Nasuti v. Merit Systems Protection Board ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MATTHEW J. NASUTI,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3028
__________________________
Petition for review of the Merit Systems Protection
Board in DC1221090356-W-1.
___________________________
Decided: May 20, 2010
___________________________
MATTHEW J. NASUTI, of Deerfield, Maine, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
NASUTI v. MSPB 2
Before BRYSON, DYK, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Matthew J. Nasuti appeals from a decision of the
Merit Systems Protection Board dismissing his Individual
Right of Action appeal. We vacate in part, affirm in part,
and remand.
BACKGROUND
Effective March 13, 2008, Mr. Nasuti was appointed
to a one-year excepted service position as Senior City
Management Advisor in the State Department’s Iraq
Transition Assistance Office. During the first two weeks
of his appointment, Mr. Nasuti attended the agency’s Iraq
Orientation/Foreign Affairs Counter-Terrorism (“FACT”)
course.
According to Mr. Nasuti, during a defensive driving
course on March 28, 2008, the instructor, Martin Burk,
fired several shots from a pistol while he was inside a
vehicle with Mr. Nasuti and two other trainees. Mr.
Nasuti and the other trainees were not wearing hearing
protection devices at the time. After the group returned
to the classroom, Mr. Nasuti asked Mr. Burk, in front of
25 class members, if he needed hearing protection for the
next training segment because of the dangerous noise
levels. Mr. Burk responded by ejecting Mr. Nasuti from
the classroom. The two proceeded to the parking lot
where they engaged in an argument. A few hours later,
Mr. Nasuti received a phone call in which he was told
that his employment had been terminated, effective
immediately, for “operational reasons.”
3 NASUTI v. MSPB
Mr. Nasuti appealed his termination to the Merit Sys-
tems Protection Board. The Board dismissed the appeal
for lack of jurisdiction, however, because Mr. Nasuti was
serving in a temporary excepted service appointment and
therefore was not an “employee” within the meaning of 5
U.S.C. § 7511. For that reason, he was not entitled to
take an adverse action appeal to the Board from his
removal. See id. § 7513(d).
Shortly after his adverse action appeal was dismissed,
Mr. Nasuti filed a complaint with the Office of Special
Counsel (“OSC”). In his complaint, he alleged that he was
terminated in retaliation for making disclosures protected
under the Whistleblower Protection Act (“WPA”). See 5
U.S.C. § 2302(b)(8). Specifically, he alleged that he had
made a protected disclosure concerning the dangerous
noise levels during the FACT course. He also alleged that
he had made another protected disclosure on April 11,
2008, when he wrote to Gregory Starr, Assistant Secre-
tary for Diplomatic Security, and stated that an instruc-
tor told trainees “to use local civilians as human shields.”
On February 23, 2009, the OSC terminated its inquiry
without taking any corrective action.
Mr. Nasuti then filed an individual right of action ap-
peal to the Board under 5 U.S.C. § 1221. The administra-
tive judge who was assigned to the case ordered Mr.
Nasuti to file evidence and argument to establish that the
Board had jurisdiction over his claim. After considering
Mr. Nasuti’s submissions, the administrative judge dis-
missed the case for lack of jurisdiction. The administra-
tive judge ruled that Mr. Nasuti had failed to present “a
nonfrivolous allegation that, at the time of the alleged
disclosure, he had a reasonable belief that conduct of Mr.
Burk resulted in exceeding allowable noise levels” and
thus constituted a violation of law, rule, or regulation or a
substantial and specific danger to public health or safety.
NASUTI v. MSPB 4
Even assuming that Mr. Nasuti could demonstrate such a
reasonable belief, the administrative judge concluded that
a disclosure to Mr. Burk, the alleged wrongdoer, did not
qualify as a protected disclosure, and that there was no
evidence that Mr. Nasuti had informed the OSC that he
made a protected to disclosure to anyone other than Mr.
Burk. With respect to that aspect of his appeal, according
to the administrative judge, Mr. Nasuti had not ex-
hausted his administrative remedies.
The administrative judge also addressed Mr. Nasuti’s
allegation that after he was terminated he wrote a letter
to the Assistant Secretary of State for Diplomatic Security
complaining, among other things, that the trainers in the
FACT course had taught employees how to use foreign
civilians as “human shields.” The administrative judge
ruled that the second disclosure was not protected be-
cause it occurred after Mr. Nasuti had already been
removed. With respect to Mr. Nasuti’s argument that the
post-removal disclosure had resulted in an adverse com-
ment on the form SF-50 that set forth the reason for his
removal, the administrative judge ruled that the Board
lacked jurisdiction over that claim because Mr. Nasuti
had not alleged to the OSC that anyone involved in the
issuance of the SF-50 had actual or constructive knowl-
edge of any protected disclosures or had acted in retalia-
tion for any such disclosures. The administrative judge
therefore concluded that, in the case of the second disclo-
sure as in the case of the first, Mr. Nasuti had not met the
requirement that he exhaust his remedies before the
OSC.
Mr. Nasuti appealed the jurisdictional dismissal to
the full Board. The Board vacated the administrative
judge’s initial decision, reopened the case on its own
motion, and issued a new opinion. With regard to Mr.
Nasuti’s alleged disclosure on March 28, 2008, the Board
5 NASUTI v. MSPB
held that the record did not show that Mr. Nasuti had
asserted to the OSC that he made his disclosure regard-
ing the pistol firing incident to anyone in a position to
correct the problem; as to Mr. Nasuti’s claim that he
made the disclosure to his fellow classmates, the Board
concluded that there was nothing in the record “to suggest
that he considered the other trainees to be anything other
than witnesses to his complaint to Burk or that he identi-
fied the trainees to OSC as supervisors or agency officials
to whom he was making a protected disclosure.” With
regard to his disclosure regarding the instructions about
using civilians as human shields, the Board found that
Mr. Nasuti had not argued before the OSC that the re-
marks on the form SF-50 constituted a separate personnel
action taken in retaliation for a protected disclosure.
Accordingly, the Board dismissed Mr. Nasuti’s appeal for
lack of jurisdiction. Mr. Nasuti appeals that decision.
DISCUSSION
1. As to the March 28, 2008, disclosure, the Board
held that Mr. Nasuti failed to make a nonfrivolous allega-
tion of a protected disclosure because he made that disclo-
sure to Mr. Burk, the alleged wrongdoer. See Huffman v.
Office of Pers. Mgmt., 263 F.3d 1341, 1350 (Fed. Cir.
2001). The Board rejected Mr. Nasuti’s argument that he
disclosed Mr. Burk’s conduct both to Mr. Burk and to the
other members of the training class on the ground that
Mr. Nasuti failed to make that allegation to the OSC.
In reviewing the Board’s ruling on that issue, we were
confronted with an issue regarding the contents of the
record on appeal. In his brief, Mr. Nasuti relies on a
letter dated February 7, 2009, that Mr. Nasuti claims to
have sent to the OSC while the OSC was considering his
case. In the February 7, 2009, letter, a copy of which Mr.
Nasuti has included in his appendix, he stated that he
NASUTI v. MSPB 6
“raised concerns about dangerous noise levels (to everyone
in the room).” He also stated that “the training class
included at least one Deputy Chief of Mission and one or
more State Department lawyers. All of these people . . .
had authority to pursue or recommend the remediation of
the problem.”
On its face, that letter appears to be contrary to the
Board’s conclusion that Mr. Nasuti had not asserted to
the OSC that he made his disclosure regarding the pistol
firing incident to anyone in a position to correct the
problem and that he had not identified the other trainees
to OSC as supervisors or agency officials to whom he was
making a protected disclosure. Although the February 7,
2009, letter was not part of Mr. Nasuti’s formal OSC
complaint, it is not necessary for a claimant to include all
of his allegations in his OSC complaint in order to ex-
haust his administrative remedies, as long as those
allegations are placed before the OSC while the OSC is
conducting its investigation. See Ward v. Merit Sys. Prot.
Bd., 981 F.2d 521, 526 (Fed. Cir. 1992); see also Taylor v.
Dep’t of the Navy, 101 M.S.P.R. 478, 482 (2006) (“An
appellant . . . may show exhaustion of his OSC remedy
through means other than his OSC complaint.”).
The problem is that the February 7, 2009, letter does
not appear to be part of the record in the Board proceed-
ing and thus, although it is included in Mr. Nasuti’s
appendix, it is not part of the record on appeal. Under the
Board’s regulations, it appears to be the obligation of the
appellant in an individual right of action appeal to submit
to the Board all of the pertinent materials submitted to
the OSC that are necessary to demonstrate that the
appellant has exhausted his administrative remedies
before the OSC. See 5 C.F.R. § 1209.6(a)(6). The task of
determining whether the February 7, 2009, letter should
have been included in the record, and if so whether the
7 NASUTI v. MSPB
appeal should be reopened to permit the inclusion of that
letter in the record, is a matter for the Board to address in
the first instance. Accordingly, as to this issue we vacate
and remand to the Board to allow the Board to determine
whether the February 7 letter should have been part of
the record, whether it should be included in the record at
this point, and whether, if it is included in the record, the
Board’s decision in this case should be altered.
2. As to Mr. Nasuti’s April 2008 disclosure, the Board
held that the disclosure could not be a contributing factor
to the alleged personnel action, i.e., his termination,
because he had already been terminated on March 28,
2008. The Board also held that Mr. Nasuti failed to
exhaust his remedies before the OSC with regard to his
contention that the adverse comments on his form SF-50
constituted a separate personnel action that was taken in
retaliation for his protected disclosure. In any event, the
Board ruled that the issuance of the SF-50 was not a
personnel action separate from his termination, because
the issuance of an SF-50 is merely “a clerical documenta-
tion task which customarily occurs after the effective date
of a personnel action.”
On appeal, Mr. Nasuti argues that his SF-50 was a
personnel action because the SF-50 recited that his re-
moval was for “disruptive behavior during training,” even
though his removal letter had stated that his employment
was terminated for “operational reasons.” 1 Although the
1 Mr. Nasuti also argues that his SF-50 was a per-
sonnel action because his original termination letter was
issued without authority. However, Mr. Nasuti bears the
burden of establishing jurisdiction, 5 C.F.R.
§ 1201.56(a)(2)(i); Stern v. Dep’t of the Army, 699 F.2d
1312, 1314 (Fed. Cir. 1983), and he has not produced any
evidence that his termination letter was issued without
authority.
NASUTI v. MSPB 8
Board ruled that Mr. Nasuti had failed to exhaust his
OSC remedies with regard to his contention that the
reference to “disruptive behavior” on the SF-50 consti-
tuted a “personnel action” under the WPA, the respondent
now concedes that the Board’s ruling on that issue was
incorrect. Nevertheless, the respondent argues that the
Board’s error is harmless because Mr. Nasuti did not
allege that the official who approved the SF-50 had any
knowledge of Mr. Nasuti’s April 2008 letter.
The fact that the official who prepared the SF-50 may
not have been aware of the alleged protected disclosure is
not a sufficient basis for holding that Mr. Nasuti failed to
raise a non-frivolous allegation of reprisal. The informa-
tion on the SF-50 as to his “disruptive behavior during
training” ultimately must have come from someone with
knowledge of Mr. Nasuti’s circumstances. Whether the
person who was the ultimate source of that comment on
the SF-50 was also aware of Mr. Nasuti’s April 2008 letter
is not something that is clear from the record, nor is it
something that Mr. Nasuti can be expected to know. We
therefore reject the respondent’s argument that Mr.
Nasuti’s allegations are frivolous because the official who
prepared the SF-50 was not shown to have been aware of
the April 2008 letter.
Mr. Nasuti’s claim with respect to the April 2008 dis-
closure fails on the other ground invoked by the Board,
however: that the SF-50 did not qualify as a “personnel
action” for purposes of the WPA. As the Board explained,
an SF-50 is not a personnel action in itself, but is merely
an after-the-fact record of a personnel action previously
taken. Moreover, in this case both the disclosure (the
April 2008 letter) and the alleged personnel action (the
issuance of the SF-50) occurred at a time when Mr.
Nasuti was no longer employed by the agency. Although
the WPA allows an individual right of action to be prose-
9 NASUTI v. MSPB
cuted by “an employee, former employee, or applicant for
employment,” 5 U.S.C. § 1221(a), the statute requires that
the “personnel action” that is the subject of the individual
right of action be taken “with respect to an employee in,
or applicant for, a covered position in an agency,” id. §
2302(a)(2), and it prohibits the personnel action from
being taken “with respect to any employee or applicant for
employment” because of a protected disclosure of informa-
tion “by an employee or applicant,” id. § 2302(b)(8).
Although the WPA is remedial legislation and is con-
strued liberally to effectuate its purposes, Weed v. Soc.
Sec. Admin., 113 M.S.P.R. 221, 227 (2010), it is difficult to
stretch the statutory language to cover a claim brought by
a former employee complaining of agency action taken
after the termination of employment in response to a
disclosure that was also made after the termination of his
employment. Accordingly, we agree with the Board that
the issuance of the SF-50 does not suffice to serve as a
predicate for Mr. Nasuti’s individual right of action ap-
peal. With respect to the April 2008 disclosure, we there-
fore affirm the Board’s decision. 2
3. Finally, Mr. Nasuti argues that the administrative
judge assigned to his case should have been removed from
2 Mr. Nasuti argues that the agency violated OPM
guidelines by placing comments on his SF-50 because he
was an employee without a right of appeal to the Board,
and that the agency should be bound to its original decla-
ration that Mr. Nasuti’s termination was for “operational
reasons.” However, the merits of his claim that adverse
comments should not have been placed on his SF-50 are
outside the scope of an individual right of action appeal,
which is limited to whether a personnel action was taken
in retaliation for a protected disclosure; an individual
right of action proceeding does not address whether the
personnel action in question was otherwise unlawful. See
Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed.
Cir. 2008).
NASUTI v. MSPB 10
the case for bias. We see no impropriety in the adminis-
trative judge’s actions. She did not impede Mr. Nasuti’s
ability to argue his case. In fact, she admonished him to
provide “factual evidence and arguments in his pleadings
and at any hearing which may be granted in this case.”
Nor did the administrative judge impose a “gag order”
suppressing Mr. Nasuti’s efforts to assert his legal posi-
tion, as Mr. Nasuti contends; to the contrary, the admin-
istrative judge merely prohibited “ad hominem attacks
against opposing counsel.” That order was well within
the administrative judge’s discretion in overseeing the
matters before her. See 5 C.F.R. § 1201.41(b)(6). We
therefore uphold the Board’s decision on that issue. We
also reject Mr. Nasuti’s claim that this case should be
transferred to a United States district court.
VACATED IN PART, AFFIRMED IN PART
AND REMANDED