NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MATTHEW J. NASUTI,

Petitioner

v.

DEPARTMENT OF STATE,

Respondent

______________________ 

2016-2479

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-12-0321-B-1.

______________________ 

Decided: January 13, 2017

______________________ 

 MATTHEW J. NASUTI, Deerfield, MA, pro se.

 MICHAEL D. SNYDER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

REGINALD T. BLADES, JR., ROBERT E. KIRSCHMAN, JR.,

BENJAMIN C. MIZER. 

______________________ 
2 NASUTI v. STATE

Before LOURIE, O’MALLEY, and TARANTO, Circuit 

Judges.

PER CURIAM. 

On March 13, 2008, the U.S. Department of State appointed Matthew Nasuti to a one-year, excepted-service 

position as a Senior Management Advisor in the Iraq 

Transition Assistance Office. Just two weeks later, on 

March 28, 2008, the State Department terminated Mr. 

Nasuti’s appointment “for operational reasons.” Mr. 

Nasuti appealed to the Merit Systems Protection Board, 

alleging that his termination violated the Whistleblower 

Protection Act, 5 U.S.C. § 2302(b)(8). After Mr. Nasuti 

repeatedly failed to comply with the administrative 

judge’s discovery orders, the administrative judge sanctioned him by cancelling his hearing and deciding the case 

based on the written record. In that decision, the administrative judge found that Mr. Nasuti failed to prove that 

any alleged protected disclosure was a contributing factor 

in the agency’s decision to terminate his appointment. 

The administrative judge found, in the alternative, that 

the agency would have terminated Mr. Nasuti even in the 

absence of any protected disclosure. For those reasons, 

the administrative judge rejected the whistleblower claim. 

We affirm.1 

I 

In the first two weeks of Mr. Nasuti’s appointment in 

March 2008, he attended the State Department’s Iraq 

Orientation/Foreign Affairs Counter–Terrorism course. 

 

1 We have described much of the factual background for this appeal in three earlier opinions. See 

Nasuti v. Merit Sys. Prot. Bd., 504 F. App’x 894, 896–97 

(Fed. Cir. 2013); Nasuti v. Merit 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).
NASUTI v. STATE 3

On March 28, Dora Hanna, Director for Iraq Transition 

Assistance Office Personnel, advised Mr. Nasuti that he 

was being terminated “for operational reasons.” Mr. 

Nasuti appealed his termination to the Board, which 

dismissed his appeal, concluding that it did not have 

jurisdiction because 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). Nasuti did not appeal 

that decision. 

In October 2008, Mr. Nasuti filed a complaint with 

the Office of Special Counsel, arguing that he was terminated in retaliation for making disclosures protected 

under the Whistleblower Protection Act, 5 U.S.C. 

§ 2302(b)(8). In particular, Mr. Nasuti alleged that he 

had made multiple protected disclosures, including about 

the State Department’s exposure of trainees to noise 

levels, issuance of inadequate body armor to certain 

employees, dissemination of information regarding Iran’s

nuclear weapons, and use of “human shield” training. 

When the Office did not take corrective action, Mr. 

Nasuti filed an individual-right-of-action appeal to the 

Board under 5 U.S.C. § 1221. The Board dismissed for 

lack of jurisdiction, concluding that Mr. Nasuti had failed 

to exhaust his administrative remedies and that his 

noise-level disclosure was not protected because it was 

made to the alleged wrongdoer. Nasuti v. Dep’t of State, 

112 M.S.P.R. 587, 595–97 (2009). We remanded to determine whether a letter concerning the noise-level disclosure should have been included in the administrative 

record. Nasuti, 376 F. App’x at 32–33. The Board concluded that the letter should not have been included, 

Nasuti v. Dep’t of State, No. DC-1221-09-0356-M-1, 116 

M.S.P.R. 172 (M.S.P.B. Dec. 16, 2010), and we affirmed 

that decision on appeal, Nasuti, 445 F. App’x 355.

In October 2011, Nasuti filed a second complaint with 

the Office, reiterating his earlier allegations regarding 
4 NASUTI v. STATE

unsafe noise levels, inadequate body armor, Iran’s nuclear 

weapons, and “human shield” training. He also alleged 

an additional disclosure concerning defective chemical 

warfare suits. In February 2012, Nasuti again filed an 

individual-right-of-action appeal with the Board after the 

Office did not take corrective action. The Board dismissed 

for lack of jurisdiction, concluding that Mr. Nasuti had 

failed to non-frivolously allege that any of his alleged 

disclosures constituted protected whistleblowing and that 

his attempts to litigate most of those disclosures were 

subject to issue preclusion because of its decision in his 

first individual-right-of-action appeal. Nasuti v. Dep’t of 

State, No. DC-1221-12-0321-W-1 (M.S.P.B. May 31, 2012). 

On appeal, we affirmed the Board’s conclusions regarding most of Mr. Nasuti’s allegations, but remanded to 

the Board to determine whether the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199, 

126 Stat. 1465, which expanded the scope of protected 

disclosures, applied to Mr. Nasuti’s alleged body-armor

disclosure. Nasuti, 504 F. App’x at 899. The Board 

determined that the Act applied retroactively and that 

Mr. Nasuti’s allegations were sufficient to establish 

jurisdiction. Nasuti v. Dep’t of State, 120 M.S.P.R. 588, 

592 (2014). Accordingly, the Board remanded to an 

administrative judge to decide the issue on the merits. Id.

at 592–94.

On remand, both Mr. Nasuti and the State Department filed motions to compel responses to certain discovery requests. On April 3, 2015, the administrative judge 

granted both motions in part, ordering the parties to 

comply with each other’s requests. In addition, the administrative judge ruled that the State Department could 

renew its motion to depose Mr. Nasuti and directed the 

parties “to conduct such deposition within 30 days of the 

date of this Order, having first conferred as to a mutually 

convenient time and place.” Pet’r’s App. 6. On April 24, 

the State Department again moved to compel, arguing 
NASUTI v. STATE 5

that Mr. Nasuti had failed to comply with the administrative judge’s discovery order and had refused to cooperate 

with its attempts to schedule his deposition. In support, 

the State Department provided a copy of an email correspondence with Mr. Nasuti, in which he failed to provide 

responsive replies to its inquiries. Mr. Nasuti did not 

reply to the agency’s renewed motion.

On May 5, 2015, the administrative judge notified Mr. 

Nasuti that he had failed to comply with the April 3, 2015 

order and that sanctions were appropriate. Nevertheless, 

the administrative judge refrained from imposing sanctions, stating that Mr. Nasuti may have “mistakenly 

believed” that a petition for a writ of mandamus he filed 

in this court on March 16, 2015, “relieved him of the 

obligation to respond to” the discovery order. Pet’r’s App. 

31.2 The administrative judge ordered Mr. Nasuti to 

respond, within ten days, to the State Department’s 

discovery requests and to provide it with dates in May in 

which he would be available to be deposed. The administrative judge warned that Mr. Nasuti’s failure to comply 

would “result in the imposition of sanctions, specifically, a 

prohibition on the submission of any additional evidence 

in support of his claim, the cancellation of his request for 

a hearing, and a closing of the record in this case, with a 

subsequent decision to be rendered on the existing written 

record.” Pet’r’s App. 31.

In response to the May 5, 2015 order, although Mr. 

Nasuti provided “supplemental discovery responses” to 

the State Department, he insisted that he could not afford 

to take a deposition “in Washington, D.C. or anywhere 

 

2 While the remand was pending, Mr. Nasuti twice 

petitioned this court for a writ of mandamus. We denied 

both petitions. In re Nasuti, No. 15-129 (Fed. Cir. May 

15, 2015); In re Nasuti, 568 F. App’x 887, 888 (Fed. Cir. 

2014).
6 NASUTI v. STATE

else” and that, even if he could afford to attend a deposition, such a deposition would be “abusive” because the 

State Department continued to “block” his “access to 

crucial information, documents and witnesses.” Pet’r’s

App. 8. Additionally, Mr. Nasuti refused to provide 

answers to certain interrogatories and document requests, 

stating that his answers to those requests would reveal 

the names of “officials who potentially fear [State] Department retaliation.” Pet’r’s App. 8. Mr. Nasuti also 

refused to respond to other relevant documents because of 

his belief that they were “abusive, irrelevant,” “unclear,” 

or “privileged,” and stated that, in any event, the proceeding was “moot because neither the State Department nor 

the [Board] are interested in discovery or in holding either 

an expeditious or thorough hearing on the merits.” Pet’r’s 

App. 9.

The administrative judge then imposed the threatened sanctions. He cancelled Mr. Nasuti’s request for a 

hearing and prohibited Mr. Nasuti from submitting any 

additional evidence in support of his claims. The administrative judge notified the parties that he would render a 

decision based on the written record.

On July 1, 2016, the administrative judge decided Mr. 

Nasuti’s appeal without a hearing. See Nasuti v. Dep’t of 

State, D.C.-1221-12-0321-B-1 (M.S.P.B. July 1, 2016). 

The administrative judge found that Mr. Nasuti proved 

that he reasonably believed that the State Department’s 

issuance of particular body armor to certain employees 

evidenced a substantial and specific threat to public 

health and safety. Nevertheless, the administrative judge 

denied Mr. Nasuti’s appeal because, he found, Mr. Nasuti 

had failed to establish that his alleged disclosure was a 

contributing factor in the agency’s decision to terminate 

his appointment. The administrative judge also found 

that the State Department had established, by clear and 

convincing evidence, that it would have terminated Mr. 

Nasuti in the absence of any whistleblowing activity.
NASUTI v. STATE 7

Mr. Nasuti did not seek review by the Board, and so 

the administrative judge’s decision became final and 

appealable to this court. 5 C.F.R. § 1201.113. Mr. Nasuti 

appeals. We have jurisdiction under 28 U.S.C. 

§ 1925(a)(9). 

II

Under 5 U.S.C. § 7703, we must affirm the Board’s 

decision unless “(1) arbitrary, capricious, an abuse of 

discretion, 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.” We review the Board’s factual 

findings, including those concerning protected disclosures, 

for substantial evidence. See, e.g., Miller v. Dep’t of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). We review the 

Board’s procedural and evidentiary decisions for abuse of 

discretion. Spezzaferro v. Fed. Aviation Admin., 807 F.2d 

169, 173 (Fed. Cir. 1986). In doing so, we presume that 

the Board carries out its duties in good faith. Id.

A 

We first address Mr. Nasuti’s argument that the administrative judge acted unlawfully or otherwise abused 

his discretion by cancelling the hearing. Under 5 C.F.R. 

§ 1201.43, an administrative judge may impose sanctions 

on a party who fails to comply with the judge’s orders. 

Pursuant to that authority, an administrative judge “may 

cancel a scheduled hearing, or suspend or terminate a 

hearing in progress, for contumacious conduct or conduct 

prejudicial to the administration of justice on the part of 

the appellant or the appellant’s representative.” 5 C.F.R. 

§ 1201.43. “Before imposing a sanction, the judge shall 

provide appropriate prior warning, allow a response to the 

actual or proposed sanction when feasible, and document 

the reasons for any resulting sanction in the record.” Id.
8 NASUTI v. STATE

Contrary to Mr. Nasuti’s contention, 5 U.S.C. 

§ 7701(a), which provides that a federal employee who 

appeals to the Board “shall have the right . . . to a hearing 

for which a transcript will be kept,” did not entitle him to 

a hearing regardless of whether he complied with the 

administrative judge’s discovery orders. In Ahlberg v. 

Department of Health & Human Services, 804 F.2d 1238

(Fed. Cir. 1986), we held that § 7701(a) did not preclude 

the Board from dismissing an appeal under § 1201.43 for 

failure to prosecute. Id. at 1244–45. There, the presiding 

official “warned” the appellants that their refusal to 

comply with an order to provide certain requested information would result in the dismissal of their appeal. Id.

at 1242. We upheld the Board’s actions, explaining that 

the appellants’ failure to comply, despite the warning,

“waived any right they may have had to a hearing.” Id. at 

1243.

Here, the administrative judge warned Mr. Nasuti 

that his continued failure to comply with the administrative judge’s discovery orders would result in the cancellation of the hearing. Nevertheless, Mr. Nasuti refused to 

comply with those orders and did not substantiate his 

reasons for doing so. Mr. Nasuti further asserted that the 

Board proceedings were “moot” because the administrative judge was not interested in holding an “expeditious or 

thorough hearing on the merits.” Pet’r’s App. 9. As we 

explained in Ahlberg, § 7701 is not so absolute as to 

require the Board to hold a hearing in the face of such

repeated defiance. See Ahlberg, 804 F.2d at 1243.

To the extent that Mr. Nasuti argues that the administrative judge abused his discretion in imposing sanctions under § 1201.43, we disagree. The administrative 

judge cancelled the hearing only after Mr. Nasuti refused 

to comply with the administrative judge’s discovery orders 

on two separate occasions—and only after Mr. Nasuti was

warned that continued refusal would result in cancellation. This is not a case in which a hearing was cancelled 
NASUTI v. STATE 9

despite the presence of a good excuse for the conduct that 

led to the cancellation. Compare Habtemariam v. Office 

of Pers. Mgmt., 180 F. App’x 968, 970–71 (Fed. Cir. 2006). 

We cannot say that Mr. Nasuti’s behavior did not rise to 

the level of “contumacious conduct or conduct prejudicial 

to the administration of justice” for which cancellation of 

a hearing is within the Board’s discretion. 5 C.F.R. 

§ 1201.43.

B 

We also reject Mr. Nasuti’s challenges to the administrative judge’s denial of his whistleblower claim. To 

prevail, Mr. Nasuti was required to establish that his 

alleged disclosure “was a contributing factor in the personnel action” that was taken against him. 5 U.S.C. 

§ 1221(e)(1). Here, however, substantial evidence supports the administrative judge’s finding that Mr. Nasuti

failed to prove that the State Department officials responsible for his termination were aware of his disclosure at 

the time they made that decision. 

Before the administrative judge, Mr. Nasuti conceded 

that he did not make his body-armor disclosure to Ms. 

Hanna or any other State Department official he argued

to be responsible for his termination. Instead, Mr. Nasuti

alleged that he made the disclosure to “multiple officials” 

in the Iraq Transition Assistance Office, “a senior official 

at the Foreign Service Institute,” and “fellow classmates.” 

Pet’r’s App. 14. He did not identify any of the officials or 

allege that they were involved in his termination. Given 

that record, the administrative judge’s finding was supported by substantial evidence.

Likewise, the administrative judge reasonably rejected Mr. Nasuti’s assertions regarding two emails he received from Deborah Strom, a State Department 

employee. As the administrative judge found, those 

emails establish only that Mr. Nasuti asked to bring his 

own gear with him to Iraq. They do not establish that Mr. 
10 NASUTI v. STATE

Nasuti disclosed his broad concerns regarding the body 

armor the State Department was providing to its employees. 

On appeal, Mr. Nasuti does not identify any defects in 

the administrative judge’s reasoning. Instead, he argues 

mainly that the State Department official who terminated 

him lacked authority to do so. As the administrative 

judge noted, however, we have previously held those 

arguments to be precluded. Nasuti, 504 Fed. App’x at 

899. We therefore have no basis for disturbing the administrative judge’s finding.

Because the administrative judge reasonably found 

that Mr. Nasuti did not prove that his alleged disclosure 

was a contributing factor in his termination, and we see 

no error in that finding or the process, we must affirm the 

denial of his whistleblower claim. We do not need to 

review the administrative judge’s alternative finding, that 

the State Department proved, by clear and convincing 

evidence, that it would have terminated Mr. Nasuti even 

in the absence of any whistleblowing activity.

CONCLUSION

For the foregoing reasons, we affirm the judgment of 

the Merit Systems Protection Board.

AFFIRMED