NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3008
JOHN-PIERRE BANEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
John-Pierre Baney, of Seagoville, Texas, pro se.
Patrick B. Bryan, 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, David M. Cohen, Director,
and Brian M. Simkin, Assistant Director. Of counsel on the brief was Kelly L. McDonald,
Assistant General Counsel, Office of General Counsel, Labor Law Branch, Federal
Bureau of Prisons, of Dallas, Texas.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3008
JOHN-PIERRE BANEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
DECIDED: February 8, 2007
__________________________
Before GAJARSA, LINN, and MOORE, Circuit Judges.
PER CURIAM.
John-Pierre Baney (“Baney”) appeals the decision of the Merit Systems
Protection Board (“the Board”) dismissing his appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (“USERRA”). Baney v. Dep’t of
Justice, DC3443060016-I-I (M.S.P.B. Aug. 15, 2006). Because the Board properly
dismissed Baney’s appeal as moot, we affirm.
BACKGROUND
Baney is an employee of the Department of Justice, Federal Bureau of Prisons
(“the agency”), and he is a reservist in the United States Coast Guard (“Coast Guard”).
In 2005, Baney submitted a claim to the Employee Services Office alleging that the
agency erroneously charged him military leave during the period from 1987 through
2001, when he attended training with the Coast Guard on days that he was not
scheduled to work his civilian job with the agency. Baney argued that in so doing, the
agency violated our holding in Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1343
(Fed. Cir. 2003) (holding that USERRA requires federal employees to take military leave
only for days that they are required to work). In response to Baney’s claim, the agency
performed an audit of Baney’s records, originally finding no evidence that Baney was
entitled to corrective action for military leave charged on non-workdays. Baney filed a
petition with the Board’s regional office, again seeking the additional leave that he
claimed was owed to him.
During the discovery phase of the litigation, the agency received additional
documents, which it did not review before, relating to Baney’s attendance and leave
records. As a result of reviewing these additional documents, the agency determined
that it had incorrectly charged Baney military leave for thirteen days between 1994 and
2000. During a status conference, the agency brought its finding to the attention of the
Board’s administrative judge (“AJ”) assigned to the case. The AJ provided Baney with
additional time to determine whether to pursue reinstatement of leave for any other
dates. During a subsequent status conference, Baney informed the AJ that he did not
intend to seek reinstatement of leave for additional dates beyond the thirteen days that
the agency admitted he was owed.
The agency restored thirteen days of military leave to Baney on March 30, 2006.
The agency also moved to dismiss Baney’s appeal as moot. On March 31, 2006, the
AJ issued an order for Baney to show cause as to why the appeal should not be
dismissed as moot. The order notified Baney that if he failed to respond or to set forth
2007-3008 2
good cause, his petition would be dismissed. Baney did not respond to the order. On
April 11, 2006, the AJ dismissed Baney’s petition as moot. On August 15, 2006, the
Board denied Baney’s request to review the AJ’s decision, thereby making the AJ’s
decision final. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We must
affirm the decision of the Board unless it is (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) (2000). Baney has not met this burden.
In Cooper v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997), this court
stated that “if an appealable action is canceled or rescinded by an agency, any appeal
from that action becomes moot." In Cooper, we held that it was proper for the Board to
dismiss a Navy employee’s appeal from his removal when the agency canceled the
removal after the worker retired on disability. Id. at 326.
Baney’s petition involves the agency improperly charging Baney military leave for
days that he was not scheduled to work in his civilian job, in violation of Butterbaugh,
336 F.3d at 1343. After the agency discovered that Baney had been erroneously
charged thirteen days leave for training activities with the Coast Guard on days that he
was not scheduled to work in his civilian job, it reinstated each of the thirteen days.
Baney acquiesced that there were no additional days for which he sought relief. Once
the agency reinstated Baney’s leave, there was no longer an adverse agency action, as
2007-3008 3
the agency had unilaterally given Baney the only relief that the Board or this court could
have granted.
CONCLUSION
For these reasons, the AJ properly dismissed Baney’s appeal as moot. Because
Baney’s appeal fails to show any reversible error under 5 U.S.C. § 7703(c), the decision
of the Board must be affirmed.
No costs.
2007-3008 4