NOTE: This disposition is nonprecedential 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 protection 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 Counsel (“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 allegations 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 submissions, 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 disclosure 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 purported 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 remanded “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 evidence 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 regarding 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 review.” 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 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.” 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 record 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). However, 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 whistleblower 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 conclusion that Nasuti has failed to show that he exhausted his 

administrative remedies before the OSC. 
7 NASUTI v. MSPB

AFFIRMED 

COSTS 

No costs.