for review of the Merit Systems Protection Board in Nos.
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.
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.
Lourie, Reyna, and Taranto, Circuit Judges.
LOURIE, CIRCUIT JUDGE.
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,
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.
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.
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,
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 ...