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 Ho meland Security, Agency. September 19, 2016

Brian J. Lawler, San Diego, Ca lifornia, 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 doctri ne of res judicata. For the reasons set forth below, we VACATE the initial deci sion, FIND that the appellant’s hostile work environment claim is barred by collateral estoppe l, and DISMISS the appeal for lack of ju risdiction.

BACKGROUND ¶2 The appellant, a Lieutena nt Colonel in the U.S. Air Force Reserve, was formerly employed by the agency as an Ai r Interdiction Agent with the Office of Air and Marine (OAM), Customs and Border Protection (CBP). Hau v.2

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 disc riminated against him on the basis of his m ilitary 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 cons olidated that earlier appe al in MSPB Docket No. SF-4324-13-0300-I-1 with tw o 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 appellan t resigned from his position. 0268 IAF, Tab 7 at 10. Subsequently, the administra tive judge held a telephonic prehearing conference in the consolidated ap peal. 0300 IAF, Tab 26. In the administrative judge’s summary of the conference, he identified the a ppellants’ allegati ons as follows: The appellants here allege that the agency failed to grant them waivers as to cert ain training classes which c onflicted with the dates and times of their mili tary service requirement s, resulting in their being “de-designated” from performing law enforcement duties; created a hostile work environmen t by pressuring them to attend training and/or cancel periods of military leave, exerting similar pressure on the relevant milita ry commands, requesting written documentation related to military leave of le ss than 30 days, and [ratifying] negative commen ts related to their mi litary status and/or use of military leave from co-worke rs and/or manage ment officials; forced them to surre nder their badges and w eapons when performing military service in excess of 30 days; delayed receipt of within-grade pay increases; and require d the use of annual, si ck 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 summary3

of the prehearing conference. He aring 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 ha d resigned from their positions, or were about to do so, as a result of the same hos tile working conditions they previously had alleged. Id . At the close of the hearing, the appellants’ attorney argued that the appellants had been c onstructively discharged. Id . The administrative judge granted leave for the appellan ts to address that issue in their posthearing brief. Id

. ¶5 The appellants submitted their join t closing statement and posthearing brief. 0300 IAF, Tab 27. At the opening of the brief, the appe llants stated that they “were constructively discharged from their positions with CBP’s [OAM] due to the harassment, discrimination and hos tile work environments they endured based solely on their milita ry affiliations and milita ry service obligations.” Id . at 4-5. They further explained: Appellants each testified that th e discriminatory and harassing conduct was severe and pervasive enough to materi ally alter the conditions of their work environment such that they were forced to quit the Agency because the workpl ace was poisoned. Due to the Agency’s discriminatory and hara ssing conduct, th rough co-workers and, more importantly, supervisor s, the relations hip between the Appellants and the Agency became so antagonistic that Appellants were left with no other choice but to resign fro m their positions with the Agency and seek employment el sewhere. Appellants joined the Agency with every intention to retire as OAM agents but were constructively discharged due to the hostile wo rk environment. Id . at 9. ¶6 The administrative judge issued an initial decision denying the appellants’ request for corr ective action. 0300 IAF, Tab 30, Initial Decision (0300 ID). In denying the request, the admini strative judge found, inter alia, that the appellants failed to establish that th ey were subjected to a hos tile work environment in violation of USERRA. 0300 ID at 5-10. The administrative judge declined to adjudicate the appellants’ constructive discharge clai ms and advised them that4

they could pursue those claims by fi ling 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 decisi on became final. See 0300 ID at 13. ¶7 The appellant then filed th e instant appeal, in which he reiterated his claim that the agency construc tively 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 hi s appeal was brought under USERRA, and he requested a hearing. 0268 IAF, Tab 1. The ad ministrative judge assigned to the new appeal issued an order directing the a ppellant to show cause why his appeal should not be dismissed as barred by res judicata or collateral estoppel. 0268 IAF, Tab 3. In respons e, the appellant argued that his appeal was not barred by res judicata or collater al estoppel because the admi nistrative 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 advers e 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, Ta b 10, Initial Decision. This petition for review followed. Peti tion for Review (PFR) File, Tab 1. The agency has responded. PFR File, Tab 3.

ANALYSIS ¶9 The administrative judge dismissed th e instant appeal as barred by res judicata without deciding the issue of jurisdiction. The Board must have jurisdiction over an appeal to appl y 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 discu ssed below, we find that the appellant’s hostile work e nvironment claim is barred by collateral estoppel, and as a result, the Board lacks juri sdiction over the instant appeal.5

¶10 This appeal arises under the antid iscrimination provision of USERRA, 38 U.S.C. § 4311 (a), which provides: A person who is a member of, applie s 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, retenti on in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for memb ership, performance of service, application for service, or obligation. To establish Board jurisdicti on over a claim arising under 38 U.S.C. § 4311 (a), an appellant must make nonfri volous allegations that: (1) he performed duty or has an obligation to perfo rm duty in a uniformed service of the United States; (2) the agency denied him initial employment, reemployment, retention, promotion, or a ny benefit of employment; and (3) the denial was due to the performance of duty or obligation to pe rform 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 USER RA should be c onstrued 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 th e 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 creati ng 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 cl aim 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 deni ed him retention in employment is predicated on his previous ly adjudicated clai m that the agency subjected him to a hostile work environment based on his military service. See Hau v. Department of Homeland Security , MSPB Docket6

No. SF-4324-13-0300-I-1. Under the doctrin e of collateral estoppel, once an adjudicatory body has decided a factual or legal issue ne cessary to its judgment, that decision may preclude relitigation of the issu e 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 issu e preclusion, is appropriate when: (1) the issue is iden tical to that involved in th e prior action; (2) the issue was actually litigated in th e 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 fu ll and fair opportunity to litigate the issue in the prior action, either as a pa rty to the earlier action or as one whose interests were otherw ise 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 ma y be grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional determin ation in a prior d ecision is afforded collateral estoppel e ffect 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 prio r USERRA appeal found jurisdiction under the liberal jurisdictional standard for that st atutory scheme, but denied the appellant’s request for corrective action, findi ng 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 whethe r the agency subjecte d the appellant to a hostile work environment based on his military service was actually litigated in his prior USERRA appeal, an d the administrative judge’s findings on that issue were necessary to the resulting judgment. Id. The appellant t hus is barred by collateral estoppel from ar guing that the agency subjected him to a hostile work environment based on his mi litary service, which is the sole basis of his constructive discharge cl aim in this matter. ¶14 Because jurisdiction was found in the appellant’s initial USERRA appeal, this case is distinguishable from Noble . Nevertheless, we co nclude that, in light7

of our finding that collater al estoppel bars relitigation of th e hostile work environment claim, and the fact that th e appellant has not alleged any acts of harassment that differ from those he re lied on in his prior appeal, the appellant cannot in this matter articu late a nonfrivolous allegation that the agency denied him retention in employment base d 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 ma tter 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 juri sdiction in a subs equent 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). Convers ely, “as [the U.S. Supreme] Court and other courts have often recognized, res judica ta and collateral estoppel relieve parties of th e cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsiste nt decisions, encour age reliance on adjudication.” Allen , 449 U.S. at 94. To find jurisd iction and allow this matter to proceed to the merits phase of the case when the appell ant is barred by collateral estoppel from presenting a ny of his merits arguments during such proceedings would defy logic. * Furthermore, to do so woul d cause unnecessar y 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 wi th his case designated as MSPB Docket No. SF-4324-13-0300-I-1. Howeve r, were a merits hearing held in this matter, the8

parties, make the Board comp licit in the vexation of multiple lawsuits, waste the Board’s resources, and potent ially could lead to incons istent decisions—all evils the U.S. Supreme Court, th e U.S. Court of Appeals fo r 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 here by overrule our decisions in Boechler , Wadhwa , and Parikh

. ¶16 In conclusion, we find that, even under the liberal juri sdictional standard applicable to USERRA app eals, 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 Me rit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regul ations, 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 Fede ral Circuit. You must subm it your request to the court at the following address:

appellant would be precluded from presen ting evidence and argument concerning his allegation of a hostile work envi ronment, which is the entire basis of his claim in this case. In other words, an administrative ju dge would have to convene a hearing during which the appellant could not present any cont ent, which would be a waste of time and

resources.9

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 la ter 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 ve ry 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 d eadline 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 th is right. It is found in title 5 of the United St ates Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sect ions of the United States Code, at our website, http ://www.mspb.gov/appeal s/uscode/htm. Additional information is availa ble at the court’s website, www.cafc.uscourts.gov. Of pa rticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained with in the court’s Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pro bo no 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 informa tion regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit.10

The Merit Systems Protection Board ne ither endorses the services provided by any attorney nor warrants that any attorney will ac cept representation in a given case.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.