Freiheit v. Department of Transportation

262 F. App'x 253

• Court: Court of Appeals for the Federal Circuit
• Decided: December 10, 2007
• Docket: No. 2006-3391
• Status: Published

Opinion

SCHALL, Circuit Judge.

ORDER

The Department of Transportation moves without opposition to lift the stay of proceedings and remand Larry E. Freiheit’s petition for review of a decision of the Merit Systems Protection Board.

Freiheit filed an appeal alleging that the Department had improperly charged him leave for the performance of military reserve duty on non-workdays in violation of the Uniform Sendees Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 (2000). The Board determined that, based on an agreement by the Department, Freiheit would receive maximum restoration of annual leave to which he was entitled under the law. The Board then dismissed his complaint without granting a heai’ing. Freiheit appealed.

On March 7, 2007, we issued our decision in Kirkendall v. Army, 479 F.3d 830 (Fed.Cir.2007) (en banc), cert. denied — U.S. --, 128 S.Ct. 375, 169 L.Ed.2d 260 (2007). Kirkendall held, inter alia, that USERRA requires that “any veteran who requests a hearing shall receive one.” Id. at 844. Because Freiheit was denied a hearing, we remand for further proceedings in light of Kirkendall. On remand, the Board may also consider, inter alia, our recent decisions in Hernandez v. Department of the Air Force, 498 F.3d 1328 (Fed.Cir.2007) and Pucilowski v. Department of Justice, 498 F.3d 1341 (Fed.Cir. 2007).

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted. The Board’s decision is vacated and the case is remanded for further proceedings.

(2) All sides shall bear their own costs.