
    Robert H. THEIM, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
    No. 2007-3098.
    United States Court of Appeals, Federal Circuit.
    March 12, 2008.
    Before PROST, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.
   ON MOTION

PROST, Circuit Judge.

ORDER

Robert Theim moves to remand his petition for further proceedings. The Department of Justice consents.

Theim filed an action at the Board alleging that “from at least 1986 to 2001” the Department improperly charged his military leave account for days when he would not otherwise have been required to work. Treating the appeal as alleging a violation of the Uniformed Sendees Employment and Reemployment Rights Act (USER-RA), the administrative judge dismissed Theim’s appeal, finding that Theim was not entitled to relief for any violation occurring before the enactment of USERRA, and, for the remaining violations, he failed to state a claim with enough specificity to allow the agency to reply. The administrative judge did not hold a hearing. Theim petitioned the Board for review.

The Board held that Theim had not proven by a preponderance of the evidence that he was entitled to corrective action concerning violations that took place after the enactment of USERRA. However, for alleged violations that occurred prior to the enactment of USERRA, the Board reversed the administrative judge’s dismissal of such claims and remanded to the administrative judge “to provide the appellant with the opportunity to establish any ... claims based on actions occurring before October 13,1994.”

On remand, Theim moved for the administrative judge to dismiss his appeal without prejudice to allow him time to obtain the information necessary to state a claim. The administrative judge granted Theim’s motion. Theim filed a petition for review by this court.

On Theim’s motion, this court stayed proceedings in this case pending disposition of a related case, Kirkendall v. Department of the Army, 479 F.3d 830 (Fed.Cir.2007) (en banc). In Kirkendall, we held that the Board must hold a hearing in a case involving an alleged USERRA violation. Because the Board did not hold a hearing, we vacate the Board’s decision and remand for further proceedings.

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) Each side shall bear its own costs.  