Nasuti v. Merit Systems Protection Board , 504 F. App'x 894 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATTHEW J. NASUTI,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3136
______________________
Appeal from the Merit Systems Protection Board in
No. DC0752120370-I-1.
______________________
MATTHEW J. NASUTI,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3162
______________________
Appeal from the Merit Systems Protection Board in
No. DC1221120321-W-1.
2 MATTHEW NASUTI v. MSPB
______________________
Decided: January 16, 2013
______________________
MATTHEW J. NASUTI, of Deerfield, Massachusetts, 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.
______________________
Before DYK, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
Matthew J. Nasuti petitions for review of two final
decisions of the Merit Systems Protection Board (“Board”).
The Board dismissed Nasuti’s individual right of action
(“IRA”) appeal for lack of jurisdiction. Nasuti v. Dep’t of
State, No. DC–1221–12–0321–W–1 (M.S.P.B. May 31,
2012) (“IRA Decision II”). The Board also dismissed
Nasuti’s adverse action appeal and his claim for back pay
under 5 U.S.C. § 5596 for lack of jurisdiction. Nasuti v.
Dep’t of State, No. DC–0752–12–0370–I–1 (M.S.P.B. Mar.
30, 2012) (“Termination Decision II”). With one exception,
we affirm. As to one issue, we vacate and remand.
BACKGROUND
The primary issue in these appeals is whether certain
Whistleblower Protection Act (“WPA”) claims are pre-
cluded by collateral estoppel because of an earlier IRA
appeal.
The factual background of Nasuti’s appeals is set
forth in two of our earlier decisions. See Nasuti v. Merit
MATTHEW NASUTI v. MSPB 3
Sys. Prot. Bd., 445 F. App’x 355, 356-57 (Fed. Cir. 2011);
Nasuti v. Merit Sys. Prot. Bd., 376 F. App’x 29, 30-33
(Fed. Cir. 2010). In summary, Nasuti was appointed to a
one-year excepted service position as Senior City Man-
agement Advisor in the State Department’s Iraq Transi-
tion Assistance Office (“ITAO”) on March 13, 2008. He
was terminated approximately two weeks later for “dis-
ruptive behavior during training.” IRA Decision II, at 2.
Nasuti brought an adverse action appeal to the Board.
The Board dismissed the appeal for lack of jurisdiction,
finding that he was not an “employee” under 5
U.S.C. § 7511. Nasuti v. Dep’t of State, No. DC–0752–08–
0644–I–1 (M.S.P.B. Sept. 4, 2008) (“Termination Decision
I”). Nasuti did not appeal that decision, and it became
final on October 9, 2008.
Nasuti filed a complaint with the Office of Special
Counsel (“OSC”) in October 2008, arguing that he was
terminated in retaliation for making disclosures protected
under the WPA. See 5 U.S.C. § 2302(b)(8). When his
complaint to OSC did not result in corrective action,
Nasuti filed an IRA appeal to the Board under 5 U.S.C.
§ 1221. The Board dismissed for lack of jurisdiction.
Nasuti v. Dep’t of State (“IRA Decision I”), 112 M.S.P.R.
587, 596-97 (2009). The Board found that it lacked juris-
diction to consider Nasuti’s claim based on his alleged
protected disclosures regarding Iran’s nuclear capabilities
and the allegedly substandard body armor provided to
embassy personnel because he had not exhausted his
administrative remedies by presenting those claims to
OSC. Id. at 594. The Board also determined that Nasuti
had failed to establish its jurisdiction as to the two other
disclosures that he had presented to OSC. Id. at 596-97.
With respect to his disclosure regarding unsafe noise
levels during training, the Board found that Nasuti had
not alleged a protected disclosure because he made the
disclosure only to the alleged wrongdoer. Id. at 596; see
also Huffman v. Office of Pers. Mgmt., 263 F.3d 1341,
4 MATTHEW NASUTI v. MSPB
1350 (Fed. Cir. 2001) (“When an employee reports or
states that there has been misconduct by a wrongdoer to
the wrongdoer, the employee is not making a ‘disclosure’
of misconduct.”), superseded by statute, Whistleblower
Protection Enhancement Act of 2012, Pub. L. No. 112-199,
§ 101(b)(2)(C), 126 Stat. 1465, 1465-66. Regarding
Nasuti’s alleged disclosure of substandard training and
safety practices, including “human shield” training, the
Board found that the alleged disclosure could not have
been a factor in his termination because the disclosure
postdated his termination. IRA Decision I, 112 M.S.P.R.
at 594, 597.
On review, this court affirmed in relevant part, re-
manding only for the Board to consider whether a letter
produced by Nasuti should have been included in the
record and, if so, whether its earlier decision should
stand. Nasuti, 376 F. App’x at 32-33. The Board con-
cluded that the letter should not be added to the record,
Nasuti v. Dep’t of State, No. DC–1221–09–0356–M–1
(M.S.P.B. Dec. 16, 2010), and we affirmed that decision on
appeal. Nasuti, 445 F. App’x 355.
On October 16, 2011, Nasuti filed a second complaint
with OSC, reiterating his earlier allegations regarding
unsafe noise levels during training, inadequate body
armor, Iranian nuclear weapons, and “human shield”
training. He also alleged an additional disclosure con-
cerning defective chemical warfare suits.
Contending that OSC had not responded to his com-
plaint, Nasuti filed another appeal with the Board on
February 14, 2012. The appeal raised many of the same
issues presented in his prior appeals and was initially
treated as a single appeal by the administrative judge
(“AJ”). IRA Decision II, at 5 n.2. Nasuti argued that the
AJ improperly docketed his appeal as one appeal when, in
fact, he had filed “‘three separate appeals,’” consisting of
an IRA appeal, an adverse action appeal under 5
MATTHEW NASUTI v. MSPB 5
U.S.C. § 7513, and an appeal for back pay under 5 U.S.C.
§ 5596. Termination Decision II, at 1. Thereafter, the AJ
treated Nasuti has having filed two appeals, one address-
ing his IRA claims and the other addressing his adverse
action appeal and claim for back pay. Id. at 1-2.
The AJ dismissed Nasuti’s IRA appeal for lack of ju-
risdiction, concluding that Nasuti had not made a non-
frivolous allegation of a protected disclosure within the
meaning of the WPA. IRA Decision II, at 23. The AJ
found that further litigation regarding his alleged disclo-
sures of inadequate body armor, “human shield” training,
the exposure of federal employees to dangerous combat
noise, and Iranian nuclear weapons was subject to issue
preclusion based on the Board’s decision in IRA Decision
I. See id. at 14-15, 18-22. With respect to Nasuti’s al-
leged disclosure regarding defective chemical warfare
suits, the AJ concluded that Nasuti had not made a
nonfrivolous allegation of a protected disclosure because,
inter alia, he had not alleged a specific danger to public
health or safety. Id. at 13. The AJ also found that
Nasuti’s alleged disclosure regarding unsafe training at
firing ranges could not support the Board’s jurisdiction
(an issue not raised on appeal to this court). Id. at 17-18.
In a separate decision, the AJ also dismissed Nasuti’s
adverse action appeal and back pay claim for lack of
jurisdiction. Termination Decision II, at 6-7. The AJ
concluded that the Board had no independent jurisdiction
over his claim for back pay under 5 U.S.C. § 5596. Id. at
4-5. As for Nasuti’s adverse action appeal, the AJ held
that Nasuti was precluded by the Board’s previous deter-
mination in Termination Decision I that he was not an
“employee” within the meaning of 5 U.S.C. § 7511. Id. at
5. Nasuti chose not to appeal either decision to the full
Board, so the AJ’s decisions became the Board’s decisions.
Nasuti appealed both dismissals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
6 MATTHEW NASUTI v. MSPB
DISCUSSION
We review the Board’s dismissal for lack of jurisdic-
tion de novo. Bolton v. Merit Sys. Prot. Bd., 154 F.3d
1313, 1316 (Fed. Cir. 1998). Underlying factual findings
of the Board are reviewed for substantial evidence. Id.
Several of Nasuti’s purported acts of whistleblowing
were conclusively resolved by his first IRA appeal to the
Board. In IRA Decision I, the Board found that Nasuti’s
alleged disclosure of “human shield” training was not a
protected disclosure under the WPA because it was made
after his termination. 112 M.S.P.R. at 594, 597. We
affirmed that determination on appeal. Nasuti, 376 F.
App’x at 33-34. Because that issue—whether Nasuti’s
disclosures regarding “human shield” training were
protected under the WPA—was conclusively decided in
Nasuti’s earlier IRA appeal, collateral estoppel bars him
from relitigating it now. See Morgan v. Dep’t of Energy,
424 F.3d 1271, 1274-75 (Fed. Cir. 2005). Likewise, the
issues of whether Nasuti’s alleged disclosures regarding
the lack of hearing protection during training and the
exposure of employees to dangerous combat noise were
protected under the WPA were resolved in Nasuti’s prior
IRA appeal. Nasuti, 445 F. App’x at 356, 358. Nasuti is
not entitled to relitigate these issues. The Board properly
concluded that Nasuti failed to establish its jurisdiction
with respect to them.
Nasuti’s alleged disclosure regarding “defective
chemical warfare suits” also does not establish the
Board’s jurisdiction. In his complaint to OSC, Nasuti
alleged only that he disclosed the deficient nature of the
chemical warfare suits to his State Department instruc-
tor, who Nasuti himself admits did not discuss the matter
with his superiors. Elsewhere in his complaint, Nasuti
alleges that “[o]ne or more” of the individuals responsible
for his termination “are believed to have been” aware of
all his disclosures prior to his termination. There is no
MATTHEW NASUTI v. MSPB 7
specific allegation that those responsible for his termina-
tion were aware of the chemical warfare suits disclosure.
Even if we were to assume that the disclosure was a
protected disclosure, these allegations as to the connec-
tion between the disclosure and the personnel action are
too equivocal and vague to form the basis for a claim
under the WPA. To the extent that Nasuti alleges that
his instructor’s failure to report the allegedly defective
suits was itself wrongdoing, he does not allege that he
disclosed that wrongdoing to anyone prior to his termina-
tion.
Similarly, Nasuti’s allegations to OSC relating to
“Iranian tactical nuclear weapons” were insufficient to
establish the Board’s jurisdiction. Nasuti appears to
allege that a State Department official told him that Iran
had obtained nuclear weapons, and that the agency
“would not address why the Secretary of State gave
misleading testimony to Congress on this issue.” He does
not, however, allege that he made any protected disclo-
sure prior to his termination regarding any such weapons.
Nasuti’s vague allegations cannot establish Board juris-
diction.
With respect to Nasuti’s alleged disclosure of “inade-
quate body armor,” however, we do not agree with the
Board. The Board rejected Nasuti’s claims regarding this
disclosure, finding that its determinations in his earlier
IRA appeal precluded him from raising the same claim.
IRA Decision II, at 15 & n.10. The failure to exhaust his
remedies with OSC prior to his first appeal, however, does
not preclude Nasuti from asserting those claims after
exhausting those remedies. As the Board correctly recog-
nized, Nasuti is permitted to cure his failure to exhaust
administrative remedies and then refile his appeal. See
Jackson v. District of Columbia, 254 F.3d 262, 270-71
(D.C. Cir. 2001). The Board’s determination in the earlier
litigation that Nasuti could not introduce new evidence of
administrative exhaustion on a petition for review did not
8 MATTHEW NASUTI v. MSPB
preclude him from curing the defect in a subsequent
complaint to OSC and refiling. Here, Nasuti did file a
subsequent complaint with OSC to cure the jurisdictional
defect identified by the Board in IRA Decision I. He
specifically alleged that, in March 2008, he had “raised
objections to multiple officials in the ITAO, including
assistants to ITAO Personnel Director Dora Hanna . . .
that the body armor being supplied . . . to State Depart-
ment employees en route to Iraq . . . was substandard and
inadequate.” Nasuti’s new complaint to OSC was not
duplicative of any earlier OSC complaint.
To the extent that the Board held that preclusion ex-
isted because Nasuti had not met the diligence require-
ments of 5 C.F.R. § 1201.115(d)(1) (2011), we disagree.
Collateral estoppel applies only where the “issue previ-
ously adjudicated is identical with that now presented.”
Morgan, 424 F.3d at 1274. The issue of whether Nasuti
had been sufficiently diligent in the first Board proceed-
ing is quite different from the issue of whether the Board
has jurisdiction over his WPA claim following a second
complaint to OSC. Nasuti’s arguments regarding “inade-
quate body armor” are not precluded on collateral estop-
pel grounds by their dismissal in his first IRA appeal. 1
In the alternative, the Board found that Nasuti had
not adequately alleged a disclosure of a “substantial and
specific danger to public health or safety,” reasoning that
he did “not allege that the existing armor was defective or
unsafe,” but rather that “it was substandard compared
with other products.” IRA Decision II, at 16. In Cham-
1 The parties and the Board treat the preclusion
question as one of collateral estoppel rather than res
judicata, presumably because Nasuti’s claims in the
previous litigation were dismissed on jurisdictional
grounds. We need not decide here whether res judicata
applies when the Board dismisses claims for lack of
jurisdiction on frivolousness grounds.
MATTHEW NASUTI v. MSPB 9
bers v. Dep’t of the Interior, we noted that the danger
disclosed must be “substantial and specific,” and that
disclosures may be inadequate if the danger is “specula-
tive” or “likely to manifest only in the distant future.” 515
F.3d 1362, 1369 (Fed. Cir. 2008). However, “an allegation
. . . that the cooling system of a nuclear reactor is inade-
quate would” suffice. Id. (quoting S. Rep. No. 95-969, at
21 (1978)). Here, Nasuti alleges having disclosed that
body armor being provided to Iraq-bound federal employ-
ees was “inadequate.” We think that such an allegation is
sufficient to invoke the Board’s jurisdiction.
The Board appears to have also concluded that
Nasuti’s disclosures were inadequate because they were
made to persons without authority to address the prob-
lem. See IRA Decision II, at 16-17. Since the Board’s
decision, however, Congress has enacted the Whistle-
blower Protection Enhancement Act of 2012, Pub. L. No.
112-199, 126 Stat. 1465, with the intention of broadening
the scope of protected disclosures under the WPA. Id.
§ 101, 126 Stat. at 1465-66; see also S. Rep. No. 112-155,
at 5 (2012). We think that the Board should decide in the
first instance whether the new statute applies retroac-
tively and whether, if so, Nasuti has alleged a protected
disclosure under the new statute. We therefore vacate
the Board’s conclusion that it lacked jurisdiction over this
one aspect of Nasuti’s IRA appeal.
Nasuti also contends that he can contest his termina-
tion under 5 U.S.C. § 7513, alleging, inter alia, that the
official who terminated him lacked authority to do so.
The Board dismissed his claim, finding that it was barred
by collateral estoppel. Termination Decision II, at 5. In
Termination Decision I, the Board determined that Nasuti
was not an “employee” within the meaning of 5 U.S.C.
§ 7511 and that it therefore lacked jurisdiction to enter-
tain his appeal. Termination Decision I, at 2-4. That
determination is also dispositive of Nasuti’s current
adverse action appeal, and Nasuti is not entitled to reliti-
10 MATTHEW NASUTI v. MSPB
gate the question of whether he was an employee within
the meaning of § 7511. Accordingly, we affirm the Board’s
dismissal of Nasuti’s adverse action appeal.
Finally, with respect to Nasuti’s claim under the Back
Pay Act, the statute permits recovery of back pay for an
employee subject to an unlawful personnel action. Bosley
v. Merit Sys. Prot. Bd., 162 F.3d 665, 667-68 (Fed. Cir.
1998). It does not, however, provide an independent basis
for Board jurisdiction. Id. at 668. The Board therefore
correctly dismissed Nasuti’s freestanding back pay claims
for lack of jurisdiction.
We have considered Nasuti’s remaining arguments
and find them unpersuasive. For example, we conclude
that the Board did not err in concluding that his termina-
tion was the only relevant personnel action.
We affirm the Board’s dismissal of Nasuti’s adverse
action appeal and his claim under the Back Pay Act. We
vacate the Board’s determination that it lacked jurisdic-
tion over Nasuti’s WPA allegation regarding inadequate
body armor and remand for further proceedings address-
ing that alleged disclosure only. We affirm the Board’s
jurisdictional conclusions regarding Nasuti’s other alleged
disclosures.
AFFIRMED-IN-PART, VACATED-IN-PART,
REMANDED
No costs.