Case: 24-1527    Document: 20    Page: 1   Filed: 06/25/2024




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 KERRI S. KUHLMANN,
                       Petitioner

                            v.

                DEPARTMENT OF LABOR,
                      Respondent

      MERIT SYSTEMS PROTECTION BOARD,
                    Intervenor
              ______________________

                        2024-1527
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-1221-17-0437-W-1.
                 ______________________

                      ON MOTION
                  ______________________

  Before STOLL, CUNNINGHAM, and STARK, Circuit Judges.
 PER CURIAM.

ORDER

     The Merit Systems Protection Board moves to dismiss,
 or, in the alternative, remand this case to allow further
Case: 24-1527    Document: 20      Page: 2    Filed: 06/25/2024




 2                                        KUHLMANN v. LABOR




 consideration of Kerri S. Kuhlmann’s appeal by the Board.
 ECF No. 15. Ms. Kuhlmann opposes the motion.
     Ms. Kuhlmann filed an individual right of action ap-
 peal at the Board. Following an initial decision denying
 corrective action, Ms. Kuhlmann sought full Board review.
 However, on January 23, 2024, the Board informed Ms.
 Kuhlmann that then-Vice Chairman Harris had recused
 from the matter, leaving only a single Board member able
 to conduct review, and that by operation of
 

(b),1 the “initial decision now becomes the
 final decision of the [Board].” ECF No. 1-2 at 41. This ap-
 peal followed.
      The Board informs the court that now-Chairman Har-
 ris is “fully able to adjudicate [Ms. Kuhlmann’s] adminis-
 trative petition for review at the Board” after June 1, 2024,
 and that “as of June 1, 2024 [Ms. Kuhlmann] will have at
 least two members of the Board fully able to adjudicate her
 appeal without delay,” ECF No. 19 at 4. In light of such
 developments, the Board has reopened Ms. Kuhlmann’s
 matter on its own initiative. While the Board contends its
 decision to reopen now renders its earlier decision non-final
 for purposes of review, it is far from clear that the Board
 had authority to reopen given her timely appeal. See Drs.
 Nursing & Rehab. Ctr. v. Sebelius, 

, 676–78
 (7th Cir. 2010) (“[T]he inferior tribunal (the agency) must
 request permission from the appellate tribunal before it re-
 opens its final decision.”).
    But we need not decide that issue. Ms. Kuhlmann has
 argued before this court that “[o]ne obvious remedy” to the
 Board’s purported error “is for Chairman Harris to reverse



     1   Section 1200.3(b) provides that when “Board mem-
 bers are unable to decide any case by majority vote, the de-
 cision . . . under review shall be deemed the final
 decision . . . of the Board.”
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 KUHLMANN v. LABOR                                         3



 her . . . recusal.” ECF No. 16 at 20. She has now done so.
 Given that the Board agrees with Ms. Kuhlmann that at
 least as of June 1, 2024, Chairman Harris has no basis to
 recuse, we find it appropriate to remand this case to allow
 the Board to “adjudicate [Ms. Kuhlmann’s petition] with-
 out delay.” ECF No. 19 at 4.
    Accordingly,
    IT IS ORDERED THAT:
     (1) The motion is granted to the extent that the case is
 remanded to the Board for further proceedings consistent
 with this order and its motion.
    (2) All other pending motions are denied.
    (3) Costs to Ms. Kuhlmann.
                                              FOR THE COURT




 June 25, 2024
     Date