Mayo v. Office of Personnel Management

262 F. App'x 250

• Court: Court of Appeals for the Federal Circuit
• Decided: December 10, 2007
• Docket: No. 2007-3053
• Status: Published

Opinion

ORDER

SCHALL, Circuit Judge.

The Office of Personnel Management (OPM) moves without opposition to lift the stay of proceedings and remand Robert E. Mayo’s petition for review of a decision of the Merit Systems Protection Board.

Mayo filed an appeal alleging that OPM 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 Mayo had failed to meet his burden of establishing a violation of USERRA and dismissed his complaint without granting a hearing. Mayo 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 Mayo 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.