans Affairs,
      110 M.S.P.R. 295, ¶¶ 13-17 (2008) (same). Conversely, “as [the U.S. Supreme]
      Court and other courts have often recognized, res judicata and collateral estoppel
      relieve parties of the cost and vexation of multiple lawsuits, conserve judicial
      resources, and, by preventing inconsistent decisions, encourage reliance on
      adjudication.” Allen, 449 U.S. at 94. To find jurisdiction and allow this matter to
      proceed to the merits phase of the case when the appellant is barred by collateral
      estoppel from presenting any of his merits arguments during such proceedings
      would defy logic. * Furthermore, to do so would cause unnecessary costs to the


      *
        Pursuant to Kirkendall v. Department of the Army, 479 F.3d 830, 845 (Fed. Cir. 2007)
      (en banc), once an appellant establishes jurisdiction over his USERRA appeal, he is
      entitled to a hearing. Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139,
      ¶¶ 17-18 (2008). The appellant already had received a hearing when his hostile work
      environment claim was heard in connection with his case designated as MSPB Docket
      No. SF-4324-13-0300-I-1. However, were a merits hearing held in this matter, the
                                                                                            8

      parties, make the Board complicit in the vexation of multiple lawsuits, waste the
      Board’s resources, and potentially could lead to inconsistent decisions—all evils
      the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, and
      the Board have declared should be avoided. See, e.g., id.; MGA, Inc. v. General
      Motors Corporation, 827 F.2d 729, 732 (Fed. Cir. 1987); Kavaliauskas,
      120 M.S.P.R. 509, ¶ 5.        Accordingly, we hereby overrule our decisions in
      Boechler, Wadhwa, and Parikh.
¶16           In conclusion, we find that, even under the liberal jurisdictional standard
      applicable to USERRA appeals, under the circumstances presented in this case,
      the appellant has not made allegations sufficient to establish the Board’s
      jurisdiction over his appeal. Therefore, we vacate the initial decision and dismiss
      the appeal for lack of jurisdiction.

                                             ORDER
¶17         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            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:




      appellant would be precluded from presenting evidence and argument concerning his
      allegation of a hostile work environment, which is the entire basis of his claim in this
      case. In other words, an administrative judge would have to convene a hearing during
      which the appellant could not present any content, which would be a waste of time and
      resources.
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                             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.
                                                                            10

      The 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.
