Case: 14-139 Document: 10 Page: 1 Filed: 08/05/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE MATTHEW J. NASUTI,
Petitioner.
______________________
2014-139
______________________
On Petition for Writ of Mandamus to the Merit Sys-
tems Protection Board in No. DC-1221-12-0321-B-1.
______________________
ON PETITION
______________________
Before REYNA, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
ORDER
The court treats Matthew J. Nasuti’s submission re-
ceived on May 30, 2014, as a petition for a writ of man-
damus to direct the Merit Systems Protection Board
(“Board”) to, inter alia, hold a hearing and conduct discov-
ery. The Department of State responds. Nasuti replies.
Nasuti challenged his termination following two
weeks of employment as Senior City Management Advisor
in the State Department’s Iraq Transition Assistance
Office. In his most recent petition for review in this court,
we reversed the Board’s determination that it did not
possess jurisdiction over Nasuti’s claims that he had been
Case: 14-139 Document: 10 Page: 2 Filed: 08/05/2014
2 IN RE NASUTI
terminated in connection with an alleged protected disclo-
sure concerning body armor. Nasuti v. Merit Systems
Protection Board, 504 F. App’x 894, 898-99 (Fed. Cir.
2013). We also remanded for the Board to determine if
the Whistleblower Protection Enhancement Act of 2012
(“WPEA”) “applie[d] retroactively and whether, if so,
Nasuti ha[d] alleged a protected disclosure under the new
statute.” Id. at 899.
On remand, the Board determined that the WPEA
applied retroactively and that Nasuti had made a non-
frivolous claim that his disclosure was a contributing
factor in his removal. As a result, the Board concluded it
possessed jurisdiction over the appeal and remanded the
action for a merits determination by an administrative
judge in the first instance. The Board also directed that
the parties be given an opportunity to conduct discovery
prior to a hearing on the merits.
The remedy of mandamus is available only in ex-
traordinary situations to correct a clear abuse of discre-
tion or usurpation of judicial power. In re Calmar, Inc.,
854 F.2d 461, 464 (Fed. Cir. 1988). A party seeking a writ
bears the burden of proving that it has no other means of
securing the relief desired and that the right to issuance
of the writ is “clear and indisputable.” Mallard v. United
States District Court, 490 U.S. 296, 309 (1989) (citation
omitted).
Nasuti appears to challenge the speed with or at
which his proceeding is advancing and seeks discovery
related to matters that should be raised before the Board
in the first instance. If the Board declines or has already
denied Nasuti’s requests, then on further petition for
review from a final Board decision or order Nasuti can
raise his challenges in this court. Nasuti has not shown
undue delay or that review of the issues raised are appro-
priate at this interlocutory stage. Thus, we deny his
petition.
Case: 14-139 Document: 10 Page: 3 Filed: 08/05/2014
IN RE NASUTI 3
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
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