                      NOTE: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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
