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HERNANDEZ v. DEPARTMENT OF AIR FORCE

No. 2006-3375.

498 F.3d 1328 (2007)

Jose D. HERNANDEZ, Petitioner, v. DEPARTMENT OF the AIR FORCE, Respondent.

United States Court of Appeals, Federal Circuit.

August 27, 2007.

Attorney(s) appearing for the Case

Mathew B. Tully, Tully, Rinckey & Associates, P.L.L.C., of Albany, NY, for petitioner.

Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director. Of counsel on the brief was Lieutenant Colonel Kenneth Bullock, Air Force Legal Operation Agency, United States Air Force, of Arlington, VA. Of counsel was Captain Richard S. O'Brien.

Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge and LOURIE, Circuit Judge.

MAYER, Circuit Judge.

Jose D. Hernandez appeals the decision of the Merit Systems Protection Board ("board"), dismissing his appeal as moot. Hernandez v. Dep't of the Air Force, 102 M.S.P.R. 515 (2006). Because the board erred by declining to remand his claim under Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed.Cir.2003), for further proceedings as related to alleged violations occurring prior to the enactment...

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