NOTE: This disposition is nonprecedential.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.

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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 collateral estoppel. With respect to Keys’ reassignment claim, 

however, both parties now agree that Keys established jurisdiction and is entitled to a hearing. Accordingly, we affirm the Board’s decision regarding Keys’ constructive 

removal claim but reverse the Board’s findings regarding 

Keys’ reassignment claim and remand for further proceedings.

I. BACKGROUND

A. Keys’ District Court Litigation in the

District of Columbia

Appellant James Keys (“Keys”) was previously employed 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 illegal discrimination and retaliation based on Keys’ prior 

claims of race and age discrimination. S.A. 101. On January 26, 2015, in response to the agency’s motion for summary 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 division 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 removal. 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 compelled 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 dismissing Keys’ appeal for lack of jurisdiction, finding that 

Keys failed to make a nonfrivolous allegation that his resignation 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 standards, 2015 reassignment, and alleged 2015 constructive removal 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 alleged 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 reassigned 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 reassigned. 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, including 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 appeal. S.A. 56–65. The Jurisdiction Order explained:

To establish Board jurisdiction over an IRA appeal, 

you must show that you exhausted your administrative remedies before the Office of Special Counsel (OSC) and make nonfrivolous allegations that: 

(1) you engaged in whistleblowing activity by making a protected disclosure, or engaged in other protected 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 disclosures 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 disclosure(s) or activity(ies).”).

In response, Keys submitted a “Statement in Support 

of MSPB Jurisdiction,” alleging that he had made two protected 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 additional document as a suggestion that there were two personnel 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 dismiss 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 argued that Keys failed to establish MSPB jurisdiction because 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 disclosures because he “provided all information to OSC,” including 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 investigate.” S.A. 119.

On September 13, 2019, the AJ issued an initial decision dismissing Keys’ appeal for lack of jurisdiction. First, 

the AJ held that Keys failed to establish, by a preponderance 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 disclosure (alleging that agency officials made false statements 

under oath), Keys failed to demonstrate by a preponderance of evidence that he provided OSC with sufficient information 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 alleged that the reassignment was in retaliation for his July 

2018 OSC complaint , Keys could not establish that the protected 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 protected 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-frivolously alleged that his protected disclosure was a “contributing 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 findings that Keys (1) failed to prove that he exhausted his administrative 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 initial decision and it became the final decision of the Board. 

Keys timely appealed to this court, and we have jurisdiction 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 remedies 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 estoppel. Both parties now agree that Keys established jurisdiction 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 constructive 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 presented; (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 removal 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 precludes 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 request for corrective action under the WPA” such that OSC 

can “effectively pursue an investigation.” Id. (quoting Miller 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 remedies 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 Findings ¶ 9. 

The Board, however, does not dispute that Keys sufficiently exhausted his OSC remedies based on his first protected disclosure—his allegation in the January 2015 

district court brief that agency officials made false statements under oath. The Board now admits that Keys’ disclosure 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 provide the brief to OSC was sufficient to meet his evidentiary 

burden.”). The Board further concedes that Keys’ disclosure “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 determined that Keys failed to make a nonfrivolous allegation 

that his disclosure was a contributing factor to his reassignment, 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 making 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 disclosure 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 remedies 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 reassignment are erroneous.

III. CONCLUSION

We find that the Board’s determination that Keys’ constructive removal claim is barred by collateral estoppel is 

not arbitrary, capricious, an abuse of discretion, or contrary 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 erroneous. Both parties ask the Court to remand Keys’ reassignment claim for a hearing consistent with the 

representations in his 2015 brief. Appellee Informal Br. 

22; Appellant Informal Reply Br. 4. For the foregoing reasons, we affirm the Board’s decision regarding Key’s constructive removal claim but reverse the Board’s decision 

regarding Keys’ reassignment claim and remand for further proceedings.

AFFIRMED-IN-PART, REVERSED-IN-PART, AND 

REMANDED

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