This morning the Federal Circuit released three nonprecedential orders. One grants a motion to remand to an arbitrator; one dismisses an appeal; and one grants a motion to remand to the Merit Systems Protection Board. Here is text from the orders.
Knight v. Department of Veterans Affairs (Nonprecedential Order)
The Department of Veterans Affairs moves to waive the requirements of Federal Circuit Rule 27(f) and remand to allow the arbitrator to reevaluate the determination concerning the standard of proof and the reasonableness of the choice of penalty in light of this court’s decisions in Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), and Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021), which Jesse Knight had raised as issues in post-arbitration briefing. Mr. Knight, through counsel, states that remand is acceptable “so long as there was no provision directing petitioner to pay the costs of the appeal i.e. attorney fees and taxable costs.” ECF No. 26 at 2.
It is within this court’s discretion to remand to allow the arbitrator to reconsider his previous position. See SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). We agree that remand is proper here and could preserve party and judicial resources, and therefore we grant the Department’s motion. We further determine that costs should be awarded to Mr. Knight, see Fed. R. App. P. 39; Fed. Cir. R. 39, but he has not moved for attorney fees and this order does not address such a potential claim.
IT IS ORDERED THAT:
(1) The Department’s motion is granted. The case is remanded to the arbitrator for further proceedings consistent with the motion and this order.
(2) Costs to petitioner.
Buckner v. McDonough (Nonprecedential Order)
Upon consideration of counsel’s notice that appellant died during the pendency of this appeal and response to the court’s March 24, 2022, order indicating that he has “not located any person capable of substituting for the deceased appellant” and that he “no longer represent[s] a client capable of further prosecuting this appeal,” ECF No. 16,
IT IS ORDERED THAT:
(1) The appeal is dismissed, and the decision of the Board of Veterans’ Appeals is vacated. See DiOrio v. Nicholson, 216 F. App’x 974 (Fed. Cir. 2007) (vacating underlying decision under same circumstances); see generally United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950) (explaining that vacatur is appropriate when review of the underlying judgment is prevented by happenstance).
(2) Each side to bear its own costs.
Lau v. Merit Systems Protection Board (Nonprecedential Order)
The Merit Systems Protection Board moves to vacate its final decision and to remand this case for further adjudication so that “the administrative judge can reevaluate whether [petitioner] met the jurisdictional requirements for an [individual right of action] appeal.” Mot. at 11. Among other things, the Board argues that remand is warranted to allow the administrative judge in the first instance to consider Board precedent holding that disclosures about a private organization that administers a government program may be protected. Kim Lau consents to the motion. The Department of Health and Human Services opposes. The Board and Dr. Lau reply.
It is within this court’s discretion to remand to allow the agency to reconsider 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 parties’ arguments, the court agrees that remand here could preserve party and judicial resources, and therefore grants the motion.
IT IS ORDERED THAT:
(1) The motion is granted. The Board’s decision is vacated, and the case is remanded to the Board to reconsider its decision consistent with the motion and this order.
(2) Each side shall bear its own costs.