Kevin Mertens v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN MERTENS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1781
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-21-0092-I-1.
______________________
ON MOTION
______________________
Before L OURIE, C UNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s July 2, 2024 show cause or-
der, the Merit Systems Protection Board argues this case
should be dismissed or transferred. Kevin Mertens ap-
pears to argue the merits of his case, ECF Nos. 21 and 22,
and also moves to stay proceedings pending appeal, ECF
No. 14, to file a replacement informal opening brief, ECF
Case: 24-1781 Document: 25 Page: 1 Filed: 08/21/2024

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MERTENS v. MSPB 2
No. 12, and for various other relief from this court and the
Board, ECF No. 20.
Mr. Mertens appealed his removal to the Board on Jan-
uary 4, 2021, raising an affirmative defense of disability
discrimination. The administrative judge granted
Mr. Mertens’s request to dismiss his appeal without preju-
dice to refiling, and Mr. Mertens petitioned the Board for
review. The Board’s March 6, 2024 decision affirmed but
construed his petition as seeking to refile his appeal and
transmitted it to the regional office for further adjudica-
tion.1 Mr. Mertens then petitioned this court for review.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
[5 U.S.C. §] 7702,” § 7703(b)(2), which involve an allegation
of an action appealable to the Board and an allegation that
a basis for the action was covered discrimination, 5 U.S.C.
§ 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437
(2017). And such cases may be brought if there has been
“no judicially reviewable action” by “the 120th day follow-
ing the filing of an appeal with the Board.” 5 U.S.C.
§ 7702(e)(1)(B). Here, as the Board notes, Mr. Mertens ap-
pealed his removal and alleged that the action was based,
at least in part, on covered discrimination, and it appears
that he continues to pursue that claim, see, e.g., ECF No. 22
at 17–18. We transfer to the United States District Court
for the District of Connecticut, where the employment ac-
tion appears to have occurred. 28 U.S.C. § 1631.
Accordingly,
1 The Board states that the re-filed appeal has been
dismissed without prejudice pending resolution of this
matter. ECF No. 23 at 4.
Case: 24-1781 Document: 25 Page: 2 Filed: 08/21/2024

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MERTENS v. MSPB 3
I T I S O RDERED T HAT :
This matter and all case filings are transferred to the
United States District Court for the District of Connecticut
pursuant to 28 U.S.C. § 1631.
August 21, 2024
Date
F OR THE COURT
Case: 24-1781 Document: 25 Page: 3 Filed: 08/21/2024

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