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NOTE: This order is nonprecedential.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