Case: 23-2216 Document: 28 Page: 1 Filed: 12/14/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTIN AKERMAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2216
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-22-0639-I-1.
______________________
ON MOTION
______________________
ORDER
The Merit Systems Protection Board moves to dismiss
Martin Akerman’s petition for review for lack of jurisdic-
tion. Mr. Akerman responds with a request to “[q]uash”
the motion and to “[p]roperly join[] and/or remand the case
to the appropriate trial court(s).” ECF No. 25 at 3. He sep-
arately moves the court to clarify and “certify” this court’s
October 13, 2023, order, ECF No. 27 at 1, and to “bifurcate
and transfer discriminatory elements,” ECF No. 3 at 1.
Case: 23-2216 Document: 28 Page: 2 Filed: 12/14/2023
2 AKERMAN v. MSPB
Mr. Akerman filed an appeal with the Board challeng-
ing decisions of the Department of Defense Office of Inspec-
tor General and the Inspector General of the Intelligence
Community declining to open his requested investigation.
On October 28, 2022, the administrative judge issued an
initial decision dismissing the appeal, concluding the
Board lacked jurisdiction over those decisions, and, to the
extent this could be construed as an Individual Right of Ac-
tion appeal, such appeal would be premature.
Mr. Akerman subsequently filed a timely petition seek-
ing review of the initial decision by the full Board. On June
26, 2023, Mr. Akerman moved to withdraw his petition at
the Board. The Board issued an order asking Mr. Akerman
to confirm his intent to withdraw, but Mr. Akerman has so
far failed to provide that confirmation. On June 27, 2023,
Mr. Akerman filed this petition seeking review of the ini-
tial decision. Mr. Akerman’s filings before this court state
that he raised a discrimination claim before the Board and
that he wishes to pursue judicial review of that claim.
This court does not yet have authority to decide this
case. Although this court has jurisdiction to review final
decisions of the Board, see
28 U.S.C. § 1295(a)(9);
5 U.S.C.
§ 7703(b)(1)(A), Mr. Akerman’s timely filed petition at the
Board renders the initial decision non-final for purposes of
our review. See § 7701(e)(1)(A);
5 C.F.R. § 1201.113(a)
(“The initial decision will not become the Board’s final de-
cision if within the time limit for filing . . . any party files a
petition for review . . . .”).
We note two potential paths to this court’s future re-
view. First, Mr. Akerman may wait to receive a final deci-
sion from the full Board on his petition for Board review,
at which point Mr. Akerman may seek this court’s review,
if necessary, by filing a timely petition for review with this
court. Alternatively, Mr. Akerman can confirm with the
Board that his request to withdraw his petition was know-
ing and voluntary, and then timely petition for our review
Case: 23-2216 Document: 28 Page: 3 Filed: 12/14/2023
AKERMAN v. MSPB 3
if, and when, the request has been granted, as the order
dismissing his petition will constitute a final Board deci-
sion.
As for Mr. Akerman’s request to transfer some portion
of this case to district court: the Board states that “it does
not appear Mr. Akerman raised a claim of covered discrim-
ination before the Board in connection with the challenged
agency action” that might warrant such transfer. ECF No.
24 at 8. Nothing in Mr. Akerman’s filings, and nothing in
our review of the limited record, support a contrary conclu-
sion. Moreover, to the extent that Mr. Akerman’s case be-
fore the Board is an IRA appeal, “[d]iscrimination claims
may not be raised in that context.” Young v. Merit Sys.
Prot. Bd.,
961 F.3d 1323, 1327–28 (Fed. Cir. 2020). We ac-
cordingly reject Mr. Akerman’s request to transfer.
Mr. Akerman’s motion for clarification also asks,
“whether the [October 13, 2023, order] was issued by a
panel of judges or by the clerk of the court,” ECF No. 27
at 2. That order (as this one) was issued by a panel of
judges and merely signed by the Clerk of Court. See Fed.
Cir. R. 45(c) (authorizing the Clerk of Court to sign a docu-
ment “[f]or the [c]ourt” when directed by a judge or the
court).
Accordingly,
IT IS ORDERED THAT:
(1) The Board’s motion to dismiss is granted. The pe-
tition for review is dismissed.
(2) Each side shall bear its own costs.
Case: 23-2216 Document: 28 Page: 4 Filed: 12/14/2023
4 AKERMAN v. MSPB
(3) The motion to clarify, ECF No. 27, is granted to the
extent provided in this order. All other pending motions
are denied.
FOR THE COURT
December 14, 2023
Date
