Martin Akerman v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTIN AKERMAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1913
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-22-0639-I-1.
______________________
Decided: April 15, 2025
______________________
MARTIN AKERMAN, I, Arlington, 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 J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , REYNA, and T ARANTO, Circuit Judges.
P ER CURIAM .
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AKERMAN v. MSPB 2
In 2021, Martin Akerman, then an employee of the Air
Force, filed a complaint with the United States Office of
Special Counsel (OSC), alleging that the Air Force took re-
taliatory actions against him in violation of whistleblower-
protection laws, 5 U.S.C. § 2302(b)(8) and (b)(9). OSC ter-
minated its inquiry without providing the requested relief.
Mr. Akerman also pursued another potential route for re-
lief—through the Department of Defense (Defense) Office
of Inspector General (Defense OIG). When Defense OIG
declined to open an investigation, he asked the Intelligence
Community Office of the Inspector General (Intelligence
OIG) to review the Defense OIG decision, but it declined.
Mr. Akerman then appealed to the Merit Systems Protec-
tion Board (Board), but the Board-assigned administrative
judge dismissed Mr. Akerman’s appeal for lack of jurisdic-
tion, Board Supplemental Appendix (S. Appx.) at 10–22,
and the full Board affirmed the administrative judge’s de-
cision, which became the final decision of the Board,
S. Appx. 1–3. We now affirm.
I
In 2021, Mr. Akerman was employed as a Supervisory
Information Technology Specialist in the Chief Data Office
of the Air Force. S. Appx. 43, 54. Starting in May 2021,
Mr. Akerman told employees throughout the Air Force of
his belief that certain officials were unlawfully reorganiz-
ing the staffing in the Chief Data Office. S. Appx. 38–
39, 43. In July 2021, Mr. Akerman was selected to be the
Chief Data Officer of the National Guard Bureau and was
tentatively offered the job, conditional at least in part on
his obtaining a top-secret security clearance. S. Appx. 37.
Before his scheduled transfer into the new job, however,
Defense informed Mr. Akerman and the Air Force of its in-
tent to revoke his security clearance and access to confiden-
tial information. See S. Appx. 54, 59.
On August 26, 2021, Mr. Akerman filed a whistle-
blower complaint with OSC, alleging that Air Force
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AKERMAN v. MSPB 3
officials took retaliatory actions against him in violation of
5 U.S.C. § 2302(b)(8) and (b)(9). S. Appx. 43, 53. On Feb-
ruary 28, 2022, OSC sent a letter to Mr. Akerman stating
that it had terminated its inquiries into his allegations
against Air Force officials as well as retaliatory-action al-
legations he had made against National Guard Bureau of-
ficials (after August 26, 2021).1 S. Appx. 43–44. The OSC
letter also notified Mr. Akerman that he could appeal to the
Board for corrective action, invoking the individual right of
action (IRA) under 5 U.S.C. §§ 1214(a)(3) and 1221, and
that including the OSC letter with such an appeal could
“help show that you have exhausted OSC’s administrative
procedures.” S. Appx. 43–44.
Mr. Akerman also sought whistleblower relief through
two other routes, pursuant to Presidential Policy Directive
19, Protecting Whistleblowers with Access to Classified In-
formation (PPD-19) (October 10, 2012), but he did not do so
until the very end of February 2022 (either February 27 or
28), and OSC did not have before it any PPD-19 decision
when it terminated its inquiry into the above-noted com-
plaints. See S. Appx. 14, 57–58, 61; Informal Opening
Brief at 8. In particular, Mr. Akerman filed a complaint
with Defense, alleging that officials at the National Guard
Bureau restricted his access to confidential information in
reprisal for his protected disclosures. S. Appx. 58, 61. On
May 19, 2022, Defense OIG declined to open an investiga-
tion into his reprisal complaints. S. Appx. 58–59.
1 Before filing the OSC complaint relevant to this ap-
peal, Mr. Akerman filed three other complaints with OSC
(on June 16, July 1, and August 11, 2021), alleging that Air
Force officials were retaliating against him. S. Appx. 39–
41. After filing this August 26, 2021 complaint, Mr. Aker-
man also alleged that the National Guard Bureau, upon
hearing of his OSC complaint, took retaliatory actions
against him. S. Appx. 43–44.
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AKERMAN v. MSPB 4
Mr. Akerman then submitted to Intelligence OIG a request
for external review of Defense OIG’s decision, pursuant to
Section C of PPD-19 and 50 U.S.C. § 3236. S. Appx. 55–58.
On September 8, 2022, Intelligence OIG denied Mr. Aker-
man’s request. S. Appx. 58–59.
On September 12, 2022, Mr. Akerman appealed to the
Board, explaining that “[t]he [Intelligence Community] has
completed the review of the PPD-19 petition for review and
there appears to be no further recourse,” and thus he was
“[b]ringing back [the appeal] to MSPB under the” whistle-
blower statutes. S. Appx. 52. On September 14, 2022, the
Board-assigned administrative judge ordered Mr. Aker-
man “to file evidence and argument to prove that the Board
has jurisdiction over his appeal.” S. Appx. 45–
48. Mr. Akerman responded, stating that his new appeal
was an IRA appeal that was “a continuation of matters cov-
ered in” other IRA appeals he filed with the Board.
S. Appx. 33–34.
On October 28, 2022, the administrative judge dis-
missed Mr. Akerman’s appeal for lack of jurisdiction.
S. Appx. 10–15. Mr. Akerman petitioned for review of that
decision (the initial decision), stating that “[t]his appeal is
a continuation of PPD-19 claims which were brought back
to MSPB under authority granted to handle 2302(b)(8)
claims.” S. Appx. 27–30. He also filed two motions for
leave to file new evidence. See S. Appx. 2 n.3. On May 29,
2024, the Board denied the petition for review and affirmed
the administrative judge’s initial decision, which became
the final decision of the Board. S. Appx. 1–3. Mr. Akerman
timely appealed.
II
“We review de novo whether the Board has jurisdiction
over an appeal.” Smolinski v. Merit Systems Protection
Board, 23 F.4th 1345,1350 (Fed. Cir. 2022) (citations omit-
ted). “A petitioner bears the burden of establishing that
the Board has jurisdiction by a preponderance of the
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AKERMAN v. MSPB 5
evidence.” McCarthy v. Merit Systems Protection Board,
809 F.3d 1365, 1373 (Fed. Cir. 2016) (citing Serrao v. Merit
Systems Protection Board, 95 F.2d 1569, 1573 (Fed. Cir.
1996) (citing 5 C.F.R. § 1201.56(a)(2))). We may set aside
the Board’s decision only if it is “(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). We decide legal
issues de novo and review Board findings of fact for sub-
stantial-evidence support. McIntosh v. Department of De-
fense, 53 F.4th 630, 638 (Fed. Cir. 2022). We see no basis
for setting aside the Board’s decision.
A
Although Mr. Akerman filed his appeal in this court
pursuant to 5 U.S.C. § 7703(b)(1), he argues that this is a
“mixed case”—one involving certain discrimination claims
presented to the Board in an otherwise-authorized appeal
to the Board. Informal Opening Brief at 5; see also Peti-
tioner’s Appendix (Appx.) at 23–28. Review of Board deci-
sions in a mixed case is available only in district court
because a mixed case falls within the exception to our re-
view authority stated in § 7703(b)(1)(A) and (b)(2) (refer-
ring to 5 U.S.C. § 7702). See Perry v. Merit Systems
Protection Board, 582 U.S. 420, 425–27, 432 (2017); Ash v.
Office of Personnel Management, 25 F.4th 1009, 1011 (Fed.
Cir. 2022). We conclude that this is not a mixed case, so we
have jurisdiction to review the Board’s decision.
Mr. Akerman contends that the evidence he provided
in response to the Board’s September 2022 order “shows
discriminatory animus, and entitles [him] to mixed case
considerations.” Informal Opening Brief at 5 (citing 29
C.F.R. § 1614.302(a)(2)); see also Informal Reply Brief at 6.
He has attached to his brief in this court a copy of a notice
of intent to file a civil action against Defense that he sent
to the Equal Employment Opportunity Commission
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AKERMAN v. MSPB 6
(EEOC) in June 2022, as well as the EEOC’s letter ac-
knowledging receipt of his notice. Appx. 23–34, 27. On
July 7, 2024, Mr. Akerman also filed in this court a State-
ment Concerning Discrimination, pursuant to Federal Cir-
cuit Rule 15(c), indicating that he claimed he was
discriminated against before the Board and that he did not
wish to abandon his discrimination claims. ECF No. 13.
These assertions do not show that Mr. Akerman’s ap-
peal meets the preconditions to being a mixed case, which
depends on the nature of the contentions made to the
Board. See 5 U.S.C. §§ 7702(a)(1), 7703(b)(2). He has not
established that he actually presented a claim of covered
discrimination to the Board in connection with the chal-
lenged agency actions, i.e., the Defense OIG and Intelli-
gence OIG decisions. See S. Appx. 27–61; see also Akerman
v. Merit Systems Protection Board, No. 23-2216, 2023 WL
8637562, at *1 (Fed. Cir. Dec. 14, 2023) (in dismissing for
lack of finality, concluding that Mr. Akerman did not pre-
sent a claim of covered discrimination to the Board). He
also has not established that either of the two OIG deci-
sions at issue meet the mixed-case requirement that the
challenged agency action be one that, if the employee’s al-
legations were true, would be appealable to the Board. 5
U.S.C. § 7702(a)(1)(A); see Ash, 25 F.4th at 1011; Perry, 582
U.S. at 424–25; S. Appx. 12–13. In particular, the two OIG
decisions are not appealable to the Board under 5 U.S.C.
ch. 75 or other provisions granting the Board jurisdiction.
See, e.g., 5 U.S.C. § 7512; 5 C.F.R. § 1201.3. And an IRA
appeal is not a “mixed case”: Discrimination claims may
not be raised in IRA appeals, as “the Board’s review is lim-
ited to the merits of allegations of violations of” whistle-
blower protections. Young v. Merit Systems Protection
Board, 961 F.3d 1323, 1327 (Fed. Cir. 2020); see 5 C.F.R.
§ 1209.2(c); 5 U.S.C. § 1221(e). Accordingly, review here is
available under 5 U.S.C. § 7703(b)(1)(A), and we have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
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AKERMAN v. MSPB 7
B
In dismissing Mr. Akerman’s challenge to the Intelli-
gence OIG decision (declining to review the Defense OIG
decision), the Board ruled that Mr. Akerman had not ex-
hausted his remedies with OSC and, partly for that reason,
had not established Board jurisdiction. S. Appx. 13–14; see
also S. Appx. 3. We reject Mr. Akerman’s challenge to that
conclusion. We also reject his request for a default judg-
ment and find no Board abuse of discretion on the discovery
and evidentiary matters he identifies.
The Board’s jurisdiction is limited to circumstances in
which the party seeking relief “has the right to appeal di-
rectly . . . under any law, rule, or regulation.” 5 U.S.C.
§ 1214(a)(3); see also 5 U.S.C. § 7701(a); 5 C.F.R.
§ 1201.3(a); McCarthy, 809 F.3d at 1373–74. Here, Mr.
Akerman did not identify to the Board any law, rule, or reg-
ulation outside the IRA provisions, 5 U.S.C. §§ 1214, 1221,
that might support Board review of the OIG decisions de-
clining review of the information-access denials that
threatened his eligibility for a tentatively offered position
and for continued employment: Such decisions are simply
“not among the listed bases” for a right of appeal to the
Board. S. Appx. 46 (citing 5 C.F.R. § 1201.3); see also
S. Appx. 12 (same); S. Appx. 37, 43–44. As for the IRA ap-
peal rights, Mr. Akerman did invoke them before the
Board, but the Board properly ruled that Mr. Akerman’s
“asserted IRA appeal . . . is premature.” S. Appx. 14. Mr.
Akerman had not met the IRA requirement of OSC exhaus-
tion for his present challenge to the Defense OIG and In-
telligence OIG decisions on Mr. Akerman’s request for
PPD-19 relief. See S. Appx. 14.
More specifically, in IRA appeals invoking whistle-
blowing protections, the Board has jurisdiction only if the
employee exhausted his or her remedies with OSC before
filing the IRA. 5 U.S.C. § 1214(a)(3); 5 C.F.R.
§ 1209.2(b)(1); see Yunus v. Department of Veterans Affairs,
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AKERMAN v. MSPB 8
242 F.3d 1367, 1371 (Fed. Cir. 2001); Young, 961 F.3d at
1328. To do so, the employee must “‘articulate with rea-
sonable clarity and precision [before the OSC] the basis for
his request for corrective action under the [whistleblower
protection laws]’ to allow OSC to effectively pursue an in-
vestigation.” McCarthy, 809 F.3d at 1374 (second altera-
tion added) (citation omitted). Mr. Akerman does not
dispute that, to meet the IRA exhaustion requirement, he
needed to bring the decisions made by the Defense OIG and
Intelligence OIG to the attention of OSC. Informal Open-
ing Brief at 2, 8–10. Here, Mr. Akerman did not even seek
PPD-19 relief from Defense OIG until the day before or of
the OSC termination-of-inquiry letter, and neither the De-
fense OIG nor the Intelligence OIG decision even existed
before the OSC letter was issued, let alone was the subject
of that letter.2 S. Appx. 43–44, 57, 61; Informal Opening
Brief at 8. Nor did Mr. Akerman provide any evidence that
required the Board to find that he later exhausted OSC
processes for the present challenge. We conclude that the
Board reasonably found that Mr. Akerman had not ex-
hausted before OSC his claim relating to the agency actions
involved in this appeal. See Smolinski, 23 F.4th at 1353.
Mr. Akerman now argues that the Board had jurisdic-
tion because 50 U.S.C. § 3341(j)(8)’s prohibition of retalia-
tory revocation of security clearances and access
determinations “creates a duty for MSPB to defend [him]”
and because his claims are covered under the Uniformed
Services Employment and Reemployment Rights Act
(USERRA) of 1994. Informal Opening Brief at 4–8 (citing
38 U.S.C. §§ 4301–4333). Those arguments are not
2 The OSC closure letter concerned matters that are
the subject of a separate IRA appeal, MSPB Docket
No. DC-1221-22-0445-W-1. See S. Appx. 37–42.
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AKERMAN v. MSPB 9
properly before this court here.3 Mr. Akerman did not raise
either argument in his appeal to the administrative judge
(which suffices for a determination of forfeiture),
S. Appx. 50–61, in his jurisdictional response, S. Appx. 31–
44, or in his petition to the Board for review, S. Appx. 27–
30. See Sistek v. Department of Veterans Affairs, 955 F.3d
948, 953 n.1 (Fed. Cir. 2020) (holding that appellant’s “ar-
gument that the allegedly retaliatory investigation sepa-
rately violates” a different statute is “forfeited for failure to
present it to the Administrative Judge in the first instance”
(citing Bosley v. Merit Systems Protection Board, 162 F.3d
665, 668 (Fed. Cir. 1998))); see also id. at 958 n.2; Conant
v. Office of Personnel Management, 255 F.3d 1371, 1375
(Fed. Cir. 2001). We conclude that Mr. Akerman’s argu-
ments about 50 U.S.C. § 3341(j)(8) and USERRA do not es-
tablish reversible error in the Board’s decision.
Nor is reversible error shown by Mr. Akerman’s argu-
ments that he is entitled to default judgment because the
agency never responded to the administrative judge’s juris-
dictional order, that he is entitled to discovery and evi-
dence, and that “[n]ew evidence, repeatedly rejected . . . ,
authoritatively shows retaliatory animus on the part of the
agency.” Informal Opening Brief at 10–11. The jurisdic-
tional order mandated only that Mr. Akerman respond,
3 Mr. Akerman presented these claims in two other
IRA appeals, Akerman v. Department of the Air Force,
MSPB Docket No. DC-1221-22-0445-W-1, and Akerman v.
Department of the Army, MSPB Docket No. DC-1221-22-
0257-W-1. In both cases, Mr. Akerman petitioned this
court to review the Board’s decisions, and we dismissed the
petitions for lack of final decisions. Order, Akerman v.
Merit Systems Protection Board, No. 24-1914 (Fed. Cir.
Oct. 23, 2024), ECF No. 24; Order, Akerman v. Merit Sys-
tems Protection Board, No. 24-1915 (Fed. Cir. Oct. 23,
2024), ECF No. 26.
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AKERMAN v. MSPB 10
which is consistent with the burden that he bears in estab-
lishing jurisdiction. S. Appx. 48 (“order[ing] the appellant
to file evidence and argument” but providing that “[t]he
agency may respond to the jurisdictional show cause order”
(emphasis added)); McCarthy, 809 F.3d at 1373. Mr. Aker-
man has not shown that the Board erred and “caused sub-
stantial harm or prejudice” in exercising its discretion on
the procedural matters relevant to discovery and eviden-
tiary issues. Becker v. Office of Personnel Management, 853
F.3d 1311, 1315 (Fed. Cir. 2017) (quoting Curtin v. Office
of Personnel Management, 846 F.2d 1373, 1379 (Fed. Cir.
1988)). We see no abuse of discretion in connection with
evidence and discovery or in connection with the Board’s
denial of his motions to file new evidence.
III
We have considered Mr. Akerman’s remaining argu-
ments and find them unpersuasive. We therefore affirm
the Board’s dismissal of the appeal.4
The parties shall bear their own costs.
AFFIRMED
4 On March 13, 2025, Mr. Akerman asked us to re-
consider our prior denial of a request to allow him to pre-
sent oral argument before this court, renewed his request
for involvement of an amicus (seemingly a request for us to
appoint an amicus to argue his position), and filed a mem-
orandum in lieu of oral argument. ECF No. 53. We deny
the request for oral argument and amicus involvement but
allow the filing of the memorandum.
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