NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JAMES L. KEYS,

Petitioner

v.

DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT,

Respondent

______________________ 

2021-2072

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-19-0150-M-1.

______________________ 

Decided: March 9, 2022

______________________ 

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

 TANYA KOENIG, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR. 

 ______________________ 

Before NEWMAN, LOURIE, and TARANTO, Circuit Judges. 

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2 KEYS v. HUD

PER CURIAM.

James L. Keys resigned from his job with the United 

States Department of Housing and Urban Development 

(HUD, or agency) after being reassigned from one position 

to another. He later filed an appeal with the Merit Systems 

Protection Board alleging, as now relevant, that the reassignment was an act of reprisal by HUD for whistleblowing

on his part. In the decision now before us, the Board, after

a hearing, denied the reprisal claim on three grounds: the 

asserted disclosure (the basis for the whistleblowing reprisal claim) was not a protected one; even if it was, Mr. 

Keys had not shown that the disclosure was a contributing 

factor in his reassignment; and even if he had made that 

showing, the agency had carried its burden to demonstrate 

that it would have reassigned Mr. Keys in the absence of 

the disclosure. Keys v. Dep’t of Hous. & Urban Dev., No. 

DC-1221-19-0150-M-1, 2021 WL 1081710 (M.S.P.B. Mar. 

19, 2021) (Board Op.). We affirm, finding no error in the 

final ground, which suffices to support the Board’s ruling.

I 

Mr. Keys joined HUD in 2001 and worked in various 

positions over the years. In 2011, he began serving as a 

Discrimination Complaint Manager in HUD’s Office of 

Field Policy Management. He soon filed an Equal Employment Opportunity (EEO) complaint, in which he alleged, 

among other things, that his then-supervisor failed to provide him a description of his position or a performance 

plan. In December 2011, after resolution of the complaint, 

Mr. Keys was reassigned to work under a different supervisor, Nelson Bregón. Mr. Keys’s title within the Office of 

Field Policy Management remained unchanged.

In early 2012, Mr. Keys filed a second EEO complaint, 

in which he alleged that he received a less-than-perfect 

performance rating for Fiscal Year 2011 in retaliation for 

his first EEO complaint. The Equal Employment Opportunity Commission ruled against Mr. Keys, who then 

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KEYS v. HUD 3

brought suit in the U.S. District Court for the District of 

Columbia under Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e et seq., alleging that the agency subjected 

him to illegal discrimination as well as retaliation for his

prior claims of discrimination. Keys v. Donovan, 107 F. 

Supp. 3d 62 (D.D.C. 2015) (District Court Op.). On January 

26, 2015, in response to the agency’s motion for summary 

judgment in the district court case, Mr. Keys accused Mr. 

Bregón and other unnamed senior agency officials of lying 

under oath. See Board Op. at 4; Plaintiff’s Opposition to 

Motion to Dismiss or Summary Judgment at 7, Keys v. Donovan, No. 1:13-cv-1469-JEB (D.D.C. Jan. 26, 2015), ECF 

No. 30. 

Just over a week later, on February 5, 2015, Mr. 

Bregón informed Mr. Keys that he was being reassigned to 

a new division within HUD, where he would have a new 

supervisor, Ms. Morales-Romero. Mr. Keys’s position title 

would remain unchanged. The following month, on March 

21, 2015, Mr. Keys resigned from HUD.

Two days after his resignation, Mr. Keys filed an adverse action appeal with the Board under 5 U.S.C. §§ 7511–

13, claiming that his resignation was involuntary and thus 

a constructive removal. See Board Op. at 5. The administrative judge assigned by the Board dismissed the appeal 

for lack of jurisdiction, finding that Mr. Keys had failed to 

make a nonfrivolous allegation that his resignation was involuntary. Keys v. Dep’t of Hous. & Urban Dev., No. 0752-

15-0531-I-1, 2015 MSPB LEXIS 3088 (M.S.P.B. Apr. 14, 

2015). The decision became the Board’s final decision in 

May 2015. The next month, the district court in Mr. Keys’s 

Title VII case granted summary judgment against Mr. 

Keys. District Court Op. at 63–64. 

In July 2018, Mr. Keys filed a whistleblower retaliation 

complaint with the Office of Special Counsel (OSC), pursuant to 5 U.S.C. § 1214(a)(1)(A), seeking corrective action for 

alleged “prohibited personnel practices” by HUD—

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4 KEYS v. HUD

specifically, retaliation for whistleblowing in violation of 

the Whistleblower Protection Act, codified as relevant at 5 

U.S.C. § 2302(b)(8), (9). He asserted that his 2015 reassignment within HUD had been in reprisal for a protected 

disclosure, identifying the protected disclosure as his statement to the district court that Mr. Bregón had lied under 

oath, and alleging that Mr. Bregón reassigned him because 

of that statement. Mr. Keys further alleged that his reassignment was improper for other reasons—specifically, the 

agency lacked an approved vacancy in the office to which 

he was reassigned, and the agency did not follow applicable 

regulations when it reassigned him from a bargaining unit 

position to a non-bargaining unit position. OSC closed its 

investigation without action.

In November 2018, Mr. Keys filed an individual right 

of action (IRA) appeal with the Board under 5 U.S.C. 

§§ 1214(a)(3), 1221, pressing his whistleblower reprisal 

challenge and seeking corrective action. The Board dismissed that challenge for lack of jurisdiction, but we reversed the dismissal and sent it back to the Board for 

further proceedings. See Keys v. Merit Sys. Prot. Bd., 798 

F. App’x 636, 637 (Fed. Cir. 2020). On remand, after holding an evidentiary hearing, the administrative judge rejected Mr. Keys’s challenge for three independent reasons. 

First, the administrative judge determined that Mr. 

Keys failed to prove that his accusation about Mr. Bregón 

in the district court was a disclosure protected by the relevant provisions of the Whistleblower Protection Act, as 

amended. Board Op. at 7–12. The administrative judge

rested that conclusion on the limitations of whistleblower 

protection where EEO complaints are concerned and the 

fact that Mr. Keys’s disclosure was made during his EEO 

litigation and related to issues underlying his EEO complaint. Id. at 10. 

Second, the administrative judge found that, even if 

Mr. Keys’s accusation against Mr. Bregón was a protected 

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KEYS v. HUD 5

disclosure, Mr. Keys could not prove by a preponderance of 

the evidence that it was a contributing factor in his reassignment. Id. at 12. Mr. Keys alleged that Mr. Bregón reassigned him in retaliation for that accusation, but the 

administrative judge found that Mr. Keys did not prove 

that Mr. Bregón even knew of the accusation at the time of 

Mr. Keys’s reassignment. Id. at 15–18. 

Third, the administrative judge found that, even if Mr. 

Keys made a protected disclosure that contributed to his 

reassignment, the agency carried its burden to demonstrate by clear and convincing evidence that it would have 

reassigned Mr. Keys regardless. Id. at 19. The administrative judge analyzed the record under the factors we outlined in Carr v. Social Security Administration, 185 F.3d 

1318, 1323 (Fed. Cir. 1999), and found that Mr. Keys would 

have been reassigned even if he had not made the identified disclosure. Board Op. at 25. 

The administrative judge’s decision became the final 

decision of the Board on April 23, 2021. Mr. Keys timely 

appealed. 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction 

under 28 U.S.C. § 1295(a)(9). 

II

We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed, or 

(3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c).

A 

To prevail on the merits of his IRA appeal, Mr. Keys 

had to prove by a preponderance of the evidence that he 

made a protected disclosure under 5 U.S.C. § 2302(b)(8) or

2302(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a); 

Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed. 

Cir. 2020); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 

Case: 21-2072 Document: 39 Page: 5 Filed: 03/09/2022
6 KEYS v. HUD

(Fed. Cir. 1993). For purposes of an IRA appeal to the 

Board, while protected disclosures include the exercise of 

an appeal, complaint, or grievance right that itself relates 

to whistleblowing, 5 U.S.C. § 2302(b)(9)(A)(i), (b)(8), we 

have held that certain other non-whistleblowing complaints do not constitute protected disclosures. Young, 961 

F.3d at 1329; see Hansen v. Merit Sys. Prot. Bd., 746 F. 

App’x 976, 981 n.6 (Fed. Cir. 2018) (reporting allegations of 

sexual harassment does not constitute a whistleblowing 

disclosure); Garvin v. Merit Sys. Prot. Bd., 737 F. App’x 

999, 1004 (Fed. Cir. 2018) (filing union grievances and EEO 

complaint are not considered whistleblowing disclosures); 

Nuri v. Merit Sys. Prot. Bd., 695 F. App’x 550, 553 (Fed. 

Cir. 2017) (filing EEO complaint, unfair labor practice complaint, or grievance as to unfair performance evaluation is 

not within Board’s IRA jurisdiction because petitioner was 

not seeking to remedy an act of whistleblower reprisal). 

Mr. Keys also had to prove, once he proved a protected disclosure, that the disclosure was a contributing factor in the 

agency’s decision to take a personnel action against him. 5 

U.S.C. § 1221(e)(1); Hessami v. Merit Sys. Prot. Bd., 979 

F.3d 1362, 1367 (Fed. Cir. 2020).

If Mr. Keys made those showings, the agency nevertheless could prevail in the IRA appeal by showing, by clear 

and convincing evidence, that it would have reassigned Mr. 

Keys even in the absence of the protected disclosure. See 5 

U.S.C. § 1221(e)(2). The Board’s analysis on this issue 

generally is framed around the three non-exclusive Carr 

factors: (1) “the strength of the agency’s evidence in support 

of its personnel action”; (2) “the existence and strength of 

any motive to retaliate on the part of the agency officials 

who were involved in the decision”; and (3) “any evidence 

that the agency takes similar actions against employees 

who are not whistleblowers but who are otherwise similarly situated.” Carr, 185 F.3d at 1323. For the agency to 

prevail, the evidence had to justify a “firm belief” that the 

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KEYS v. HUD 7

personnel action would have been taken had the protected 

disclosure not been made. 5 C.F.R. § 1209.4(e). 

B 

Mr. Keys challenges the Board’s findings that he failed 

to make each of his necessary two showings—that his accusation of lying by Mr. Bregón in the district court Title 

VII case was a protected disclosure and that the disclosure 

contributed to his reassignment by Mr. Bregón. Mr. Keys 

also challenges the Board’s finding that, even if the lying 

accusation was a protected disclosure that contributed to 

the reassignment, HUD proved by clear and convincing evidence that it would have reassigned Mr. Keys even had 

the lying accusation not been made. We affirm that last 

Board finding, which we hold to be supported by substantial evidence. See Miller v. Dep’t of Justice, 842 F.3d 1252, 

1258–59 (Fed. Cir. 2016) (applying substantial-evidence 

standard of review to this element of IRA appeal). Because 

affirming that finding suffices to affirm the denial of corrective action by the Board, we affirm the Board’s decision 

without reaching Mr. Keys’s other challenges. 

With respect to the first Carr factor, substantial evidence supports the Board’s finding of strong evidence of 

HUD’s reason for the reassignment—namely, a broad reorganization consolidating certain functions in the EEO of 

HUD—independent of the disclosure at issue. Board Op. 

at 20. The evidence reflects a “[p]lan for ensuring that the 

EEO DCM [Discrimination Complaint Manager] function 

is shifted back to EEO.” S. Appx. 285; see also S. Appx. 290 

(identifying 21 Discrimination Complaint Managers, including Mr. Keys). The record also contains testimony regarding Mr. Keys’s light workload when under Mr. 

Bregón’s supervision and the contrasting need for additional personnel in the EEO under Ms. Morales-Romero’s 

supervision. S. Appx. 279. Ms. Morales-Romero’s division 

in fact increased from six employees in early 2015 to ten by 

September 2015. Id.

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8 KEYS v. HUD

Mr. Keys contends that the agency could not have reassigned him to Ms. Morales-Romero’s division because the 

agency had no approved vacancies in the new position. 

Keys Br. 28–29. He relies on testimony of a human resources officer for the agency, but the Board gave “little 

weight” to the testimony that Mr. Keys invokes because the 

officer had only recently joined the agency and was “ill at 

ease answering questions regarding the particulars of reassignment actions, and at times appeared to conflate the 

matter of a vacant, funded position with respect to a reassignment and the matter of a vacancy announcement used 

in the hiring process.” Board Op. at 21–22. We have no 

sufficient basis for departing from our usual deference to 

such a credibility determination. See Chambers v. Dep’t of 

Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008); Hambsch v. 

Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).

Mr. Keys contends that the reassignment was improper because the agency failed to comply with a protocol 

stated in a collective bargaining agreement. Keys Br. 29–

31. The Board rejected this contention on the ground that 

Mr. Keys was not in the bargaining unit before he was reassigned; the Board observed that the union representative 

who testified on behalf of Mr. Keys did not suggest that the 

reassignment of a non-bargaining unit employee triggered 

the agreement protocols. Board Op. at 22. We see no basis 

for disturbing that determination. 

With respect to the second Carr factor, i.e., concerning 

the presence of a motive to retaliate, we find no reversible 

error in the Board’s weighing this factor in favor of the 

agency. Mr. Keys contends that Mr. Bregón knew of the

accusation of lying and would have been so infuriated by it 

that he would have been motivated to retaliate against Mr. 

Keys. Keys Br. 30. But the Board found that Mr. Bregón 

“credibly” and “emphatically denied” retaliating against 

Mr. Keys and that Mr. Bregón was “sincere and consistent 

with his prior efforts to assist” Mr. Keys. Board Op. at 23–

24. The Board found that while Mr. Bregón “may have 

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KEYS v. HUD 9

ostensibly had such a motive,” his testimony suggested 

that he did not, in fact, “harbor[] any such animus against 

[Mr. Keys].” Id. at 23. Again, we see no adequate basis for 

declining to defer to the Board’s credibility determination, 

which took as an assumption that Mr. Bregón knew of Mr. 

Keys’s disclosure. 

With respect to the third Carr factor, the Board explained that “neither party presented evidence directly relevant” to the agency’s treatment of similarly situated 

individuals. Id. at 24. This factor considers “any evidence 

that the agency takes similar actions against employees 

who are not whistleblowers but who are otherwise similarly situated.” Miller, 842 F.3d at 1262 (quoting Carr, 185 

F.3d at 1323). Mr. Keys points to certain other reassigned 

employees over whom the agency bargained with the union. Keys Br. 31; see id. at 38–40 (Exhibit 3). But he has 

not shown those employees were outside the bargaining 

unit (as he was) or, indeed, that they were non-whistleblowers. We therefore see no basis for disturbing the 

Board’s finding of no sufficient evidence of similarly situated employees who did not engage in protected activity. 

See Siler v. EPA, 908 F.3d 1291, 1299 (Fed. Cir. 2018)

(“[W]here, as here, the Board finds an absence of relevant 

comparator evidence, the third Carr factor cannot favor the 

government.”). 

On this record, we conclude, the Board did not err in 

holding that the agency properly established by clear and 

convincing evidence that it would have taken the same personnel action even in the absence of Mr. Keys’s presumedly 

protected disclosure.

C 

Mr. Keys challenges the Board’s exclusion of a witness, 

Keys Br. 27, an evidentiary ruling generally subject to review only for an abuse of discretion. Curtin v. Off. of Pers. 

Mgt., 846 F.2d 1373, 1378–79 (Fed. Cir. 1988). Mr. Keys 

sought to call an assistant general counsel in HUD’s 

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10 KEYS v. HUD

Personnel Law Division to obtain testimony about whether 

Mr. Bregón knew of Mr. Keys’s lying accusation at the relevant time. Keys Br. 27. The Board described the agency’s 

objection as asserting irrelevance and also that the attorney’s “participation as a fact witness could create a conflict 

of interest in this appeal, as [the attorney] supervises the 

agency representatives.” S. Appx. 38. The Board sustained 

the agency’s objection, stating simply that the attorney’s 

“testimony would be duplicative of that of Bregón.” S. 

Appx. 38. In challenging that ruling, Mr. Keys contends 

that the supervisor-attorney could uniquely testify to Mr. 

Bregón’s knowledge. Keys Br. 27. 

We need not reach this challenge. Even if the Board 

erred in excluding this testimony, any error is harmless. 

Mr. Keys ties the potential testimony only to the contributing-factor element of the IRA appeal. But the Board assumed that Mr. Keys had proved that element when it 

went on to decide that HUD would have reassigned him 

even had there been no disclosure. Thus, the evidentiary 

ruling has no demonstrated bearing on the basis for the 

Board’s denial of corrective action in the IRA appeal that 

we hold sufficient to support that denial. 

III

For the foregoing reasons, we affirm the decision of the 

Board.

The parties shall bear their own costs.

AFFIRMED

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