KNIGHT v. DVA , No. 22-1169 (Fed. Cir. 2022)

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Case: 22-1169 Document: 28 Page: 1 Filed: 05/31/2022 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JESSE KNIGHT, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________ 2022-1169 ______________________ Petition for review of an arbitrator’s decision in No. 201211-02152 by Dennis A. Kist. ______________________ ON MOTION ______________________ Before LOURIE, TARANTO, and HUGHES, Circuit Judges. PER CURIAM. 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. Case: 22-1169 Document: 28 Page: 2 2 Filed: 05/31/2022 KNIGHT v. DVA 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. Accordingly, 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. FOR THE COURT May 31, 2022 Date /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court ISSUED AS A MANDATE: May 31, 2022

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