Keys v. MSPB

Case: 20-1063 Document: 26 Page: 1 Filed: 03/03/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JAMES L. KEYS,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2020-1063
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0150-W-1.
______________________

Decided: March 3, 2020
______________________

JAMES L. KEYS, Burtonsville, MD, pro se.

STEPHEN FUNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN LEAVITT.
______________________

Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Case: 20-1063 Document: 26 Page: 2 Filed: 03/03/2020

2 KEYS v. MSPB

James Keys appeals from the final decision of the Merit
Systems Protection Board (“the Board”), dismissing Keys’
appeal for lack of jurisdiction. We agree with the Board
that Keys’ constructive removal claim is barred by collat-
eral estoppel. With respect to Keys’ reassignment claim,
however, both parties now agree that Keys established ju-
risdiction and is entitled to a hearing. Accordingly, we af-
firm the Board’s decision regarding Keys’ constructive
removal claim but reverse the Board’s findings regarding
Keys’ reassignment claim and remand for further proceed-
ings.
I. BACKGROUND
A. Keys’ District Court Litigation in the
District of Columbia
Appellant James Keys (“Keys”) was previously em-
ployed as a Senior Administrative Management Specialist,
GS-0301-14, with the Department of Housing and Urban
Development. Keys v. Dep’t of Housing and Urban Dev.,
Dkt. No. 1221-19-0150-W-1, 2019 MSPB LEXIS 3462, at *1
(MSPB Apr. 14, 2015) (“Keys I”). In September 2013, Keys
filed a complaint in the U.S. District Court for the District
of Columbia, alleging that the agency subjected him to ille-
gal discrimination and retaliation based on Keys’ prior
claims of race and age discrimination. S.A. 101. On Janu-
ary 26, 2015, in response to the agency’s motion for sum-
mary judgment, Keys accused his supervisor, Nelson
Bregón, and other unnamed senior agency officials of lying
under oath. S.A. 39–41. On February 5, 2015, Mr. Bregón
informed Keys that he was being reassigned to a new divi-
sion with a new supervisor. S.A. 102. The following month,
on March 21, 2015, Keys resigned from employment with
the agency. S.A. 69; S.A. 91.
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KEYS v. MSPB 3

B. Keys’ First MSPB Appeal
and EEOC Complaint
Two days after his resignation, Keys filed an adverse
action appeal with the Merit Systems Protections Board
(“the Board”) pursuant to 5 U.S.C. § 7513, claiming that his
resignation was involuntary and thus a constructive re-
moval. See Keys v. Dep’t of Housing and Urban Dev., Dkt.
No. 0752-15-0531-I-1, 2015 MSPB LEXIS 3088 (MSPB
Apr. 14, 2015) (“Keys II”). Keys alleged that he was com-
pelled to resign because his protests of discrimination had
fallen on deaf ears and because the agency had retaliated
against him for protesting. Id. at *6. On April 14, 2015,
an MSPB administrative judge (“AJ”) issued a decision dis-
missing Keys’ appeal for lack of jurisdiction, finding that
Keys failed to make a nonfrivolous allegation that his res-
ignation was involuntary. Id. at *10 (“While I have also
considered the appellant’s allegations of age, race, and sex
discrimination, and retaliation for his EEO activities, for
the limited purpose of determining whether they support a
finding of duress or coercion, his conclusory allegations do
not support such a finding.”). Neither party filed a petition
for review and the AJ’s decision became the Board’s final
decision on May 19, 2015. Keys I, 2019 MSPB LEXIS 3462,
at *2–3.
After the Board dismissed Keys’ MSPB appeal, Keys
filed an equal employment opportunity (“EEO”) complaint
with the agency, alleging that his 2014 performance stand-
ards, 2015 reassignment, and alleged 2015 constructive re-
moval were based on discrimination and retaliation.
S.A. 99. In December 2015, during the pendency of the
EEO litigation, Keys discovered an agency document (“the
agency document”) that allegedly demonstrated that the
agency “did not have an approved vacancy in the office of
the reassignment[,] as required by OPM regulations.” Keys
I, 2019 MSPB LEXIS 3462, at *3. On October 16, 2017,
however, an EEOC AJ granted the agency’s motion for
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4 KEYS v. MSPB

summary judgment and dismissed Keys’ EEOC complaint.
S.A. 98–115.
C. OSC Complaint
On July 18, 2018, Keys filed a complaint with the Office
of Special Counsel (“OSC”), claiming that his reassignment
was a reprisal for his whistleblowing activities. S.A. 30–
36. Keys alleged that Mr. Bregón was the agency official
who made the reassignment decision, and that Mr. Bregón
was aware of Keys’ whistleblowing activities because he
“found out from the Office of General Counsel.” Keys I,
2019 MSPB LEXIS 3462, at *3. Keys relied on the agency
document that he received from the EEO litigation and al-
leged that the document demonstrated that the agency had
no actual vacancy at the time of his reassignment. Id. at
*3–4. On November 16, 2018, OSC notified Keys via letter
that it was closing its investigation into his complaint. S.A.
69. OSC characterized Keys’ complaint as follows:
You reported in February 2015, the agency reas-
signed you to a new position and new location. In
2017, you learned that [the] agency had no vacant
position into which you could have been reas-
signed. On March 21, 2015, you resigned rather
than take the reassignment. You contend that the
assignment coerced your resignation in retaliation
for your disclosures about agency officials lying in
litigation.
S.A. 69. OSC notified Keys that he could seek corrective
action from the Board under 5 U.S.C. §§ 1214(a)(3) and
1221 for any personnel action taken against him because of
a protected disclosure or activity that was the subject of his
OSC complaint. Id.
D. Keys’ Second MSPB Appeal
On November 20, 2018, Keys filed an Individual Right
of Action (“IRA”) appeal with the MSPB. Keys I, 2019
MSPB LEXIS 3462, at *4. Keys alleged that the agency
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KEYS v. MSPB 5

document revealed that the agency reassigned him to a
new supervisor, division, and location as reprisal for his
whistleblowing activities. S.A. 29. Keys also asked the
Board to reverse its decision in the first MSPB appeal,
seeking a reinstatement in his original position at the
agency with backpay and interest. Id. Keys submitted
supplemental documentation in support of his appeal, in-
cluding excerpts from his January 2015 district court brief;
the agency document that allegedly showed that the basis
of his reassignment was fraudulent; a copy of his collective
bargaining agreement; and correspondence related to his
2015 EEO Report of Investigation, which included the
agency document. S.A. 37–55.
On November 27, 2018, the AJ issued a Jurisdiction
Order, which required the petitioner to submit a statement
demonstrating that the Board had jurisdiction over his ap-
peal. S.A. 56–65. The Jurisdiction Order explained:
To establish Board jurisdiction over an IRA appeal,
you must show that you exhausted your adminis-
trative remedies before the Office of Special Coun-
sel (OSC) and make nonfrivolous allegations that:
(1) you engaged in whistleblowing activity by mak-
ing a protected disclosure, or engaged in other pro-
tected activity as specified below; and (2) the
disclosure or activity was a contributing factor in
the agency’s decision to take or fail to take one of
the personnel actions listed at 5 U.S.C. § 2302(a).
S.A. 57. The Jurisdiction Order explained that the AJ
would only review “those alleged disclosures and personnel
actions that were specifically raised to and exhausted at
OSC.” S.A. 57. The AJ ordered Keys to file a statement
identifying, among other items, his alleged protected dis-
closures and the accused personnel actions. S.A. 63 (“(A)
Protect Disclosures and/or Activities: list your protected
disclosure(s) or activity(ies); . . . (E) Personnel Actions: list
every action the agency took or failed to take, or threatened
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6 KEYS v. MSPB

to take or failed to take, against you because of your disclo-
sure(s) or activity(ies).”).
In response, Keys submitted a “Statement in Support
of MSPB Jurisdiction,” alleging that he had made two pro-
tected disclosures: (1) his statement in his January 2015
district court brief, alleging that certain agency officials
lied under oath; and (2) his July 2018 complaint to OSC
that the agency did not have an approved vacancy to which
he could be assigned in 2015, and that the agency failed to
disclose this information to the Board in the first MSPB
appeal. S.A. 66. With respect to the personnel actions on
appeal, Keys’ jurisdictional statement only identified the
February 2015 reassignment. S.A. 66. Keys, however, had
attached the November 2018 communication from OSC,
which stated that Keys “contend[s] that the reassignment
coerced [his] resignation in retaliation for [his] disclosures
about agency officials lying in litigation.” Keys I, 2019
MSPB LEXIS 3462, at *4–5. The AJ interpreted this addi-
tional document as a suggestion that there were two per-
sonnel actions at issue: (1) Keys’ reassignment and
(2) Keys’ constructive removal. Id. at *5–6.
On December 21, 2018, the agency filed a motion to dis-
miss for lack of jurisdiction. S.A. 71. With respect to Keys’
constructive removal claim, the agency argued that the
claim was barred by collateral estoppel based on the
Board’s decision in the first MSPB appeal. S.A. 75–77.
With respect to Keys’ reassignment claim, the agency ar-
gued that Keys failed to establish MSPB jurisdiction be-
cause he failed to make a nonfrivolous allegation that he
made a protected disclosure or that his alleged protected
disclosures were a contributing factor to his reassignment.
S.A. 79–82, S.A. 85–87. The agency also argued that Keys
failed to exhaust his administrative remedies for his appeal
because he did not prove that he provided specific details
to OSC about his alleged protected disclosures. S.A. 77–
79. In response, Keys argued that collateral estoppel
should not apply to his constructive discharge claim
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KEYS v. MSPB 7

because the issue on appeal was not related to his alleged
involuntary resignation. S.A. 117–118. Keys also insisted
that there was no deficiency regarding his protected disclo-
sures because he “provided all information to OSC,” includ-
ing the “date of the disclosure, court in which [the]
disclosure was filed, [and] a copy of the brief.” S.A. 118–
119. Finally, Keys argued that he appropriately exhausted
all administrative remedies because “[OSC] never sent a
reply stating they did not have sufficient information to in-
vestigate.” S.A. 119.
On September 13, 2019, the AJ issued an initial deci-
sion dismissing Keys’ appeal for lack of jurisdiction. First,
the AJ held that Keys failed to establish, by a preponder-
ance of the evidence, that he exhausted his administrative
remedies for his two alleged protective disclosures before
OSC. Keys I, 2019 MSPB LEXIS 3462, at *11–13. The AJ
explained that, with respect to Keys’ first protected disclo-
sure (alleging that agency officials made false statements
under oath), Keys failed to demonstrate by a preponder-
ance of evidence that he provided OSC with sufficient in-
formation to pursue an investigation. Id. at *9–12. With
respect to Keys’ second protected disclosure (alleging in his
July 2018 OSC complaint that the agency did not have an
approved vacancy to which he could be reassigned in 2015),
the AJ determined that Keys did not exhaust his remedy
because he did not file any subsequent complaints alleging
that the agency took personnel actions against him based
on his July 2018 complaint. Id. at *12. 1

1 The AJ also determined that, to the extent Keys al-
leged that the reassignment was in retaliation for his July
2018 OSC complaint , Keys could not establish that the pro-
tected disclosure was a “contributory factor” because the
disclosure occurred more than three years after the alleged
retaliatory activity. Id. at *12–13.
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8 KEYS v. MSPB

The AJ then determined that, even if Keys could
demonstrate exhaustion of remedies based on his first pro-
tected disclosure, the Board still lacked jurisdiction. The
AJ found that Keys’ constructive removal claim was barred
by collateral estoppel because the Board in the first MSPB
appeal had already considered whether Keys voluntarily
resigned. Id. at *14–17. The AJ also concluded that the
Board lacked jurisdiction because Keys had not non-frivo-
lously alleged that his protected disclosure was a “contrib-
uting factor” in the agency’s reassignment decision. Id. at
*17–19. Keys had claimed that Mr. Bregón knew about his
disclosure because Mr. Bregón’s position would have made
him aware of “any new issues” in EEO cases. Id. at *19.
But the AJ determined that this claim was “insufficient to
demonstrate a nonfrivolous allegation of actual
knowledge.” Id. at *19–20. Accordingly, based on her find-
ings that Keys (1) failed to prove that he exhausted his ad-
ministrative remedies; (2) was barred by collateral
estoppel from litigating his constructive removal claim;
and (3) failed to make a nonfrivolous allegation that his
disclosure was a contributing factor to his reassignment,
the AJ dismissed the appeal for lack of jurisdiction. Id. at
*21–22.
Keys did not petition the Board to review the AJ’s ini-
tial decision and it became the final decision of the Board.
Keys timely appealed to this court, and we have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Keys argues that the Board’s finding of no jurisdiction
is erroneous because he exhausted his administrative rem-
edies at OSC and he has alleged nonfrivolous allegations.
As discussed further below, we agree with the Board that
Keys’ constructive removal claim is barred by collateral es-
toppel. Both parties now agree that Keys established ju-
risdiction and is entitled to a hearing with respect to his
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KEYS v. MSPB 9

reassignment claim, however. We address each issue in
turn.
A. Keys’ Constructive Removal Claim
is Barred by Collateral Estoppel
To the extent that Keys argues that his alleged con-
structive removal is a personnel action at issue, we agree
with the Board that the claim is barred by the doctrine of
collateral estoppel. 2 We have previously held that the
Board may give collateral estoppel effect to prior decisions
in appropriate circumstances. See, e.g., Mercer v. Dep’t of
Health and Human Servs., 4 Fed. Appx. 888, 891 (Fed. Cir.
2001); Mintzmyer v. Dep’t of the Interior, 84 F.3d 419, 423
(Fed. Cir. 1996). Collateral estoppel applies when: (1) the
issue in the prior proceeding is identical to the one now pre-
sented; (2) the issue was actually adjudicated in the prior
case; (3) the determination of the issue was necessary to
the resulting judgment; and (4) the party precluded was
fully represented in the prior action. Mintzmyer, 84 F.3d
at 423.
Keys unsuccessfully litigated the same constructive re-
moval issue in the first MSPB appeal. S.A. 89–93. The
Board considered whether Keys’ resignation was actually
voluntary, and its ultimate determination was the primary
reason for the dismissal of the prior appeal. Id. Neither
party disputes that Keys was fully represented in the prior
action. Accordingly, we agree that collateral estoppel pre-
cludes Keys from again disputing whether his resignation
was voluntary.

2 It is not clear, however, whether Keys disputes the
collateral estoppel finding with respect to his constructive
removal claim. In fact, Keys seems to argue that the only
issues filed with OSC in July 2018 related to “the illegal
reassignment effective [sic] by [the] agency [as] a reprisal.”
Appellant Resp. to AJ Findings ¶ 14.
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10 KEYS v. MSPB

B. Keys Exhausted His Administrative
Remedies for His 2015 Protective Disclosure
and Made a Nonfrivolous Allegation
Regarding His Reassignment Claim
“In addressing whether an employee has exhausted his
OSC remedies, we look to his OSC complaint, as well as
written correspondence concerning his allegations.”
McCarthy v. Merit Sys. Prot. Bd., 809 F.3d 1365, 1374 (Fed.
Cir. 2016). The employee must “articulate with reasonable
clarity and precision [before the OSC] the basis for his re-
quest for corrective action under the WPA” such that OSC
can “effectively pursue an investigation.” Id. (quoting Mil-
ler v. Merit Sys. Prot. Bd., No. 2015-3054, 626 Fed. Appx.
261, 267 (Fed. Cir. Aug. 6, 2015)). Keys appeals the Board’s
finding that Keys did not exhaust his administrative rem-
edies for his protected disclosures. Keys asserts that “all
documentation was submitted to OSC” such that OSC had
sufficient information to investigate his claims. Appellant
Informal Br., Resp. to AJ Harrell’s Analysis and Find-
ings ¶ 9.
The Board, however, does not dispute that Keys suffi-
ciently exhausted his OSC remedies based on his first pro-
tected disclosure—his allegation in the January 2015
district court brief that agency officials made false state-
ments under oath. The Board now admits that Keys’ dis-
closure sufficiently allowed OSC to initiate an
investigation into his claim. Appellee Resp. Br. 21 (“The
MSPB now believes that the petitioner’s statement in his
rebuttal to the agency’s motion to dismiss that he did pro-
vide the brief to OSC was sufficient to meet his evidentiary
burden.”). The Board further concedes that Keys’ disclo-
sure “provided detailed enough information to allow OSC
to investigate his claim that he was reassigned for
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KEYS v. MSPB 11

disclosing [that] Mr. Bregón and other agency officials lied
under oath, thereby exhausting that disclosure.” 3 Id.
Furthermore, although the Board originally deter-
mined that Keys failed to make a nonfrivolous allegation
that his disclosure was a contributing factor to his reas-
signment, the Board now admits that such a finding was
erroneous. Appellee Informal Br. 21–22 (“[T]he MSPB now
believes the petitioner made a nonfrivolous allegation that
Mr. Bregón had knowledge of the disclosure prior to mak-
ing the decision to reassign the petitioner.”). The Board
states that Keys’ statement in the 2015 district court brief
“contained sufficient detail about the nature of Mr.
Bregón’s position such that, assuming all allegations were
true, a reasonable fact finder could properly infer Mr.
Bregón was aware of the petitioner’s district court disclo-
sure at the time of the reassignment.” Appellee Informal
Br. 22.
Accordingly, we conclude that the Board’s findings that
Keys failed to exhaust his administrative remedies based
on his statement in the January 2015 district court brief
and that Keys failed to make a nonfrivolous allegation that

3 The Board maintains, however, that Keys did not
sufficiently exhaust his administrative remedies for his
second protected disclosure—Keys’ 2018 OSC complaint.
We agree. As the AJ’s initial decision noted, there was no
evidence that Keys filed subsequent OSC complaints based
on his July 2018 complaint. S.A. 26–55, S.A. 66–70, S.A.
116-121. Keys’ failure to exhaust his administrative rem-
edies for his second protected disclosure, however, has no
bearing on whether Keys can proceed on his reassignment
claim because the Board admits that disclosure of Keys’
2015 district court brief to OSC was sufficient.
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12 KEYS v. MSPB

his disclosure was a contributing factor to the reassign-
ment are erroneous.
III. CONCLUSION
We find that the Board’s determination that Keys’ con-
structive removal claim is barred by collateral estoppel is
not arbitrary, capricious, an abuse of discretion, or con-
trary to law or regulation. Both parties agree, however,
that the Keys exhausted his administrative remedies for
his January 2015 district court brief disclosure and that
the Board’s dismissal of Keys’ reassignment claim is erro-
neous. Both parties ask the Court to remand Keys’ reas-
signment claim for a hearing consistent with the
representations in his 2015 brief. Appellee Informal Br.
22; Appellant Informal Reply Br. 4. For the foregoing rea-
sons, we affirm the Board’s decision regarding Key’s con-
structive removal claim but reverse the Board’s decision
regarding Keys’ reassignment claim and remand for fur-
ther proceedings.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED