Andreas Hau v. Department of Homeland Security
2016 MSPB 33
| MSPB | 2016Background
- Appellant Andreas Hau, a USAF Reserve Lt. Colonel, worked as an Air Interdiction Agent for CBP (OAM) and previously filed a consolidated USERRA appeal (MSPB No. SF-4324-13-0300-I-1) alleging hostile work environment and other USERRA violations.
- While that consolidated USERRA appeal was pending, Hau resigned (alleging constructive discharge due to hostile work environment) and the administrative judge allowed the appellants to raise constructive discharge in posthearing briefing.
- The administrative judge in the consolidated USERRA matter found jurisdiction but denied corrective action, ruling the appellants failed to prove a hostile work environment; that decision became final (no petition for review).
- Hau then filed a new MSPB appeal (SF-4324-16-0268-I-1) asserting a USERRA-based constructive-discharge claim premised entirely on the same hostile-work-environment allegations adjudicated earlier.
- The administrative judge dismissed the new appeal as barred by res judicata; on review the Board vacated that decision, held the hostile work environment claim precluded by collateral estoppel, found Hau could not nonfrivolously allege denial of retention under USERRA, and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hau's constructive-discharge USERRA claim is barred by preclusion | Hau: prior judge did not adjudicate constructive discharge; new appeal is a USERRA claim and should proceed | DHS: the hostile-work-environment factual issue was litigated and decided; relitigation is barred | Held: Collateral estoppel bars relitigation of hostile-work-environment findings; Hau cannot make a nonfrivolous retention/constructive-discharge allegation, so Board lacks jurisdiction |
| Whether res judicata or collateral estoppel prevents the new appeal | Hau: prior merits loss doesn't preclude alleging jurisdiction now | DHS: prior final determination on the hostile environment issue precludes same issue | Held: Court applies collateral estoppel (issue preclusion) rather than res judicata and dismisses for lack of jurisdiction |
| Whether Board should allow a merits hearing despite prior adverse decision | Hau: entitled to USERRA hearing on constructive discharge | DHS: hearing would be fruitless because merits are precluded | Held: Allowing a hearing when claimant is precluded from presenting merits would waste resources; dismissal appropriate |
| Whether prior Board precedent allowing relitigation of jurisdictional allegations should control | Hau: relies on Boechler/Wadhwa/Parikh line allowing nonfrivolous assertion despite prior loss | DHS: collateral estoppel and finality principles apply | Held: Board overrules Boechler/Wadhwa/Parikh in this context and applies collateral estoppel to bar the claim |
Key Cases Cited
- Allen v. McCurry, 449 U.S. 90 (1980) (doctrine of collateral estoppel precludes relitigation of issues necessary to prior judgment)
- Mintzmeyer v. Department of the Interior, 84 F.3d 419 (Fed. Cir. 1996) (plaintiff must make nonfrivolous allegations to establish jurisdiction)
- MGA, Inc. v. General Motors Corp., 827 F.2d 729 (Fed. Cir. 1987) (res judicata and collateral estoppel conserve resources and prevent inconsistent decisions)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (once jurisdiction under USERRA is established, claimant is generally entitled to a hearing)