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N OTE: This disposition is nonprecedential.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
______________________
2024-1912
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-22-0459-W-1.
______________________
Decided: March 6, 2025
______________________
M ARTIN AKERMAN, I, Arlington, VA, pro se.
CONSTANCE E. TRAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE, KATHERINE M ICHELLE SMITH .
______________________
Before LOURIE , BRYSON, and S TARK, Circuit Judges.
Case: 24-1912 Document: 47 Page: 1 Filed: 03/06/2025

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AKERMAN v. MSPB 2
PER CURIAM.
Martin Akerman appeals from a decision of the Merit
Systems Protection Board (“the Board”) dismissing his ap-
peal for lack of jurisdiction. Akerman v. Dep’t of the Army,
No. DC-1221-22-0459-W-1, 2024 WL 2783100 (M.S.P.B.
May 29, 2024) (“Decision”). For the following reasons, we
affirm.
BACKGROUND
Akerman was employed as a GS-15 IT Specialist for the
Department of the Army, National Guard Bureau (“NGB”).
R.A.1 52. Because the position dealt with classified infor-
mation relevant to national security, Akerman was re-
quired to maintain a Top Secret security clearance, which
he did until February 8, 2022. R.A. 45, 50. On that date,
however, Akerman received notice from NGB that his
clearance had been suspended because he had been hospi-
talized for a mental health condition and had not complied
with the agency’s request to submit a medical opinion “to
determine if a condition exists” that affects his “judgement
and[] reliability.” R.A. 50.
On February 14, 2022, NGB notified Akerman that it
was proposing to indefinitely suspend him from his posi-
tion for failure to maintain his security clearance and
placed him on administrative leave pending a final deci-
sion. R.A. 52–55. Akerman then filed a complaint with the
NGB Office of the Inspector General (“OIG”), asserting that
the agency unlawfully revoked his security clearance. R.A.
118–25. NGB issued a final decision on April 11, 2022, in-
definitely suspending Akerman without pay or duty status,
effective April 24, 2022. R.A. 67–70.
1 R.A. refers to the Appendix submitted with Re-
spondent’s informal brief.
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AKERMAN v. MSPB 3
Between February 14 and May 11, 2022, Akerman
made four requests to NGB to classify certain blocks of time
as different forms of paid leave or official time worked.
R.A. 10–11. Each request was denied by NGB. R.A. 10–
11.
Akerman then filed a complaint with the Office of Spe-
cial Counsel (“OSC”), contending that NGB denied the four
requests in retaliation for bringing the OIG complaint chal-
lenging the revocation of his security clearance. R.A. 116–
30. After the OSC complaint was denied, Akerman filed an
individual rights action (“IRA”) appeal with the Board.
R.A. 110–15. Because it was not apparent from Akerman’s
appeal form that the Board had jurisdiction over his IRA
appeal, an administrative judge (“AJ”) ordered Akerman to
demonstrate that the Board had jurisdiction. R.A. 101–10.
In response, Akerman provided additional details pertain-
ing to the four denied requests to change the classification
of his time. R.A. 76–77.
In an initial decision, the AJ dismissed the appeal for
lack of jurisdiction because NGB’s denial of his requests
were “closely intertwined” with the revocation of Aker-
man’s security clearance. R.A. 23–28. Following a petition
for review, the Board affirmed and adopted the AJ’s initial
decision. Decision at *3.
Akerman timely appealed. We have exclusive jurisdic-
tion over this appeal pursuant to 5 U.S.C. § 7703(b)(1)(A)
and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We review the Board’s jurisdictional determinations de
novo. Bryant v. Merit Sys. Prot. Bd., 878 F. 3d 1320, 1325
(Fed. Cir. 2017). The Board has jurisdiction over an IRA
appeal if the appellant has exhausted his administrative
remedies before the OSC and makes non-frivolous allega-
tions that: (1) he engaged in a protected activity under 5
U.S.C. § 2302(b)(9), and (2) the disclosure was a
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AKERMAN v. MSPB 4
contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by § 2302(a). See Hes-
sami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367
(Fed. Cir. 2020).
Akerman raises several issues on appeal. First, he ar-
gues that the Board failed to consider material evidence
that affects the Board’s jurisdiction of his IRA appeal. Sec-
ond, he asserts that the Board incorrectly dismissed his
IRA appeal for lack of jurisdiction. Third, he contends that
NGB’s refusal to classify the four blocks of time as paid
leave or official time worked was both erroneous and viola-
tive of his rights to free speech and procedural due process
under the Constitution. And fourth, he alleges that NGB
filed “false information” with several state of Virginia ad-
ministrative agencies, again violating his First Amend-
ment rights. We address each in turn.
We start with the Board’s purported failure to consider
material evidence that affects jurisdiction. Akerman con-
tends that the Board failed to consider a letter from OSC
“acknowledging an administrative error” relating to the
OSC complaint, citing a letter attached to his opening brief.
Reply Br. 8; Akerman Br. 2. Contrary to Akerman’s asser-
tion, the attached letter merely states that there was a cler-
ical error in the OSC file number included in the
documents sent to inform Akerman that his OSC complaint
and IRA appeals were denied. Akerman Br. 22. We do not
see how this letter is material to the Board’s jurisdiction.
We accordingly turn to the substance of the jurisdiction is-
sue.
In Dep’t of Navy v. Egan, the Supreme Court held that
the Board does not have authority to review an alleged ad-
verse personnel action that directly results from the revo-
cation of a security clearance. 484 U.S. 518, 529–30 (1988).
The Court explained that because agencies require broad
discretion to determine who can be trusted with classified
information, it is “not reasonably possible for an outside
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AKERMAN v. MSPB 5
nonexpert body to review the substance of such a judgment
and to decide whether the agency should have been able to
make the necessary affirmative prediction [that a particu-
lar individual might compromise sensitive information]
with confidence.” Id.; see also Hesse v. Dep’t of State, 217
F.3d 1372, 1377 (Fed. Cir. 2000) (explaining that the Board
lacks jurisdiction to consider the merits of an agency’s se-
curity clearance determination in IRA appeals).
Here, Akerman asks the Board to do exactly what Egan
prohibits. The alleged personnel actions taken by NGB—
the four requests to classify Akerman’s time as either paid
leave or official time worked—are for blocks of time that
occurred after his security clearance was revoked when he
was either placed on administrative leave or indefinitely
suspended. If the Board were to assess whether Akerman’s
four requests were meritorious, that would in turn require
the Board to assess whether NGB correctly revoked his se-
curity clearance—the basis for NGB placing him on admin-
istrative leave or indefinitely suspending him.
Accordingly, because Akerman’s IRA appeal did not make
a non-frivolous allegation that NGB took an adverse per-
sonnel action against him, the Board correctly held that it
did not have jurisdiction over his appeal.
Because we conclude that the Board did not have juris-
diction to address Akerman’s requests to classify his time
differently, we need not address his arguments pertaining
to the accuracy of the Board’s denials or the related consti-
tutional arguments.
As for Akerman’s argument that NGB filed false infor-
mation with several state of Virginia administrative agen-
cies, violating his First Amendment rights, that argument
was not brought before the Board. It is therefore not pre-
served for our review. Bosley v. Merit Sys. Prot. Bd., 162
F.3d 665, 668 (Fed. Cir. 1998).
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AKERMAN v. MSPB 6
CONCLUSION
We have considered Akerman’s other arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
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