Opinion

Damian Nastri v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAMIAN NASTRI, DOCKET NUMBER

Appellant, DC-1221-18-0420-W-1

DEPARTMENT OF DEFENSE, DATE: May 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Damian R. Nastri , Springfield, Virginia, pro se.

Lauren Adkins , Alexandria, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

provide an alternate basis for dismissing the appeal for lack of jurisdiction, we

AFFIRM the initial decision.

BACKGROUND

¶2 In March 2014, the appellant filed a complaint with the Office of Special

Counsel (OSC) alleging that the agency took personnel actions against him in

retaliation for making protected disclosures. Initial Appeal File (IAF), Tab 1

at 54, 65. On January 23, 2018, OSC issued the appellant a close-out letter,

informing him of his right to seek corrective action from the Board. Id. In the

letter, OSC indicated that the appellant alleged that the agency “retaliated against

[him] for disclosing information described in our whistleblower statute, 5 U.S.C.

§ 2302(b)(8),” and that the “disclosures of information and personnel actions that

form the bases of [his] OSC complaint are set forth in [his] original complaint

and the numerous submissions [he has] made to this office since that filing.” Id.

¶3 The appellant subsequently filed the present appeal, which the

administrative judge found to be timely filed. IAF, Tabs 1, 13. Thereafter, the

administrative judge issued a detailed jurisdictional order, explaining the

appellant’s jurisdictional burden and instructing him to produce evidence and

argument establishing the Board’s jurisdiction over his appeal. IAF, Tab 15.

In the order, she specifically instructed the appellant to provide evidence that he

exhausted his whistleblower claims with OSC, emphasizing that the Board may

only consider the precise whistleblowing disclosures and personnel actions that

were brought to the attention of OSC. Id. at 3. She also informed him that he

must show that he raised with OSC the protected disclosures, protected activity,

and personnel actions that he sought to litigate before the Board and that there

were no exceptions to this requirement. Id. at 9. The administrative judge

granted the appellant’s request for an extension of time to respond to the

jurisdictional order, providing him a 90-day extension. IAF, Tab 26 at 4.

The appellant timely submitted a response, but he did not substantively address

the jurisdictional issue. IAF, Tab 39. As a result, the agency moved the

administrative judge to dismiss the appeal for lack of jurisdiction.

IAF, Tabs 39-40.

¶4 As explained in detail by the administrative judge in the initial decision,

during the course of the proceedings below, the appellant filed several motions

and other pleadings in which he, among other things, requested to stay

proceedings and remand his appeal to OSC, requested several protective orders,

sought to recuse agency counsel, sought reconsideration of his request for

protective orders, requested that the administrative judge certify an interlocutory

appeal on all of these matters, sought a dismissal without prejudice, requested

that the administrative judge disqualify herself from the appeal, and again

requested that the administrative judge certify an interlocutory appeal on these

matters. IAF, Tabs 1, 4, 12, 20-21, 29, 36, 39, 42, 45, Initial Decision (ID).

The administrative judge denied these requests. IAF, Tabs 14, 25-26, 30, 34, 38,

41, 44.

¶5 Without holding a hearing, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction. ID at 1. She found that,

although the appellant established that he filed a complaint with OSC in

March 2014, he failed to specify what particular claims he raised in his complaint

vis-à-vis the claims he raised in his appeal. ID at 6. She indicated that the

appellant referenced a letter that he alleged that he received from OSC in 2016,

stating that his initial OSC “complaint memorandum was 221 single-spaced pages

long and was supplemented . . . totaling several thousand pages,” and included

“multiple violations of 5 U.S.C. § 2302(b)(1), (4), (5), (6), (8), (9), (10), (11),

(12), (13); 5 U.S.C. § 2302(c); and 5 U.S.C. § 1216(a)(3).” ID at 7; IAF, Tab 1

at 62. She also indicated that the appellant alleged that the letter concluded,

“[d]ue to the volume of [his] complaint and the breadth of [his] allegations,

OSC focused the investigation on two sets of substantive, discrete personnel

actions.” ID at 7; IAF, Tab 1 at 62-63. She further stated that the appellant

referenced another, undated letter from OSC in which OSC indicated, “[b]ecause

[he had] alleged hundreds of prohibited personnel practices in [his] complaint, it

is not practical for me to list them all here.” ID at 7; IAF, Tab 1 at 63.

She concluded that, even if the appellant submitted voluminous documentation to

OSC, his appeal did not contain enough information to ascertain what particular

claims he exhausted in that forum. ID at 7. In response to the appellant’s

argument that he could not be expected to provide the Board with evidence of

exhaustion due to the breadth of his claims and the alleged thousands of pages he

submitted to OSC during its investigation, the administrative judge noted that she

granted far more time than typically allotted to respond to her jurisdictional

notice and that the requirements set forth in her order were clear, reasonable, and

necessary. ID at 8. She concluded that, because the appellant failed to

substantively respond to her order or otherwise provide the required information,

he failed to prove that he exhausted with OSC and that, therefore, the appeal must

be dismissed. Id.

¶6 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has replied in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 To establish jurisdiction over an IRA appeal, an appellant must show that he

exhausted his administrative remedies before OSC and make the following

nonfrivolous allegations: (1) that he made a protected disclosure described under

5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) that the disclosure or protected

activity was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of

the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)

(1). Conclusory, vague, or unsupported allegations are insufficient to qualify as

nonfrivolous allegations of IRA jurisdiction. Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 7 (2011). If the appellant establishes Board

jurisdiction over his IRA appeal by exhausting his remedies before OSC and

making the requisite nonfrivolous allegations, he has the right to a hearing on the

merits of his claim. Id.

¶8 Under 5 U.S.C. § 1214(a)(3), an appellant is required to “seek corrective

action from [OSC] before seeking corrective action from the Board” through an

IRA appeal. Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3,

¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). To satisfy this requirement,

an appellant must provide to OSC a sufficient basis to pursue an investigation that

might lead to corrective action. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to issues raised before

OSC. See Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed.

Cir. 1993); Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). An

appellant may demonstrate exhaustion through his initial OSC complaint,

evidence that he amended the original complaint, including but not limited to

OSC’s determination letter and other letters from OSC referencing any amended

allegations, and the appellant’s written responses to OSC referencing the

amended allegations. Mason, 116 M.S.P.R. 135, ¶ 8; see McCarthy v. Merit

Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir. 2016).

¶9 On review, the appellant makes several arguments concerning, among other

things, the administrative judge’s procedural rulings below and her alleged bias

against him, but he fails to challenge the administrative judge’s ruling that he did

not establish that he exhausted his claims with OSC. PFR File, Tab 1. Rather, as

to exhaustion, he claims that the administrative judge’s orders instructing him to

file evidence and argument at the jurisdictional stage were impossible to satisfy,

unlawful, and harassing. Id. at 12-18. In particular, he alleges that the

administrative judge’s instruction for him to provide the Board evidence of

exhaustion at the jurisdictional stage is unlawful because he does not need to

prove the elements of his claim until he receives a hearing on the merits.

Id. at 15-18.

¶10 The appellant’s arguments are unpersuasive, as it is well settled that, to

receive a hearing on the merits in an IRA appeal, an appellant must, inter alia,

prove exhaustion by a preponderance of the evidence. Mason, 116 M.S.P.R. 135,

¶ 9; see Miller, 122 M.S.P.R. 3, ¶ 10 (stating that seeking corrective action with

OSC is an important statutory prerequisite to an IRA appeal before the Board).

Here, the administrative judge properly determined that the appellant failed to

meet his burden. Specifically, the lone piece of correspondence from OSC that

the appellant submitted in the appeal was his close-out letter, which referenced

only unidentified disclosures of information under 5 U.S.C. § 2302(b)(8) and

unidentified personnel actions. IAF, Tab 1 at 65. Moreover, the appellant failed

to otherwise identify the whistleblowing disclosures and personnel actions that

were brought to the attention of OSC. Under these circumstances, the

administrative judge properly concluded that the appellant failed to prove that he

exhausted his claims with OSC because he failed to show which of his several

alleged protected disclosures and personnel actions he raised before OSC.

ID at 6-8; see Boechler v. Department of the Interior, 109 M.S.P.R. 638, ¶¶ 9-12

(2008) (dismissing an IRA appeal for failure to exhaust when the appellant’s

evidence of exhaustion did not show that he raised before OSC the same issues

raised in his Board appeal), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).

¶11 Nevertheless, even if the appellant could show that he exhausted his

administrative remedies before OSC concerning the disclosures and personnel

actions generically referenced in the close-out letter, he cannot establish that the

Board has jurisdiction over his IRA appeal because he failed to nonfrivolously

allege that he made a protected disclosure under 5 U.S.C. § 2302(b)(8). In the

appellant’s lengthy initial appeal, he alleged that he made over 100 disclosures

concerning the agency’s unlawful, unethical, and criminal actions over a long

period of time, but he did not provide specific information concerning the alleged

disclosures in any coherent manner. IAF, Tab 1. As a result, the administrative

judge issued a jurisdictional order, which provided explicit instructions to the

appellant regarding what he needed to allege to make a nonfrivolous allegation of

a protected disclosure, including the need to identify each disclosure by number,

and indicate the date, substance, and recipients of each disclosure. IAF, Tab 15

at 7. The appellant failed to do so, and we find that his vague and conclusory

allegations contained in the initial appeal do not amount to a nonfrivolous

allegation that he made a protected disclosure under section 2302(b)(8). See, e.g.,

Johnson v. Merit Systems Protection Board, 583 F. App’x 908, 909 (Fed. Cir.

2014) (Table) (finding that it is neither the Board’s nor our reviewing court’s

responsibility to wade through hundreds of pages of materials in search of

allegations establishing jurisdiction); 2 Keefer v. Department of Agriculture,

92 M.S.P.R. 476, ¶ 18 n.2 (2002) (holding that it is not the Board’s obligation to

pore through the record or to construe and make sense of allegations based on

various parts of a voluminous file).

The Board has held that it may rely on unpublished decisions of the U.S. Court of

Appeals for the Federal Circuit if it finds the court’s reasoning persuasive. See Herring

v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n. * (2001).

¶12 As to the appellant’s arguments on review concerning the administrative

judge’s procedural rulings below and her alleged bias against him, we find them

without merit. 3 See, e.g., Defense Intelligence Agency v. Department of Defense ,

122 M.S.P.R. 444, ¶ 16 (2015) (explaining that administrative judges have broad

discretion to regulate the proceedings before them and, absent an abuse of

discretion, the Board will not find reversible error in such rulings); Young v. U.S.

Postal Service, 115 M.S.P.R. 424, ¶ 19 (2010) (stating that, in making a claim of

bias or prejudice against an administrative judge, a party must overcome the

presumption of honesty and integrity that accompanies administrative

adjudicators); Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 7 (2002)

(finding an administrative judge acted within his discretion in declining to certify

a ruling on a recusal motion based on “other disqualification” as an interlocutory

appeal because, on its face, the issue did not involve an important question of

policy or law).

¶13 We have reviewed the appellant’s remaining arguments and determined that

they provide no basis to disturb the initial decision.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review

of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your

claims determines the time limit for seeking such review and the appropriate

In explaining his bias claim, the appellant states that the administrative judge

“recognized [his] handicapped nature” and subsequently retaliated against him during

the proceedings. PFR File, Tab 1 at 22. To the extent that the appellant is raising an

allegation that the administrative judge discriminated against him on the basis of

disability under 5 C.F.R. § 1207.170, he has provided insufficient information

explaining or supporting such a claim. Accordingly, we find that this argument

provides no basis to disturb the initial decision.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the