Opinion
No. 2006-3308.
December 10, 2007.
Before RADER, SCHALL, and PROST, Circuit Judges.
ON MOTION
ORDER
The Department of Transportation moves without opposition to lift the stay of proceedings and remand John R. Mills' petition for review of a decision of the Merit Systems Protection Board.
Mills 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 Mills had failed to meet his burden of establishing a violation of USERRA and dismissed his complaint without granting Mills a hearing. Mills 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 Mills 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.