MSPB Overrules Three Prior Decisions
A former employee’s second Uniformed Services Employment and Reemployment Rights Act (“USERRA”) appeal regarding an alleged hostile work environment was dismissed for lack of jurisdiction by the Merit Systems Protection Board as it found that re-litigating the issues on appeal was barred by the doctrine of collateral estoppel.
An Air Interdiction Agent with the Department of Homeland Security’s Customs and Border Protection (“CBP”) filed a Board appeal under USERRA, alleging that the agency had unlawfully discriminated against him on the basis of his military service. While the appeal was pending, the employee resigned from his position. The administrative judge identified the employee’s allegations as constituting a claim of hostile work environment in the pre-hearing conference, and the employee did not make a correction to the definition of his claim. However, the employee argued during his closing that he had been constructively discharged. The administrative judge denied the employee’s request for corrective action. The decision did not include a ruling on the constructive discharge, and the administrative judge advised the employee that he could pursue that claim by filing an appeal under 5 U.S.C. chapter 75. The employee did not file a petition for review of that decision.
However, the employee did file a separate appeal under USERRA rather than 5 U.S.C. chapter 75, reiterating his claim raised in the prior appeal that the agency constructively discharged him by creating a hostile work environment such that he was forced to resign. The administrative judge assigned to that appeal dismissed the appeal as barred by the doctrine of res judicata, or “claim preclusion,” which bars claims that have either been litigated or that could have been litigated from being litigated again. The employee then petitioned the full Board for review. On September 19, 2016, the Merit Systems Protection Board vacated the initial decision, found that the employee’s hostile work environment claim was barred by collateral estoppel, the doctrine that bars issues (rather than claims) that have been litigated from being litigated again, and dismissed the appeal for lack of jurisdiction.
As the Board noted, the MSPB cannot rule on whether to apply the doctrine of res judicata (claim preclusion) unless there is a finding of jurisdiction. However, the Board also observed that it may actually dismiss an appeal for lack of jurisdiction based on a finding of collateral estoppel (issue preclusion). Because the appeal arose out of the antidiscrimination provision of USERRA, 38 U.S.C. § 4311(a), the employee must make nonfrivolous allegations that he performed duty or has an obligation to perform duty in a uniformed service, that the agency denied him employment, reemployment, retention, promotion, or any benefit of employment, and that the denial was due to the performance of duty or obligation to perform duty in the uniformed service. The employee’s argument in his second appeal was the agency denied him retention when it constructively discharged him by creating a hostile work environment based on his military service such that he was forced to resign.
The Board found that the employee’s appeal “was based on his previously adjudicated claim that the agency subjected him to a hostile work environment based on his military service.” Citing the Supreme Court case of Allen v. McCurry, 449 U.S. 90 (1980), the Board explained that “once an adjudicatory body has decided a factual or legal issue necessary to its judgment, that decision may preclude relitigation of the issue in a case concerning a different cause of action involving a party to the initial case. The Board found that the administrative judge in the first appeal had found jurisdiction but denied the employee’s request for corrective action based in part on a finding that the employee failed to prove he was subjected to a hostile work environment. The Board therefore dismissed the appeal for lack of jurisdiction, concluding that “in light of our finding that collateral estoppel bars re-litigation of the hostile work environment claim, and the fact that the [employee] has not alleged any acts of harassment that differ from those he relied on in his prior appeal, the [employee] cannot in this matter articulate a nonfrivolous allegation that the agency denied him retention in employment based on military service.
However, the Board admitted that this conclusion may conflict with its prior decisions in three cases (Boechler v. Department of the Interior, 109 M.S.P.R. 619 (2008), Wadhwa v. Department of Veterans Affairs, 111 M.S.P.R. 26 (2009), and Parikh v. Department of Veterans Affairs, 110 M.S.P.R. 295 (2008)). In those cases, the Board held 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 jurisdiction in a subsequent appeal.
In reversing these three decisions, the Board quoted the United States Supreme Court in Allen, stating “res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” The Board stated that “[t]o find jurisdiction and allow this matter to proceed to the merits phase of the case when the [employee] is barred by collateral estoppel from presenting any of his merits srguments during such proceedings would defy logic. Furthermore, to do so would cause unnecessary costs to the parties, make the Board complicit in the vexation of multiple lawsuits, waste the Board’s resources, and potentially could lead to inconsistent decisions—all evils the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, and the Board have declared should be avoided.”
For the above stated reasons, the Merit Systems Protection Board vacated the administrative judge’s initial decision and dismissed the employee’s appeal for lack of jurisdiction.
Read the full case: Hau v. Department of Homeland Security
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Posted in Case Law Update
Tags: MSPB, Merit Systems Protection Board, case law update, conor d dirks, conor dirks, USERRA