                             NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2009-3087

                                      JAMES E. SLATE,

                                                    Petitioner,

                                               v.

                            UNITED STATES POSTAL SERVICE,

                                                    Respondent.

                  Petition for review of the Merit Systems Protection Board in
                                       DC3330080612-I-2.

                                         ON MOTION

Before LINN, Circuit Judge.

                                          ORDER

       James E. Slate moves for reconsideration of the court's January 29, 2009 order

dismissing his petition for review for failure to pay the filing fee and failure to submit a

Fed. Cir. R. 15(c) statement concerning discrimination or, in the alternative, requests

that the court transfer the case to the United States Court of Appeals for the Fourth

Circuit.

           Slate submits a Rule 15(c) form and a form indicating that the underlying appeal

at the Merit Systems Protection Board involved a claim pursuant to Uniformed Services

Employment and Reemployment Rights Act (USERRA). Although it is unclear whether

a USERRA claim was raised before the Board, the administrative judge's decision

indicates that before the Department of Labor Slate asserted rights under USERRA.

Under these circumstances, the court waives the filing fee.
       With respect to Slate's alternative request that the court transfer the case to the

Fourth Circuit, this court may transfer only if we determine that we lack jurisdiction. See

28 U.S.C. § 1631. This court has jurisdiction to review Board decisions. See 28 U.S.C.

§ 1295(a)(9). Thus, transfer is not proper.

       Accordingly,

       IT IS ORDERED THAT:

               The motion for reconsideration is granted, the mandate is recalled, and

the petition for review is reinstated.

               The alternative motion to transfer is denied.

       (3)     The United States Postal Service should calculate the due date for its brief

from the date of filing of this order.

                                                  FOR THE COURT


      MAY -4 2009
                                                  /s/ Jan Horbaly
             Date                                 Jan Horbaly                     FILED
                                                  Clerk                   U.S. COURT OF APPEALS FOR
                                                                             THE FEDERAL CIRCUIT

cc:    James E. Slate
       Shari A. Rose, Esq.                                                    MAY 4 2009

s17
                                                                                   CLERK




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