Kerri S. Kuhlmann v. Department of Labor

N OTE: This order is nonprecedential.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.
P ER CURIAM .
CORRECTED ORDER
The Merit Systems Protection Board moves to dismiss,
or, in the alternative, remand this case to allow further

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KUHLMANN v. LABOR 2
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
5 C.F.R. § 1200.3(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. The Board informs
us in its response that it has purportedly reopened Ms.
Kuhlmann’s matter on its own initiative. While the Board
contends its decision to reopen now renders its earlier de-
cision 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, 613
F.3d 672, 676–78 (7th Cir. 2010) (“[T]he inferior tribunal
(the agency) must request permission from the appellate
tribunal before it reopens 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,
I T I S O RDERED T HAT :
(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.
June 25, 2024
Date
F OR THE COURT

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