Jesse Knight v. Department of Veterans Affairs

N OTE: This order is nonprecedential.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 L OURIE, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
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 con-
cerning the standard of proof and the reasonableness of the
choice of penalty in light of this court’s decisions in Rodri-
guez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed.
Case: 22-1169 Document: 28 Page: 1 Filed: 05/31/2022

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KNIGHT v. DVA 2
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 pre-
serve 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,
I T I S O RDERED T HAT :
(1) The Department’s motion is granted. The case is
remanded to the arbitrator for further proceedings con-
sistent with the motion and this order.
(2) Costs to petitioner.
May 31, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: May 31, 2022
Case: 22-1169 Document: 28 Page: 2 Filed: 05/31/2022

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