       NOTE: This disposition is nonprecedential.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 ap-
pointed 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 sanc-
tioned him by cancelling his hearing and deciding the case
based on the written record. In that decision, the admin-
istrative 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 back-
ground 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 termi-
nated 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 de-
termine whether a letter concerning the noise-level disclo-
sure should have been included in the administrative
record. Nasuti, 376 F. App’x at 32–33. The Board con-
cluded 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 re-
garding most of Mr. Nasuti’s allegations, but remanded to
the Board to determine whether the Whistleblower Pro-
tection 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 Depart-
ment filed motions to compel responses to certain discov-
ery 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 ad-
ministrative 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 administra-
tive 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 corre-
spondence 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 sanc-
tions, 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 adminis-
trative 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 deposi-
tion, 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] De-
partment 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 proceed-
ing 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 threat-
ened 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 admin-
istrative 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 Jus-
tice, 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 ad-
ministrative 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 infor-
mation 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 administra-
tive judge’s discovery orders would result in the cancella-
tion 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 administra-
tive 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 admin-
istrative judge abused his discretion in imposing sanc-
tions 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 cancella-
tion. 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 adminis-
trative 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 per-
sonnel action” that was taken against him. 5 U.S.C.
§ 1221(e)(1). Here, however, substantial evidence sup-
ports the administrative judge’s finding that Mr. Nasuti
failed to prove that the State Department officials respon-
sible 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 sup-
ported by substantial evidence.
    Likewise, the administrative judge reasonably reject-
ed Mr. Nasuti’s assertions regarding two emails he re-
ceived 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 employ-
ees.
    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 admin-
istrative 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
