Petition for Writ of Certiorari — Martin Akerman, Petitioner v. Merit Systems Protection Board

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APPENDIX A

Case: 23-2046

Document: 33

Pa’gp: 1

Filed: 10/13/2023

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NOTE: This order is nonprecedential.

SJmteb States Court of Appeals

for tfje jfrtieral Circuit

I

MARTIN AKERMAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2023-2046

Petition for review of the Merit Systems Protection

Board in Nos. DC-0752-23-0457-1-1 and DC-0752-23-0457S-l.

ON MOTION

Per Curiam.

ORDER

After consideration of the parties’ responses to this

court’s order directing them to show cause whether Martin

Case: 23-2046

2

Document: 33t

Patjp: 2

Filed: 10/13/2023

AKERMAN v. MSPB

Akerman’s petition for review should be dismissed for lack

of jurisdiction, we dismiss.*

The court received Mr. Akerman’s petition for review

identifying two Merit Systems Protection Board docket

numbers—DC-0752-23-0457-1-1 and DC-0752-23-0457-S1—and specifically requesting review of a “Third Order”

entered May 22, 2023. ECF No. 1-2 at 1. Attached to that

petition is a May 22, 2023, decision from the administrative

judge in DC-0752-23-0457-1-1 entitled “Third Order,”

which denies Mr. Akerman’s motion for “Certification of In­

terlocutory Appeal” to the Board.

The court directed the parties to show cause because

while 28 U.S.C. § 1295(a)(9) provides the court with juris­

diction over “an appeal from a final order or final decision

of the Merit Systems Protection Board,” the administrative

judge’s denial of Mr. Akerman’s third request for an inter­

locutory appeal to the Board does not “endQ the litigation

on the merits and leave Q nothing for the [tribunal] to do

but execute the judgment,” Weed v. Soc. Sec. Admin., 571

F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). Thus, it is

not a “final” order or decision that can be immediately ap­

pealed to this court. Mr. Akerman asserts that the order is

nonetheless appealable under Cohen v. Beneficial Indus­

trial Loan Corp., 337 U.S. 541 (1949), but Cohen’s collat­

eral order doctrine is for only a “small class of collateral

rulings that,” among other things, “resolve important ques­

tions separate from the merits,” Kaplan v. Conyers, 733

F.3d 1148, 1154 (Fed. Cir. 2013) (cleaned up). Here, the

interlocutory order is not such an order; rather,

Mr. Akerman appears to seek reconsideration of

the court’s July 31, 2023, order denying his request to con­

solidate this case with Appeal No. 2023-2216 (concerning

Board No. DC-3443-22-0639-1-1), but that request is denied

as moot given this dismissal. Mr. Akerman’s request to

modify the caption is also denied.

Case: 23-2046

Document: 334

P6g,e: 3

Filed: 10/13/2023

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AKERMAN v. MSPB

Mr. Akerman appears to simply want expedited review of

the “underlying ... issues,” ECF No. 20 at 2, which is in­

sufficient.

Moreover, we note that in DC-0752-23-0457-1-1, the ad­

ministrative judge has since issued an initial decision, but

Mr. Akerman’s petition here does not challenge that initial

decision, and, in any event, that decision remains non-final

because Mr. Akerman filed a timely petition for review

with the Board, such that our review of that decision is

premature. See 5 C.F.R. § 1201.113(a); Weed, 571 F.3d at

1361—63. Lastly, we note that Mr. Akerman’s submissions

here have not reasonably identified any decision, final or

otherwise, in DC-0752-23-0457-S-1 for this court to review.

We therefore dismiss.

Accordingly,

It Is Ordered That:

(1) The petition for review is dismissed.

(2) Each side shall bear its own costs.

(3) All pending motions are denied.

For the Court

October 13. 2023

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

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APPENDIX B

Case: 23-2046

Document: 14*2

Page: 23

Filed: 07/14/2023

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

MARTIN AKERMAN,

Appellant,

DOCKET NUMBER

DC-0752-23-0457-S-1

v.

DEPARTMENT OF THE ARMY,

Agency.

DATE: May 4, 2023

Martin Akerman. Arlington. Virginia, pro se.

Eugene R. Ingrao, Sr.. Esquire, Arlington, Virginia, for the agency.

BEFORE

Joshua Henline

Administrative Judge

ORDER DISMISSING STAY REQUEST

On May 3, 2023, the appellant filed an appeal alleging his June 18, 2022

retirement was involuntary or that he was constructively discharged on the same

date. See Initial Appeal File (IAF), Tab 1.

In a pleading filed in the instant

appeal on May 4, 2023, the appellant sought a stay of his constructive removal or

involuntary retirement.1

Stay Appeal File (SAF), Tab 1.

For the following

reasons, the appellant’s stay request is DISMISSED.

i

It was unclear if the appellant was seeking to stay his constructive

discharge/involuntary retirement or to stay the case processing in the initial appeal.

Nevertheless, as the appellant is pro se, this stay request was docketed.

Case: 23-2046

Document: 14-2

Pac)e:24

Filed: 07/14/2023

2

ANALYSIS AND FINDINGS

In his initial appeal, the appellant stated in the narrative portion of his

appeal form that “The Agency refuses to respond to OPM and has lied to OPM

LMER and DOL-OWCP as it relates to my constructive dismissal.” IAF, Tab 1.

He also alleged he was “constructively forced into retirement;” “has been under

false arrest and false imprisonment since 14 February 2022;” “the [a]gency

refuses to respond to OPM since November 2022;” “the [a]gency initially balmed

an officer of the Nevada Air National Guard, [but] now appears to be blaming the

Army National Guard;” “he is disabled and on Medicaid without income;” and he

requested an “urgent intervention by way of the Office of Workmans

Compensation Programs.” Id. at 4.

On the May 4, 2023, the appellant filed his stay request wherein he

averred, in part, that he requested a stay to “ensure that all pertinent issues are

examined thoroughly and that the administrative process is properly conducted

while also acknowledging the significance of the right to counsel in a criminal

matter and the importance of administrative decisions.” SAF, Tab 1 at 4.

Under 5 U.S.C. § 1221(c), an appellant may request a stay of the personnel

action that he alleges is based on whistleblowing.

Such a stay request may be

filed at any time after the appellant becomes eligible to file an appeal with the

Board under 5 C.F.R. § 1209.5, but no later than the time limit set for the close of

discovery in the appeal. 5 C.F.R. § 1209.8(a). The request may be filed prior to,

simultaneous with, or after the filing of an appeal. Id.

The appellant’s stay

request was filed after he filed his initial appeal. SAF, Tab 1.

The appellant has not alleged in his initial appeal or in his stay request that

his

constructive

discharge

or

involuntary

retirement

was

based

on

whistleblowing. Accordingly, he is not eligible to file a stay request. See 5

U.S.C. § 1221(c). Even if he were eligible to file such a request, the Board’s

regulations require that such a request be accompanied by certain information.

5 C.F.R. § 1209.9. In his stay request, the appellant referenced that she would

Case: 23-2046

Document: 14-2

Page: 25

Filed: 07/14/2023

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like to provide evidence of her whistleblowing and protected activity but the

regulations are clear that the stay request must include, inter alia, the following:

(4) A chronology of facts, including a description of the appellant’s

disclosure and the action that the agency has taken or intends to take;

(6) Evidence and/or argument showing that:

(ii) The action complained of was based on whistleblowing or other

protected activity as defined in § 1209.4(b) of this part; and

(iii) There is a substantial likelihood that the appellant will prevail

on the merits of the appeal;

(7) Evidence and/or argument addressing how long the stay should remain

in effect; and

Id. The appellant failed to provide this information with his stay request.

It is incumbent on the appellant to provide the information required by the

regulations so that the Board can determine whether there is a substantial

likelihood that he will prevail on the merits of his appeal. As the appellant failed

to provide the required information with his stay request, the stay request must be

dismissed.2 3

2 Because the appellant’s alleged constructive removal was effective on June 18, 2022,

see 1AF, Tab 1 at 3, a request for stay of his constructive removal may be moot. See

Horner v. Merit Systems Protection Board, 815 F.2d. 668, 670-71 (Fed. Cir. 1987). An

issue must be “live” at the time the case is decided, not merely when the appeal is

filed. See Occhipinti v. Department of Justice, 61 M.S.P.R. 504 (1994). The question

of mootness must also be a consideration in determining whether a stay request should

be granted. A stay does not reverse, annul, undo, or suspend what has already been

done. See BLACK'S LAW DICTIONARY 1413 (6th Ed. 1990).

3 The appellant is free, however, to refile the stay request in compliance with the

Board’s regulations. If so, the agency has five business days after the service of the

stay request to file a response. 5 C.F.R. § 1209.9(c).

The parties are advised that this decision only involves the appellant’s stay request and

not his constructive removal/involuntary retirement. A party seeking review of this

order must move for certification of an interlocutory appeal under 5 C.F.R. §§ 1201.91.93.

Case: 23-2046

Document: 14-2

Page: 26

Filed: 07/14/2023

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For these reasons, the appellant’s stay request is DISMISSED.

FOR THE BOARD:

/S/

Joshua Henline

Administrative Judge

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APPENDIX C

Case: 23-2046

Document: 14-2

Page: 1

Filed: 07/14/2023

U.S. MERIT SYSTEMS PROTECTION BOARD

Office of the Clerk of the Board

1615 M Street, N.W.

Washington, O.C. 20419-0002

Phone: 202-653-7200; Fax: 202-653-7130; E-Mail: mspb@mspb.gov

June 21,2023

Notice to:

Martin Akerman

2001 North Adams Street

Unit 440

Arlington, VA 22201

Re: Martin Akerman v. Department of the Army

MSPB Docket Number: DC-0752-23-0457-S-1

On June 20, 2023, you electronically filed a pleading with this office in the

above-referenced docket number using the option for “Request for Extension of Time to

File PFR” in e-Appeal Online. An administrative judge issued an Order Dismissing Stay

Request in this matter on May 4, 2023, and this docket number is therefore closed.

Please be advised that the Board’s regulations do not provide for the filing of a petition

for review when an administrative judge denies a request for a stay under 5 C.F.R.

§ 1209. Therefore, the Board will take no further action concerning your June 20, 2023

submission titled “Request for Extension of Time to File PFR” relating to MSPB Docket

No. DC-0752-23-0457-S-1. However, this in no way impacts your ability to continue to

pursue the claims currently pending before the administrative judge in MSPB Docket No.

DC-0752-23-0457-1-1 or your ability to file a petition for review in that matter after the

administrative judge issues an initial decision.

Jennifer Everling

Acting Clerk of the Board

/s/

Dinh Chung

Case Management Specialist

Case: 23-2046

Document: 14-2

Page: 2

Filed: 07/14/2023

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this

day to each of the following:

Appellant

Electronic Mail

Martin Akerman

2001 North Adams Street

Unit 440

Arlington, VA 22201

Agency Representative

Electronic Mail

June 21, 2023

(Date)

Eugene R. Ingrao, Sr.

Department of the Army

Attorney- Advisor

Office of the Chief Counsel, NGB

111S. George Mason Drive

AHS-2/Room 3TI-308

Arlington, VA 22204

/s/

Dinh Chung

Case Management Specialist

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Case: 23-2046

Document: 14-2

M Gmail

Page: 3

Filed: 07/14/2023

Martin Akerman <makerman.dod@gmail.com>

Rejecting Pleading - Martin Akerman v. Department of the Army DC-0752-23-0457-S-1

1 message

Rejected Submissions <Rejected.Submissions@mspb.gov>

To: "makerman.dod@gmail.com" <makerman.dod@gmail.com>

Wed, Jun 21, 2023 at 11:56 AM

You are receiving this email from the Office of the Clerk of the Board, U.S. Merit Systems Protection Board

in accordance with our notice rejecting your additional submission. As a courtesy to you, a copy of your

rejected additional submission is attached to this email.

Please do not respond to this email. This is not a monitored email account and the Clerk’s office will not

respond to any inquiries sent to this email address. If you have questions about the Board’s procedures,

please call the Clerk’s office at (202) 653-7200 or send an email to mspb@mspb.gov.

DOCSPROD-#2042189-v1 -Akerman_Martin_-_DC230457S1_-_Request_for_Extension_ofTime

13 to Flle_PFR.PDF

2240K

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APPENDIX D

Case: 23-2046

Document: 38, Page: 1

Filed: 11/20/2023

NOTE: This order is nonprecedential.

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Unfteb States Court of Uppeate

for tfic jfcberal Ctrcutt

MARTIN AKERMAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2023-2046

Petition for review of the Merit Systems Protection

Board in Nos. DC-0752-23-0457-1-1, DC-0752-23-0457-S-1.

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

Per Curiam.1

ORDER

On October 13, 2023, Martin Akerman filed a combined

petition for panel rehearing and rehearing en banc [ECF

No. 34]. The petition was referred to the panel that heard

1

Circuit Judge Newman did not participate.

Case: 23-2046

Document: 38, Page: 2

2

Filed: 11/20/2023

AKERMAN v. MSPB

the appeal, and thereafter the petition was referred to the

circuit judges who are in regular active service.

Upon consideration thereof,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

For the Court

November 20. 2023

Date

Jarrett B. Perlow

Clerk of Court

APPENDIX E

Case: 23-2046

Document: 32,

Page: 1

Filed: 10/13/2023

NOTE: This order is nonprecedential.

Unite!) States Court of appeals

for tlje Jfeberal Circuit

MARTIN AKERMAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2023-2046

Petition for review of the Merit Systems Protection

Board in Nos. DC-0752-23-0457-1-1 and DC-0752-23-0457S-l.

MARTIN AKERMAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2023-2216

Case: 23-2046

Document: 32. Pa§e:2

2

Filed: 10/13/2023

AKERMAN v. MSPB

Petition for review of the Merit Systems Protection

Board in No. DC-3443-22-0639-1-1.

ON MOTION

Per Curiam.

ORDER

Martin Akerman filed multiple motions to enjoin the

Merit Systems Protection Board from transitioning to an eAppeal Online system on October 2, 2023, because “[t]he

MSPB’s transition poses a substantial risk to the integrity

of records,” Appeal No. 2023-2046, ECF No. 26 at 2. Given

the limited time to consider the motion, a one-judge deci­

sion was issued, which denied the motions. Mr. Akerman

now moves for reconsideration of that decision.

Upon consideration thereof,

It Is Ordered That:

The motions are denied.

For the Court

October 13. 2023

Date

Jarrett B. Perlow

Clerk of Court

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APPENDIX F

Case: 23-2046

Document: 36, Pgige:1

Filed: 11/13/2023

NOTE: This order is nonprecedential.

®mte& States Court of Appeals

for tJjr Jfeberal Circuit

MARTIN AKERMAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

2023-2046

Petition for review of the Merit Systems Protection

Board in Nos. DC-0752-23-0457-1-1, DC-0752-23-0457-S-1.

ON MOTION

Per Curiam.

ORDER

On November 3, 2023, Martin Akerman moved the

court for adverse inference [ECF No. 35].

Upon consideration, thereof,

It Is Ordered That:

Case: 23-2046

Document: 36. \Rage: 2

2

Filed: 11/13/2023

AKERMAN v. MSPB

The motion is denied.

For the Court

November 13. 2023

Date

Jarrett B. Perlow

Clerk of Court

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