Martin Akerman v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTIN AKERMAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2046
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-0752-23-0457-I-1 and DC-0752-23-0457-
S-1.
______________________
ON MOTION
______________________
P ER CURIAM .
O R D E R
After consideration of the parties’ responses to this
court’s order directing them to show cause whether Martin
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AKERMAN v. MSPB 2
Akerman’s petition for review should be dismissed for lack
of jurisdiction, we dismiss.*
The court received Mr. Akerman’s petition for review
identifying two Merit Systems Protection Board docket
numbers—DC-0752-23-0457-I-1 and DC-0752-23-0457-S-
1—and specifically requesting review of a “Third Order”
entered May 22, 2023. ECF No. 1-2 at 1. Attached to that
petition is a May 22, 2023, decision from the administrative
judge in DC-0752-23-0457-I-1 entitled “Third Order,”
which denies Mr. Akerman’s motion for “Certification of In-
terlocutory Appeal” to the Board.
The court directed the parties to show cause because
while 28 U.S.C. § 1295(a)(9) provides the court with juris-
diction over “an appeal from a final order or final decision
of the Merit Systems Protection Board,” the administrative
judge’s denial of Mr. Akerman’s third request for an inter-
locutory appeal to the Board does not “end[] the litigation
on the merits and leave[] nothing for the [tribunal] to do
but execute the judgment,” Weed v. Soc. Sec. Admin., 571
F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). Thus, it is
not a “final” order or decision that can be immediately ap-
pealed to this court. Mr. Akerman asserts that the order is
nonetheless appealable under Cohen v. Beneficial Indus-
trial Loan Corp., 337 U.S. 541 (1949), but Cohen’s collat-
eral order doctrine is for only a “small class of collateral
rulings that,” among other things, “resolve important ques-
tions separate from the merits,” Kaplan v. Conyers, 733
F.3d 1148, 1154 (Fed. Cir. 2013) (cleaned up). Here, the
interlocutory order is not such an order; rather,
* Mr. Akerman appears to seek reconsideration of
the court’s July 31, 2023, order denying his request to con-
solidate this case with Appeal No. 2023-2216 (concerning
Board No. DC-3443-22-0639-I-1), but that request is denied
as moot given this dismissal. Mr. Akerman’s request to
modify the caption is also denied.
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AKERMAN v. MSPB 3
Mr. Akerman appears to simply want expedited review of
the “underlying . . . issues,” ECF No. 20 at 2, which is in-
sufficient.
Moreover, we note that in DC-0752-23-0457-I-1, the ad-
ministrative judge has since issued an initial decision, but
Mr. Akerman’s petition here does not challenge that initial
decision, and, in any event, that decision remains non-final
because Mr. Akerman filed a timely petition for review
with the Board, such that our review of that decision is
premature. See 5 C.F.R. § 1201.113(a); Weed, 571 F.3d at
1361–63. Lastly, we note that Mr. Akerman’s submissions
here have not reasonably identified any decision, final or
otherwise, in DC-0752-23-0457-S-1 for this court to review.
We therefore dismiss.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed.
(2) Each side shall bear its own costs.
(3) All pending motions are denied.
October 13, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
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