Baney v. Department of Justice , 409 F. App'x 319 ( 2010 )

NOTE: This disposition is nonprecedential.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 Jus-
tice, 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 im-
properly 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 Bu-
reau 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 inter-
view. 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 charg-
ing 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 video-
conference 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 stat-
ute. 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 deci-
sion:
1. Over two hundred exhibits were
brought to the hearing;
5 BANEY v. JUSTICE
2. Mr. Baney was not given a fair and im-
partial 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 Adminis-
trative 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 argu-
ments 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 indi-
cation 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 re-
quired. 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