Petition for Writ of Certiorari — Martin Akerman, Petitioner v. Lloyd J. Austin, III, Secretary of Defense, et al.

Supreme Court briefMar 22, 2024

Ask Donna

What actually matters in this document.

Text

APPENDIX A

USCA4 Appeal: 22-2066

Doc: 58-1

Filed: 08/29/2023

Pg: 1 of 3

FILED: August 29, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2066 (L)

(1:22-cv-00696-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

LLOYD J. AUSTIN, III, Secretary of Department of Defense; CHRISTINE E. .

WORMUTH, Secretary of the Army; FRANK KENDALL, Secretary of the Air

Force; GENERAL DANIEL R. HOKANSON, Chief, National Guard Bureau;

DEPARTMENT OF DEFENSE; DEPARTMENT OF THE ARMY;

DEPARTMENT OF THE AIR FORCE; DEFENSE COUNTERINTELLIGENCE

AND SECURITY AGENCY

Defendants - Appellees

No. 22-2147

(1:22-cv-00696-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

USCA4 Appeal: 22-2066

Doc: 58-1

Filed: 08/29/2023

Pg:2of3

LLOYD J. AUSTIN, III, Secretary of Department of Defense; CHRISTINE E.

WORMUTH, Secretary of the Army; FRANK KENDALL, Secretary of the Air

Force; GENERAL DANIEL R. HOKANSON, Chief, National Guard Bureau;

DEPARTMENT OF DEFENSE; DEPARTMENT OF THE ARMY;

DEPARTMENT OF THE AIR FORCE; DEFENSE COUNTERINTELLIGENCE

AND SECURITY AGENCY

Defendants - Appellees

No. 22-2154

(1:22-cv-0125 8-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

GENERAL DANIEL R. HOKANSON, General, Chief, National Guard Bureau;

CHRISTINE E. WORMUTH, Secretary of the Department of the Army; FRANK

KENDALL, Secretary of the Department of the Air Force; LLOYD J. AUSTIN,

III, Secretary of the Department of Defense; PENTAGON; ANDREWS AFB;

REMOTE

Defendants - Appellees

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court in Case No. 22-2066 is affirmed in part and the appeal is dismissed in part.

The judgments of the district court in Case Nos. 22-2147 and 22-2154 are

USCA4 Appeal: 22-2066

Doc: 58-1

Filed: 08/29/2023

Pg:3of3

affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

APPENDIX B

Case l:22-cv-01258-LMB-WEF Document 5 Filed 11/07/22 Page 1 of 3 PagelD# 44

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

MARTIN AKERMAN,

)

Plaintiff,

)

DANIEL R. HOKANSON, GENERAL AND

CHIEF OF THE NATIONAL GUARD

BUREAU, etaL

Defendants.

1:22-cv-1258 (LMB/WEF)

)

ORDER

On Friday, November 4,2022, pro se plaintiff Martin Akerman (“plaintiff’ or

“Akerman”) presented a new Complaint to the Clerk’s office which essentially repeats

employment-related claims that were dismissed with prejudice on November 3,2022, in

Akerman v. Austin. No. 1:22-cv-696, and for which plaintiff has already noticed an appeal.

[Dkt. No. 1]. The Complaint and its attachments indicate that they repeat issues raised in the

dismissed civil action by stating that plaintiff “[rjefiled claims in Document 90 from case 1:22cv-00696” and requests “[njecessary [f]iles from case l:22-cv-696” for this civil action. [Dkt.

Nos. 1-4,1-5]. The only material differences between the new Complaint and the dismissed

complaint are that plaintiff has dropped the Privacy Act claims and is asserting claims against

only the four defendant officers named in the dismissed complaint and not the four agency

defendants.1 Because the Complaint asserts claims that have been dismissed with prejudice, it

will be dismissed as duplicative and frivolous.

Although plaintiff appears to assert two new claims for violations of the Administrative Leave

Act and “at-will employment doctrine (Virginia)”, the Complaint does not contain any factual

allegations in support of these claims. [Dkt. No. 1] at 3. The Complaint states “see attached” for

Case l:22-cv-01258-LMB-WEF Document 5 Filed 11/07/22 Page 2 of 3 PagelD# 45

Mr. Akerman has also tendered a money order for $200.00 and a Copy Request Form, in

which he requests that the Clerk make copies of approximately 1,000 pages of documents filed in

over two dozen docket entries in Akerman v. Austin. No. 1:22-cv-696, and then “add... [the]

files in new case docket.” Copy Request Form; see [Dkt. No. 1-5] (listing files requested from

his prior civil action). This is an unreasonable request and a waste of both Clerk’s office

resources and Mr. Akerman’s money, because plaintiff wants a clerk to copy documents and

refile them in a civil action that is frivolous and duplicative. For these reasons, it is hereby

ORDERED that this civil action be and is DISMISSED WITH PREJUDICE as

duplicative of Akerman v. Austin. No. 1:22-cv-696; and it is further

ORDERED that the Clerk not copy the requested documents and return to Mr. Akerman

the $200.00 copy request fee. For the purpose of maintaining a record, plaintiffs Copy Request

Form will be retained by the Cleric’s office; and it is further

ORDERED that Mr. Akerman is prohibited from filing any new complaint that raises the

same issues that were addressed and dismissed in the memorandum opinion issued on November

3,2022, in Akerman v. Austin. No. 1:22-cv-696 [Dkt. No. 97].

To appeal this decision, plaintiff must file a written notice of appeal with the Clerk of the

Court within sixty (60) days of the date of entry of this Order. A notice of appeal is a short

the facts of his case, id. at 4-5, and those attachments reference documents filed in Akerman v.

Austin. No. 1:22-cv-696. See [Dkt. No. 1-5] (referencing previously filed “Roseboro briefs”).

The Court declines to search for any factual allegations in the over 1,000 pages of documents

filed in his prior civil action, finding it an improper request. See Carmel v. CSH & C. 32 F.

Supp. 3d 434,436 (W.D.N.Y. 2014) (“[A] pro se litigant cannot simply dump a stack of exhibits

on the court and expect the court to sift through them to determine if some nugget is buried

somewhere in that mountain of papers, waiting to be unearthed and refined into a cognizable

claim.”); Bing v. Brivo Svs,. LLC. 959 F.3d 605,618 (4th Cir. 2020) (observing that “liberal

construction” of a pro se pleading “does not mean overlooking the pleading requirements under

the Federal Rules of Civil Procedure”).

Case l:22-cv-01258-LMB-WEF Document 5 Filed 11/07/22 Page 3 of 3 PagelD# 46

statement indicating a desire to appeal, including the date of the order plaintiff wants to appeal.

Plaintiff need not explain the grounds for appeal until so directed by the court of appeals. Failure

to file a timely notice of appeal waives plaintiffs right to appeal this decision.

The Clerk is directed to close this civil action, to not accept any other filings in this civil

action other than a notice of appeal, and to forward copies of this Order to Martin Akerman, pro

se, and to Assistant United States Attorney Dennis C. Barghaan, Jr.

Entered this _7_ day of November, 2022.

Alexandria, Virginia

/sf

Leonie M. Brinkema

United States District Judge

.... .

(

f ■

;

APPENDIX C

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 1 of 26 PagelD# 2339

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

MARTIN AKERMAN,

)

Plaintiff,

)

LLOYD J. AUSTIN, III, SECRETARY OF

DEPARTMENT OF DEFENSE, etaL,

Defendants.

1:22-cv-696 (LMB/WEF)

)

MEMORANDUM OPINION

Before the Court are defendants’ Motion to Dismiss [Dkt. No. 46] the operative

Amended Complaint filed on July 21,2022 [Dkt. No. 6] and plaintiffs multiple motions for

relief, which include numerous requests for leave to amend his complaint [Dkt. Nos. 25,26,27,

36,55,91].

Finding that oral argument will not aid in the decisional process, the Court will resolve

the motions on the papers. For the reasons that follow, defendants’ Motion to Dismiss will be

granted, plaintiffs motions will be denied, and this civil action will be dismissed with prejudice.

I. BACKGROUND

Acting pro se. plaintiff Martin Akerman (“plaintiff’ or “Akerman”) initiated this civil

action on June 21,2022, by filing a complaint and a motion for leave to proceed in forma

pauperis, pkt. Nos. 1,2]. On June 23,2022, the Court denied plaintiffs in forma pauperis

application, finding “more than sufficient funds in his checking account to cover the required

filing fee[.]” pkt. No. 5]. Pursuant to its obligation to screen a complaint when a plaintiff seeks

to proceed without prepaying fees or costs under 28 U.S.C. § 1915(e)(2)(B), the Court also

dismissed the complaint without prejudice to permit plaintiff to “refile a factually sufficient

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 2 of 26 PagelD# 2340

complaint once his claims have been administratively exhausted or otherwise become ripe.” Id.

at 3. On July 21,2022, plaintiff filed the operative Amended Complaint. Am. Compl. [Dkt. No.

6].

In his Amended Complaint, plaintiff asserts eighteen claims challenging various

employment actions taken against him while he served as a civilian employee within the United

States Department of the Air Force and the National Guard Bureau against eight defendants, the

Department of Defense, the Department of the Air Force, the Department of the Army, the

Defense Counterintelligence and Security Agency, Secretary of Defense Lloyd J. Austin III,

Secretary of the Army Christine E. Wormuth, Secretary of the Air Force Frank Kendall, and

Chief of the National Guard Bureau General Daniel R. Hokanson (collectively, “defendants”).

Id, at 1-3.

The gravamen of the Amended Complaint is defendants’ decision to revoke Akerman’s

eligibility for a security clearance, which led first to his indefinite suspension and then to his

resignation. As outlined in the Amended Complaint and its attachments, Akerman signed a

Questionnaire for National Security Positions, Standard Form 86 on November 8,2019, in which

he indicated that he had been hospitalized for a mental health condition and listed dates of

treatment around February 2012. Am. Compl., Att. 1 [Dkt. No. 6-1] at 6. In a subsequent

interview with an investigator, he confirmed his “involuntary hospitalization for an

emotional/mental health condition” and his outpatient mental health treatment in 2012 and then

from 2013 to 2018. Id. Because plaintiffs background investigation did not include a recent

opinion by a qualified mental health professional acceptable to the United States government, on

June 2,2020, the Department of Defense Consolidated Adjudications Facility sent Akerman a

Request for Medical Evaluation “to obtain a professional medical opinion regarding whether a

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 3 of 26 PagelD# 2341

condition exists that could affect [plaintiffs] judgment and/or reliability.” Id. Akerman did not

respond to that request, even after receiving an extension of the time period in which to respond

on October 21,2020. Id. As a result, in a memorandum dated August 12,2021 and an

accompanying Statement of Reasons, which were sent to Akerman, the Department of Defense

Consolidated Adjudications Facility indicated that it had determined, “based on the available

information,” that Akerman “may have a condition that could affect [his] ability to properly

safeguard classified or sensitive information” and his “psychological condition remains a

security issue.” Id. The memorandum informed Akerman of the agency’s decision to revoke his

eligibility for a security clearance and that he had sixty calendar days from the date of receipt to

respond to the decision, after which it would become final. Id. at 3-5. On August 17,2021,

Akerman was notified that his current access to classified information would continue in the

interim. Am. Compl, Att. 2 [Dkt. No. 6-1] at 8.

While the determination about his eligibility for a security clearance was pending,

Akerman moved to a new position within the Department of Defense as Chief Data Officer of

the National Guard Bureau, a position “requiring the ability to obtain a [Top Secret] clearance.”

Am. Compl. [Dkt. No. 6] at 9. Akerman was selected for the position on July 29,2021, and was

formally appointed to the position on December 20,2021; however, after the National Guard

Bureau learned of the issue with his eligibility for a security clearance, his access to classified

information was suspended. Id. at 8-9. On February 14,2022, Akerman was suspended from

the National Guard Bureau for sixty-nine days, and on April 11,2022, he was placed on an

indefinite suspension. Id.; Am. Compl., Att. 1 [Dkt. No. 6-1] at 2. On June 6,2022, Akerman

resigned from his position as Chief Data Officer of the National Guard Bureau. Am. Compl.

[Dkt. No. 6] at 8; Am. Compl., Att. 3 [Dkt. No. 6-1] at 12.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 4 of 26 PagelD# 2342

At some point after he was indefinitely suspended, Akerman applied for unemployment

benefits with the Virginia Employment Commission. As a result, the Department of Defense

responded to a Virginia Employment Commission inquiry about Akerman’s employment and the

basis for his indefinite suspension. Am. Compl., Att. 1 [Dkt. No. 6-1] at 2. That response

discussed plaintiffs inability to maintain a security clearance, which was a condition of

employment, and included the Department of Defense Consolidated Adjudications Facility’s

August 12,2021 memorandum and the Statement of Reasons. Id. at 2-6.

In addition to challenging plaintiffs suspension, the Amended Complaint also challenges

other aspects of his employment. First, it alleges that from April 2021 to March 2022, first

within the Department of the Air Force and later the National Guard Bureau, Akerman endured a

“deliberately hostile work environment.” Am. Compl. [Dkt. No. 6] at 9. Second, it asserts that

the Department of the Air Force retaliated against him for engaging in unspecified

whistleblowing activity and discriminated against him due to his age by refusing to comply with

an agreement to repay his student loans. Id. at 5-6,9. Based on these employment actions, the

Amended Complaint alleges violations of Title VII of the Civil Rights Act (“Title VII”), the

Rehabilitation Act, the Age Discrimination in Employment Act (“ADEA”), the Civil Service

Reform Act (“CSRA”), the Whistleblower Protection Act (“WPA”), and the Privacy Act.

As defendants discuss in their Motion to Dismiss, plaintiff has challenged many of the

underlying employment actions in administrative proceedings before the Merit Systems

Protection Board (“MSPB”) and the Equal Employment Opportunity Commission (“EEOC”).

[Dkt. No. 47] at 7-9; see Am. Compl. [Dkt. No. 6] at 5-6 (identifying claims which Akerman

brought before the EEOC or MSPB). Several of these claims remain pending before the MSPB.

See [Dkt. No. 47] at 7-9; see, e.e.. Akerman v. Dep’t of the Air Force. No. DC-1221-22-0445-

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 5 of 26 Page ID# 2343

W-l (challenging six employment actions by the Department of the Air Force, including

interference with his student loan repayment benefits and security clearance determination);

Akerman v. Dep’t of the Army. No. DC-1221-22-0257-W-1 (challenging interactions with

National Guard Bureau colleagues, supervisors, and contractors).

Since filing the Amended Complaint, plaintiff has filed 5 motions for leave to amend his

Amended Complaint, see [Dkt. Nos. 15,25,26,27,36], four of which remain pending before the

Court, and he has attempted to file several amended complaints without leave of Court, see [Dkt.

Nos. 45,59,63,76]. Because the Court has not granted plaintiff leave to amend, the operative

complaint is the July 21,2022 Amended Complaint, which is the complaint defendants have

moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed.

R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. [Dkt. No. 46].

Plaintiff has responded to defendants’ Motion to Dismiss in his “Roseboro Response to

Defendant’s Dispositive Motion(s)” filed on October 18,2022 [Dkt. No. 50], and his “Roseboro

Objection: Hearsay Objections and Issues of Material Fact” filed on November 1,2022 [Dkt. No.

86]. Since defendants filed their Motion to Dismiss, plaintiff has also filed 33 other pleadings,

totaling over 1,400 pages, most of which are attempts to amend the Amended Complaint by

adding records from his ongoing MSPB proceedings. See [Dkt. Nos. 55-56, 58-85, 87-89].

II. PLAINTIFF’S “ROSEBORO MOTION TO QUASH”

The Court first turns to plaintiffs pending “Roseboro Motion to Quash 3 Dispositive

Motions That Were Docketed When the Clerk’s Office Was Closed” (“Motion to Quash”) [Dkt.

No. 55], which seeks to “[q]uash or otherwise label... as untimely” defendants’ pending Motion

to Dismiss [Dkt. No. 46] as well as a Motion for an Enlargement of Time that defendants filed on

September 29,2022 [Dkt. No. 19]. There is no basis for granting the requested relief. Although

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 6 of 26 PagelD# 2344

this Motion to Quash is somewhat difficult to understand, plaintiff appears to be complaining

that defendants’ Motion to Dismiss is untimely because it was filed after the Clerk’s office was

closed on October 17,2022 and should therefore be considered as filed late on October 18,2022.

This argument has no merit.

Fed. R. Civ. P. 6(a)(4) provides that the “last day” of a time period for electronic filing

ends “at midnight in the court’s time zone.” Defendants’ deadline to respond to plaintiff’s

Amended Complaint was October 17,2022. [Diet. No. 24]. Because defendants electronically

filed the Motion to Dismiss on October 17,2022, before midnight, it was timely filed. As for

defendants’ Motion for an Enlargement of Time, it was timely filed on September 29,2022,

which renders moot any objection by plaintiff.

For these reasons, plaintiff’s Motion to Quash [Dkt. No. 55] will be denied.

III. DEFENDANTS’ MOTION TO DISMISS

Next, the Court considers defendants’ Motion to Dismiss. [Dkt. No. 46]. Although the

Amended Complaint asserts eighteen claims, each labeled with number and letter identifiers, the

claims contain limited factual allegations which are difficult to follow. To facilitate its

interpretation of the Amended Complaint and resolution of the Motion to Dismiss, the Court has

grouped related claims with the relevant facts alleged in the Amended Complaint. i

Defendants move to dismiss the Amended Complaint under Fed. R. Civ. P. 12(b)(1) and

12(b)(6). Rule 12(b)(1) requires that a civil action be dismissed when the court lacks subject

matter jurisdiction over the dispute. The plaintiff bears the burden of proving that subject matter

jurisdiction exists. Adams v. Bain. 697 F.2d 1213,1219 (4th Cir. 1982). When a defendant

The grouping of claims is based on the “Statement of Claim” section of the Amended

Complaint, where plaintiff has categorized his claims into five groups and provides a “statement”

for each group of enumerated claims. See [Dkt. No. 6] at 8-10.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 7 of 26 PagelD# 2345

challenges subject matter jurisdiction on the grounds that “the complaint fails to allege sufficient

facts to support subject matter jurisdiction,” a court “assume[s] the truthfulness of the facts

alleged.” Kerns v. United States. 585 F.3d 187, 193 (4th Cir. 2009). When a defendant

“challenges the veracity of the facts underpinning subject matter jurisdiction,” as defendants do

here, a court may consider evidence outside the complaint to determine whether there are facts

that support jurisdiction “without converting the motion to a summary judgment proceeding.”

Id. at 192.

Rule 12(b)(6) requires that a complaint be dismissed when it does not “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iabal. 556 U.S. 662, 678 (2009) (quoting Bell Atl. Coro, v. Twomblv. 550 U.S. 544, 570

(2007)). To survive a motion to dismiss, a complaint must allege enough facts “to raise a right

to relief above the speculative level.” King v. Rubenstein. 825 F.3d 206,214 (4th Cir. 2016)

(quoting Twomblv. 550 U.S. at 555). “Bare legal conclusions ‘are not entitled to the assumption

of truth’ and are insufficient to state a claim.” Id. (quoting Iqbal. 556 U.S. at 679). A pro se

complaint is “‘to be liberally construed,’ and ... ‘however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

Pardus. 551 U.S. 89,94 (2007)). Nevertheless, a pro se complaint “still must contain ‘enough

facts to state a claim for relief that is plausible on its face.’” Thomas v. The Salvation Army S.

Territory. 841 F.3d 632,637 (4th Cir. 2016) (quoting Twomblv. 550 U.S. at 570).

Defendants have written a comprehensive, well-reasoned, and cogent memorandum in

support of their Motion to Dismiss. Finding that defendants’ memorandum provides an accurate

statement of the law applicable to plaintiff’s claims, for the following reasons, the Court adopts

the reasoning in defendants’ memorandum and will grant the Motion to Dismiss.

•

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 8 of 26 PagelD# 2346

A. Unlawful Suspension and Constructive Discharge Claims

The Amended Complaint alleges that the Department of the Air Force and Defense

Counterintelligence and Security Agency “conspire[d] to revoke [his] security clearance,”

leading to an unlawful suspension of his employment and ultimate constructive discharge. Am.

Compl. [Dkt. No. 6] at 8. After plaintiff moved to the National Guard Bureau as Chief Data

Officer, a position requiring a Top Secret security clearance, the National Guard Bureau

indefinitely suspended him, and he ultimately resigned. Id. at 8-9. In connection with his

“unlawful suspension and constructive discharge,” the Amended Complaint lists a series of

alleged violations of various federal laws, including: (1) discrimination in violation of Title VII,

the Rehabilitation Act, and the ADEA (identified as “Issue 1” in the Amended Complaint); (2)

retaliation in violation of the WPA for “[w]illful obstruction of [p]laintifFs right to compete for

employment” (identified as “Claim 2b” and “Claim 4b”); (3) unlawful suspension in violation of

the WPA (identified as “Claim 2c” and “Claim 4c”); (4) unlawful suspension in violation of the

CSRA and the ADEA (identified as “Claim 5a”); and (5) unlawful suspension in violation of the

CSRA and the Rehabilitation Act (identified as “Claim 7a”). Id at 5-6, 8.

In their Motion to Dismiss, defendants correctly point out that the Court lacks jurisdiction

over all these claims, because, as pleaded, all of them are based on, or connected to, the

revocation of his eligibility for a security clearance. See id. at 8. Under Supreme Court and

Fourth Circuit precedent, this Court does not have jurisdiction over these claims. Specifically, in

Department of the Naw v. Egan, the Supreme Court recognized that the “[pjredictive judgment”

involved in a security clearance determination “must be made by those with the necessary

expertise in protecting classified information,” and therefore “the protection of classified

information must be committed to the broad discretion of the agency responsible!.]” 484 U.S.

518,529 (1988). Accordingly, the Supreme Court reasoned that review by an “outside

•

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 9 of 26 PagelD# 2347

nonexpert body” of the “substance of such a judgment” is not appropriate, and held that the

MSPB did not have the authority to review a security clearance determination, absent an

indication to the contrary from Congress, which did not exist in the CSRA. Id. at 529,530-32.

The Fourth Circuit has applied the reasoning of Egan to employment disputes such as

those involved in this civil action, by holding that neither Title VII, the Rehabilitation Act, the

ADEA, nor the WPA contain an “expression of purpose by Congress” to subject security

clearance decisions to “judicial scrutiny.” Becerra v. Dalton. 94 F.3d 145,149 (4th Cir. 1996)

(Title VII); see Guillot v. Garrett. 970 F.2d 1320, 1326 (4th Cir. 1992) (Rehabilitation Act);

Campbell v. McCarthy. 952 F.3d 193,203-05 (4th Cir. 2020) (ADEA and WPA). Therefore, “a

claim that an adverse employment decision violated a plaintiff s statutory rights is unreviewable

when it ‘necessarily depends upon review of an agency’s security clearance decision.”

Campbell. 952 F.3d at 205-06 (quoting Guillot. 970 F.2d at 1326).

Here, adjudicating plaintiffs indefinite suspension and constructive discharge claims

under Title VII, the Rehabilitation Act, the ADEA, and the WPA would require the Court to

review the substance of the Department of Defense’s security clearance determination. For

instance, determining whether the reasons for plaintiffs indefinite suspension or constructive

discharge were a pretext for discrimination based on his membership in a protected class,

disability, or age would necessitate review of the merits of the Department of Defense’s security

clearance decision. Likewise, evaluating plaintiffs WPA claim would entail reviewing whether

plaintiff was retaliated against for engaging in a protected activity rather than his inability to

obtain or maintain a security clearance.

For these reasons, the Court lacks subject matter jurisdiction over Issue 1 and Claims 2b,

2c, 4b, 4c, 5a, and 7a, and those claims will be dismissed.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 10 of 26 PagelD# 2348

B. Student Loan Repayment Claims

The Amended Complaint seeks to recover $29,615.37 representing the remaining student

loan payments which the Department of the Air Force allegedly failed to pay pursuant to a

purported agreement to repay plaintiffs student loans. Am. Compl. [Dkt. No. 6] at 9,11.

Specifically, the Amended Complaint alleges that on June 28,2021, plaintiff “agreed to

Alternative Dispute Resolution through the Office of Special Counsel,” id-» and that on August

11,2021, the Department of the Air Force agreed to “[r]equest payments for [student loan

repayments] be restarted back to the date they were dropped” and “[Retroactive payments to the

date the ser[v]ice agreement was signed and approved: 10 Dec 2019,” Am. Compl., Att. 4 [Dkt.

No. 6-1] at 18-19. According to plaintiff, he was authorized to receive a total repayment of

$40,000 for three years of service expiring on December 10,2022. Id. The Amended Complaint

alleges that, as of June 30,2022, plaintiff has not received any of the outstanding remaining

payments, and that this nonpayment constitutes retaliation in violation of the Whistleblower

Protection Act (identified as “Claim 2a” and “Claim 4a”), and age discrimination in violation of

the ADEA (identified as “Claim 5b”). Am. Compl. [Dkt. No. 6] at 5-6,9.

Defendants argue that the Court lacks jurisdiction over these claims, because they remain

pending before the MSPB as part of an Individual Right of Action appeal and are not the type of

employment-related claims that fall within the jurisdiction of a district court under the CSRA and

WPA. Defendants are correct.

The CSRA “establishes a framework for evaluating personnel actions taken against

federal employees,” Kloeckner v. Solis. 568 U.S. 41,44 (2012), and “provide[s] an integrated

scheme of administrative and judicial review of employment decisions involving government

employees,” which depends on the severity of the challenged personnel action and the nature of

the complaint. Chin-Youne v. United States. 774 F, App’x 106,111 (4th Cir. 2019) (internal

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 11 of 26 PagelD# 2349

quotations omitted). The CSRA also “created the [MSPB] to review certain serious personnel

actions against federal employees.” Perrv v. Merit Svs. Prot. Bd.. 137 S. Ct. 1975,1979 (2017).

Under the CSRA’s framework, when a federal employee seeks to challenge a “major

personnel action,” such as termination or a reduction in grade or pay, that action is directly

appealable to the MSPB. Zachariasiewicz v. U.S. Deo't of Just.. 48 F.4th 237,242 (4th Cir.

2022): see Kloeckner. 568 U.S. at 44; 5 U.S.C. § 7512 (defining major personnel actions which

may be appealed directly to the MSPB). By contrast, when an employee challenges “less serious

personnel actions that violate certain prohibited personnel practices” under the CSRA, those

actions are not directly appealable to the MSPB; rather, the employee must first file a complaint

with the Office of Special Counsel. Zachariasiewicz. 48 F.4th at 242-43 (internal quotations

omitted); 5 U.S.C. § 1214(a)(3). If that office pursues the complaint and upholds the challenged

personnel action, the employee may appeal that decision to the MSPB. On the other hand, if the

Office of Special Counsel decides not to pursue the complaint, “the CSRA does not provide for

any further administrative or judicial review.” Zachariasiewicz. 48 F.4th at 243 (internal

quotations omitted). Similarly, “[ajllegations of conduct that is prohibited by the WPA” are not

directly appealable to the MSPB, unless they involve major personnel action, and, instead, “must

be pursued before the [Office of Special Counsel] prior to the MSPB.” Id. But unlike CSRA

claims, if the Office of Special Counsel does not act on a complaint alleging a WPA violation,

the employee may seek MSPB review by filing an Individual Right of Action appeal. Id.

Once the MSPB has rendered a decision on an employee’s case, whether it involved

major or less serious personnel action, judicial review of MSPB decisions for claims under the

CSRA is ordinarily available only in the Federal Circuit, while judicial review of decisions

regarding WPA claims is available in the Federal Circuit or “in any court of appeals of

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 12 of 26 PagelD# 2350

competent jurisdiction.” 5 U.S.C. § 7703(b)(1); Zachariasiewicz. 48 F.4th at 242-43. Only

when an employee has brought a special type of case—known as a “mixed case”—is judicial

review available in a federal district court. Zachariasiewicz. 48 F.4th at 243; Perrv. 137 S. Ct. at

1981; 5 U.S.C. § 7703(b)(2).

A mixed case challenges a “serious adverse employment action taken against [the

employee]” under the CSRA where that action is attributed, “in whole or in part, to bias based on

race, gender, age, or disability, in violation of federal antidiscrimination laws.” Perrv. 137 S. Ct.

at 1979; Zachariasiewicz. 48 F.4th at 243. Importantly, a mixed case must involve a challenge to

a “major personnel action” that is directly appealable to the MSPB, not merely a less serious

personnel action that must be brought first to the Office of Special Counsel. 5 U.S.C.

§ 7702(a)(1). The Fourth Circuit has held that “only those personnel actions that an employee

can challenge before the MSPB in the first instance can serve as the basis for a mixed case.”

Zachariasiewicz. 48 F.4th at 243-44. With mixed cases, the employee is not required to wait

until the MSPB has rendered a final decision before seeking judicial review. Instead, if a mixed

case remains pending before the MSPB for 120 days or more without “judicially reviewable

action,” the employee is permitted to remove the case from the MSPB and file a civil action in a

federal district court. 5 U.S.C. § 7702(e)(1)(B).

It appears that plaintiff is attempting to invoke this Court’s jurisdiction over his WPA and

ADEA claims relating to his student loan repayment agreement by characterizing them as a

mixed case pending for “[m]ore than 120 [djays from the timely Individual Right of Action

appeal with MSPB without a judicially reviewable action.” Am. Compl. [Dkt. No. 6] at 5. As

defendants point out, plaintiff cannot seek district court review of these claims, which remain

pending before the MSPB as part of an Individual Right of Action appeal, because the claims do

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 13 of 26 PagelD# 2351

not qualify as a mixed case. The Department of the Air Force’s refusal to repay plaintiffs

student loans is not the kind of major personnel action that is directly appealable to the MSPB

and therefore cannot be the basis for a mixed case. See Zachariasiewicz. 48 F.4th at 244

(“[Personnel action giving rise to an [Individual Right of Action] appeal cannot form the core of

a mixed case because that personnel action is not directly appealable to the MSPB and instead

must be challenged with the [Office of Special Counsel] prior to the MSPB.”). Therefore, even

though plaintiffs repayment claims involve an allegation of age discrimination, they do not

establish a mixed case that can be removed from the MSPB to a federal district court. Instead,

plaintiff must exhaust review before the MSPB as to his WPA claims (Claims 2a and 4a). Once

properly exhausted, the WPA claims are only appealable either to the Federal Circuit or to “any

court of appeals of competent jurisdiction,” 5 U.S.C. § 7703(b)(1), but not to a district court.

Even if the Court had jurisdiction over plaintiffs WPA claims (which it does not), the

Amended Complaint fails to state a claim for retaliation under the WPA. To maintain a claim for

WPA retaliation, the Amended Complaint must allege facts, not opinions, indicating “(1) that

[the plaintiff) engaged in a whistleblowing activity by making a protected disclosure under 5

U.S.C. § 2302(b)(8); and (2) based on the protected disclosure, the [employer] took or failed to

take a personnel action as defined by 5 U.S.C. § 2302(a).” Hooven-Lewis v. Caldera. 249 F.3d

259,276 (4th Cir. 2001). The Amended Complaint does not allege any facts describing that

plaintiff made a protected disclosure, which is defined as “any disclosure of information...

which the employee... reasonably believes evidences any violation of any law, rule, or

regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety,” to a higher authority or the OSC, 5

U.S.C. § 2302(b)(8), or a causal connection between such a disclosure and any adverse personnel

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 14 of 26 Page ID# 2352

action. See Hooven-Lewis. 249 F.3d at 276. Because the Amended Complaint fails to allege

any facts supporting these elements, it does not state a plausible WPA retaliation claim.

As defendants point out, even though the Court lacks jurisdiction over the WPA claims,

the Court must independently consider the merits of plaintiffs ADEA claim (Claim 5b), which

plaintiff alleges has been exhausted due to receipt of a right-to-sue notice from the EEOC. See

Zachariasiewicz. 48 F.4th at 249 (remanding to the district court to determine “whether it may

exercise subject matter jurisdiction over [ajppellanf s Title VII claims, independently of the

WPA and CSRA claims”). This claim must be dismissed because, as defendants argue, it does

not allege a plausible claim of age discrimination. To state a prima facie case under the ADEA,

a complaint must allege facts, not opinions, indicating that the plaintiff “(1) was a member of a

protected class, Le^ age 40 or older, (2) suffered an adverse employment action, (3) was meeting

his employer’s expectations at the time of the adverse action, and (4) was replaced by or treated

less favorably than someone outside the protected class or someone ‘substantially younger.’”

Sullivan v. Perdue Farms. Inc.. 133 F. Supp. 3d 828,837 (E.D. Va. 2015). The Amended

Complaint contains only a conclusoiy allegation of “age discrimination” and is devoid of any

factual allegations suggesting that plaintiff was treated less favorably than a younger employee

for any reason. As such, the Amended Complaint has not pleaded a plausible ADEA claim.

For these reasons, the claims based on the Department of the Air Force’s alleged failure

to repay plaintiffs student loans under the WPA—Claims 2a and 4a—will be dismissed for lack

of jurisdiction, and Claim 5b under the ADEA will be dismissed for failure to state a plausible

claim for relief.

C. Hostile Work Environment Claims

The Amended Complaint alleges that plaintiff “endured a deliberately hostile

environment” in the Department of the Air Force and the National Guard Bureau “for the 12

•

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 15 of 26 PagelD# 2353

months between April 2021 and March 2022.”2 Am. Compl. [Dkt. No. 6] at 9. This hostile

environment is described as the Department of the Air Force and the National Guard Bureau

taking “[n]umerous documented actions, investigated by the Office of Special Counsel,... that

created a hostile work environment” in violation of the Whistleblower Protection Act (identified

as “Claim 3a” as to the Department of the Air Force and “Claim 3b” as to the National Guard

Bureau). Id. at 5. The Amended Complaint also alleges that plaintiff experienced “[differential

treatment... but-for age discrimination” in violation of the ADEA (identified as “Claim 6a”), id.

at 6, and that plaintiff was “limit[ed], segregat[ed], or classified]... in a way that adversely

affects [his] opportunities or status” in violation of Title VII and the Rehabilitation Act

(identified as “Claim 8a”), id. at 7. The Amended Complaint states that “[m]ore will be provided

in court.” Id. at 9.

In their Motion to Dismiss, defendants argue that the Court lacks jurisdiction over

plaintiffs hostile work environment claims because they do not constitute a mixed case and are

the subject of a pending Individual Right of Action appeal. The Court agrees with defendants.

Because the Amended Complaint has not alleged that plaintiffs WPA and discrimination claims

involve any major personnel action that is directly appealable to the MSPB, these claims do not

qualify as a mixed case that can be removed from the MSPB to a district court.

Even considering plaintiffs hostile work environment claims under the ADEA, Title VII,

and the Rehabilitation Act independent of the WPA claim, the Amended Complaint does not

state a plausible claim for relief. To state a hostile work environment claim, a complaint must

allege facts, not opinions, indicating that the plaintiff “was subjected to (1) unwelcome conduct,

2 This appears to be the same time period during which the issues concerning plaintiffs

eligibility for a security clearance had arisen.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 16 of 26 PagelD# 2354

(2) based on [a protected characteristic], that was (3) severe or pervasive enough to make [the]

work environment hostile or abusive and (4) imputable to... [the] employer.” Bazemore v. Best

Buy. 957 F.3d 195,200 (4th Cir. 2020). In evaluating whether a complaint alleges a “plausible

hostile work environment claim,” the Fourth Circuit has directed courts to consider “the totality

of the circumstances, including the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Mustafa v. Iancu. 313 F. Supp.

3d 684,695 (E.D. Va. 2018) (quoting Okoli v. City of Balt.. 648 F.3d 216,222 (4th Cir. 2011)).

“[R]ude treatment from coworkers, callous behavior by one’s supervisors, or a routine difference

of opinion and personality conflict with one’s supervisors are not actionable,” and “[incidents

that would objectively give rise to bruised or wounded feelings will not on that account satisfy

the severe or pervasive standard” of a hostile work environment claim. Evans v. Int’l Paper Co..

936 F.3d 183,192 (4th Cir. 2019) (quoting Equal Emn. Opportunity Comm’n v. Sunbelt Rentals.

Inc.. 521 F.3d 306,315 (4th Cir. 2008)). Rather, a complaint must allege facts indicating that

“the workplace is permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.” Mclver v. Bridgestone Americas. Inc.. 42 F.4th 398,407 (4th

Cir. 2022) (quoting Bover-Liberto v. Fontainebleau Corn.. 786 F.3d 264,277 (4th Cir. 2015)).

Here, the Amended Complaint fails to allege any facts about specific harassing conduct

experienced by plaintiff based on his age, disability, or any other protected characteristics, let

alone facts suggesting that the unwelcome conduct was severe or pervasive. Plaintiff alleges

only that he “endured a deliberately hostile environment” and was “[l]imit[ed], segregate^], or

classified]... in a way that adversely affects [his] opportunities or status[.]” Am. Compl. [Dkt.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 17 of 26 PagelD# 2355

No. 6] at 7,9. These conclusory allegations are insufficient to state a plausible hostile work

environment claim.

Even if the Court had jurisdiction over plaintiffs WPA claim, it would have to be

dismissed because, as discussed above, the Amended Complaint has not alleged that plaintiff

made a protected disclosure about any wrongdoing that would qualify him as a whistleblower or

that defendants created a hostile work environment based on his protected status as a

whistleblower. See Clark v. Brown. 536 F. Supp. 3d 56,67 (E.D. Va. 2021) (discussing

requirements for pleading a hostile work environment claim under the WPA).

In sum, plaintiffs hostile work environment claims under the WPA—Claims 3a and

3b—will be dismissed for lack ofjurisdiction, and the claims under the ADEA, Title VII, and the

Rehabilitation Act—Claims 6a and 8a—will be dismissed for failure to state a plausible claim

for relief.

D. Systemic Discrimination Claims

Next, the Amended Complaint alleges that the Department of Defense has engaged in

“systemic discrimination” on the basis of age and has a “[pjersistent culture of [a]ge

[discrimination” in violation of the ADEA (identified as “Claim 6b”). Am. Compl. [Dkt. No. 6]

at 6,10. Specifically, the Amended Complaint asserts that the “military is allowed, and in some

cases compelled, by law to deny service opportunities to... those above a certain age,” and that

“[b]y statute, a commissioned officer may be appointed only if he or she is able to complete 20

years of active commissioned service before his sixty-second birthday [.]” Id. at 10. The

Amended Complaint also alleges that defendants engage in “[sjystemic discrimination” on the

basis of disability in violation of the Rehabilitation Act (identified as “Claim 8b”) by

“continuing] to publish illegal codes for justifying separation of service in the military” and

“[t]his taint and bias carries to the treatment of the civilian workforce,” and that the military

. Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 18 of 26 PagelD# 2356

denies “service opportunities to those unable to meet certain physical standards[.]” Id. at 6,10.

Finally, the Amended Complaint alleges “[s]ystemic [wjhistleblower [Retaliation” and asserts

that plaintiff has experienced “the same prohibited retaliatory behavior” across two Department

of Defense agencies in violation of the WPA and Presidential Policy Directive 19. Id. at 10. The

Amended Complaint asserts that the Department of Defense has “[f)ail[ed] to institute and

enforce Presidential Policy Directive 19 (‘Protecting Whistleblowers with Access to Classified

Information’)” by “allowing two separate agencies to perform illegal actions related to

[plaintiff’s security clearance without intervention, in a persistent sequence of events that

reasonably suggests a deliberate and designed pattern of illegal behavior” (identified as “Claim

3c”). Id at 5.

Plaintiffs systemic discrimination claims fail for several reasons. First, as defendants

point out, the Fourth Circuit has expressly declined to recognize a “private, non-class cause of

action” for individual plaintiffs for “pattern or practice” discrimination under Title VII. Lowerv

v. Circuit City Stores. Inc.. 158 F.3d 742,759-61 (4th Cir. 1998), vacated on other grounds. 52

U.S. 1031 (1999). Although a plaintiff ‘may use evidence of a pattern or practice of

discrimination to help prove claims of individual discrimination,” Gilvard v. Northlake Foods.

Inc.. 367 F. Supp. 2d 1008, 1016 (E.D. Va. 2005) (quoting Lowerv. 158 F.3d at 758-59), there is

no discemable connection between the alleged systemic or persistent discrimination in the

Department of Defense and any unlawful discrimination experienced by plaintiff individually.

Second, plaintiffs claims of systemic discrimination are conclusory and do not allege any facts

supporting discriminatory animus based on his membership in a protected class.

As for the WPA claims for systemic whistleblower retaliation, because they concern

alleged “illegal actions related to [p]laintiff s security clearance,” as previously discussed, the

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 19 of 26 PagelD# 2357

Court lacks jurisdiction over them. See Campbell. 952 F.3d at 205. In any case, as defendants

point out, plaintiffs claims do not challenge a major personnel action and are not directly

appealable to the MSPB; therefore, they do not qualify as a mixed case over which this Court has

jurisdiction. Even if the Court did have jurisdiction over plaintiff’s WPA claims, the Amended

Complaint fails to state a claim of retaliation under the WPA, because it does not allege any

whistleblowing activity or protected disclosure. See Hooven-Lewis. 249 F.3d at 276.

For those reasons, plaintiffs systemic discrimination claims under the ADEA and the

Rehabilitation Act—Claims 6b and 8b—will be dismissed for failure to state a plausible claim

for relief, and Claim 3c under the WPA will be dismissed for lack ofjurisdiction.

E. Privacy Act Claims

The Amended Complaint’s last set of claims allege violations of the Privacy Act based on

the “improper disclosure and use of personnel and medical records” by the Department of

Defense during plaintiffs effort to obtain unemployment benefits. Am. Compl. [Dkt. No. 6] at

7. Specifically, the Amended Complaint alleges that defendants “unnecessarily and willfully

leaked private, inaccurate, and sensitive medical information” about plaintiff to the Virginia

Employment Commission. Id. at 8. Attached to the Amended Complaint is a copy of the

Department of Defense’s “Reply to ES-931 Request for Wage and Separation,” which responded

to the Virginia Employment Commission’s request for information in connection with plaintiffs

application for unemployment benefits. Am. Compl., Att. 1 [Dkt. No. 6-1] at 2. The response

provides the reason for Akerman’s indefinite suspension—“failure to attain and/or maintain a

condition of employment - security clearance related”—and encloses the Department of Defense

Consolidated Adjudications Facility’s August 2021 memorandum and the Statement of Reasons.

Id. at 2-6. The Amended Complaint asserts that the “willful disclosure of [pjlaintiffs records is

designed to damage [his] potential for pay or employment in the future” and has “immediately

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 20 of 26 PagelD# 2358

adversely affected [his] ability to receive unemployment benefits” and has caused “inaccurate

medical information” to be part of Virginia’s state records. Am. Compl. [Diet. No. 6] at 8.

Based on these allegations, the Amended Complaint asserts a claim for “[failure to

[a]ssure [fjaimess in [a]gency [d]etermination” in violation of 5 U.S.C. § 552a(g)(l)(C)

(identified as “Claim 9a”), i.e.. a failure to maintain accurate records, and a “[f]ailure to [cjomply

with [o]ther Privacy Act [provisions in violation of 5 U.S.C. § 552a(g)(l)(D) (identified as

“Claim 9b”), which the Court construes as challenging the Department of Defense’s disclosure to

the Virginia Employment Commission as improper in violation of 5 U.S.C. § 552a(b). Id. at 7.

Defendants correctly point out multiple deficiencies in plaintiffs Privacy Act claims.

First, the Amended Complaint has not pleaded a plausible claim of failure to maintain plaintiffs

records with “accuracy, relevance, timeliness, and completeness as is necessary to assure fairness

in any determination relating to the qualifications... or opportunities of, or benefits to the

individual that may be made on the basis of such record” where “a determination is made which

is adverse to the individual.” 5 U.S.C. § 552a(g)(l)(C). Other than alleging in conclusory

fashion that defendants transmitted “private, inaccurate, and sensitive medical information” to

the Virginia Employment Commission, the Amended Complaint contains no facts that support

the assertion that the records were “inaccurate.” As such, plaintiffs first Privacy Act claim fails.

The second Privacy Act claim also does not state a plausible claim for relief. 5 U.S.C.

§ 552a(b) prohibits an agency from “disclospngj any record... to any person, or to another

agency, except pursuant to a written request by, or with the prior written consent of, the

individual to whom the record pertains[.]” As defendants point out, the Department of Defense’s

disclosure to the Virginia Employment Commission was part of the Virginia Employment

Commission’s processing of plaintiffs application for unemployment benefits, which falls under

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 21 of 26 Page ID# 2359

the “routine use” exception to the Privacy Act, 5 U.S.C. § 552a(b)(3), and therefore cannot

support a Privacy Act claim. “For a disclosure to qualify as a ‘routine use,’ it must be

compatible with the purpose for which the agency collected the personal information, see 5

U.S.C. § 552a(a)(7), and be in accordance with a routine use the agency has published in the

Federal Register, see 5 U.S.C. § 552a(e)(4)(D).” Fattahi v. ATF. 328 F.3d 176,178 (4th Cir.

2003). As defendants correctly argue, disclosing records in response to an unemployment

compensation agency’s request about the nature of plaintiffs employment is a routine use that

satisfies the publication requirement and is compatible with the purpose for which the

information was collected. See [Dkt. No. 47] at 26-28; see also Doe v. U.S. Dep’t of Just.. 660

F. Supp. 2d 31,47-48 (D.D.C. 2009) (holding that the disclosure of termination letters to a state

unemployment commission qualifies as a routine use under the Privacy Act).

Finally, plaintiff seeks to recover damages under the Privacy Act. To recover monetary

damages under the Privacy Act, a plaintiff “must show that the violation was ‘intentional or

willful.’” Hoeanv. England. 159 F. App’x 534,537 (4th Cir. 2005) (quoting 5 U.S.C.

§ 552a(g)(4)). Under the “intentional or willful” standard, “the violation must have been

committed ‘without grounds for believing it to be lawful, or by flagrantly disregarding others’

rights under the Act.’” Id. (quoting Scrimgeour v. Internal Revenue. 149 F.3d 318,326 (4th Cir.

1998)). The Amended Complaint lacks any facts supporting the conclusory allegation that the

Department of Defense’s disclosure was “willful.” Am. Compl. [Dkt. No. 6] at 8.

In sum, because the Amended Complaint fails to state a plausible claim for relief under

the Privacy Act, Claims 9a and 9b will be dismissed.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 22 of 26 PagelD# 2360

IV. PLAINTIFF’S REQUESTS FOR LEAVE TO AMEND

Given that all of the claims in the Amended Complaint will be dismissed, the Court must

consider whether to grant plaintiff leave to file yet another amended complaint. See [Dkt. Nos.

25,26,27,36]. Although “leave to amend should generally be granted in light of ‘this Circuit’s

policy to liberally allow amendment,”’ a court “may deny leave to amend ‘when the amendment

would be prejudicial to the opposing party, there has been bad faith on the part of the moving

party, or the amendment would have been futile.’” Adbul-Mumit v. Alexandria Hyundai. LLC.

896 F.3d 278,293 (4th Cir. 2018) (first quoting Galustian v. Peter. 591 F.3d 724,729 (4th Cir.

2010), and then quoting Johnson v. Oroweat Foods Co.. 785 F.2d 503, 509 (4th Cir. 1986)).

Plaintiff’s excessive filings in this civil action, which include numerous repeated attempts to

amend his complaint both before and after defendants filed their Motion to Dismiss, provide

important context for determining whether dismissal should be granted with leave to amend.

After filing the operative Amended Complaint, on September 1,2022, plaintiff sought

leave to further amend the complaint based on anticipated future developments in his MSPB

proceedings. [Dkt. No. 15]. Because the request was premature, the Court denied it without

prejudice “to allow plaintiff to file a motion for leave to amend once he has received responses”

from the MSPB and the Department of Defense. [Dkt. No. 17].

Despite that decision, plaintiff proceeded to file several duplicative motions for relief,

requesting, for example, a court-appointed attorney, waiver of future court costs, and

appointment of a special plurality of chancellors to adjudicate his civil action. See [Dkt. Nos. 18,

20,21,37,38,41]. Plaintiff also objected multiple times to defendants’ request for an extension

of time to file a responsive pleading and the Court’s decision granting that request. Because all

of plaintiffs requests for relief were meritless and duplicative, each was denied, and plaintiff

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 23 of 26 PagelD# 2361

was warned against filing frivolous, repetitive motions for relief. See [Dkt. Nos. 28,39,40,42],

Plaintiff has appealed several of these interlocutory orders to the Fourth Circuit.

In the meantime, plaintiff also filed three successive motions for leave to file an amended

complaint dated October 1, October 3, and October 8,2022, all of which remain pending before

the Court [Dkt. Nos. 25,26,36], and a Motion for Leave to Update Initial Cover Sheet, Update

Case Name [Dkt. No. 27]. The proposed amended complaints do not allege any additional facts

that support the eighteen claims presented in the operative Amended Complaint and are even

more barren of factual allegations. In fact, it appears that plaintiff seeks to amend his complaint

to add approximately 90 new claims to this civil action. As defendants point out, none of these

claims contain any factual allegations and are simply pleaded only as phrases or citations to

statutes, such as “Administrative Procedures Act,” “FOIA and HIPPA [sic].” [Dkt. No. 36-1] at

4. Around 80 of the claims are WPA claims stemming from an Individual Right of Action

appeal challenging a litany of workplace interactions and decisions during plaintiffs

employment within the Department of Defense, such as that he was “handed... a letter of

reprimand,” “called... to have a verbal counseling session,” experienced a “significant change

in duties,” and witnessed “harmful procedural error” and “conspiracy to commit fraud.” Id. at 513.

Plaintiffs long list of vague employment actions and amorphous violations of the law do

not plead any rational, plausible claims for relief. See Bine v. Brivo Svs.. LLC. 959 F.3d 605,

618 (4th Cir. 2020) (observing that “liberal construction” of a pro se pleading “does not mean

overlooking the pleading requirements under the Federal Rules of Civil Procedure”). “District

judges are not mind readers,” and “[e]ven in the case of pro se litigants, they cannot be expected

to construct full blown claims from sentence fragments[.]” Beaudett v. City of Hamnton. 775

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 24 of 26 Page ID# 2362

F.2d 1274,1278 (4th Cir. 19851: cf. Folkes v. Nelsen. 34 F.4th 258,272 (4th Cir. 2022) (holding

that the district court committed reversible error in “look[ing] beyond the claim presented” in a

pro se habeas petition).3 As further indication of the fanciful nature of plaintiffs proposed

amendments, he has added extravagant and nonsensical remedies, including a “name clearing

hearing,” federal employee health benefits “for life for plaintiff and family,” and punitive

damages for “human rights before robots: the total estimated cost of 2 loyal wingmen ($20

million each) and 2 autonomous tanks ($6 million each) for a total of $52 million.” [Dkt. No.

36-1] at 15. For these reasons, plaintiffs pending motions for leave to amend [Dkt. Nos. 25,26,

27,36] will be denied.

On October 17,2022, plaintiff demanded that the Clerk’s office file an amended

complaint, even though the Court had not granted him leave to amend, pkt. No. 45]. This

proposed amended complaint suffers from the same deficiencies as his previous attempts to

amend and fails to allege any facts in support of his claims. Moreover, in this version, plaintiffs

claims challenging his indefinite suspension and violations of the Privacy Act have ballooned

without any factual support, becoming claims for “false imprisonment,” “cruel and unusual

punishment,” and “deprivation]... of his property right to his tenured position without [d]ue

[p]rocess.” Id. at 4-5. The document then rambles on about the Second Amendment,

“information as a weapon,” and “the militia’s first cousin, the jury.” Id. at 10-16. No plausible

claim for relief can be discerned in this filing. Further, even though plaintiff has already been

warned twice that filing “unnecessary, frivolous, and repetitive motions” for relief may result in

sanctions, including dismissal of his complaint, [Dkt. Nos. 40,42], this proposed amended

3 As defendants point out, even if the Court could discern the nature of plaintiffs new claims,

they would likely be futile and would not survive a motion to dismiss. [Dkt. No. 57] at 10-14.

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 25 of 26 PagelD# 2363

complaint includes duplicative requests for relief that have already been denied. See [Dkt. No.

45] at 18-19 (requesting relief denied in prior orders pkt. Nos. 28,39,40,42]).

Since October 19,2022, plaintiff has filed 31 additional pleadings, titled “Roseboro

Amended Complaints” and “Roseboro Notices,” with accompanying “Roseboro Briefs” that

appear to be intended to serve as “clarifying briefs... as they relate to the scope of the Amended

Complaint, pkt. No. 55]; see pkt. Nos. 58-85,87-89]. Plaintiffs most recent attempt to

amend his complaint has inundated the Court with an indecipherable stack of documents

consisting of 1,472 pages, which appear to include the entirety of the dockets, correspondence,

and other records from his MSPB proceedings.4

Even though plaintiff is proceeding pro se. it is not this Court’s duty to sift through the

mass of his “Roseboro” filings to determine whether he has alleged a cognizable claim for relief

or whether he has cured the deficiencies that defendants’ Motion to Dismiss identified in the

Amended Complaint. See Carmel v. CSH & C. 32 F. Supp. 3d 434,436 (W.D.N.Y. 2014) (“[A]

prose litigant cannot simply dump a stack of exhibits on the court and expect the court to sift

through them to determine if some nugget is buried somewhere in that mountain of papers,

waiting to be unearthed and refined into a cognizable claim.”). Moreover, plaintiffs excessive

filing in this civil action has abused the time and resources of this Court as well as the Clerk’s

office, which has had to expend several hours scanning and docketing plaintiffs filings.5

4 For instance, plaintiffs “Roseboro Responsive Material Accompanying Roseboro Amended

Complaint and Roseboro Briefs 1-7” includes 311 pages of documents from several of his

pending administrative proceedings before the MSPB, among other materials. [Dkt. No. 59].

Plaintiffs “Omnibus to Simplify Pleadings and Hearings” contains 207 pages of documents from

another MSPB proceeding, along with other emails and documentation. [Dkt. No. 73].

While this Memorandum Opinion was being finalized, the Court received seven more pleadings

from plaintiff as recently as November 2,2022, which is further evidence of his excessive filing

in this civil action. See [Dkt. Nos. 90-96]. These filings include additional attempts to amend

•

Case l:22-cv-00696-LMB-WEF Document 97 Filed 11/03/22 Page 26 of 26 PagelD# 2364

V. CONCLUSION

For the foregoing reasons, defendants Motion to Dismiss [Dkt. No. 46] will be

GRANTED under Fed. R. Civ. P. 12(b)(1) as to the claims for unlawful indefinite suspension

and constructive discharge (Issue 1 and Claims 2b, 2c, 4b, 4c, 5a, and 7a) and the WPA claims

for failure to repay his student loans (Claims 2a and 4a), hostile work environment (Claims 3a

and 3b), and systemic discrimination (Claim 3c), and under Fed. R. Civ. P. 12(b)(6) as to the

student loan repayment claim under the ADEA (Claim 5b), the hostile work environment claims

under the ADEA, Title VII, and the Rehabilitation Act (Claims 6a and 8a), the systemic

discrimination claims under the ADEA and the Rehabilitation Act (Claims 6b and 8b), and the

Privacy Act claims (Claims 9a and 9b); plaintiffs motions [Dkt. Nos. 25,26,27,36,55,91] will

be DENIED; and this civil action will be dismissed with prejudice by an accompanying order.6

Entered this jj^dav of November, 2022.

fsf

Leonie M. Brinkema

United States District Judge

Alexandria, Virginia

his complaint by way of a “Roseboro Baseline Amended Complaint” [Dkt. No. 90] and

“Roseboro Objection[s]” [Dkt. Nos. 92-96].

Plaintiff also filed another meritless motion, entitled “Closing Roseboro Motion: Motion

to Reconcile Civil Docket and Grant Judgment by Default” (“Motion for Default Judgment”), in

which he repeats his complaint that defendants did not timely respond to the Amended

Complaint because they filed their Motion to Dismiss after the Clerk’s office was closed, and

seeks a default judgment based on defendants’ alleged failure to timely respond. [Dkt. No. 91].

In addition, plaintiff requests “$150,000 interim relief to allow [him] to retain counsel” and “the

appointment of a [g]rand [j]uiy” to investigate his case. Id. As explained above, defendants’

Motion to Dismiss was timely filed and therefore they are not in default. As there is no basis for

any of the frivolous relief requested in the Motion for Default Judgment [Dkt. No. 91], the

motion will be denied.

6 Normally, a dismissal based on a finding under Fed. R. Civ. P. 12(b)(1) that the Court lacks

subject matter jurisdiction would be without prejudice because the Court lacks the authority to

adjudicate that over which it has no jurisdiction. In this case, plaintiffs track record of not

respecting the Court’s decisions and filing repetitive, abusive pleadings justifies a dismissal of

this entire action with prejudice, to make clear that he cannot refile any of the claims discussed in

this opinion.

t;-

APPENDIX D

USCA4 Appeal: 22-2066

Doc: 66

Filed: 10/31/2023

Pg: 1 of 3

FILED: October 31, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2066 (L)

(1:22-cv-00696-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

LLOYD J. AUSTIN, III, Secretary of Department of Defense; CHRISTINE E.

WORMUTH, Secretary of the Army; FRANK KENDALL, Secretary of the Air

Force; GENERAL DANIEL R. HOKANSON, Chief, National Guard Bureau;

DEPARTMENT OF DEFENSE; DEPARTMENT OF THE ARMY;

DEPARTMENT OF THE AIR FORCE; DEFENSE COUNTERINTELLIGENCE

AND SECURITY AGENCY

Defendants - Appellees

No. 22-2147

(1:22-cv-00696-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

LLOYD J. AUSTIN, III, Secretary of Department of Defense; CHRISTINE E.

WORMUTH, Secretary of the Army; FRANK KENDALL, Secretary of the Air

USCA4 Appeal: 22-2066

Doc: 66

Filed: 10/31/2023

Pg:2of3

Force; GENERAL DANIEL R. HOKANSON, Chief, National Guard Bureau;

DEPARTMENT OF DEFENSE; DEPARTMENT OF THE ARMY;

DEPARTMENT OF THE AIR FORCE; DEFENSE COUNTERINTELLIGENCE

AND SECURITY AGENCY

Defendants - Appellees

No. 22-2154

(1:22-cv-01258-LMB-WEF)

MARTIN AKERMAN

Plaintiff - Appellant

GENERAL DANIEL R. HOKANSON, General, Chief, National Guard Bureau;

CHRISTINE E. WORMUTH, Secretary of the Department of the Army; FRANK

KENDALL, Secretary of the Department of the Air Force; LLOYD J. AUSTIN,

III, Secretary of the Department of Defense; PENTAGON; ANDREWS AFB;

REMOTE

Defendants - Appellees

ORDER

The court denies the petition for rehearing and rehearing en banc and all

other pending motions. No judge requested a poll under Fed. R. App. P. 35 on the

petition for rehearing en banc.

USCA4 Appeal: 22-2066

Doc: 66

Filed: 10/31/2023

Pg:3of3

Entered at the direction of the panel: Judge Rushing, Judge Heytens, and

Senior Judge Keenan.

For the Court

/s/ Nwamaka Anowi. Clerk

APPENDIX E

U.&1QUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washiiigton, B.C« 20013

June 21,2022 .

I :

iMaftfe AkeMan

2001 North Adams Street. Unit 440

Arlington, VA 22201:

,v'.

- ...

. ...

j- - ,

Re: June 7,2022-'Notice of Intent to Sue

Ar- v; r

■A

The purposeofthis letter is to acknowledge that the U.S. Equal Employment Opportunity

Commission (EEOC) has received your documentation regarding a notice of intent to file a civil

■action against the Department of Defense pursuant to Section 15(d) of the Age Discrimination

HitiJpmjri^ment Act (ADEA) of 1967, as amended, 29 U.S.C Section 633a. For your reference, a

^yrifyOUr documentatjoh is attached hefetor;;

.... P:\.

Pp- :• ;

“

■

' ’

"V.

'} >.i '

^ " ..

p...

P> / PP_y~ “

pr”p‘

"cmi#i$ a ih^jacimoydedgtheritanildoes hot address either the merits of the allegatioins

iorrmtig the basis of the notice or the sufficiency of the notice. If you have not filed a formal

®Miri|sjp^opportunity (EEO) complaint, you mustprovideanotice of

interit to sue to the EEOC within one hundred and eighty days after the alleged unlawful practice

occutred. Please be aware, however, that your notice must comply with EEOC Management

Directive 110, Chapter 4, Section IV. B., which States that the notice ofintent todne Should be

dated and must contain the following information:

•/

'ii

(1) Statement of Men! lofiie acivil actiohpderSection 15(d) of the^MSEAt^

(2) name, address, and telephone dumber ofthdemployee or appjicmi^

r (3) name, address; and telephone number of the complainant’s designated

n |4) name and location of the federal agency or installation where the alleged

diS<ahndnato0tabddn occujrredt:

(5), .date on whh|fthe aife|^di|rt«unatdry aedpn t^eurredi;

(6) gtosenf.OlieMdtUte offteallegeddiscriminatory action(s); arid

17) "Signature oftheeomplamantot thecomplainanfs representative/

C-'

Martin Akerman

Page Two

■r*

IFyou have already Filed a formal EEO administrative complaint based, at least in part on

age, you must exhaust the administrative process before pursuing a civil action in a U, S. district

court.

We "are forwarding a copy Of your notice, and by copy of this response we are providing

notice to the Department of Defense of your intent. The Equal Employment Opportunity

Commission Directive (EEO-MD-110), Chapter 4, Section IV, requires that within thirty days of

receipt of this notice, the agency must review the allegation(s) of age discrimination and conduct

an inquiry sufficient to determinewhether there is evidence that unlawful age discrimination has

pixurted; The method of the inquiry is a matter for determination by the particular agency and

may vary depending on the scope and complexityofthe allegation(s).

‘

In order to resolve age discrimination claims informally and preclude the necessity for

litigation, the EEOC expects that the agency’s inquiries Under EEO-MD-110 will begin

immediately and be completed promptly. Agency inquiries based on a notice of intent to sue

.Should begin immediately and be completed promptly. Prompt inquiries are necessary so that a

^elaimanfs right to seek redress is not jeopardized by the expiration of a limitations period for.

tiling a civil action. Agencies should implement case tracking systems to ensure the prompt

processing of these matters.

“>■*

....

The agency is encouraged to make good faith efforts to resolve the matter and must

implement the appropriate make-whole relief under 29 C.F.R. Part 1614. Subpart E, where

Unlawful age discrimination Is found. Please be aware that you may file a civil action under the

ADEA at any time after thirty days from the date of filing a compliant notice of intent to sue

; with EEOC regardless of whether your agency has conducted any inquiry into your allegation.

„ If.you have questions regarding the above information, please call the EEOC’s Contact

Center (Monday through Friday) at l -800-669-4000 or contact the EEOC’s Office of Federal

Operations at ofo .eeoc@eeoc ,fiov, '

fi- ■

Sincerely,,

r ;Y:y,

r;-... 'y

Ldfi Grant Director

Agency Oversight Division

• Office of Federal'OpeFatiohs

v‘Federal’Sector Programs ^ , _

XT'

• * j"f

!>■

V-

Y y\..

.Y^■>*

n- '

■i

Martin Akerman

Page Three

ChahrianeJohnson

Department of Defense

^Office of Diversity Management and Equal Opportunity

4000 Defense Pentagon Rm 5D641

Washington. DC 20301

'Via email: charinane.s.iohnson.dv@mail.iTnt

its

>V.

Maritza Sayle-Walker

-Department of the Air Force

,A1Q

1500 W, Perimeter Rd Suite 4500

JB Andrews, Maryland 20762

^ia email:- tnaritaLsavlewalker. 12@us.af.mil

w: ss

l a

'' T-

c-.

Seema Salter

Department of the Army

US Army Equity and Inclusion Agency

5825 21st Street Building 214

Fort Bel voir, Virginia 22060

Via email: seema.e.salter.civ@armY.mil.

srs

Paul Kurle

National Guard Bureau

NGB-DE1

111S, George Mason Drive

Arlington. Virginia 22204

Via email: paul.d k.nie ci~mil;

ft;

“R

Carey Williams

Defense Counterintelligence and Security Agency

.Diversity '& Equal Opportunity

27130 Telegraph Road

Quantico. Virginia 22134

Via email: catev.twilliams2.civ@maif,mil

■CXil

■g

•*

'<*>

Return Mail Processing Center

8551 East Anderson Dr #108

Scottsdale, AZ 85255

USPS CERTIFIED MAIL

0006403296000011

<£*

jra

*“■

Equal Employment Opportunity Commision

Notice of Intent to Sue

PO BOX 77960

Washington, DC 20013

9214 8901 4298 0470 2306 49

See Important Information Enclosed

_p.

VSrijl O

■

<S r.-.'-r

*1s fin„

/-£K

rx_

.7-

aXA '

P'J7

•?

-T,

•-••v

u'r^.

'■}J

"•V.

L,;\/!

■

- -

V j"

u !: .

a ^

. i

-V*

.1 l'""f..—|J—'v

■■•

/.) ■' S/>

/■;j

- 7 lune 2022

Y-:

1 Martin

2Q01 North Adams ^Street, Unit 4401

.Aflihgujn^aiffl:

«S“

S J5M^fflfe:^w!iacfiofrafei|6tipn 15(d) oftheAge Discriminktipn ln r_

' .Employment,Act of 1967, as amended:/Ref)=29 GFR:§ 1614:201

t" n

n 4

•V:

= 0 ^f/n

ri !r'c^o

%0-n"

SOOll North AdaniS/Street; llrtifrMO'

Arlington, VA 22201

202r656-5601 =

1o°

•.7

t.:

^ no*:

?n ft o

_J“ Cj .

__ f i. ■■ C, p

;O0d^fi?:«e ■

£ Jrt

n.......Jj

... c

S^gtssste* L

^ I: lsr

-i s:i

p L .1,t" c

lr° ftatem<*tqlhe^^

1. ||l%iiMiQnei@:

c„

rffih

cf-

r P,

jf- n f r, ’^j—p tu c

r. c ^

"/JJj"'r' {-. ct-

.^: r-'

;c,

D process andlied alMut my abiliiy .fq obtain and Maintain a secufity -dearante], •'

resulting in workmgicondjtibns that,are so intolerable that any: teijsOnabJeljerebVj.

wduld^om^o^sign,

^ >rP

”n

-f 'f $

■

% Signidi ,0W J?

(f‘

_?$&

l(, '/'

V>^fc

» Vs

«n •*

«D

. • :xfs^^^mssmA^

a, [ “

c ■*

Return Mail Processing Center

8551 East Anderson Dr #108

Scottsdale, AZ 85255

USPS CERTIFIED MAIL

0006394734000011

General Daniel R. Hokanson

Chief, National Guard Bureau

111 S. George Mason Drive

Arlington, VA 22204-1373

9214 8901 4298 0470 1538 18

See Important Information Enclosed

, '2

!- f-

Martin Akcrmart

2001 North Adams Street, Unit 440

Arlington* VA 22201 *

202-656*5601

•J’

•*

; General Daniel R. Hokanson

Chief, National Guard Bureau

111 S. George Mason Drive

/Arlington. VA 222(04-137,3

{

Letter of Resignation

i^ift

I hereby resign from my position as Chief Data Officer of the National Guard Bureau.123

«*

.<■**.'

The agency took impermissible discriminatory actions, violated my fight to due process tuid lied

about my ability to obtain and maintain a security clearance,‘placing me on Notice Leave"(5

IKS. Code § 6329b) and in an indefinite unpaid suspension Status! resulting in working

r conditions that are-so intolerable that any reasonable person would feel compel led to resign.

•

“ 1

:f elect to incur adebt to FEHB 5nly until the end of this current pa/period, 18 June 2022.

*Wy fespe^fijli;

Martin Akerman

rmakerman.dod@gmail.com

lit

CC:

Dri Clark Cully, Acting Chief Data Officer. Department of Defense

Honorable Christine Wormuth, Secretary ofthe Army

Honorable Frank Kendall, Secretin? ofthe Air Force

Maj. GenrJanson Boyles,’Mississippi, Chairman, NGAUS

Governor Asa Hutchinsoh,^Arkansas,-Chairmati/National Governors Association

Senator Tim Kaine, State of,Virginia

f-,44 tfS. Code § 3520

2,10 U.S. Code § 10501 - The National Guard Bureau is a joint activitvof the Department of Defense.

3 The National Guard Bureau is the channel of communications on all matters pertaining to the National Guard. th&

Army National Guard of the United States, and the Air National Guard of the United States between (f) the

Department of the Atmy and Department of the Air Force,'and (2) the several States.

m r

Brian Molina

\ Comm«t»i*eaHh of Virginia

vgJ , §

Notary Public*

xrill

M ,............

CCM&

.. »

COrtMnfOO hfe: 7607182

Bstpiies 8 3MBJ4

bant}-'

J"*'-'

itx..

.ft

'73

„

« 2a

^TIMKAINE

"*’

Cen8r.lC«e.ork *

£4?

'. is

.Pi-..

*•

„H.

HfiiKi

MrV feliJlSW®

Ja*

-ki*.

W:t-^'-'

dBfflrdik*

,2001' N&rtK JMISffgi| |^$$|«9i§nJ

?mm-

• itp®^

„

c c

....

cP os

c »

*fc

r«a*r-.

'WNVP

£5

_ Jggsifc c

■,5-.-..r..

w»,.v;...‘

m* fof 1* «*tt|f^8^r1l| ifevrllnote & jfe janatofj »E _

■ Jtorslfifett:

fear

•&;

•? >

rCl

r-? i—n

Lt o

l-rJ

■>U^Lr.,P-!JfT; IZvITmYrJ..n ;;■ p7j"T|Y;n

jrj~<

„e

its

tu..

(i_.—

• *

itepai|tineht.^ mimvpwf' rnmemm

%®rto- increase ^rgartjizalionaL fi^pareney* SapftVe

|j;@pffat^i on ' super;! ItffyV ThI s/Kas':Huift.iilsofiBl

...

- ~

" n

•

toMtmi:toipuskp^ofifot-irheip-include falsifying document^ioWfif

*■

. f ,-r

s,b

• n

ft.

fielp With A Federal Agency I Feb 17 2022 02:26:371 Akerman, Martin - Page 2 of2

5 . 5

status quo and disincentive to innovate, if left unmitigated, wilt be the single

reason we will not be able to outpace our adversaries and inevitably lose.

t hereby authorize the office of U.S. Senator Tie Kaine to intercede on ay behalf,

aw* review ell relevant docuaentation that Senator Kaine or his staff deeas necessary

in connection with ay request for assistance. I further understand that tha

Senator a office cannot request an application be granted, and expedite requests are

reviewed on a case-by-case basis by the agency. The inforaation I have provided is

true and accurate to the beat of ay knowledge and belief, the assistance I have

requested frea Senator Kaine is in no way an atteapt to violate any federal, state or

local laa.

toti-Aj. V7/2Q2Z,

Signature:

•

r,'

Please return this fora via eail, Eaail or fax to:

->■■■

Senator Tim Kaine

ATTN: Constituent Services

231 Russelt Senate Off ice BuiIding

Washington, DC 28510

fax: (282) 228-6363

Email: Kaine_Casework@kaine.senate.gov

y,;

~A.

>:Z

„

s:3i

<■;

-3

NATIONAL GUARD BUREAU

106 DEFENSE PENTAGON

WASHINGTON DC 20301-1636

DEC 20 2021

MEMORANDUM FOR ALL NATIONAL GUARD PERSONNEL

V .

Subject: Appointment of a National Guard Bureau Chief Data Officer ami Creating

V ; Competitive Advantage by positioning Data as a Strategic Asset

.. K " "

•

Reference: National Guard Strategic Data Management Framework, 08 June 2021

' 1. In accordance with die reference, I hereby designate Mr. Martin Akerman as the

National Guard Bureau (NGB) Chief Data Officer (CDO).

‘2. The NGB CDO will lead the utilization and governance of data across the National

. Guard.

3. The NGB CDO, In coordination with the Army National Guard and the Air National

Guard, will lead the National Guard's Implementation Plan of the Department of

Defense Data Strategy. See the attached “Supporting Department of Defense Data

‘Decrees" for more information.

4. The point.of contact Is Mr. Martin Akerman; NGB-J8; 703-607-7125. " ' . ...

* *< l

*•?

DANIEL R. HOKANSON

General, USA

Chief, National Guard Bureau

Attachment

As stated

. f".

♦

■v

A. i

.1"

.. . r

’7

■. i-

■

• (.

% s

* *

✓

f•

•r;

•..r

ll ,'J

ATTACHMENT

SUPPORTING DEPARTMENT OF DEFENSE DATA ‘DECREES'

.....

^r ^

- - -fc The Department of Defense (DoD) released a memorandum, on 05 May 2021,

outlining the Importance of data management in establishing information superiority and

enabling better decisiorHnaking. The National Guard plays a key role In the globally

integrated arid partnered Joint Force, designed and able to out-think, out-maneuver,

and out-fight any adversary under conditions of disruptive change.

2. National Guard Bureau Is adopting the five DoD Data ‘Decrees’ as outlined in the

DoD memorandum by:

a. Maximizing data sharing and rights for data use: all DoD data is an enterprise

resource.

r b. Publishing data assets in the DoD federated data catalog along with common

interface specifications.

; .

c. Using automated data interfaces that are externally accessible and machinereadable; ensure interfaces use industry-standard, non-proprietary, preferably openaource, technologies, protocols, and payloads.

d. Storing data in a manner that is platform and environment-agnostic, uncoupled

fttmihardWareorsoftwaredependencies.

implementing best practices for secure authentication, access management,

GricrypSon, monitoring, and protection of data at rest, in transit, and in use.

3. The Joint Force will rapidly integrate, evaluate, and interpret data with artiffciat

intelligence, machine language, and big data analytics. The National Guard Bureau

Chief Data Officer will ensure the necessary data assets and expert resources are

ready and empowered to help the National Guard achieve Joint All-Domain Operations,

Senior Leader Decision Support and Executive Analytics while positioning Our data to

be visible, accessible, understandable, linked, trusted, interoperable, and secure

(VAULTIS)

4. The National Guard will leverage better and faster human and machine-aided

decision making to accelerate its response to changes in the operational environment

(in collaboration with allies and partners), while adopting a rapid, iterative, and modular

approach to capability development that wiir reduce costs, technology obsolescence,

iaridlacguisitiOn risk.

APPENDIX F

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Martin Akerman a/k/a

Chad T., 1

Petitioner,

Christine Wormuth,

Secretary,

Department of the Army,

Agency.

Petition No. 2022005058

MSPB No. DC-0752-22-0376-1-1

ORDER OF DISMISSAL

On June 21, 2022, Petitioner filed Civil Action No. I:22cv696 in the United States District Court

for the Eastern District of Virginia, Alexandria Division. A review of the of the complaint filed

in the civil action reflects that the claims raised in the civil action are the same as those raised in

the Initial Decision issued by the Merit Systems Protection Board (MSPB) which is raised the

instant EEO petition for review.

EEOC Regulation 29 C.F.R. § 1614.409 provides:

Filing a civil action under § 1614.407 or § 1614.408 shall terminate Commission

processing of the appeal. A Commission decision on an appeal issued after a

Petitioner files suit in district court will not be enforceable by the Commission. If

private suit is filed subsequent to the filing of an appeal and prior to a final

Commission decision, the complainant should notify the Commission in writing.

Accordingly, the Commission will dismiss a pending petition under these circumstances to

prevent a petitioner from simultaneously pursuing both administrative and judicial remedies on

the same matters, wasting resources, and creating the potential for inconsistent or conflicting

decisions, and in order to grant due deference to die authority of the federal district court. See,

e.g.. Wayne C. v. Dep’t of Vet. Affi. EEOC Appeal No. 2020002855 (Oct. 6, 2020); Bart L. v.

This case has been randomly assigned a pseudonym which will replace Complainant’s name

when the decision is published to non-parties and the Commission’s website.

2022005058

Deo’t of Aerie.. EEOC Appeal Nos. 2020000098, 2020000100 (Mar. 10, 2021); Von E. v. Dep’t of the Treasury. EEOC Appeal No. 2020004947 (Feb. 17, 2022).

Following a review of Civil Action No. I:22cv696, the Commission has determined that the

above-referenced civil action raises the same claims as the EEO petition currently on appeal.

Accordingly, EEOC Petition No. 2022005058 must be, and is, DISMISSED.

PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610)

This decision of the Commission is final, and there is no further right of administrative appeal

from the Commission’s decision. You have the right to file a civil action in an appropriate

United States District Court, based on the decision of the Merit Systems Protection Board,

within thirty (30) calendar days of the date that you receive this decision. If you file a civil

action, you must name as the defendant in the complaint the person who is the official Agency

head or department head, identifying that person by his or her full name and official title. Failure

to do so may result in the dismissal of your case in court. “Agency” or “department” means the

national organization, and not the local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may

request permission from the court to proceed with the civil action without paying these fees or

costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may

request the court to appoint an attorney for you. You must submit the requests for waiver of

court costs or appointment of an attorney directly to the court, not the Commission. The

court has the sole discretion to grant or deny these types of requests. Such requests do not alter

the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a

Civil Action for the specific time limits).

FOR THE COMMISSION:

iton M. Hadden, Director ‘

Office of Federal Operations

October 17.2022

Date

APPENDIX G

OFFICE OF THE ASSISTANT TO THE SECRETARY OF DEFENSE FOR

PRIVACY, CIVIL LIBERTIES, AND TRANSPARENCY

1 155 DEFENSE PENTAGON

WASHINGTON, DC 20301-1 155

July 6, 2022

Mr. Martin Akerman

2001 North Adams Street, 440

Arlington, VA 22201

Makerman.dod@gmail.com

Dear Mr. Akerman:

The Privacy and Civil Liberties Division received your email on June 16, 2022. This

matter has been forwarded to the National Guard Bureau (NGB) which includes the NGB Office

of Information and Privacy (DM-OIP) at 111 S George Mason Drive, Building 2, Arlington, VA

22204, for appropriate action. If you have any questions or concerns regarding this matter,

please contact the NGB Privacy and Civil Liberties Office POC at ngb.foia@army.mil.

Sincerely,

p| p-rpupR »/| * rt! Digitally signed by

ri_c i uncn.ivinn^letchermaby.p,t04083329

Y. P. 104O83329f0"^2O22 07 oe 17:16:02

Mary P. Fletcher

Privacy Lead, Privacy, Civil Liberties,

and FOIA Directorate

cc:

NGB Privacy and Civil Liberties Office

APPENDIX H

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON DC, 20330

17 August 2021

MEMORANDUM FOR: Martin Akerman

FROM: Director/Chief Data Office SAF/CO

SUBJECT: Notification to Individual of Classified Information Access Determination

1. You are hereby notified that an incident report must be reported to DoD CAF LAW

DoDM5200.02_ AFMAN16-1405, Air Force Personnel Security Program. This action is being

taken because of your actions/alleged actions, conduct and/or behavior involving (be as specific

as protection of sources allows and national security permits.) I have determined your current

access to classified information.

X_ May continue until further notice.

__ May NOT continue until further notice.

2. When all final actions in this case are complete, I will evaluate the incident(s) and make a

security recommendation. The DoD CAF will make the final security determination concerning

your security clearance eligibility.

3. OurPOC:

Ms. Dana Ceasar/ SAF/AA Security Manager

TSgt Luis H. Santa/ SAF/CO Security Manager

VIDRINE.EILEEN.Mlo

ARGARET.101045/S2“^MAROABEr'’

^/"'0atSri!021.08.17 1233:58 -04OT

830

EILEEN M. VIDRINE, SES, DAF

Chief Data Officer

cc:

Servicing IP Activity

FOR OFFICIAL USE ONLY. This document contains information that is protected under the Privacy Act of 1974 (see

AFI33-332) and protected from disclosure under the Freedom of Information Action Act; 5 USC 552. Do not release

this information without consent of the originators office.

....I

III

;f*

APPENDIX I

: Hi

i!i

I I HIM

I 'ft?

«5;

is"

ser

f|»

slm

ill

•s.

«•

1 I H

iti

{Ml

Ifir

S’

'fi*

►

III fill

i?i

III S. i!

I5 |r

a9|

I ! m

sr i

*• *3

I <?&

'■<

«'

■■'I

ff < f

■,i

9 e

fir-

111

3£

« P

APPENDIX J

v%*

SUPREME COURTOF THE UNITEDSTATES

OFFICE OF THE CLERK

WASHINGTON,'DC 20543-0001

Martin Akermati

2001 North Adams Street

MMfO

Arlington, VA 22201

RE; Akerman v. Odnefil OaMier Hok^son, et al. (23A489,;23A563, & 23;A701)

Rule 17

EtapIKi Afanmagl

Your/motion for leave to file an original proceeding wp alternative request for direct

The original jurisdiction of this Court doeS riQt extend to a attjtbyatf individual

against theUnited Statesv The priginai jurisdidion of this Court generally extends

Only to cases or contfoversies between.two Or more states or between the United,

States and one Or; mote states; See 28 UVS;C. 1251 and Rule 17 of the Rules of this

Court.

Cotafi allowed only from athreeIn addition, a direct appeal from attS.

jiidge distn^odu^

USC1253. TheprocedureforfilinginthisCourtishy

iimigaliiiely ptitiOnfea writ pf eertioraif afebnfrYefMgn*inPe!7.S;,

CourtofAppeals, 28 USC:l254i:.

"" ”

Please fo~a$^e4^oiJr«'mu!il^^

States court of

^tpealsMiptKeiiighest Moduli tnMmcha^ecisiofljcoiidihe^aa^SniTSG

:i.254 and 1257. "

.....................

r" «n

'■ri/szi't—£•—rrr~"

>*r

Enclosures

rr.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.