Kennedy v. Department of Air Force

262 F. App'x 251

• Court: Court of Appeals for the Federal Circuit
• Decided: December 10, 2007
• Docket: No. 2006-3378
• Status: Published

Opinion

SCHALL, Circuit Judge.

ORDER

The Department of the Air Force moves without opposition to lift the stay of proceedings and remand Donald J.A. Kennedy’s petition for review of a decision of the Merit Systems Protection Board.

Kennedy 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 Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 (2000). The Board held that Kennedy had failed to meet his burden of establishing a violation of USERRA and dismissed his complaint without granting a hearing. Kennedy 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 Kennedy 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 to the Board for further proceedings.

(2) All sides shall bear their own costs.