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        NOTE: This disposition is nonprecedential.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.
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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 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
