                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                      2007-3305



                               JOHN-PIERRE BANEY,

                                                      Petitioner,

                                           v.


                             DEPARTMENT OF JUSTICE,

                                                      Respondent.


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

       Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director.

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                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3305

                               JOHN-PIERRE BANEY,

                                                                   Petitioner,

                                           v.

                            DEPARTMENT OF JUSTICE,

                                                                   Respondent.

               Petition for review of the Merit Systems Protection Board
                                in No. DA3443060665-I-1
                            __________________________

                          DECIDED: February 8, 2008
                          __________________________


Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

      John-Pierre Baney seeks review of the final decision of the Merit Systems

Protection Board (“Board”) denying his request for corrective action pursuant to the

Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

Baney v. Dep’t of Justice, No. DA3443060665-I-1 (May 18, 2007). We affirm.

                                           I

      Mr. Baney is employed by the Federal Bureau of Prisons as a cook supervisor in

the agency’s Seagoville, Texas facility.   He is a member of the U.S. Coast Guard

Reserve. He volunteered for active duty with the Coast Guard from July 6 through

August 5, 2006.
       After returning from his summer active duty in Alaska, Mr. Baney learned that the

agency charged him with eight days of regular military leave under 5 U.S.C. § 6323(a)

and 15 days of annual leave. Mr. Baney complained that the agency instead should

have given him 22 days of military leave pursuant to 5 U.S.C. § 5232(b).                Under

Mr. Baney’s view of the applicable leave provisions, he should not have been forced to

use his annual leave and section 6323(a) leave. The agency disagreed. Mr. Baney

appealed to the Board, arguing that he had been deprived of 22 days of leave under

section 6323(b).

       Under USERRA, a member of the uniformed military reserves (as Mr. Baney is)

may seek to establish before the Board that he has been denied a benefit of

employment due to performance of military duty.            If Mr. Baney could establish

entitlement to leave under section 6323(b), which he was denied, the Board has

authority to order corrective action that would comply with the USERRA provisions. The

question before the administrative judge thus was whether Mr. Baney established his

claim of entitlement to leave under section 6323(b).

       Section 6323(b), as stated by the administrative judge, allows for up to 22 days

of leave for military service under carefully specified conditions. Precisely, such service

must be under section 331, 332, 333 or 12406 of Title 10 (each provision requiring

service to aid civil authorities), or for service to a State, the District of Columbia, the

Commonwealth of Puerto Rico, or a territory of the United States, or for service as a

result of a call or order to active duty in support of a contingency operation.          The

administrative judge construed each of the service provisions in section 6323(b) to

require a call to duty, that is, an order requiring the person to assume active duty.




2007-3305                                2
      The administrative judge noted that Mr. Baney testified that he “solicited” himself

for active duty and conceded that he had not been called or ordered to active duty.

Nonetheless, Mr. Baney and an agency timekeeper thought that Mr. Baney was entitled

to leave under section 6323(b). Because he had volunteered for service, rather than

having been called or ordered, the administrative judge held that Mr. Baney had

produced no evidence entitling him to leave under the strict terms of section 6323(b).

The administrative judge consequently denied Mr. Baney’s request for relief pursuant to

USERRA. Mr. Baney chose not to seek further review from the full Board, and thus the

initial decision of the administrative judge became the final decision of the Board on

May 18, 2007. Mr. Baney then sought appellate review in this court.

                                            II

      The agency asserts that Mr. Baney’s appeal to this court is untimely, and as such

must be dismissed for lack of jurisdiction under Oja v. Dep’t of the Army, 405 F.3d 1349

(Fed. Cir. 2005). The agency’s claim is based on Mr. Baney’s obligation to have filed

his notice of appeal in this court within 60 days from May 18, 2007, the date upon which

the Board's decision became final. The agency claims Mr. Baney’s notice of appeal

was not received by this court until August 17, 2007, more than 30 days late.

      The agency’s claim is incorrect. The docket file of this case reveals that our

Clerk’s Office first noticed Mr. Baney’s notice of appeal on July 23, 2007, and on

July 24, 2007, wrote to Mr. Baney advising him that his appeal was untimely filed. On

August 6, 2007, Mr. Baney wrote back to the Clerk’s Office, providing documentary

evidence from the U.S. Postal Service of certified mail, showing a mailing to this court

that was delivered to the court on May 21, 2007. Mr. Baney also enclosed a copy of the




2007-3305                               3
notice of appeal that he asserted he had earlier sent by certified mail. The Clerk’s office

accepted Mr. Baney’s August 6 letter on August 17, and date-stamped the notice of

appeal with that date. Under these circumstances, Mr. Baney has shown that any error

regarding the filing of his notice of appeal must be charged to the court, not to him. His

notice of appeal is therefore deemed to have been filed on the date the Postal Service

delivered it to the court, which was May 21, 2007. The notice of appeal is therefore

timely.

                                               III

          In his informal brief, Mr. Baney continues to assert entitlement to leave under

section 6323(b).      He does not, however, explain why his voluntary service did not

disqualify him for leave under section 6323(b). The agency’s informal brief reiterates

the Board’s interpretation of section 6323(b).

          We must affirm the Board’s final decision unless we determine that it is arbitrary,

capricious, an abuse of discretion, or otherwise in violation of law. 5 U.S.C. § 5503(c).

          The only issue in this appeal is whether the Board correctly interpreted section

6323(b) to disqualify voluntary service from leave under that section. We perceive no

error in the Board’s interpretation of the statute, and we therefore affirm the final

decision of the Board.

                                            COSTS

          No costs.




2007-3305                                  4
