Case: 24-1912 Document: 47 Page: 1 Filed: 03/06/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MARTIN AKERMAN, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1912 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-22-0459-W-1. ______________________

Decided: March 6, 2025 ______________________

MARTIN AKERMAN, I, Arlington, VA, pro se.

CONSTANCE E. TRAVANTY, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, BRYSON, and STARK, Circuit Judges. Case: 24-1912 Document: 47 Page: 2 Filed: 03/06/2025

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PER CURIAM. Martin Akerman appeals from a decision of the Merit Systems Protection Board (“the Board”) dismissing his ap- peal for lack of jurisdiction. Akerman v. Dep’t of the Army, No. DC-1221-22-0459-W-1, 2024 WL 2783100 (M.S.P.B. May 29, 2024) (“Decision”). For the following reasons, we affirm. BACKGROUND Akerman was employed as a GS-15 IT Specialist for the Department of the Army, National Guard Bureau (“NGB”). R.A. 1 52. Because the position dealt with classified infor- mation relevant to national security, Akerman was re- quired to maintain a Top Secret security clearance, which he did until February 8, 2022. R.A. 45, 50. On that date, however, Akerman received notice from NGB that his clearance had been suspended because he had been hospi- talized for a mental health condition and had not complied with the agency’s request to submit a medical opinion “to determine if a condition exists” that affects his “judgement and[] reliability.” R.A. 50. On February 14, 2022, NGB notified Akerman that it was proposing to indefinitely suspend him from his posi- tion for failure to maintain his security clearance and placed him on administrative leave pending a final deci- sion. R.A. 52–55. Akerman then filed a complaint with the NGB Office of the Inspector General (“OIG”), asserting that the agency unlawfully revoked his security clearance. R.A. 118–25. NGB issued a final decision on April 11, 2022, in- definitely suspending Akerman without pay or duty status, effective April 24, 2022. R.A. 67–70.

1 R.A. refers to the Appendix submitted with Re- spondent’s informal brief. Case: 24-1912 Document: 47 Page: 3 Filed: 03/06/2025

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Between February 14 and May 11, 2022, Akerman made four requests to NGB to classify certain blocks of time as different forms of paid leave or official time worked. R.A. 10–11. Each request was denied by NGB. R.A. 10– 11. Akerman then filed a complaint with the Office of Spe- cial Counsel (“OSC”), contending that NGB denied the four requests in retaliation for bringing the OIG complaint chal- lenging the revocation of his security clearance. R.A. 116– 30. After the OSC complaint was denied, Akerman filed an individual rights action (“IRA”) appeal with the Board. R.A. 110–15. Because it was not apparent from Akerman’s appeal form that the Board had jurisdiction over his IRA appeal, an administrative judge (“AJ”) ordered Akerman to demonstrate that the Board had jurisdiction. R.A. 101–10. In response, Akerman provided additional details pertain- ing to the four denied requests to change the classification of his time. R.A. 76–77. In an initial decision, the AJ dismissed the appeal for lack of jurisdiction because NGB’s denial of his requests were “closely intertwined” with the revocation of Aker- man’s security clearance. R.A. 23–28. Following a petition for review, the Board affirmed and adopted the AJ’s initial decision. Decision at *3. Akerman timely appealed. We have exclusive jurisdic- tion over this appeal pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). DISCUSSION We review the Board’s jurisdictional determinations de novo. Bryant v. Merit Sys. Prot. Bd., 878 F. 3d 1320, 1325 (Fed. Cir. 2017). The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the OSC and makes non-frivolous allega- tions that: (1) he engaged in a protected activity under 5 U.S.C. § 2302(b)(9), and (2) the disclosure was a Case: 24-1912 Document: 47 Page: 4 Filed: 03/06/2025

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contributing factor in the agency’s decision to take or fail to take a personnel action as defined by § 2302(a). See Hes- sami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020). Akerman raises several issues on appeal. First, he ar- gues that the Board failed to consider material evidence that affects the Board’s jurisdiction of his IRA appeal. Sec- ond, he asserts that the Board incorrectly dismissed his IRA appeal for lack of jurisdiction. Third, he contends that NGB’s refusal to classify the four blocks of time as paid leave or official time worked was both erroneous and viola- tive of his rights to free speech and procedural due process under the Constitution. And fourth, he alleges that NGB filed “false information” with several state of Virginia ad- ministrative agencies, again violating his First Amend- ment rights. We address each in turn. We start with the Board’s purported failure to consider material evidence that affects jurisdiction. Akerman con- tends that the Board failed to consider a letter from OSC “acknowledging an administrative error” relating to the OSC complaint, citing a letter attached to his opening brief. Reply Br. 8; Akerman Br. 2. Contrary to Akerman’s asser- tion, the attached letter merely states that there was a cler- ical error in the OSC file number included in the documents sent to inform Akerman that his OSC complaint and IRA appeals were denied. Akerman Br. 22. We do not see how this letter is material to the Board’s jurisdiction. We accordingly turn to the substance of the jurisdiction is- sue. In Dep’t of Navy v. Egan, the Supreme Court held that the Board does not have authority to review an alleged ad- verse personnel action that directly results from the revo- cation of a security clearance. 484 U.S. 518, 529–30 (1988). The Court explained that because agencies require broad discretion to determine who can be trusted with classified information, it is “not reasonably possible for an outside Case: 24-1912 Document: 47 Page: 5 Filed: 03/06/2025

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nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction [that a particu- lar individual might compromise sensitive information] with confidence.” Id.; see also Hesse v. Dep’t of State, 217 F.3d 1372, 1377 (Fed. Cir. 2000) (explaining that the Board lacks jurisdiction to consider the merits of an agency’s se- curity clearance determination in IRA appeals). Here, Akerman asks the Board to do exactly what Egan prohibits. The alleged personnel actions taken by NGB— the four requests to classify Akerman’s time as either paid leave or official time worked—are for blocks of time that occurred after his security clearance was revoked when he was either placed on administrative leave or indefinitely suspended. If the Board were to assess whether Akerman’s four requests were meritorious, that would in turn require the Board to assess whether NGB correctly revoked his se- curity clearance—the basis for NGB placing him on admin- istrative leave or indefinitely suspending him. Accordingly, because Akerman’s IRA appeal did not make a non-frivolous allegation that NGB took an adverse per- sonnel action against him, the Board correctly held that it did not have jurisdiction over his appeal. Because we conclude that the Board did not have juris- diction to address Akerman’s requests to classify his time differently, we need not address his arguments pertaining to the accuracy of the Board’s denials or the related consti- tutional arguments. As for Akerman’s argument that NGB filed false infor- mation with several state of Virginia administrative agen- cies, violating his First Amendment rights, that argument was not brought before the Board. It is therefore not pre- served for our review. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). Case: 24-1912 Document: 47 Page: 6 Filed: 03/06/2025

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CONCLUSION We have considered Akerman’s other arguments and find them unpersuasive. For the foregoing reasons, we af- firm. AFFIRMED