Robert Nathan v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT NATHAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1260
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0432-20-0238-I-1.
______________________
Decided: January 7, 2026
______________________
ROBERT N ATHAN, Fairless Hills, PA, pro se.
K AREY L AUREN H ART , Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by K ATHERINE
MICHELLE SMITH .
______________________
Before D YK, P ROST , and REYNA, Circuit Judges.
P ER CURIAM .
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NATHAN v. MSPB 2
Robert Nathan appealed to the Merit Systems Protec-
tion Board (“Board”) from a decision of the Internal Reve-
nue Service (“IRS”) removing him from his position. The
Board dismissed his appeal as a sanction for his conduct
during the proceedings. We affirm.
BACKGROUND
Mr. Nathan, who states that he is a lawyer, was a sea-
sonal Tax Examining Technician at the IRS. On February
28, 2020, Mr. Nathan was removed from his position for
unsatisfactory performance. Mr. Nathan appealed his re-
moval to the Board.
The IRS filed a motion to compel discovery from
Mr. Nathan, which the Board administrative judge
granted on June 24, 2020, and ordered Mr. Nathan to pro-
vide responses within ten calendar days. On July 8, 2020,
the IRS notified the administrative judge that Mr. Nathan
had not complied with the administrative judge’s discovery
order and requested evidentiary sanctions. After receiving
submissions from both parties and conducting a conference
on July 14, 2020, the administrative judge granted the
IRS’s motion and imposed evidentiary sanctions on
Mr. Nathan.
The Board scheduled a merits hearing in Mr. Nathan’s
case for September 24–25, 2020. Due to restrictions related
to the COVID-19 pandemic, the hearing was to be held over
video conference. Mr. Nathan moved to suspend the pro-
ceedings because of the proposed virtual format. The ad-
ministrative judge held a prehearing telephonic conference
on September 17, 2020. During the conference, the admin-
istrative judge considered and denied Mr. Nathan’s motion
to suspend the hearing because he did not demonstrate
good cause for doing so.
Following this ruling, the administrative judge asked
questions regarding: (1) whether Mr. Nathan wanted to
proceed with the hearing or receive a decision on the
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NATHAN v. MSPB 3
written record; (2) whether Mr. Nathan intended to testify
at the hearing despite Mr. Nathan’s failure to submit a wit-
ness list; and (3) whether Mr. Nathan would join a test call
to check his video connection prior to the final hearing.
Mr. Nathan answers were nonresponsive to the adminis-
trative judge’s questions.
After Mr. Nathan failed to answer the questions, the
administrative judge told Mr. Nathan that he found
Mr. Nathan’s conduct to be contumacious and that he could
be sanctioned if he continued to refuse to respond. The ad-
ministrative judge gave Mr. Nathan a “final chance” to re-
spond to the three questions and stated that, if Mr. Nathan
did not respond, the conference would terminate. S.A. 62.1
Because Mr. Nathan still did not answer the administra-
tive judge’s questions, the conference was terminated.
The same day, the administrative judge issued an “or-
der summarizing the conference call, cancelling [the mer-
its] hearing, and requiring appellant to show cause why
this appeal should not be dismissed,” relying on both
Mr. Nathan’s conduct during discovery and at the prehear-
ing conference. S.A. 59. In the order, the administrative
judge found that “[Mr. Nathan’s] behavior during the con-
ference was not simply obstreperous, but that it rose to the
level of contumacious.” S.A. 63.
After considering the parties’ writing submissions in
response to the order, on October 6, 2020, the administra-
tive judge dismissed Mr. Nathan’s appeal because he
“acted in bad faith when he continued to withhold coopera-
tion during the prehearing conference,” which “impeded
[the administrative judge’s] ability to adjudicate this ap-
peal.” S.A. 18. In making his decision, the administrative
judge considered “the totality of appellant’s conduct,”
1 Citations to the S.A. refer to the Supplemental Ap-
pendix filed by the government in No. 25-1260, Dkt. No. 24.
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NATHAN v. MSPB 4
including Mr. Nathan’s “previous intransigence” during
discovery. Id.
Mr. Nathan petitioned the full Board for review. On
October 10, 2024, the full Board denied Mr. Nathan’s peti-
tion and affirmed the administrative judge’s decision based
on Mr. Nathan’s conduct at the prehearing conference.
[S.A. 1–3.] Mr. Nathan timely petitions for review of the
Board’s decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
In Board proceedings, the Board has discretion to “im-
pose sanctions on the parties as necessary to serve the ends
of justice.” 5 C.F.R. § 1201.43. We will disturb the Board’s
decision on a matter committed to its discretion only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” Mendoza v. Merit Sys.
Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992). The sanction
of dismissal may be warranted for failure to prosecute if an
appellant acts in bad faith and repeatedly refuses to com-
ply with Board orders. 5 C.F.R. § 1201.43(b); see Ahlberg
v. Dep’t of Health & Hum. Servs., 804 F.2d 1238, 1242–43
(Fed. Cir. 1986); Williamson v. Merit Sys. Prot. Bd.,
334 F.3d 1058, 1063 (Fed. Cir.2003).
On review, Mr. Nathan makes several arguments.
First, Mr. Nathan argues that the Board wrongfully denied
his motion to suspend the proceedings due to the proposed
virtual format for the merits hearing. Mr. Nathan con-
cedes the Board “was correct” in applying Koehler v. Dep’t
of Air Force, 99 M.S.P.R. 82 (2005), which allows for Board
hearings via video conference, but argues that it should be
overruled. Pet’rs Br. 8. We have previously recognized the
Board’s “broad discretion as to how hearings are con-
ducted,” and recognized that “the use of video conferencing
is acceptable absent a showing of specific unfairness in a
particular case.” Toyama v. Leavitt, 408 F. App’x 351, 353
(Fed. Cir. 2010); see also Burroughs v. Dep't of Army,
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NATHAN v. MSPB 5
254 F. App’x 814, 818 (Fed. Cir. 2007). Mr. Nathan does
not identify how a hearing via video conference creates un-
fairness in his particular case. As such, we reject Mr. Na-
than’s argument that it was error to schedule a video
conference.
Second, Mr. Nathan contends the previous hearing
proceedings were improper because Congress and the pub-
lic did not receive notice of the discovery and prehearing
conferences and because the conferences were “non-rec-
ord.” Pet’r’s Informal Br. 8. There is no requirement for
the Board to notify Congress or the public of such prehear-
ing video conferences, nor a requirement to put discovery
or prehearing conferences on the record. The administra-
tive judge also pointed out that the scheduled merits hear-
ing “remained open to the public.” S.A. 60. We see no
abuse of discretion in the administrative judge’s decision to
reject Mr. Nathan’s arguments.
Third, Mr. Nathan argues that the administrative
judge’s summary of the prehearing conference was incor-
rect. He contends that there was no contemporaneously
transcribed record of the prehearing conference and that
the administrative judge “misheard petitioner’s words” or
did not give the words their intended meaning in his writ-
ten summary of the prehearing conference. Pet’r’s Infor-
mal Br. 8. The Board concluded that the administrative
judge’s written summary complied with the Board’s record-
keeping requirements and apparently concluded that the
administrative judge’s written summary was accurate be-
cause of “the presumption of honesty and integrity that ac-
companies administrative adjudicators.” S.A. 3; see
Withrow v. Larkin, 421 U.S. 35, 47 (1975). We see no error
in the Board’s conclusions. In any event, Mr. Nathan’s pur-
ported transcription of the prehearing conference in his re-
sponse to the Board’s September 27, 2020, order to show
cause supports the events described in the administrative
judge’s written summary.
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NATHAN v. MSPB 6
Fourth, Mr. Nathan argues that the administrative
judge did not properly warn him that his appeal could be
dismissed. In light of the administrative judge’s repeated
warnings at the prehearing conference, we see no error in
the Board’s conclusion that “the administrative judge pro-
vided appropriate prior warning, allowed a response to the
proposed sanction, and documented the reasons for the
sanction.” S.A. 3.
Finally, Mr. Nathan contends the full Board erred in
not determining whether the administrative judge erred in
relying on Mr. Nathan’s previous discovery violations in
dismissing Mr. Nathan’s appeal. The full Board, however,
affirmed the administrative judge’s dismissal of the appeal
for Mr. Nathan’s conduct at the prehearing conference. In
concluding “that the appellant acted in bad faith by repeat-
edly refusing to answer straightforward questions that
were necessary for further adjudication of the appeal,” the
full Board satisfied the standard for imposing the sanction
of dismissal. S.A. 3; see 5 C.F.R. § 1201.43(b). As a result,
the full Board properly determined that Mr. Nathan’s chal-
lenges to the evidentiary sanctions were moot. We see no
abuse of discretion in the Board’s dismissal of the appeal in
this respect.
We conclude that the Board did not err in dismissing
Mr. Nathan’s appeal as a sanction for his conduct during
the prehearing proceedings. We have considered Mr. Na-
than’s remaining arguments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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