                         NOTE: This order is nonprecedential.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




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