Akerman v. Austin
| Decision Date | 03 November 2022 |
| Docket Number | 1:22-cv-696 (LMB/WEF) |
| Parties | MARTIN AKERMAN, Plaintiff, v. LLOYD J. AUSTIN, III, SECRETARY OF DEPARTMENT OF DEFENSE, et al., Defendants. |
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. [Dkt. 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[.]" [Dkt. 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 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 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. Pkt. No. 6] at 8; Am. Compl., Att. 3 [Dkt. No. 6-1] at 12.
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 (). Several of these claims remain pending before the MSPB. See [Dkt. No. 47] at 7-9; see, e.g., Akerman v. Dep't of the Air Force, No. DC-1221-22-0445-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-1221-22-025 7-W-l (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 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...
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