NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3068 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

___________________________ 

2009-3097 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

 John-Pierre Baney, of Seagoville, Texas, pro se. 

Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent, in appeal nos. 

2009-3068 and 2009-3097. On the brief in appeal no. 2009-3068 were Michael F. Hertz, 

Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Ronald G. Morgan, 

Trial Attorney. On the brief in appeal no. 2009-3097 were Michael F. Hertz, Acting 

Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham, 

Assistant Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit

2009-3068 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

Petition for review of the Merit Systems Protection Board in DA3443080404-I-1. 

 

___________________________ 

2009-3097 

JOHN-PIERRE BANEY, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

Petition for review of the Merit Systems Protection Board in DA3443080012-B-1. 

___________________________ 

DECIDED: June 24, 2009 

___________________________ 
2009-3068, 2009-3097 2 

Before BRYSON, GAJARSA, Circuit Judges, and ST. EVE, District Judge.

*

PER CURIAM. 

 John-Pierre Baney petitions for review of two decisions of the Merit Systems 

Protection Board dismissing his claims under the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA”) and the Whistleblower Protection Act (“WPA”) 

for lack of subject matter jurisdiction. We affirm both decisions of the Board. 

I 

 Mr. Baney is employed by the Bureau of Prisons as a Cook Foreman at the 

Federal Correctional Institution in Seagoville, Texas. He is also a member of the United 

States Coast Guard Reserve. 

A 

 On October 4, 2007, Mr. Baney filed an appeal with the Merit Systems Protection 

Board seeking restoration of “[a]ll military days since 1987 to 2000 in annual leave or 

cash.” Mr. Baney’s initial submissions to the Board cited both the WPA and USERRA 

as the statutory bases for his military leave restoration claim. The administrative judge 

who was assigned to the appeal issued an order to show cause why the USERRA claim 

should not be dismissed as barred by res judicata. The administrative judge noted in 

her order that Mr. Baney had brought a similar claim in 2005, which the Board 

dismissed as moot after the Bureau of Prisons restored 13 days of military leave to Mr. 

Baney.

 

*

 The Honorable Amy J. St. Eve, District Judge, United States District Court 

for the Northern District of Illinois, sitting by designation. 
2009-3068, 2009-3097 3 

Rather than addressing the issue raised by the administrative judge’s order, Mr. 

Baney responded by alleging a second USERRA claim, namely that he was charged 

208 hours of annual leave while he was serving on active military duty during July 2007. 

The administrative judge then directed Mr. Baney to plead additional facts in support of 

his newly asserted USERRA claim for restoration of annual leave. Mr. Baney filed a 

second response, which did not elaborate on the factual underpinnings of his WPA and 

USERRA claims.

The administrative judge subsequently dismissed Mr. Baney’s appeal for failure 

to allege any facts establishing the Board’s jurisdiction over the Bureau of Prisons’ 

personnel actions. The administrative judge found that the Board had previously 

adjudicated Mr. Baney’s claim for restoration of military leave between 1987 and 2000, 

that the administrative record lacked any support for his whistleblower claim, and that 

Mr. Baney had not sufficiently alleged a USERRA claim for restoration of 208 hours of 

annual leave in 2007. 

On petition for review, the full Board concluded that collateral estoppel, and not 

res judicata, was the proper legal basis for precluding Mr. Baney from bringing a second 

challenge to his military leave balance between 1987 and 2000. The full Board further 

ruled, however, that Mr. Baney should be afforded another opportunity to make 

particularized showings in support of his whistleblower claim and his USERRA claim for 

restoration of annual leave in July 2007. 

On remand, the administrative judge directed Mr. Baney to set forth the factual 

basis for the two remanded claims. In response, Mr. Baney asserted that the Bureau of 

Prisons had improperly accounted for his absences for military service in July of 2006, 
2009-3068, 2009-3097 4 

not July of 2007 as he had initially alleged. Because Mr. Baney had already litigated a 

claim for restoration of annual leave in July of 2006 and the Board had rejected that 

claim on the merits, the administrative judge issued an order requiring Mr. Baney to 

explain why his USERRA claim should not be dismissed as barred by res judicata. Mr. 

Baney did not respond to that order.

The administrative judge again dismissed Mr. Baney’s claims for lack of subject 

matter jurisdiction. In particular, the administrative judge held that the doctrine of res 

judicata precluded the Board from entertaining Mr. Baney’s annual leave restoration 

claim and that Mr. Baney had failed, for the second time, to allege any facts in support 

of his whistleblower claim. After the full board denied his petition for review, Mr. Baney 

petitioned for review by this court.

B 

Mr. Baney filed a second appeal with the Board on June 5, 2008, claiming that 

the Bureau of Prisons was “retaliating against employees after they engage EEO, 

MSPB, Civil cases.” Because Mr. Baney had not alleged any retaliation against him 

personally, the administrative judge who was assigned to the case instructed him to 

identify the protected disclosures and personnel actions that were at issue in his appeal. 

Mr. Baney responded on July 17, 2008, by alleging that the Bureau of Prisons had 

placed him on leave without pay status for eight hours on January 14, 2008, while he 

was attending a Board hearing in connection with a previously filed USERRA claim. His 

response did not, however, include any additional facts pertaining to the whistleblower 

claim that was the initial basis for his appeal. 
2009-3068, 2009-3097 5 

The administrative judge subsequently ordered Mr. Baney to show why the 

appeal should not be dismissed in light of one of his earlier appeals that appeared to 

arise out of the same set of operative facts. That appeal was dismissed as moot after 

the Bureau of Prisons acknowledged its error and compensated Mr. Baney for the eight 

hours of leave that had been improperly withheld. Mr. Baney's response to the second 

order to show cause did not supply any legal or factual basis for distinguishing the 

instant appeal from the earlier appeal that had been adjudicated by the Board. The 

administrative judge therefore dismissed Mr. Baney's appeal on the ground that he was 

collaterally estopped from challenging the Board’s earlier decision with respect to the 

restoration of eight hours of leave on January 14, 2008. Mr. Baney’s petition for review 

by the full Board was denied. Mr. Baney then petitioned for review by this court. 

II 

 We first address the USERRA claims pertaining to Mr. Baney’s use of military 

leave between 1987 and 2000 and to his being placed on leave without pay status on 

January 14, 2008. The Board held that Mr. Baney was collaterally estopped from 

asserting those claims in light of two earlier-filed appeals that were dismissed on 

mootness grounds. We see no reason to disturb the Board’s ruling on either claim. 

On October 5, 2005, Mr. Baney appealed to the Board contending that the 

Bureau of Prisons had erroneously charged him military leave for attending to his 

reservist duties on certain non-work days between 1987 and 2001. The Board 

dismissed that appeal as moot after the Bureau of Prisons restored 13 days of leave to 

Mr. Baney. This court subsequently affirmed the Board’s dismissal of that leave 

restoration claim.
2009-3068, 2009-3097 6 

In early 2008, the Board addressed Mr. Baney’s claim “that the agency had 

placed him in a LWOP status for eight hours on January 14, 2008 . . . as a result of his 

absence from work to participate in a Board hearing on that date.” Because the Bureau 

of Prisons conceded its error and submitted documentation reflecting that the eight 

hours of leave had been restored, the Board dismissed the claim as moot. 

On the record before us, it is clear that Mr. Baney is collaterally estopped from 

appealing both the Bureau of Prisons’ decision to place him on leave without pay status 

on January 14, 2008, and its calculation of the amount of military leave that he accrued 

between 1987 and 2000. Mr. Baney has not offered any ground for distinguishing the 

claims resolved in the two earlier appeals from the seemingly identical claims raised in 

the current appeals. In both of the earlier appeals, the Board expressly considered 

whether Mr. Baney’s claims had been rendered moot by the Bureau of Prisons’ decision 

to remedy the errors identified by Mr. Baney. In both appeals, the Board decided that 

the Bureau of Prisons had afforded Mr. Baney all the relief to which he was entitled and 

that there was nothing left for the Board to do. We therefore sustain the Board’s 

decision as to the collateral estoppel effect of the prior adjudication of Mr. Baney's leave 

status on January 14, 2008, and his military leave balance in 2000. 

III 

 We next turn to Mr. Baney’s claim that he was improperly charged 208 hours of 

annual leave while he was serving on active military duty from July 6 to August 6, 2006. 

The Board held that the doctrine of res judicata precluded Mr. Baney from relitigating 

that claim. We find no error in the Board's decision on that score. 
2009-3068, 2009-3097 7 

 On August 21, 2006, Mr. Baney filed an appeal with the Board alleging that the 

Bureau of Prisons had improperly accounted for his military service between July 6 and 

August 5, 2006. Mr. Baney contended that the Bureau of Prisons had required him to 

account for his absence by using 15 days of annual leave and 8 days of regular military 

leave, rather than permitting him to use “emergency” military leave as authorized by 5 

U.S.C. § 6323(b). The Board denied Mr. Baney's claim, finding that Mr. Baney did not 

qualify for emergency leave under Section 6323(b) because he had volunteered for 

active duty. On appeal, this court summarily affirmed the Board’s dismissal of the 

appeal.

 Mr. Baney does not dispute that the Board's decision as to his USERRA claim for 

restoration of annual leave in July 2006 is final. Nor has he pointed to any factual or 

legal distinctions between the claim decided in the earlier-filed appeal and the claim 

raised in this appeal. Accordingly, we sustain the Board's decision that Mr. Baney's 

claim for restoration of annual leave in July 2006 is barred by res judicata. 

IV 

Mr. Baney contends that he is entitled to a hearing on his USERRA claims 

merely because he invoked USERRA and requested a hearing before the administrative 

judge. Citing our decision in Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. 

Cir. 2007) (en banc), Mr. Baney argues that “an appellant who raises a USERRA claim 

has an unconditional right to a hearing.” In Kirkendall, this court held that a USERRA 

claimant has a right to a hearing upon request, see 479 F.3d at 844-46, 862-63, but the 

court’s analogy to appeals governed by 5 U.S.C. § 7701 indicates that if a USERRA 

claimant fails to make a non-frivolous allegation of Board jurisdiction he is not entitled to 
2009-3068, 2009-3097 8 

a hearing. Id.; see also Downs v. Dep’t of Veterans Affairs, 110 M.S.P.R. 139, 147-48 

(2008). 

The full Board upheld the jurisdictional dismissal of Mr. Baney’s USERRA claim 

for the years between 1987 and 2000 on purely legal grounds based on the earlier 

adjudication with regard to those years. As to his claim regarding the period from July 

6, 2007, to August 6, 2007, the full Board remanded the case to the administrative 

judge, and the administrative judge scheduled a hearing. However, when Mr. Baney 

advised the administrative judge that the period for which he was claiming benefits was 

actually in 2006, not 2007, the administrative judge noted that his claim relating to July 

and August of 2006 had already been adjudicated and rejected in an earlier Board 

proceeding. Accordingly, the administrative judge concluded that Mr. Baney’s claim 

was barred by res judicata and canceled the hearing. 

The right to a hearing for USERRA claims does not entail the right to relitigate 

already resolved claims and to require the administrative judge to conduct a hearing 

whenever such previously resolved claims are reasserted. Because there was no 

factual dispute to be resolved once Mr. Baney acknowledged that he had no claim 

regarding July and August of 2007, the administrative judge correctly declined to hold a 

hearing on the 2006 claim that had previously been fully adjudicated and rejected. 

V 

 Mr. Baney challenges the Board’s ruling that he failed to allege a prima facie 

case under the WPA. Although Mr. Baney was given several opportunities to set forth a 

factual basis for his whistleblower claim, his responses to the Board’s orders were 

conclusory and unsupported by specific allegations of reprisals for whistleblowing 
2009-3068, 2009-3097 9 

activity. Before the full Board, Mr. Baney represented that he was in possession of a 

sworn affidavit supporting his allegation that he had been “threaten[ed] with his job and 

his career . . . for the last three years.” The Board can grant a petition for review when it 

is presented with new and material evidence that, despite due diligence, was not 

available when the record closed. 5 C.F.R. § 1201.115(d)(1); see also Brenneman v. 

Office of Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006). However, Mr. Baney 

failed to provide the Board with a copy of the affidavit in question, and he failed to 

explain how the affidavit qualified as “new and material” evidence under the Board’s 

regulations. Accordingly, the Board did not err in concluding that he failed to make 

sufficient allegations to support his whistleblower claim. 

VI 

Mr. Baney's briefs in this court include reference to several USERRA claims that 

were not presented to the Board in the first instance. For example, Mr. Baney alleges 

that the Bureau of Prisons improperly charged him 256 hours of annual leave between 

2002 and 2004, 208 hours of annual leave between 2005 and 2006, and 400 hours of 

sick leave between 2001 and 2004. He seeks an order compelling the Bureau of 

Prisons to restore that leave and to compensate him in the amount of $150,000 for the 

alleged retaliation, harassment, and violations of privacy.

 We have previously stated that a “party in an MSPB proceeding must raise an 

issue before the administrative judge if the issue is to be preserved for review in this 

court.” Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). Because 

there is no indication in the record that the foregoing claims for restoration of annual and 
2009-3068, 2009-3097 10 

sick leave were advanced before the Board, those claims have not been preserved for 

review. We therefore sustain the decisions of the Board in both cases before us.