Kevin P. Mertens v. Merit Systems Protection Board

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN P. MERTENS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1975
______________________
Petition for review of the Merit Systems Protection
Board in Nos. PH-0752-21-0092-I-3 and PH-0752-21-0092-
M-1.
______________________
ON MOTION
______________________
Before STOLL, WALLACH, and CUNNINGHAM, Circuit
Judges.
PER CURIAM.
O R D E R
In response to this court’s December 10, 2025 order,
Kevin P. Mertens files an amended Statement Concerning
Discrimination abandoning the discrimination claim(s) he
raised before the Merit Systems Protection Board in the
Case: 25-1975 Document: 25 Page: 1 Filed: 02/02/2026

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MERTENS v. MSPB 2
underlying proceedings. Under the circumstances of this
case, we conclude that we have jurisdiction. See Harris v.
SEC, 972 F.3d 1307, 1318 (Fed. Cir. 2020).
The Board moves to remand. In the appealed-from in-
itial decision, the administrative judge sanctioned
Mr. Mertens by dismissing his appeal. Without first seek-
ing Board review, Mr. Mertens filed this petition for re-
view. In its motion for remand, the Board concedes the
administrative judge erred by dismissing Mr. Mertens’s
appeal as a sanction. Mr. Mertens agrees but seeks rever-
sal rather than a remand for further proceedings.
Mr. Mertens also seeks leave “to submit a cost bill for [his]
time and expenses accrued since 12/28/2020.” ECF No. 21
at 10.
We have discretion to remand to allow the Board to re-
consider its previous position. See SKF USA Inc. v. United
States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). Without
drawing any conclusions regarding the merits of the par-
ties’ arguments, the court concludes that remand would
preserve party and judicial resources. On remand, we ex-
pect the Board will promptly resolve Mr. Mertens’s long-
standing appeal. As for Mr. Mertens’s request for costs, we
grant the request only to the extent he is awarded the cost
of the docketing fee for filing the above-captioned case with
this court. See Fed. R. App. P. 39(e)(1)(B).
Accordingly,
Case: 25-1975 Document: 25 Page: 2 Filed: 02/02/2026

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MERTENS v. MSPB 3
IT IS ORDERED THAT:
(1) The motion for remand is granted.
(2) The motion for costs is granted only to the extent
provided in the order.
(3) All other pending motions are denied.
February 2, 2026
Date
FOR THE COURT
Case: 25-1975 Document: 25 Page: 3 Filed: 02/02/2026

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