NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

__________________________ 

2010-3132 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. DA4324090224-I-2. 

___________________________ 

Decided: October 13, 2010 

___________________________ 

JOHN-PIERRE BANEY, of Seagoville, Texas, pro se. 

DEVIN A.WOLAK, Trial Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the 

brief were TONY WEST, Assistant Attorney General, JEANNE 

E. DAVIDSON, Director, and BRYANT G. SNEE, Assistant 

Director. 

__________________________ 
BANEY v. JUSTICE 2

Before RADER, Chief Judge, NEWMAN, AND CLEVENGER, 

Circuit Judges. 

PER CURIAM. 

John-Pierre Baney appeals the final decision of the 

Merit Systems Protection Board (“Board”) finding that the 

Federal Bureau of Prisons (“agency”) did not violate his 

rights under the Uniformed Services Employment and 

Reemployment Rights Act of 1994, 38 U.S.C. §§4301–4333 

(“USERRA”). Mr. Baney alleged that the agency improperly 

(1) denied him leave for November 18–19, 2008, (2) charged 

11.5 hours of absence without leave (“AWOL”) for those 

dates, and (3) denied overtime pay during that pay period. 

The Administrative Judge (“AJ”) concluded that the 

agency’s actions were not motivated by Mr. Baney’s exercise 

of his USERRA rights, and that the agency would have 

taken the same action in the absence of the exercise of those 

rights. On review, the Board agreed with the AJ, and 

rejected Mr. Baney’s complaints that the AJ was biased 

against him or did not give him a full and fair hearing. We 

affirm. 

BACKGROUND 

Mr. Baney was in the United States Coast Guard from 

1974 through 1978, and is currently a member of the Coast 

Guard Reserve. He works as a Cook Supervisor at the 

agency’s Federal Correctional Institution in Seagoville, 

Texas. Mr. Baney has asserted his rights under USERRA in 

numerous actions against the agency for, among other 

things, erroneously charging military leave time and improperly placing him on “leave without pay” status. See, 

e.g., Baney v. Dep’t of Justice, 327 F. App’x 895 (Fed. Cir. 

2009) (affirming dismissal by the Board of two actions as 

barred by collateral estoppel and res judicata). Mr. Baney’s 
3 BANEY v. JUSTICE

complaint in this case asserts that the agency’s actions 

related to his November 18–19 absence were motivated by 

the enforcement of his USERRA rights in these prior 

USERRA actions. 

Mr. Baney requested administrative leave for November 

18, 2008 in order to file a complaint with the Federal Bureau of Investigation and Federal Protective Service. He 

also requested leave for November 19 to meet with an 

attorney at the Federal Labor Relations Authority (“FLRA”) 

in Dallas, Texas to provide affidavits related to charges he 

had made against the agency through the FLRA. Mr. 

Baney’s first line supervisor, who usually evaluated Mr. 

Baney’s leave requests, was unavailable. In the supervisor’s 

absence, Associate Warden Andre Ivory reviewed Mr. 

Baney’s request and concluded that (1) Mr. Baney had not 

provided sufficient information to grant the requested leave 

to file complaints on November 18, and (2) that Mr. Baney 

could receive leave time only for a telephonic FLRA interview. Warden Ivory notified Mr. Baney in writing of his 

decision, but Mr. Baney nonetheless was AWOL for 3.5 

hours on November 18 and missed his eight-hour shift on 

November 19. Although Mr. Baney had been approved for 

overtime work during the relevant pay period, under the 

agency’s overtime policy he was not eligible for overtime pay 

until he had made up the 11.5 hours of AWOL. 

Mr. Baney filed a petition with the Board, alleging that 

the agency’s actions were motivated by retaliation for the 

exercise of his USERRA rights. The AJ conducted a hearing 

and concluded that Mr. Baney’s prior USERRA enforcement 

actions were not a substantial or motivating factor in charging him with 11.5 hours of AWOL and denying his overtime 

pay, and that the agency would have taken the same action 

irrespective of the prior USERRA appeals. Mr. Baney 

petitioned the Board to reconsider, but the Board agreed 
BANEY v. JUSTICE 4

with the AJ that Mr. Baney failed to establish a USERRA 

violation. The Board also found no basis for Mr. Baney’s 

allegation that the AJ’s decision to hold a hearing by videoconference was improper. Mr. Baney also claimed that 

reporters were improperly barred from the hearing, but the 

Board found no indication that the hearing was closed and 

that Mr. Baney had not explained how such action would 

justify reversing the AJ’s decision even if true. The Board 

also rejected Mr. Baney’s allegations of bias. Mr. Baney 

appeals. 

DISCUSSION 

The court’s review of a Board decision is limited by statute. Section 7703(c), Title 5 U.S.C., provides that “the court 

shall review the record and hold unlawful and set aside any 

agency action, findings, or conclusions found to be-- (1) 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; or 

(3) unsupported by substantial evidence.” Thus, the court 

will affirm fact findings of the Board that are supported by 

“such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion,” McEntee v. Merit Sys. 

Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quoting 

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)), but 

reviews questions of law de novo, Delong v. Dep’t of Health 

and Human Servs., 264 F.3d 1334, 1338 (Fed. Cir. 2001). 

Mr. Baney argues on appeal that the following are facts 

the Board failed to take into account in reaching its decision: 

1. Over two hundred exhibits were 

brought to the hearing; 
5 BANEY v. JUSTICE

2. Mr. Baney was not given a fair and impartial hearing; 

3. The AJ allowed perjury from agency 

witnesses; 

4. The AJ allowed workplace violence to 

happen during almost a year of jurisdiction; 

and 

5. The agency improperly tampered with 

witnesses on both sides. 

Mr. Baney also argues that the Board reached the wrong 

decision, implies that the AJ’s promotion to Chief Administrative Judge during the pendency of the case was somehow 

arranged by the agency (who does not employ the AJ) in 

exchange for a favorable decision, and complains that he 

was not permitted to have eye witnesses testify. Mr. Baney 

also repeats his argument made before the Board that 

certain reporters were improperly barred from observing the 

hearing. 

We hold that substantial evidence supports the Board’s 

decision. Mr. Baney’s vague and unsubstantiated arguments on appeal do not convince us otherwise, though we 

have considered them carefully. The Board correctly held 

that there is no statutory entitlement to an in-person, as 

opposed to videoconference, hearing. There is also no indication that any reporters were barred from observing the 

videoconference hearing, or that the AJ’s elevation to Chief 

Administrative Judge had any connection to this case or 

indicates even the possibility of bias against Mr. Baney. To 

the extent the large number of exhibits could have hurt Mr. 

Baney’s case, the government points out that the exhibits 

were introduced by Mr. Baney. To the extent Mr. Baney 
BANEY v. JUSTICE 6

argues that the large number of exhibits introduced by him 

demonstrate that the Board’s decision cannot be supported 

by substantial evidence, Mr. Baney has not attempted to 

show that any of these exhibits presents evidence contrary 

to that relied on by the Board. The serious allegations of 

perjury and witness tampering are unsupported. 

Concerning the merits of the Board’s decision, we agree 

with the government that it is supported by substantial 

evidence. Mr. Baney does not dispute that he made no 

attempt to provide further details about the leave requested 

for November 18, 2008, even though it was denied only on 

that basis. The agency was also willing to allow official 

leave on November 19 for a telephonic interview with the 

FLRA staff, but had informed Mr. Baney that if he insisted 

on travelling to Dallas for an in-person meeting with the 

FLRA, he would be considered AWOL. The record shows 

that the FLRA informed Mr. Baney that his “decision to 

appear in person for the presentation of testimony to the 

FLRA was not arranged or required by this office, which 

had offered to take your testimony telephonically.” App. to 

Gov’t Br. 30. The agency also offered documentation and 

testimony explaining its policy that the overtime rate can 

only be paid for hours worked beyond those normally required. The Board did not err in relying on this evidence to 

conclude that factors other than Mr. Baney’s prior USERRA 

actions supported the denial of leave and overtime pay, or 

that the agency would have taken the same action even in 

the absence of Mr. Baney’s protected activity. We affirm the 

decision of the Board. 

AFFIRMED