Bryant v. Merit Systems Protection Board
878 F.3d 1320
| Fed. Cir. | 2017Background
- Petitioners (Bryant, Ferguson, Hau) were OAM air interdiction agents and members of the Reserve forces who alleged USERRA violations based on hostile work environment and constructive discharge.
- Petitioners first appealed to the MSPB in 2013; an AJ issued an initial decision in 2015 (Bryant I) finding no USERRA violation and noting in a footnote that any constructive-removal claims under 5 U.S.C. ch. 75 should be filed separately.
- Petitioners resigned in 2014 (dates vary) and filed new, separate USERRA appeals in February 2016 asserting constructive discharge tied to the same hostile-work-environment facts adjudicated in Bryant I.
- The AJ and then the full Board concluded the second appeals were barred by preclusion (res judicata or collateral estoppel), and the Board overruled precedent permitting jurisdictional consideration of identical, nonfrivolous USERRA allegations in successive appeals.
- Petitioners appealed to the Federal Circuit, arguing (1) detrimental reliance on the Bryant I footnote, (2) the change-of-law exception should apply because the Board changed its jurisdictional precedent, and (3) equity/USERRA’s liberal construction favors hearing their claims.
- The Federal Circuit affirmed: Petitioners’ second USERRA appeals were collaterally estopped and therefore the Board properly dismissed for lack of jurisdiction; the change-of-law and equitable arguments fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second USERRA appeals are barred by collateral estoppel/res judicata | Petitioners: second appeals should proceed; they relied on the AJ footnote and were entitled to litigate constructive discharge | Board/DHS: identical parties, issues, and facts; preclusion applies and bars jurisdiction | Held: barred by collateral estoppel; appeals dismissed for lack of jurisdiction |
| Whether detrimental reliance on AJ footnote excuses preclusion | Petitioners: footnote induced them to file separate appeals instead of seeking review of Bryant I | Board/DHS: footnote advised a different cause of action (5 U.S.C. ch. 75) and did not direct abandonment of review; Petitioners didn’t follow the footnote’s course | Held: no detrimental reliance; Petitioners did not follow the footnote’s direction and reliance was unreasonable |
| Whether the change-of-law exception to collateral estoppel applies because the Board overruled its precedent in Hau II | Petitioners: Board’s change of precedent should permit relitigation under old rule | Board/DHS: substantive USERRA law did not change; change in Board precedent does not compel a different result here | Held: change-of-law exception inapplicable; even under prior precedent Petitioners would be precluded |
| Whether equitable/favorable-USERRA construction requires allowing the second appeals | Petitioners: USERRA broadly construed in favor of servicemembers; fairness warrants hearing | Board/DHS: jurisdictional and preclusion doctrines control; no statutory interpretation issue | Held: equity/USERRA leniency does not overcome preclusion or jurisdictional bar |
Key Cases Cited
- Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d 1374 (Fed. Cir.) (standard for nonfrivolous USERRA allegation to establish MSPB jurisdiction)
- Dow Chemical Co. v. Nova Chemicals Corp. (Canada), 803 F.3d 620 (Fed. Cir.) (change-of-law exception to collateral estoppel framework)
- Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (U.S.) (preclusion principles and exceptions where prior litigation made relitigation futile)
- Montana v. United States, 440 U.S. 147 (U.S.) (policies underlying collateral estoppel)
- Morgan v. Dep’t of Energy, 424 F.3d 1271 (Fed. Cir.) (issue preclusion when no new conduct supports the claim)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir.) (de novo review of MSPB jurisdiction)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir.) (substantial-evidence review of factual findings)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (U.S.) (considerations when an agency changes precedent)
- Huvis Corp. v. United States, 570 F.3d 1347 (Fed. Cir.) (agency reliance-interest considerations when changing precedent)