Nasuti v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
MATTHEW J. NASUTI,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3048
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC1221090356-M-1.
__________________________
Decided: October 14, 2011
___________________________
MATTHEW J. NASUTI, Deerfield, Massachusetts, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. Of counsel on the brief were JAMES
M. EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
NASUTI v. MSPB 2
Before LOURIE, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Matthew J. Nasuti petitions for review of a final order
of the Merit Systems Protection Board (“Board”). The
Board dismissed the appeal for lack of jurisdiction.
Nasuti v. Dep’t of State (“Final Order”), DC-1221-09-0356-
M-1 (M.S.P.B. Dec. 16, 2010). We affirm.
BACKGROUND
This case returns to us after a remand. The pertinent
facts are set forth in our earlier decision. See Nasuti v.
Merit Sys. Prot. Bd. (“Remand Order”), No. 2010-3028,
2010 WL 2008852 (Fed. Cir. May 20, 2010). Briefly,
Nasuti was appointed to a one-year excepted service
position as Senior City Management Advisor in the State
Department’s Iraq Transition Assistance Office effective
March 13, 2008. Nasuti alleges that on March 28, 2008,
during an agency defensive driving course, instructor
Martin Burk fired multiple pistol shots from inside a
vehicle in which Nasuti and other trainees were riding.
Upon returning to the classroom, Nasuti allegedly asked
Burk, in front of 25 other class members, if hearing pro-
tection was needed for the next training segment because
of dangerous noise levels. Burk ejected Nasuti from the
classroom, and the two engaged in an argument in the
parking lot. A few hours later, Nasuti was informed over
the telephone that his employment was terminated,
effective immediately, for “operational reasons.”
After bringing an unsuccessful adverse action appeal,
Nasuti filed a complaint with the Office of Special Coun-
sel (“OSC”), alleging that his termination was retaliation
for making disclosures protected under the Whistleblower
Protection Act. See 5 U.S.C. § 2302(b)(8). Among other
things, Nasuti alleged that he made a protected disclosure
3 NASUTI v. MSPB
regarding dangerous noise levels during the agency
driving course. The OSC terminated its inquiry with no
corrective action.
Nasuti then filed an Individual Right of Action (“IRA”)
appeal to the Board under 5 U.S.C. § 1221. On March 6,
2009, the administrative judge (“AJ”) issued an order
instructing Nasuti on his burden to establish the Board’s
jurisdiction over his claim. Nasuti v. Dep’t of State (“2009
Show Cause Order”), DC-1221-09-0356-W-1 (M.S.P.B.
Mar. 6, 2009). Specifically, the order stated that “[i]f
appellant has additional evidence regarding his allega-
tions raised to OSC, he should provide it in response to
this order.” Id. at 4. Further, the AJ noted that Nasuti’s
“pleadings to OSC or the decision letter are necessary to
determine whether [Nasuti] exhausted his administrative
remedies.” Id. at 4 n.2. After receiving Nasuti’s submis-
sions, the AJ dismissed the case for lack of jurisdiction.
Nasuti subsequently sought review of the AJ’s initial
decision by the full Board. The Board vacated the AJ’s
initial decision and issued a new opinion, which again
dismissed the IRA appeal for lack of jurisdiction. Among
other holdings, the Board held that Nasuti’s alleged
disclosure to Burk did not qualify as a protected disclo-
sure because the disclosure was made to the wrongdoer
himself. The Board found nothing in the record to suggest
that Nasuti had alleged before the OSC that he made a
protected disclosure to any supervisors or agency officials
who could remedy the situation.
On review by this Court, Nasuti submitted a pur-
ported February 7, 2009, letter from him to the OSC
alleging that he complained about the noise levels to
officials who had the “authority to pursue or recommend
the remediation of the problem.” Remand Order, 2010
WL 2008852, at *2. We concluded that “[o]n its face, that
letter appears to be contrary to the Board’s conclusion
NASUTI v. MSPB 4
that Mr. Nasuti had not asserted to the OSC that he
made his disclosure regarding the pistol firing incident to
anyone in position to correct the problem.” Id. at *3.
However, the letter did not appear to be in the record
before the Board. Thus, while we affirmed the Board in
other respects, we vacated the Board’s decision and re-
manded “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.” Id.
On remand, the Board ordered Nasuti to submit evi-
dence and argument as to why the Board should reopen
the record and permit inclusion of the February 7, 2009,
letter. After receiving no explanation from Nasuti regard-
ing why the letter was not available to him despite due
diligence before the record was closed, the Board declined
to reopen the record to allow the addition of the letter.
Final Order, at 5. Accordingly, the Board declined to
reopen the appeal and again dismissed the case for lack of
jurisdiction. Nasuti timely petitioned for review. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).1
1 While pending on appeal, the Board requested a
remand “to decide whether [its precedents] should be
expanded to include circumstances in which jurisdictional
evidence is submitted for the first time on judicial re-
view.” Resp’ts Br. at 17 n.5. Nasuti opposed the Board’s
motion to remand, Petitioner’s Opposition to Respondent’s
Motion for a Second Remand, Nasuti v. Merit Sys. Prot.
Bd., 2011-3048 (Fed. Cir. Apr. 4, 2011), and we denied the
Board’s motion to remand, Nasuti v. Merit Sys. Prot. Bd.,
2011-3048 (Fed. Cir. Jul. 8, 2011).
5 NASUTI v. MSPB
DISCUSSION
To the extent that this court’s Remand Order affirmed
previous holdings of the Board, that decision governs as
the law of the case, and we see no basis for reconsidering
our earlier decision. Thus, the sole issue presently before
us is whether the Board committed reversible error by
dismissing Nasuti’s appeal for lack of jurisdiction and
declining to reopen the record to consider the February 7,
2009, letter.
Our review of Board decisions is limited. We may
only set aside agency actions, findings, or conclusions that
we find to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit
Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). The
Board’s determination that it lacked jurisdiction is a
question of law that this court reviews de novo. Bennett,
635 F.3d at 1218.
The Board’s regulations allow for additions to the re-
cord when “[n]ew and material evidence is available that,
despite due diligence, was not available when the record
closed.” 5 C.F.R. § 1201.115(d)(1); see also Avansino v.
U.S. Postal Serv., 3 M.S.P.B. 308, 310-11 (1980). How-
ever, in response to the Board’s order to submit evidence
and argument as to why the Board should reopen the
record, Nasuti failed to provide any explanation as to why
the letter was unavailable to him before the close of the
record despite due diligence. At the time of Nasuti’s
original appeal, the AJ expressly informed Nasuti of his
burden under 5 C.F.R. § 1201.56(a)(2)(i) to establish the
Board’s jurisdiction over his claim, and the AJ instructed
him on the evidence that was required to determine
NASUTI v. MSPB 6
whether he had exhausted his administrative remedies.
2009 Show Cause Order, at 1, 4 n.2.
Nasuti argues that the Board had discretion to waive
its rules under 5 C.F.R. § 1201.12, or to reopen the record
on its own motion under 5 C.F.R. § 1201.118, and abused
its discretion in not doing so. When challenging the
Board’s refusal to reopen an appeal on its own motion, a
petitioner “has a heavy burden to demonstrate that the
full Board abused its discretion.” Azharkhish v. Office of
Pers. Mgmt., 915 F.2d 675, 679 (Fed. Cir. 1990). Nasuti
has not shown that the Board acted inconsistently with
its prior decisions. The cases cited by Nasuti concerning
the Board’s discretion to reopen the record in a whistle-
blower appeal are distinguishable on the facts. See, e.g.,
Orr v. Dep’t of the Treasury, 83 M.S.P.R. 117, 122 (1999)
(reopening the record after finding that the AJ failed to
inform the petitioner that he had the burden to establish
the Board’s jurisdiction); Atkinson v. Dep’t of State, 107
M.S.P.R. 136, 140 (2007) (reopening the record after
evidence was raised for the first time on administrative
appeal, rather than where the evidence was raised for the
first time on judicial review). Nor has Nasuti established
that the Board abused its discretion in any other respect
in declining to reopen the record.
Because the February 7, 2009, letter was not in the
record before the Board, the Board properly held that it
lacked jurisdiction over Nasuti’s IRA appeal. Under the
Board’s regulations, an appellant in an IRA appeal to the
Board is obligated to demonstrate that he has exhausted
his administrative remedies before the OSC. See 5 C.F.R.
§ 1209.6(a)(6). Since the February 7, 2009, letter is not
part of the record, we find no error in the Board’s conclu-
sion that Nasuti has failed to show that he exhausted his
administrative remedies before the OSC.
7 NASUTI v. MSPB
AFFIRMED
COSTS
No costs.