N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
JAMES L. KEYS,
Petitioner

v.

MERIT SYSTEMS PROTEC TION 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

______________________

J AMES L. K EYS , Burtonsville, MD, pro se.

S TEPHEN F UNG

, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by K ATHERINE M ICHELLE S MITH
, T RISTAN L EAVITT

.

______________________

Before N EWMAN

, O’M ALLEY

, and T ARANTO

, Circuit Judges.

P ER C URIAM

. Case: 20-1063 Document: 26 Page: 1 Filed: 03/03/2020KEYS v. MSPB 2

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 B oard 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 dec ision regarding Keys’ constructive
removal claim but reverse the Board’s findings regarding Keys’ reassignment claim and remand for further proceedings

.
I. B ACKGROUND

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 Districtof 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. Bregóninformed 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. Case: 20-1063 Document: 26 Page: 2 Filed: 03/03/2020KEYS 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 hisresignation was involuntary and thus a constructive removal. See Keys v. D ep’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 l imited 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, 2 015. Keys I , 2019 MSPB LEXIS 3462,
at *2

– 3.

After the Board dismissed Keys’ MSPB appeal, Keys filed an equal employment opportunity (“EEO”) complaintwith the agency, alleging that his 2014 performance standards, 2015 reassignment, and alleged 2015 constr uctive 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 app roved 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 Case: 20-1063 Document: 26 Page: 3 Filed: 03/03/2020KEYS v. MSPB 4

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 o fficial 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 receiv ed 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 co mplaint. 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 rea ssigned. 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 Case: 20-1063 Document: 26 Page: 4 Filed: 03/03/2020KEYS 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 submittedsupplemental 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 bargain ing 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
demonstratin g 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 de cision 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 exhaust ed 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 Case: 20-1063 Document: 26 Page: 5 Filed: 03/03/2020KEYS v. MSPB 6

to take or fail ed 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 action s on appeal

, Keys ’ jurisdictional statement only ident ified 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

. T he 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 h is 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 deta ils to OSC about his alleged protect ed disclosure s

. S.A. 77

– 79. In response, Keys argued that collateral estoppel should not apply to his constructive discharge claim Case: 20-1063 Document: 26 Page: 6 Filed: 03/03/2020KEYS v. MSPB 7

because the issue on appeal was not related to his alleged involuntary resignation. S.A. 117

– 118. Keys also insistedthat there was no deficiency regarding his protected disclosure s 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 info rmation 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 admi nistrative
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 agen cy 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 July2018 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. Case: 20-1063 Document: 26 Page: 7 Filed: 03/03/2020KEYS v. MSPB 8

The AJ then determined that

, even if Keys could demonstrate exhaustion of remedies based on his first protect ed 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. T he AJ also concluded that the Board lacked jurisdiction because Keys had not non

- frivolously allege d that his protected disclosure was a “ contributing factor ” in the agency’s r eassignment decision. Id. at *17

– 19. Key s had claimed that Mr. Bregón knew about his
disclosure because Mr. Bregón ’s position would have made
him a ware 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. D ISCUSSION
Keys argues that the Board’s finding of no jurisdiction
is erroneous because he exhausted his administrative remedies at OSC and he has alleged nonfrivolou s allegations. As discussed further below, we agree with the Board thatKeys’ 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 Case: 20-1063 Document: 26 Page: 8 Filed: 03/03/2020KEYS v. MSPB 9

reassign ment 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
Boar d 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) theissue 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 i n 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. N either party disputes that Keys was fully repr esented 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. Case: 20-1063 Document: 26 Page: 9 Filed: 03/03/2020KEYS v. MSPB 10

B

. Keys Exhausted His Administrative
Remedies for His 2015 Protective Disclosure
and Made a Nonfrivol ous 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 136 5, 1374 (Fed. Cir. 2016). The employee must “articulate with reasonableclarity 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 protect ed disclosures. Keys asserts that “all
documentation w as submitted to OSC” such that OSC had sufficient information to investigate his claims. AppellantInformal Br., Resp. to AJ Harrell’s Analysis and Findings ¶ 9.

The Board, however, does not dispute that Keys sufficiently exhausted his OSC remedies base d on his first protect ed disclosure

— his allegation in the January 2015district 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 c laim. Appellee Resp. Br. 21 (“The MSPB now believes that the petitioner’s statement in hisrebuttal 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 K eys’ disclosure “provided detailed enough information to allow OSC to investigate his claim that he was reassigned for Case: 20-1063 Document: 26 Page: 10 Filed: 03/03/2020KEYS v. MSPB 11

disclosing [that] Mr. Bregón and other agency officials lied under oath, thereby exhausting that disclosure.” 3 Id.

Furthermore , a lthou gh the Board originally determined that Keys failed to make a nonfrivolous allegationthat 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
b elieves 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 allegation s 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 Inf ormal
Br. 22.

Accordingly, we conclude that the Board’s finding s 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. Case: 20-1063 Document: 26 Page: 11 Filed: 03/03/2020KEYS v. MSPB 12

his discl osure was a contributing factor to the reassignment are erroneous.

III. C ONCLUSION

We find that t he Board’s determination that Keys’ constructive removal claim is barred by collateral estoppel isnot arbitrary, capricious, an abuse of discretion, or contr ary 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, RE VERSED

- IN

- PART, AND
REMANDED Case: 20-1063 Document: 26 Page: 12 Filed: 03/03/2020