United States Court of Appeals 

for the Federal Circuit ______________________ 

ROB BRYANT, BRIAN FERGUSON, ANDREAS 

HAU,

Petitioners

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF HOMELAND SECURITY,

Intervenor

______________________ 

2017-1241, 2017-1243, 2017-1245

______________________ 

Petitions for review of the Merit Systems Protection 

Board in Nos. SF-4324-16-0265-I-1, SF-4324-16-0267-I-1, 

SF-4324-16-0268-I-1.

______________________ 

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. 
2 BRYANT v. MSPB

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

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 
BRYANT v. MSPB 3

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 
4 BRYANT v. MSPB

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 
BRYANT v. MSPB 5

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., No. 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 
6 BRYANT v. MSPB

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 jurisdiction even 

though the appellant is raising issues that are identical to 
BRYANT v. MSPB 7

those in a prior unsuccessful appeal. Id. at 626–27 (overruling Boechler v. Dep’t of Interior, 109 M.S.P.R. 619

(2008), aff’d without opinion, 328 F. App’x 660 (Fed. Cir. 

2009); Wadhwa v. Dep’t of Veterans Affairs, 111 M.S.P.R. 

26 (2009), aff’d without opinion, 353 F. App’x 434 (Fed. 

Cir. 2009); Parikh v. Dep’t of Veterans Affairs, 110 

M.S.P.R. 295 (2008)). It decided that the Board lacked 

jurisdiction to hear Hau’s current appeal raising the

identical issues as in Bryant I. Id. 

On September 22, 2016, the Board issued final orders 

in Bryant’s and Ferguson’s appeals, affirming the initial 

decisions that dismissed their appeals for lack of jurisdiction as barred by collateral estoppel. Bryant II, 2016 WL 

5372080, ¶ 1; Ferguson II, 2016 WL 5372124, ¶ 1. Citing 

Hau II, the Board concluded that because Bryant and 

Ferguson specifically denied that there was any relevant 

action by the Agency after August 7, 2014 and there was 

no additional factual basis beyond what was decided in 

Bryant I, they cannot make a nonfrivolous allegation of a 

USERRA violation. Bryant II, 2016 WL 5372080, ¶¶ 12–

13; Ferguson II, 2016 WL 5372124, ¶¶ 12–13. The Board 

thus concluded that it lacked jurisdiction over Bryant’s 

and Ferguson’s current USERRA appeals. Bryant II, 

2016 WL 5372080, ¶ 13; Ferguson II, 2016 WL 5372124, 

¶ 13. 

Petitioners timely appealed. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

We only set aside the Board’s decision when it is “(1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c). Whether the Board has jurisdiction over 

an appeal is a question of law that we review de novo, 

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 
8 BRYANT v. MSPB

1995), and we review the Board’s underlying factual 

findings for substantial evidence, Bolton v. Merit Sys. 

Prot. Bd., 154 F.3d 1313, 1317 (Fed. Cir. 1998). 

Under 38 U.S.C. § 4311(a), a member of a uniformed 

service “shall not be denied . . . retention in employment, 

promotion, or any benefit of employment . . . on the basis 

of that membership [or] performance of service . . . .” To 

establish the Board’s jurisdiction under USERRA, the 

petitioner “must make a nonfrivolous allegation that his 

military service was a substantial or motivating factor in 

the agency’s action in question.” Kitlinski v. Merit Sys. 

Prot. Bd., 857 F.3d 1374, 1381 (Fed. Cir. 2017) (citations 

and internal quotation marks omitted); see also 5 C.F.R. 

§ 1201.57(b). 

On appeal, Petitioners make several arguments challenging the Board’s dismissal of their second USERRA 

appeals. First, Petitioners argue that they reasonably 

and detrimentally relied on the express instructions in 

the footnote in Bryant I in filing the second USERRA

appeals and thus did not have a “full and fair chance to 

fully litigate the issue through appeal.” Pet’rs’ Br. 17. 

Second, Petitioners argue that the change-of-law exception to collateral estoppel should apply because in deciding Hau II, the Board overruled its own precedent that

would have allowed them to make nonfrivolous allegations in the second appeals and be heard by the Board on 

the constructive discharge allegations even though they 

are based on identical facts as in Bryant I. Petitioners 

further argue that the rights under USERRA should be 

broadly construed, that collateral estoppel is an equitable 

doctrine for which fairness to Petitioners should be a 

consideration, and that Petitioners should be afforded an 

opportunity to be heard by the Board regardless of the 

ultimate outcome on the merits. 

The Board responds that Petitioners are barred from 

relitigating their second USERRA appeals because all the 
BRYANT v. MSPB 9

elements of collateral estoppel have been met and no 

exception applies. The Board contends that Petitioners 

neither sought review of the first AJ’s decision despite the 

clear notice of the opportunity for review by the Board nor 

filed separate involuntary resignation claims under 5 

U.S.C. ch. 75 as instructed in the AJ’s footnote. The 

Board also argues that the change-of-law exception to 

collateral estoppel does not apply because the substantive 

USERRA law did not change, the decision in Bryant I did 

not apply the Board’s old law on its jurisdiction, and the 

change in law does not compel a different result since

even if Petitioners were allowed to proceed, they would 

have had a hearing in which they would have been precluded from presenting any evidence of the predicate 

hostile work environment issue. 

The DHS, as an intervenor, makes additional arguments in support of finding preclusion and lack of jurisdiction. In particular, the DHS contends that a 

nonfrivolous allegation of a USERRA violation cannot be 

made when Petitioners cannot prevail on the collaterally 

estopped issue as a matter of law, and that the Board’s 

rationale in overruling its precedent was reasonable and 

well explained, which took account of “‘serious reliance 

interests,’” if any, by Petitioners. Intv’r’s Br. 24 (quoting

Huvis Corp. v. United States, 570 F.3d 1347, 1354–55 

(Fed. Cir. 2009) (quoting FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009))). Additionally, the DHS

argues that Petitioners’ current USERRA appeals are 

barred by claim preclusion, or res judicata, because their

resignations were based on the same transactional facts, 

and Petitioners could have sought to make their resignations be formally part of Bryant I as noted by the first AJ, 

but did not. 

We agree with the government that Petitioners’ current USERRA appeals are precluded and that the Board 

properly determined that it lacked jurisdiction to hear 

Petitioners’ precluded issues. First, there is an undisput-
10 BRYANT v. MSPB

ed identity of the parties, issues, and forum, and Petitioners do not challenge the Board’s application of collateral 

estoppel based on the repetitive and overlapping nature of 

their two sets of successive USERRA appeals. Second, 

Petitioners do not argue that the Board’s new precedent

on its jurisdiction in Hau II was incorrect as a matter of 

law. Rather, Petitioners urge that they should not be

barred from pursuing their second USERRA appeals for 

other reasons we discuss below. 

Petitioners argue that they reasonably relied on the 

footnote in Bryant I to their detriment, and thus should 

be allowed to fully litigate the constructive discharge 

claims in their current USERRA appeals. However, their 

detrimental reliance argument fails, first and foremost, 

because they simply did not follow the course of action 

described in the footnote, which referred to a different 

cause of action, namely, “constructive removals under 5 

U.S.C. [ch.] 75.”1 J.A. 40 n.6. 

Moreover, even if the appropriate course of action in 

view of the footnote was to file separate USERRA appeals 

claiming constructive discharge, the first AJ did not direct

or order Petitioners to abandon review of Bryant I. Contrary to Petitioners’ assertion, the footnote did not “induce[]” Petitioner to pursue a separate USERRA action, 

Reply Br. 4, at the expense of forgoing review of Bryant I. 

Petitioners’ apparent assumption that they could proceed 

anew with a second set of identical USERRA appeals was 

neither reasonable in view of, nor in actual reliance on, 

the footnote, cf. Container Transp. Int’l, Inc. v. United 

States, 468 F.2d 926, 930 (Ct. Cl. 1972) (declining to apply 

res judicata when a plaintiff split the claim into multiple 

1 Although Petitioners fault the footnote for incorrectly referencing “5 U.S.C. § 75,” which should have been 

5 U.S.C. ch. 75, they do not argue that this inaccuracy 

was in and of itself of any significance. See Reply Br. 5.

 
BRYANT v. MSPB 11

suits in reliance on a court precedent and deciding to 

overrule its precedent prospectively). 

Furthermore, the change-of-law exception to collateral 

estoppel is not applicable here. Petitioners primarily rely 

on Dow Chemical Co. v. Nova Chemicals Corp. (Canada), 

803 F.3d 620, 629 (Fed. Cir. 2015), for the proposition that 

the change-of-law exception to collateral estoppel should 

apply to their current appeals. In Dow, we noted that the 

change-of-law exception to collateral estoppel is applicable 

when (1) the governing law is changed; (2) the prior 

decision applied the old law; and (3) the change in law 

compels a different result in the current case. 803 F.3d at 

629–30. 

Dow does not support the outcome sought by Petitioners. As noted by the Board and the DHS, the substantive

USERRA law did not change. Even if we look to the 

change in the Board’s precedent on its jurisdiction, the 

Board applied the new law to their current USERRA 

appeals, and Petitioners are seeking to apply the old law 

instead. Moreover, the change in law did not make a 

difference to Petitioners because under the Board’s precedent either before or after the change, Petitioners would 

have been ultimately precluded from relitigating the 

identical issue. 

This case does not present a situation in which pursuing a certain course of action was unavailable or otherwise futile under the then-controlling precedent. See 

Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 

U.S. 313, 350 (1971). Although the Board overruled its 

own precedent and changed its law on jurisdiction in Hau 

II, which may have been unexpected, that change does not 

justify Petitioners’ abandoning their claims in Bryant I. 

Seeking review of the first AJ’s decision was available 

under the then-existing Board’s precedent. Petitioners 

did not abandon review of their USERRA appeals in 

Bryant I out of any futility of such pursuit under the old 
12 BRYANT v. MSPB

law, but out of their apparent belief that their best course 

of action was to file separate USERRA appeals including 

the constructive discharge claims. Simply put, the 

change-of-law exception does not save Petitioners from 

their deliberate choice of action. 

Similarly, Petitioners’ appeal to general equity considerations also fails. Although we have noted that the 

USERRA statutes are “interpreted broadly in favor of 

individuals returning from military service,” Crowford v. 

Dep’t of Army, 718 F.3d 1361, 1367 (Fed. Cir. 2013), such 

interpretive canon favoring military members is not 

relevant here. First, determining the Board’s jurisdiction 

in the instant case does not involve any statutory interpretation. What Petitioners are actually arguing is that 

they should be given a chance to bring their second 

USERRA appeals to the full Board, in view of the apparent leniency afforded to military members under the 

overall USERRA scheme, in further view of the first AJ’s

footnote in Bryant I and the change of the Board’s precedent regarding the effect of collateral estoppel on its 

jurisdiction. However, as conceded during oral argument, 

Petitioners do not contend that the Board’s decision in 

Hau II overruling its precedent to address preclusion at 

the jurisdictional stage was incorrect. See Oral Argument 

at 3:22–35, Bryant v. Merit Sys. Prot. Bd., Nos. 2017-1241, 

-1243, -1245 (Fed. Cir. Nov. 9, 2017), http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-1241.mp3. 

Rather, Petitioners are urging us to find an exception to 

the Board’s admittedly correct law on jurisdiction and 

collateral estoppel due to the peculiar circumstances of 

their appeals. We decline to do so.

In general, courts do not liberally invoke exceptions to 

collateral estoppel based on the particular circumstances 

of a case. See 18 Charles Alan Wright & Arthur R. Miller, 

Fed. Prac. & Proc. § 4426 (3d ed. 2017). Furthermore, the 

Board’s precedential decision concerning its jurisdiction in 

Hau II, albeit a departure from its own precedent, does 
BRYANT v. MSPB 13

not constitute the kind of unforeseeable event or compel a 

finding of lack of “incentive” to litigate that courts have 

found may warrant applying an exception to collateral 

estoppel. Id. §§ 4423, 4424. If anything, Petitioners’ 

filing of the second, identical USERRA appeals, with a 

bare recitation of “constructive discharge” entirely predicated on the previously heard and decided hostile work 

environment issue, demonstrates that they acted deliberately and were not unsuspecting parties unjustly precluded from being heard. In view of the admittedly identical 

nature of Petitioners’ successive appeals and their voluntary abandonment of their first appeals, we do not find 

that an exception should apply here. 

We conclude that Petitioners’ second USERRA appeals are barred by collateral estoppel and agree with the 

Board that an appellant cannot make a nonfrivolous 

allegation of a USERRA violation if its contentions are 

wholly precluded. Indeed, this case illustrates the flaw in 

the Board’s now-overruled precedent. As noted by the 

Board, even if Petitioners had been granted a hearing in 

the second, identical USERRA appeals, because they did 

not make any additional allegations beyond those in 

Bryant I, Petitioners would not have been able to present 

any content at the hearing. See Hau II, 123 M.S.P.R. at 

627 n.*. Such a hearing would have been a waste of 

resources, contrary to the policies underlying the doctrine 

of collateral estoppel. See Montana v. United States, 440 

U.S. 147, 153 (1979); see also Morgan v. Dep’t of Energy, 

424 F.3d 1271, 1275 (Fed. Cir. 2005) (finding the issue 

precluded when there was “no new conduct with respect 

to his claim for relief”). 

We therefore conclude that the Board correctly dismissed Petitioners’ appeals for lack of jurisdiction because 

Petitioners’ constructive discharge claims under USERRA

are precluded by collateral estoppel. We have considered 

the remaining arguments and find them unpersuasive.
14 BRYANT v. MSPB

CONCLUSION

For the foregoing reasons, the decisions of the Board 

are affirmed.

AFFIRMED

COSTS

No costs.