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Bryant v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

December 29, 2017

ROB BRYANT, BRIAN FERGUSON, ANDREAS HAU, Petitioners
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent DEPARTMENT OF HOMELAND SECURITY, Intervenor

         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.

          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.

          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 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 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 ...


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