NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

MICHAEL BROADEN,

Petitioner

v.

DEPARTMENT OF TRANSPORTATION,

Respondent

______________________ 

2023-2316

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-4324-23-0098-I-1.

______________________ 

Decided: May 10, 2024

______________________ 

MICHAEL BROADEN, Denver, CO, pro se.

 ROBERT R. KIEPURA, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.

MCCARTHY. 

______________________ 

Before DYK, CLEVENGER, and STOLL, Circuit Judges.

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2 BROADEN v. DEPARTMENT OF TRANSPORTATION

PER CURIAM.

Michael Broaden seeks review of the final decision of 

the Merit Systems Protection Board (“Board”) denying corrective action with respect to his unsuccessful applications 

for employment as an Air Traffic Control (“ATC”) Specialist, MSS-1, Support Specialist with the Federal Aviation 

Administration (“FAA”). For the reasons stated below, we 

affirm the Board’s final decision.

I 

Mr. Broaden served in the United States Air Force 

from 1997 until his honorable discharge in 2002. During 

his Air Force employment, he served as a military air traffic controller for 138 weeks at Hill Air Force Base in Utah. 

He began employment with the FAA in 2011 in a Management and Program Analyst position. Thereafter, he applied thirteen times to fill ATC Specialist vacancies, known 

as Support Specialist, MSS, or MSS-1 positions. According 

to Mr. Broaden, as Support Specialist, “you don’t control 

the movement of live aircraft, but you support the controllers by making sure that information systems . . . [are] updated accordingly so they can access information quickly.” 

Appx. 65. To be eligible for the Support Specialist position, 

an applicant must satisfy one of three requirements:

1. Must have held an FAA 2152 FG-14 or above 

regional or headquarters position for at least 1 year 

(52 weeks); or 

2. Must have been facility rated or area certified 

for at least 1 year (52 weeks) in an [FAA Air Traffic 

Services (“ATS”)] facility; NOTE: An employee who 

has been facility rated or area certified for at least 

1 year (52 weeks) in an ATS facility that is upgraded is considered to meet qualification requirements of the upgraded position, since he or she has 

been performing the higher-graded work; or 

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BROADEN v. DEPARTMENT OF TRANSPORTATION 3

3. Must have held an MSS position for at least 1 

year (52 weeks) in an ATS facility. 

Each time Mr. Broaden applied for a Support Specialist 

vacancy, he alleged that he satisfied requirement 2, even 

though he admittedly did not have the required experience 

at a FAA ATS facility. As a substitute for the one-year civilian ATS facility experience requirement, Mr. Broaden 

cited his 138-week military service as an air traffic controller at Hill Air Force Base in Utah.

Mr. Broaden appealed the FAA’s nonselection decision 

of his November 15, 2019, application to the Board. He 

sought corrective action, alleging violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. 

§§ 4301–4335) (“USERRA”), which prohibits employers 

from discriminating against current or prospective employees because of their military service. Because the FAA 

gave no weight to his military experience as an air traffic 

controller, Mr. Broaden argued that the agency’s stated requirements were inherently discriminatory. 

Before the Board, the agency defended its refusal to 

treat military experience as equivalent to the required civilian FAA experience with testimony from Barry Sill, a 30-

year FAA employee in addition to his Air Force service. Mr. 

Sill justified failure to equate military with civilian air traffic control service on the ground that “‘there are functional 

differences’ in operation and implementation between FAA 

and military facilities” and “also substantive differences in 

training standards.” Broaden v. Dep’t of Transp., No. DE4324-20-0168-I-2, 2021 MSPB LEXIS 768, *10–11 (Feb. 26, 

2021). Further, Mr. Sill, and another agency witness (Susana Meister), testified that “there are FAA-certified controllers who do not work in ATS facilities, who likewise 

would not have qualified for the MSS-1 position.” Id. at 

*11. The Board rejected Mr. Broaden’s contention that the 

FAA’s requirement of FAA ATS facility experience is 

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4 BROADEN v. DEPARTMENT OF TRANSPORTATION

inherently violative of USERRA. The Board relied on Mr. 

Sill’s testimony, which demonstrated sound reasons for not 

treating military air traffic controller experience as equal 

to ATS service, and showing that the FAA ATS service requirement applies equally to non-military service applicants and thus is not targeted at members of the uniformed 

services. The Board did not credit testimony from three 

witnesses for Mr. Broaden, who sought to establish that 

non-ATS service in the military is the equivalent of ATS 

experience, because those witnesses did not credibly dispute Mr. Sill’s explanation for discounting military experience. Id. at *12. The Board accordingly denied Mr. 

Broaden’s USERRA-based challenge to his nonselection.

Mr. Broaden sought review in this court, where he repeated his argument that failure of the FAA to credit his 

military air traffic control service violated his USERRA 

rights. Mr. Broaden’s Informal Brief to this court informed 

the court that he had previously unsuccessfully “applied to 

numerous FAA ATC support specialist positions with reasonable expectation of meeting [the one-year ATS facility 

requirement] when all equivalent air traffic control experience (FAA and military) is credited.” Appellant’s Informal 

Brief at 9, Broaden v. Dep’t of Transp., No. 2021-2000, 2021 

WL 5353890 (Fed. Cir. Nov. 17, 2021) (emphasis omitted). 

He argued that his USERRA violation claim “extends back

to the first support specialist application that the Petitioner [Mr. Broaden] submitted,” and noted that he first 

applied in November 2011. Id. at 13. Mr. Broaden specifically argued that the Board’s decision must be set aside 

because “the Board’s wrongful decision follows from a record that contains no evidence on which its decision could 

be made.” Broaden, 2021 WL 5353890, at *3. Mr. Broaden 

in particular challenged as incorrect Mr. Sill’s testimony 

that functional differences in the operation and implementation distinguished FAA from military air traffic control 

operations. In affirming the Board’s rejection of Mr. 

Broaden’s USERRA claim, this court credited the 

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BROADEN v. DEPARTMENT OF TRANSPORTATION 5

testimony of witnesses Mr. Sill and Ms. Meister that “there 

are material differences between the type of experience obtained by Mr. Broaden [in the military] and the responsibilities of the advertised position” and “that individuals 

within the FAA with similar experience to Mr. Broaden 

would not also qualify for the position.” Id. Because the 

record thus clearly supported the Board’s conclusion that 

failure by the agency to treat Mr. Broaden’s military air 

traffic controller experience as equivalent to ATS air traffic 

controller experience does not violate USERRA, this court 

affirmed the final decision of the Board, see id., to which 

Mr. Broaden unsuccessfully sought certiorari review at the 

Supreme Court, see Broaden v. Department of Transportation, 142 S. Ct. 1676 (2022).

II

On January 12, 2023, Mr. Broaden filed another appeal 

with the Board, this time referencing his nonselection for 

the same ATC Specialist position on thirteen vacancy announcement occasions. Of Mr. Broaden’s thirteen nonselection challenges, one repeats his November 15, 2019, 

application, the challenge to which was fully adjudicated 

through his first appeal to this court, described above. 

Four other nonselection challenges relate to vacancy applications filed between November 17, 2011, and November 

15, 2019, and the remaining eight nonselection challenges 

relate to applications filed after the November 15, 2019, 

application. The Board, taking account of Mr. Broaden’s 

first appeal to this court, recognized our decision in that 

appeal as a final judgment on the merits, and invoked res 

judicata and collateral estoppel against Mr. Broaden’s 

challenges.

The res judicata doctrine serves to “relieve parties of 

the cost and vexation of multiple lawsuits, conserve judicial 

resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 

U.S. 90, 94 (1980). Res judicata requires (1) the prior 

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6 BROADEN v. DEPARTMENT OF TRANSPORTATION

decision was rendered by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties 

or their privies were involved in both cases. Carson v. Dep’t 

of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005). “Claim 

preclusion prevents parties from litigating issues that 

could have been raised in a prior action.” Id.

Collateral estoppel applies to an issue where (1) the issue previously adjudicated is identical with the issue now 

presented; (2) the issue now presented was actually litigated in the prior case; (3) the previous determination on 

the issue was necessary to the end-decision in the prior 

case; and (4) the party estopped had a full and fair chance 

to litigate the issue in the prior case. See Whiteman v. Dep’t 

of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012).

The Board invoked res judicata against Mr. Broaden’s 

renewed challenge to the nonselection of his November 15, 

2019, application and against his four nonselection challenges that preceded the November 15, 2019, application. 

Specifically, the Board determined that in all the five vacancies, each was (1) for the same Air Traffic Control Specialist position; (2) the position’s essential qualification 

requirements remained unchanged; (3) Mr. Broaden’s 

qualifications (or lack thereof) remained unchanged; (4) the 

agency deemed Mr. Broaden unqualified; and (5) Mr. 

Broaden’s challenge—that his nonselection violated 

USERRA—is the same in all five nonselection challenges. 

As such, the Board held that res judicata plainly barred 

consideration of Mr. Broaden’s challenge to nonselection of 

his November 15, 2019, application, as that precise case 

has been finally adjudicated. As to the four nonselection 

challenges that preceded the finally adjudicated case, the 

Board held that those challenges could have been brought 

along with the adjudicated case, and therefore were also 

res judicata barred. 

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BROADEN v. DEPARTMENT OF TRANSPORTATION 7

With regard to Mr. Broaden’s eight nonselection challenges for his applications following November 15, 2019, 

the Board applied collateral estoppel to bar those challenges. Specifically, the Board found the doctrine applicable to two issues raised by the eight nonselection 

challenges: (1) whether Mr. Broaden qualifies for the position he repeatedly applied for, and (2) if not, whether the 

agency’s requirements for the position are inherently discriminatory against members of the uniformed service, in 

violation of USERRA. The Board held with regard to the 

two issues as appearing in the finally adjudicated case compared to the two issues as presented in the eight post-November 15, 2019, nonselection challenges: (1) the issues are 

identical; (2) the issues were actually litigated in the prior 

case; (3) the previous determinations in the prior case were 

necessary to the denial of Mr. Broaden’s USERRA claim 

before the Board and before this court; and (4) Mr. Broaden

was fully represented, having a full and fair chance to litigate the issues in the prior case. The Board’s analysis used 

the test for application of collateral estoppel set forth in 

Whiteman v. Department of Transportation, 688 F.3d 1336, 

1340 (Fed. Cir. 2012). The Board noted that had it not applied res judicata against the other five nonselection challenges, it would have found collateral estoppel equally 

applicable to those challenges. The Board’s final decision 

thus denied Mr. Broaden’s request for corrective action as 

to the thirteen nonselection decisions he challenged as violative of USERRA.

III

Mr. Broaden timely seeks review of the Board’s final 

decision. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9). We must affirm a final decision of the Board 

unless we decide that the decision is arbitrary, capricious, 

an abuse of discretion, not in accordance with law, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c); 

Marino v. Office of Pers. Mgmt., 243 F.3d 1375, 1377 (Fed. 

Cir. 2001).

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8 BROADEN v. DEPARTMENT OF TRANSPORTATION

Mr. Broaden does not challenge the Board’s res judicata holding that he is attempting to relitigate the same 

case as the one previously litigated, or that he could have 

brought his current challenge to the FAA’s four pre-November 15, 2019, nonselection decisions at the same time 

he brought his challenge to nonselection of his November 

15, 2019, application. Any such challenge would lack 

merit, as Mr. Broaden referenced his USERRA-based disagreement with the earlier nonselection decisions in his appeal to the Board from the nonselection of his November 

15, 2019, application.

Regarding his current challenge to the eight non-selection decisions on his applications filed after the November 

15, 2019, application, Mr. Broaden does not challenge: (1) 

that the issues of his lack of qualification and of alleged 

inherently discriminatory qualification requirements are 

the same as the issues fully adjudicated against him in his 

previous appeal to the Board and to this court; or (2) that 

those two issues were actually litigated in the prior case; 

or (3) that the previous determination of those issues were 

necessary to denial his USERRA violation claim; or (4) that 

he lacked the full and fair chance to litigate those issues in 

the prior case.1

Mr. Broaden contends that res judicata and collateral 

estoppel should not apply to this case because “new facts 

1 Mr. Broaden claims without basis to have been denied a full and fair opportunity to litigate the issue of 

whether FAA relies on a false narrative, an issue discussed 

below. See Appellant’s Br. at 18. The records in the prior 

adjudication and in this case prove that Mr. Broaden challenged the FAA’s reliance on functional differences between FAA and military operations throughout the Board 

proceedings and Mr. Broaden points to no evidence to support any claim that his ability to present his views on the 

issue were impaired in any way.

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BROADEN v. DEPARTMENT OF TRANSPORTATION 9

are available.” Merely presenting new evidence is not sufficient to preclude the application of res judicata and collateral estoppel. See Campos v. Off. of Pers. Mgmt., 636 F. 

App’x 798, 799 (Fed. Cir. 2016) (nonprecedential) (“So even 

though, in a later suit, a party might present the court with 

new evidence that calls into question the original judgment, res judicata does not permit the court to reopen that 

judgment.”); 18 Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 4403 (3d ed. 2023) (“This 

rule ordinarily applies despite the availability of new evidence . . . .”). 

Mr. Broaden also argues that res judicata and collateral estoppel should not apply to this case because of “manifest injustice” arising from a “false narrative” asserted by 

the FAA. According to Mr. Broaden, the FAA engages in a 

false narrative by asserting that there are functional differences between military and civilian air traffic controllers, in order to justify not crediting military air traffic 

controller experience, when in fact there are no such functional differences between military and civilian air traffic 

controllers.

According to Mr. Broaden, the “false narrative” is 

shown by two letters from the FAA to Sen. Michael Bennet, 

responding to correspondence from Sen. Bennet to the 

FAA. The first letter responded to a letter from the Senator, “on behalf of Mr. [] Broaden, who expressed concerns 

that his military experience does not count towards the 

Federal Aviation Administration (FAA) mandated 52 

weeks of civilian air traffic control experience.” Appx. 55. 

FAA responded, noting first that “[a]lthough Mr. Broaden 

held a supervisory position in the military, that position 

did not require certified controller time, which is essential 

in meeting the . . . qualification standards.” Appx 55. Regarding the requirement of 52 weeks of FAA controller 

time, the letter explained that the requirement is applied 

“uniformly to all applicants” because of FAA particular considerations, including “FAA airspace complexity, controller 

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10 BROADEN v. DEPARTMENT OF TRANSPORTATION

policies, controller tools, controller support requirements, 

and local field facility dynamics.” Appx. 55. The FAA’s November 1, 2022, letter thus elaborated on the functional 

differences in operation and implementation explanation 

asserted by the FAA in the previous litigation as evidence 

of the agency’s need to insist on FAA air traffic control experience as a qualification for the MSS-1 position.

The second letter cited by Mr. Broaden from FAA to 

Sen. Bennet is dated March 23, 2023, and responds to a 

letter from Sen. Bennet to FAA dated February 27, 2023,

which requested information “regarding the possibility of 

military discrimination at the Federal Aviation Administration.” Appx. 58. FAA’s response to Sen. Bennet stated 

that the “directives that prescribe the certification and rating procedures for air traffic controllers operating in the 

[military] and the FAA are the same,” with citation to two 

directive orders. Appx. 58. FAA’s letter also stated the requirements for the MSS-1 position, including the requirement of 52 weeks of service as an air traffic controller in a 

FAA facility.

Mr. Broaden’s “false narrative” leading to “manifest injustice” claim lacks merit. The functional difference considerations cited by the FAA before the Board, as further 

explained by the FAA in the first letter to Sen. Bennet, do 

not relate to functional differences between civilian and 

military air traffic controllers. Instead, the functional differences identified by the FAA relate to FAA specific considerations, such as FAA airspace complexity, controller 

policies, controller tools, controller support requirements, 

and local field facility dynamics. Mr. Broaden agrees that 

“[t]here are different complexities, policies, tools, facility 

field dynamics, and more at every airport, military or civilian.” Appellant’s Br. at 21. 

The Support Specialist position to which Mr. Broaden 

many times applied provides support to air traffic controllers. In the light of FAA specific air traffic control 

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BROADEN v. DEPARTMENT OF TRANSPORTATION 11

operations, FAA determined that to qualify for a Support 

Specialist position an applicant should have familiarity 

with FAA air traffic control operations, in the form of 52 

weeks of FAA air traffic control experience. Accordingly, 

the FAA applied the FAA work experience to all applicants, 

including applicants with previous military air traffic control experience. Mr. Broaden’s challenge to the requirement of FAA air traffic control experience as violative of 

USERRA was finally rejected in the adjudication of his November 15, 2019, application. The Board rejected his challenge to nonselection of thirteen additional applications on 

res judicata and collateral estoppel grounds. Mr. Broaden’s 

only challenges to the Board’s decision are that res judicata 

and collateral estoppel should not apply because of a “false 

narrative” that produces “manifest injustice” and he presents “new facts.” Because there is no false narrative and 

manifest injustice here, and alleging new facts is not sufficient to preclude the application of res judicata and collateral estoppel, there is no showing of any error in law or fact 

by the Board in its final decision. We affirm the Board’s 

final decision.

AFFIRMED

COSTS

No costs.

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