NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2005-3380
DOMENIC L. AMATO,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
ON MOTION
Before SCHALL, GAJARSA, and LINN, Circuit Judges.
PER CURIAM
ORDER
The Department of the Army moves without opposition to remand Domenic L.
Amato’s petition for review of a decision of the Merit Systems Protection Board.
Amato filed a complaint alleging that the Department discriminated against him
based on his military service in violation of the Uniform Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 (2000). The Board held that
Amato had not stated a claim upon which the Board could grant relief. Accordingly, the
Board dismissed the complaint without granting Amato’s request for a hearing. Amato
appealed.
On March 7, 2007, we issued our decision in Kirkendall v. Army, 479 F.3d 830
(Fed. Cir. 2007) (en banc). Kirkendall held in relevant part that USERRA requires that
“any veteran who requests a hearing shall receive one.” Id. at 844. Because Amato
was denied his requested hearing, we remand for further proceedings in light of
Kirkendall.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) All sides shall bear their own costs.
FOR THE COURT
June 6, 2007 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Domenic L. Amato
Robert C. Bigler, Esq.
s19
ISSUED AS A MANDATE: June 6, 2007
2005-3380 2