Lau v. MSPB

Case: 22-1289 Document: 26 Page: 1 Filed: 05/31/2022

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________ KIM LAU, Petitioner v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent DEPARTMENT OF HEALTH AND HUMAN

SERVICES, Intervenor

______________________

2022-1289 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-1221-21-0300-W-1.

______________________

ON MOTION

______________________

Before LOURIE, TARANTO, and HUGHES, Circuit Judges. PER CURIAM.

ORDER The Merit Systems Protection Board moves to vacate its final decision and to remand this case for further Case: 22-1289 Document: 26 Page: 2 Filed: 05/31/2022 2 LAU v. MSPB adjudication so that “the administrative judge can reeval- uate whether [petitioner] met the jurisdictional require- ments 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 in- stance to consider Board precedent holding that disclosures about a private organization that administers a govern- ment 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 re- mand here could preserve party and judicial resources, and therefore grants the motion.

Accordingly, IT IS ORDERED THAT: (1) The motion is granted. The Board’s decision is va- cated, 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.

FOR THE COURT May 31, 2022 /s/ Peter R. Marksteiner

Date Peter R. Marksteiner

Clerk of Court ISSUED AS A MANDATE: May 31, 2022