Martin Akerman v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTIN AKERMAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1926
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-23-0457-I-1.
______________________
Decided: February 11, 2025
______________________
MARTIN AKERMAN, I, Arlington, VA, pro se.
KELLY WINSHIP, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON JANE BOYLE,
KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
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AKERMAN v. MSPB 2
Mr. Akerman appeals pro se a final order of the Merit
Systems Protection Board. The Board denied Mr. Aker-
man’s petition for review of an initial decision dismissing
his appeal for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Akerman served as an Information Technology
Specialist with the National Guard Bureau (“agency”).
SAppx107–08.1 Mr. Akerman retired from the agency on
June 6, 2022. SAppx11, SAppx53. On May 3, 2023, Mr.
Akerman filed an appeal before the Merit Systems Protec-
tion Board (“Board”) alleging several claims, some of which
are related to his employment at the agency. SAppx10–11.
Specifically, Mr. Akerman alleged that he was construc-
tively forced into retirement on June 18, 2022, he has been
under false arrest and false imprisonment, and the agency
“refuse[d] to respond to” the Office of Personnel Manage-
ment (“OPM”) about his retirement benefits since Novem-
ber 2022, among other allegations. SAppx11, SAppx38–39.
He also requested “urgent intervention by way of the Office
of Workmans [sic] Compensation Program.” SAppx39.
Also on May 3, 2023, the Board’s Administrative Judge
(“AJ”) assigned to Mr. Akerman’s appeal issued a show
cause order. SAppx41–45. The order notified Mr. Aker-
man of his burden of proof to establish the Board’s jurisdic-
tion and instructed Mr. Akerman to file evidence and
argument establishing jurisdiction. Id. Mr. Akerman re-
sponded on May 15, 2023, stating that his appeal raised
the following claims: (1) an involuntary retirement claim;
(2) a disability retirement claim; and (3) a Uniformed
1 “SAppx” refers to the appendix accompanying the
government’s responsive brief.
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AKERMAN v. MSPB 3
Services Employment and Reemployment Rights Act
(“USERRA”) claim.2 SAppx66–73.
At least twice, the AJ informed Mr. Akerman that OPM
must issue him a final reconsideration letter before he can
raise a disability retirement claim before the Board.
SAppx12, SAppx61. The AJ also ordered Mr. Akerman to
clarify his USERRA claim. SAppx13. In response, Mr.
Akerman alleged that the agency violated USERRA by co-
ercing his retirement and blocking his disability retirement
because of his “efforts to safeguard an officer of the Air Na-
tional Guard.” SAppx79. He also alleged that his appeal
raised “an adverse Voluntary Early Retirement Authority”
(“VERA”) action. SAppx83. As a result, the AJ again is-
sued notice to Mr. Akerman about the Board’s limited ju-
risdiction and advised him how to establish Board
jurisdiction over his USERRA and VERA claims.
SAppx85–93. Mr. Akerman submitted his final response
regarding jurisdiction on May 23, 2023, which “repeated
many of his prior arguments.” SAppx13.
The agency moved to dismiss Mr. Akerman’s appeal for
lack of jurisdiction. The AJ construed Mr. Akerman’s ap-
peal as involving the following nine claims: (1) involuntary
retirement; (2) disability retirement; (3) VERA; (4)
USERRA; (5) false arrest; (6) false imprisonment; (7) ha-
beas corpus; (8) writ of replevin; and (9) workers’ compen-
sation. SAppx15–20. For Mr. Akerman’s first claim, the
AJ determined that Mr. Akerman failed to nonfrivolously
allege that at the time of his alleged June 18, 2022 retire-
ment, he was an “employee” under 5 U.S.C. § 7511(a)(1)
2 While Mr. Akerman referred to his second claim as
only a “retirement appeal,” the AJ noted that in other fil-
ings before the Board, Mr. Akerman asserted a “right to
disability retirement” and referenced “the denial of disabil-
ity retirement.” SAppx12. As such, the AJ construed Mr.
Akerman’s claim consistent with his other filings. Id.
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AKERMAN v. MSPB 4
with Board appeal rights. SAppx15–16. Specifically, de-
spite several opportunities to do so, Mr. Akerman failed to
address record evidence that he resigned twelve days be-
fore his alleged involuntary retirement. Id. For Mr. Aker-
man’s second and third claims, the AJ determined that Mr.
Akerman failed to nonfrivolously allege that OPM issued
him a final reconsideration decision letter, which is a
threshold requirement for both disability retirement and
VERA claims. SAppx16–17. For Mr. Akerman’s fourth
claim, the AJ determined that Mr. Akerman failed to non-
frivolously allege that the agency or its decision makers
were aware of any USERRA-related disclosures or that his
disclosures were a substantial or motivating factor in his
alleged involuntary retirement. SAppx18–19. To the con-
trary, the record showed that Mr. Akerman made his al-
leged USERRA-related disclosures almost one year after
his resignation and alleged involuntary retirement.3 Id.
Finally, for claims five through nine, the AJ determined
Mr. Akerman failed to establish the Board’s jurisdiction
over false arrest, false imprisonment, habeas corpus, writ
of replevin, or workers’ compensation claims. SAppx19–20.
Accordingly, the AJ granted the agency’s motion to dismiss.
Mr. Akerman filed a petition for review of the AJ’s ini-
tial decision. In his petition for review, Mr. Akerman clar-
ified that with respect to his USERRA claim, he alleged the
agency retaliated against him for engaging in protected ac-
tivity by “not responding to [OPM] and interfering with his
3 Mr. Akerman alleged before the AJ that he made a
USERRA-related disclosure to the United States District
Court for the Eastern District of Virginia on October 30,
2022, a date that corresponds with one of Mr. Akerman’s
filings before that court. ECF No. 8 at 27, 39–44. That
said, his filing on that date does not make any mention of
USERRA or any discrimination against any person due to
military status. Id.
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AKERMAN v. MSPB 5
disability retirement application.” SAppx2. The Board
ruled that even if the agency’s action (or inaction) consti-
tuted an adverse employment action, the AJ correctly de-
cided that Mr. Akerman failed to nonfrivolously allege that
his protected activity was a motivating factor in the agency
action. SAppx2–3. Mr. Akerman alleged that the agency
refused to respond to OPM beginning in November 2022,
whereas his protected activity occurred approximately six
months later around May 2023. SAppx3. Thus it was
“temporally impossible” that Mr. Akerman’s protected ac-
tivity was a motivating factor in the agency’s refusal to re-
spond to OPM. Id. The Board denied Mr. Akerman’s
petition for review and thus the AJ’s initial decision be-
came the Board’s final decision.
Mr. Akerman appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).4
4 In light of several of Mr. Akerman’s filings alleging
discrimination, we ordered the parties to address this
court’s jurisdiction. ECF No. 16. The government argues
that we have jurisdiction. While this court has jurisdiction
over appeals from certain final orders or decisions of the
Board, we lack jurisdiction over appeals from “mixed”
cases, i.e., cases in which a federal employee complains of
suffering an adverse personnel action appealable to the
Board and attributes the adverse action, in whole or in
part, to bias prohibited by federal antidiscrimination laws.
Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). Mr.
Akerman filed a Rule 15(c) statement of discrimination,
ECF No. 15, indicating that this may be a mixed case. That
said, any basis for asserting discrimination must be “ex-
pressly and unequivocally stated” before the Board.
Meehan v. U.S. Postal Serv., 718 F.2d 1069, 1073–74
(Fed. Cir. 1983). Even considering his pro se status, the
record shows that Mr. Akerman did not expressly and
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AKERMAN v. MSPB 6
STANDARD OF REVIEW
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We set aside a Board decision only when it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” Id.
DISCUSSION
Mr. Akerman argues that the Board erred by failing to
“properly evaluate the temporal relationship between [his]
protected activity under USERRA and the retaliatory ac-
tions” taken by the agency. Appellant Informal Br. 2. Mr.
Akerman also vaguely alleges the Board failed to consider
“procedural irregularities,” id., and in his reply brief, he re-
peats allegations of habeas corpus and writ of replevin
claims, Appellant Informal Reply Br. 18.
Starting with Mr. Akerman’s USERRA claim, on ap-
peal, Mr. Akerman fails to show that he nonfrivolously al-
leged that he made a USERRA-related disclosure at an
earlier date, or that the agency retaliated against him at a
later date. The Board determined that Mr. Akerman al-
leged the agency retaliated against him in November 2022
by refusing to respond to OPM, yet Mr. Akerman alleged
before the Board that he made his USERRA-related disclo-
sure six months later, in or around May 2023. SAppx3 (cit-
ing SAppx39, SAppx101–102). Before this court, Mr.
unequivocally state any alleged violation of federal antidis-
crimination laws before the Board. Instead, Mr. Aker-
man’s statement of discrimination appears to reference
allegations from separate proceedings not at issue in this
case, as well as his USERRA claim, which “cannot be a
‘mixed case.’” Durr v. Merit Sys. Prot. Bd., 844 F. App’x
329, 331 n.2 (Fed. Cir. 2021) (nonprecedential). Thus, Mr.
Akerman’s appeal does not present a mixed case.
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AKERMAN v. MSPB 7
Akerman fails to address the substance of the Board’s de-
cision. Mr. Akerman only vaguely alleges that evidence to
the contrary includes “dates and contents of communica-
tions that align [his] protected activity closely with adverse
actions,” but he does not meaningfully identify any such
evidence. Appellant Informal Br. 2. And we do not discern
any such evidence. Instead, the Board’s ruling that Mr.
Akerman’s alleged disclosure occurred after any retaliation
is supported by substantial evidence. SAppx39 (“The
Agency refuses to respond to OPM since November 2022.”);
SAppx101–102 (letter dated May 5, 2023 in which Mr.
Akerman alleges “Violations of USERRA Rights of General
Garduno”). As such, the Board correctly concluded that it
is “temporally impossible” that Mr. Akerman’s protected
activity was “a motivating factor in the agency’s refusal to
respond to OPM.” SAppx3 (citation omitted).
Turning next to Mr. Akerman’s claim of procedural er-
ror, Mr. Akerman fails to identify with any specificity how
he believes the Board so erred. To the extent Mr. Akerman
challenges the Board’s denial of any request for a hearing,
a claimant has a right to a hearing before an AJ once the
claimant “makes non-frivolous claims of Board jurisdic-
tion.” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,
1344 (Fed. Cir. 2006) (en banc). The Board ruled that Mr.
Akerman failed to nonfrivolously allege jurisdiction, and
Mr. Akerman only challenges that ruling on appeal with
respect to his USERRA claim, which we have rejected. As
such, the Board correctly determined that Mr. Akerman
was not entitled to a hearing. Finally, we also note that
the AJ’s repeated explanations of the Board’s jurisdiction
and requests for clarification, SAppx41–45, SAppx59–65,
and SAppx85–93, belie any other claims of procedural un-
fairness to which Mr. Akerman alludes. In sum, we do not
discern any error.
Finally, considering Mr. Akerman’s claims of habeas
corpus and writ of replevin, we agree with the Board that
Mr. Akerman failed to establish Board jurisdiction over
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AKERMAN v. MSPB 8
such claims. The Board’s jurisdiction is limited to matters
ascribed to it by law, rule, or regulation. See 5 U.S.C.
§ 7512. Mr. Akerman failed to nonfrivolously allege any
law, rule, or regulation that provides the Board with juris-
diction over his habeas corpus or writ of replevin claims.
As such, the Board properly dismissed these claims.
CONCLUSION
We have considered Mr. Akerman’s remaining argu-
ments and find them unpersuasive. For the reasons stated,
we affirm the Board’s denial of Mr. Akerman’s petition for
review.
AFFIRMED
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