Martin Akerman v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTIN AKERMAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1314
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-25-0140-W-1.
______________________
Decided: November 14, 2025
______________________
MARTIN AKERMAN, I, Arlington, VA, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before CHEN, CLEVENGER , and HUGHES , Circuit Judges.
P ER CURIAM .
Martin Akerman, proceeding pro se, appeals from a de-
cision of the Merit Systems Protection Board (Board)
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AKERMAN v. MSPB 2
(1) dismissing his suit as barred under collateral estoppel,
(2) denying various motions he filed, and (3) declining to
certify an interlocutory order for immediate appellate re-
view of those rulings on his motions. See Akerman v. Dep’t
of Army, No. DC-1221-25-0140-W-1, 2024 WL 5162168
(M.S.P.B. Dec. 10, 2024) (SAppx 1–12)1 (Decision). We af-
firm.
BACKGROUND
Mr. Akerman served as a GS-15 Supervisory IT Spe-
cialist within the National Guard Bureau (NGB). See De-
cision, 2024 WL 5162168, at 1.2 On June 10, 2022, he filed
an individual right of action (IRA) appeal with the Board,
alleging the NGB wrongfully retaliated against him in re-
sponse to his protected whistleblowing activity. See Aker-
man. v. Dep’t of the Army, No. DC-1221-22-0459-W-1, 2022
WL 16712926 (M.S.P.B. Nov. 1, 2022) (’459 proceeding).
An administrative judge dismissed his claims for lack of ju-
risdiction. See id.
Mr. Akerman then filed a petition for review with the
full Board. Before the Board affirmed the administrative
judge’s decision on May 29, 2024, Mr. Akerman filed, on
March 12, 2024, a new appeal to the Board—the one giving
rise to the present appeal—asking to (1) reopen the docket
for his original appeal, and (2) initiate a new IRA against
the NGB.
On November 19, 2024, the Board, recognizing that it
had recently issued a final decision in Mr. Akerman’s first
appeal, issued an Acknowledgement Order informing
Mr. Akerman “that his appeal seems to address the same
1 “SAppx” refers to the supplemental appendix filed
with the Government’s Response Brief.
2 Because the digital version of the initial decision
lacks pagination, we refer to the page number in the origi-
nal document. See SAppx 1–12. “Initial Decision, 2024 WL
5162168, at 1” for example, refers to the first page of the
initial decision, located at SAppx 1.
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AKERMAN v. MSPB 3
issues that were raised in his prior appeal, and that it
therefore may be barred by the doctrines of collateral es-
toppel or res judicata.” Decision, 2024 WL 5162168, at 2.
The Acknowledgment Order also requested Mr. Akerman
to submit any evidence or argument that he had exhausted
Office of Special Counsel (OSC) procedures for a new IRA
appeal. Mr. Akerman, in response, filed various pleadings
and motions, none of which were responsive to the question
of collateral estoppel or res judicata. Nor did Mr. Akerman
indicate that he exhausted OSC procedures. On November
22, 2024, the Board denied all of Mr. Akerman’s motions,
finding them to be without merit.
That same day, Mr. Akerman sought immediate appel-
late review of the Board’s rulings on his motions, asking
the Board to certify the order for interlocutory appeal. On
December 2, the Board denied certification, explaining that
Mr. Akerman failed to meaningfully address the criteria
for interlocutory review. See SAppx 19. And on December
10, the Board dismissed his new IRA appeal as barred un-
der collateral estoppel. See Decision, 2024 WL 5162168, at
1. It also barred his request to reopen the docket in the
’459 proceeding under collateral estoppel grounds too, find-
ing that Mr. Akerman already raised, and the full Board
already addressed, these same arguments in his petition
for full Board rehearing. Id. at 4–5.
After Mr. Akerman filed his Informal Opening Brief to
our Court, but before he filed his Informal Reply Brief, we
affirmed the Board in the ’459 proceeding. See Akerman v.
Merit Sys. Prot. Bd., No. 2024-1912, 2025 WL 720091, at *1
(Fed. Cir. Mar. 6, 2025) (Akerman I).
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
We review de novo whether to apply collateral estoppel.
Shell Petroleum, Inc. v. United States, 319 F.3d 1334, 1338
(Fed. Cir. 2003). We review the Board’s rulings on discov-
ery and evidentiary matters for an abuse of discretion. See
Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.
Cir. 1988).
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AKERMAN v. MSPB 4
D ISCUSSION
I
We begin with collateral estoppel. Issue preclusion ap-
plies if:
(1) an issue is identical to one decided in the first
action; (2) the issue was actually litigated in the
first action; (3) the resolution of the issue was es-
sential to a final judgment in the first action; and
(4) the party defending against issue preclusion
had a full and fair opportunity to litigate the issue
in the first action.
Shell, 319 F.3d at 1338.
Mr. Akerman does not dispute that his present IRA
raises the same issues as those already settled in the ’459
proceeding (and by our corresponding appeal of that pro-
ceeding). See generally Pet’r’s Informal Opening Br; Pet’r’s
Informal Reply. Br; Akerman I, 2025 WL 720091, at *2–3.
Nor does he dispute that he already litigated, and the
Board settled, his request to reopen the ’459 docket. Be-
cause Mr. Akerman does not respond to the dispositive is-
sue of collateral estoppel, we see no basis for reversing the
Board’s final decision on the merits.
Mr. Akerman instead attacks the Board’s denial of in-
terlocutory certification. See Pet’r’s Informal Reply 3. In
light of his current appeal, that issue is now moot—the
Board’s proceedings have already ended, giving Mr. Aker-
man an independent basis for our review. See 28 U.S.C.
§ 1295(a)(9). Granting Mr. Akerman his desired relief
would have no impact. See Powell v. McCormack, 395 U.S.
486, 496 (1969) (“[A] case is moot when the issues pre-
sented are no longer ‘live’ . . . .”). And because Mr. Aker-
man’s appeal does not identify any error in the Board’s
adverse rulings regarding various motions he filed there,
we need not address them here.
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AKERMAN v. MSPB 5
CONCLUSION
We have considered Mr. Akerman’s remaining argu-
ments but find them unpersuasive.3 We therefore affirm.
AFFIRMED
COSTS
No costs.
3 Mr. Akerman has also filed various motions to us,
only two of which remain pending. In his first pending mo-
tion, he requests we summarily reverse the Board’s denial
of interlocutory certification. See ECF No. 38. We deny
this as moot for the reasons already identified.
In his second pending motion, he asks us to (1) find
that he is entitled to a refund of the filing fee based on a
provision in the Uniformed Services Employment and
Reemployment Rights Act (USERRA), (2) reconsider our
prior August 8 order, see ECF No. 39, to the extent it denied
summary reversal, and (3) waive the paper copy filing re-
quirement. See ECF No. 42.
As to his first request, USERRA waives any fees or
courts costs for “any person claiming rights under this
chapter.” 38 U.S.C. § 4323(h)(1) (emphasis added). But
Mr. Akerman has not filed a USERRA claim with the
Board, and he identifies to no record cite indicating other-
wise—he raised only an IRA.
His second request has become moot for reasons al-
ready articulated. His third request has also become moot
because we have already waived the paper copy require-
ment. See ECF No. 39.
We accordingly deny his second pending motion.
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