NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

__________________________ 

2011-3212 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in MSPB Docket No. DA4324110135-I-1. 

____________________________ 

Decided: April 6, 2012 

____________________________ 

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

MICHAEL D. AUSTIN, 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 STEVEN J.

GILLINGHAM, Assistant Director. 

__________________________ 
BANEY v. JUSTICE 2

Before LOURIE, DYK and MOORE, Circuit Judges. 

PER CURIAM. 

John-Pierre Baney seeks review of the final decision 

of the Merit Systems Protection Board (“the Board”). See

Baney v. Dep’t of Justice, No. DA4324110135-I-1 (M.S.P.B. 

June 10, 2011). Because the Board did not err, we affirm. 

BACKGROUND

Baney was employed by the Bureau of Prisons 

(“BOP”) as a cook supervisor at a federal correction facility in Seagoville, Texas. At the time of his employment, 

Baney was a member of the Coast Guard Reserve, and 

during the course of his employment, he filed a number of 

actions alleging violations the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 

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

2009), in addition to actions involving the Whistleblower 

Protection Act and the 1964 Civil Rights Act, among 

others. 

This case focuses on two sets of events that occurred 

in late 2009 and 2010. The first set relates to Baney’s 

suspension and resulting settlement agreement. In 

February 2010, Baney was suspended for two days for 

unprofessional conduct, and, in March, he filed a formal 

grievance through the collective bargaining agreement 

process. Prior to an arbitration hearing scheduled for 

October, Baney entered into a settlement agreement that 

reclassified the suspension as a letter of reprimand and 

awarded Baney back pay. These events are not before us. 

The second set of events relates to Baney’s absent 

without leave (“AWOL”) status that resulted from his 

absence on November 21, 2010. On December 2, 2009, 

Baney received an email from the Food Service Administrator with the approved leave schedule for 2010. The 
3 BANEY v. JUSTICE

schedule approved Baney to take leave on November 19th 

and 20th but did not approve his request to take leave on 

November 21st. 

On November 2, 2010, Baney received a confirmation 

email from the Assistant Food Service Administrator that 

contained the work schedule for the upcoming pay periods. Specifically, the calendar document attached to the 

email showed that Baney would be on annual leave on 

November 19th and 20th, but that he was scheduled to 

work the night shift on November 21st. 

Baney failed to report to work on November 21st. Instead, he was attending a Civil War Reenactment event. 

As a result of Baney’s absence, another employee was 

required to cover for him. Ultimately, the BOP placed 

Baney in an AWOL status for that day. 

Thereafter, Baney initiated proceedings at the Board, 

raising a number of issues relating to the settlement 

agreement and his AWOL classification. Specifically, 

Baney argued that the motivating factor for placing him 

on AWOL was his military status, military service, or the 

prior exercise of his rights under USERRA. 

After issuing several orders for Baney to show cause 

that the Board possessed jurisdiction over Baney’s appeal, 

the administrative judge (“AJ”) assigned to the appeal 

held a hearing. At the hearing, witnesses who worked 

with Baney explained the process for requesting leave, 

recounted that Baney did not obtain leave for November 

21st because he did not timely request it, and testified 

that Baney’s prior USERRA appeals and his military 

status had no influence on the BOP’s decision to classify 

Baney as AWOL for November 21st. In light of this 

testimony, the AJ’s initial decision denied Baney’s request 

to correct his AWOL classification. Specifically, the AJ 

found that Baney had failed to show that a substantial 
BANEY v. JUSTICE 4

factor in placing him in AWOL status was his military 

status or the prior exercise of his rights under USERRA. 

In addition, the AJ dismissed the remaining issues raised 

by Baney, including his claims relating to the settlement 

agreement. After the period for full Board review lapsed, 

the AJ’s initial decision became the decision of the Board. 

Baney timely appealed. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). 

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(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.” 5 U.S.C. § 7703(c); see Briggs v. 

Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 

The Board’s decision is supported by substantial evidence 

“if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 

(Ct. Cl. 1981) (internal quotation marks omitted). 

Baney raises a number of arguments on appeal. First, 

Baney argues that the Board failed to consider whether 

he was subjected to an improper “practice in labor arbitration.” Second, Baney argues that his constitutional 

rights to a fair trial and due process of law were violated. 

Third, Baney argues that the BOP and the Board obstructed justice, improperly sought to divert attention 

away from the truth, and that the BOP’s witnesses committed perjury. In light of these alleged errors, Baney 

seeks a remand to the Board to conduct a fair hearing 

away from his work place. 
5 BANEY v. JUSTICE

We disagree. Baney’s allegations on appeal are conclusory and do not identify any instance of misconduct by 

the Board or the BOP. Nor does a review of the record 

indicate that the Board or the BOP acted improperly or 

violated Baney’s due process rights. Instead, the Board 

simply credited the testimony of the BOP’s witnesses and 

found Baney’s testimony to lack credibility, a determination that is “virtually unreviewable on appeal.” Bieber v. 

Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). 

Regarding the other issues Baney raised before the Board, 

which Baney does not raise on appeal, a review of the 

record indicates that the Board properly dismissed those 

claims. 

AFFIRMED