Baney v. Departmen of Justice , 476 F. App'x 260 ( 2012 )

NOTE: This disposition is nonprecedential.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 Liti-
gation 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 facil-
ity 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 Em-
ployment 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 Adminis-
trator 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 peri-
ods. 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. In-
stead, 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 pursu-
ant 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 de-
cision is limited. We can only set aside the Board’s deci-
sion 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 reason-
able mind might accept as adequate to support a conclu-
sion.” 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 arbi-
tration.” 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 ob-
structed justice, improperly sought to divert attention
away from the truth, and that the BOP’s witnesses com-
mitted 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 con-
clusory 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 determina-
tion 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