Damian R. Nastri v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAMIAN R. NASTRI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2152
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-18-0420-W-1.
______________________
Decided: December 8, 2025
______________________
D AMIAN R. NASTRI, Springfield, VA, pro se.
D EANNA SCHABACKER , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, K ATHERINE M ICHELLE S MITH .
______________________
Case: 24-2152 Document: 33 Page: 1 Filed: 12/08/2025

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NASTRI v. MSPB 2
Before M OORE, Chief Judge, STARK , Circuit Judge, and
O ETKEN , District Judge.1
PER CURIAM.
Damian Nastri petitions for review of a decision from
the Merit Systems Protection Board (Board) dismissing his
appeal for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Nastri was employed as an investigator in the In-
vestigations of Senior Officials directorate of the Depart-
ment of Defense, Office of Inspector General (the Agency).
S. Appx. 61.2 Mr. Nastri filed a whistleblower complaint
with the Office of Special Counsel (OSC), alleging the
Agency took personnel actions against him for making pro-
tected disclosures. S. Appx. 2; S. Appx. 15. OSC termi-
nated his investigation, and Mr. Nastri filed a
whistleblower individual right of action (IRA) appeal at the
Board. S. Appx. 2; S. Appx. 15. The Board dismissed for
lack of jurisdiction. S. Appx. 1–8. Mr. Nastri timely peti-
tioned for review.3 We have jurisdiction under 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
1 Honorable J. Paul Oetken, District Judge, United
States District Court for the Southern District of New
York, sitting by designation.
2 “S. Appx.” refers to the appendix attached to Re-
spondent’s brief.
3 The Government argues Mr. Nastri’s appeal
should be dismissed as untimely because he filed his notice
of appeal one day late. Government Br. 8–12. Mr. Nastri
argues he timely filed his appeal. Nastri Reply Br. 6–7.
We agree with Mr. Nastri, as the revised docket entry
shows he timely filed his notice of appeal. ECF No. 1.
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NASTRI v. MSPB 3
D ISCUSSION
Our review in an appeal from a Board decision is lim-
ited. Generally, we must affirm the decision unless we find
it 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). Whether the Board has jurisdiction is a
question of law we review de novo. Bryant v. Merit Sys.
Prot. Bd., 878 F.3d 1320, 1325 (Fed. Cir. 2017). We review
the Board’s fact findings underlying its jurisdictional anal-
ysis for substantial evidence. Id. “The Board has jurisdic-
tion if an appellant has exhausted his remedies before OSC
and makes nonfrivolous allegations that (1) he made a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), or
(b)(9)(B)–(D), and (2) such disclosure was a contributing
factor in an agency’s decision to take or abstain from a per-
sonnel action.” Smolinski v. Merit Sys. Prot. Bd., 23 F.4th
1345, 1350 (Fed. Cir. 2022).
The Board concluded Mr. Nastri failed to establish ju-
risdiction. S. Appx. 1–8. Specifically, the Board deter-
mined Mr. Nastri failed to challenge the administrative
judge’s (AJ) ruling that Mr. Nastri did not establish by a
preponderance of the evidence he exhausted his claims
with OSC because he failed to identify whistleblowing dis-
closures and personnel actions brought to OSC’s attention.
S. Appx. 6. The Board also determined that even if
Mr. Nastri had exhausted his claims, he failed to follow the
AJ’s instructions “to identify each disclosure by number,
and indicate the date, substance, and recipients of each dis-
closure,” thus failing to nonfrivolously allege any of his al-
leged disclosures were protected. S. Appx. 7. Mr. Nastri
does not challenge these findings on appeal, which are sup-
ported by substantial evidence. S. Appx. 1–8. Instead, he
states “exhaustion had not yet occurred because the Spe-
cial Counsel had harassingly deprived his rights and ille-
gally failed to ministerially perform.” Nastri Br. 6
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NASTRI v. MSPB 4
(emphasis omitted). He also claims he nonfrivolously al-
leged he made protected disclosures but points only to his
IRA appeal brief, id. at 11 (citing S. Appx. 61–122), which
the Board correctly determined contained “vague and con-
clusory allegations [that] . . . do not amount to a nonfrivo-
lous allegation that he made a protected disclosure under
section 2302(b)(8).” S. Appx. 7. Nowhere does he argue he
disclosed the substance of his alleged protected disclosures
to OSC. Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328
(Fed. Cir. 2020) (“A party cannot establish jurisdiction
through general assertions, but must provide substantive
details.”). We therefore affirm the Board’s conclusion that
Mr. Nastri failed to establish jurisdiction.
Mr. Nastri also challenges a host of the AJ’s procedural
rulings relating to denials of his requests for protective or-
ders, stays, interlocutory review, disqualification of agency
counsel, and dismissal without prejudice for at least one
year. Nastri Br. 12–29. Mr. Nastri’s conclusory argu-
ments, however, do not overcome his jurisdictional failure.
Nor do his arguments demonstrate the Board erred or that
the error was harmful. See Valles v. Dep’t of State, 17 F.4th
149, 152 (Fed. Cir. 2021) (applying harmless error rule).
CONCLUSION
We have considered Mr. Nastri’s remaining arguments
and find them unpersuasive. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.
Case: 24-2152 Document: 33 Page: 4 Filed: 12/08/2025

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