                      NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                      2009-3068

                                JOHN-PIERRE BANEY,

                                                    Petitioner,

                                           v.

                             DEPARTMENT OF JUSTICE,

                                                    Respondent.

                           ___________________________


                                      2009-3097

                                JOHN-PIERRE BANEY,

                                                    Petitioner,

                                           v.

                             DEPARTMENT OF JUSTICE,

                                                    Respondent.

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

       Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent, in appeal nos.
2009-3068 and 2009-3097. On the brief in appeal no. 2009-3068 were Michael F. Hertz,
Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Ronald G. Morgan,
Trial Attorney. On the brief in appeal no. 2009-3097 were Michael F. Hertz, Acting
Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham,
Assistant Director.

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                   NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                   2009-3068

                             JOHN-PIERRE BANEY,

                                             Petitioner,

                                        v.

                          DEPARTMENT OF JUSTICE,

                                             Respondent.


  Petition for review of the Merit Systems Protection Board in DA3443080404-I-1.

                        ___________________________



                                   2009-3097

                             JOHN-PIERRE BANEY,

                                             Petitioner,

                                        v.

                          DEPARTMENT OF JUSTICE,

                                             Respondent.


 Petition for review of the Merit Systems Protection Board in DA3443080012-B-1.

                        ___________________________

                        DECIDED: June 24, 2009
                        ___________________________
Before BRYSON, GAJARSA, Circuit Judges, and ST. EVE, District Judge. *

PER CURIAM.

       John-Pierre Baney petitions for review of two decisions of the Merit Systems

Protection Board dismissing his claims under the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”) and the Whistleblower Protection Act (“WPA”)

for lack of subject matter jurisdiction. We affirm both decisions of the Board.

                                             I

       Mr. Baney is employed by the Bureau of Prisons as a Cook Foreman at the

Federal Correctional Institution in Seagoville, Texas. He is also a member of the United

States Coast Guard Reserve.

                                            A

       On October 4, 2007, Mr. Baney filed an appeal with the Merit Systems Protection

Board seeking restoration of “[a]ll military days since 1987 to 2000 in annual leave or

cash.” Mr. Baney’s initial submissions to the Board cited both the WPA and USERRA

as the statutory bases for his military leave restoration claim. The administrative judge

who was assigned to the appeal issued an order to show cause why the USERRA claim

should not be dismissed as barred by res judicata. The administrative judge noted in

her order that Mr. Baney had brought a similar claim in 2005, which the Board

dismissed as moot after the Bureau of Prisons restored 13 days of military leave to Mr.

Baney.




       *
              The Honorable Amy J. St. Eve, District Judge, United States District Court
for the Northern District of Illinois, sitting by designation.



2009-3068, 2009-3097                         2
      Rather than addressing the issue raised by the administrative judge’s order, Mr.

Baney responded by alleging a second USERRA claim, namely that he was charged

208 hours of annual leave while he was serving on active military duty during July 2007.

The administrative judge then directed Mr. Baney to plead additional facts in support of

his newly asserted USERRA claim for restoration of annual leave. Mr. Baney filed a

second response, which did not elaborate on the factual underpinnings of his WPA and

USERRA claims.

      The administrative judge subsequently dismissed Mr. Baney’s appeal for failure

to allege any facts establishing the Board’s jurisdiction over the Bureau of Prisons’

personnel actions.      The administrative judge found that the Board had previously

adjudicated Mr. Baney’s claim for restoration of military leave between 1987 and 2000,

that the administrative record lacked any support for his whistleblower claim, and that

Mr. Baney had not sufficiently alleged a USERRA claim for restoration of 208 hours of

annual leave in 2007.

      On petition for review, the full Board concluded that collateral estoppel, and not

res judicata, was the proper legal basis for precluding Mr. Baney from bringing a second

challenge to his military leave balance between 1987 and 2000. The full Board further

ruled, however, that Mr. Baney should be afforded another opportunity to make

particularized showings in support of his whistleblower claim and his USERRA claim for

restoration of annual leave in July 2007.

      On remand, the administrative judge directed Mr. Baney to set forth the factual

basis for the two remanded claims. In response, Mr. Baney asserted that the Bureau of

Prisons had improperly accounted for his absences for military service in July of 2006,




2009-3068, 2009-3097                        3
not July of 2007 as he had initially alleged. Because Mr. Baney had already litigated a

claim for restoration of annual leave in July of 2006 and the Board had rejected that

claim on the merits, the administrative judge issued an order requiring Mr. Baney to

explain why his USERRA claim should not be dismissed as barred by res judicata. Mr.

Baney did not respond to that order.

       The administrative judge again dismissed Mr. Baney’s claims for lack of subject

matter jurisdiction. In particular, the administrative judge held that the doctrine of res

judicata precluded the Board from entertaining Mr. Baney’s annual leave restoration

claim and that Mr. Baney had failed, for the second time, to allege any facts in support

of his whistleblower claim. After the full board denied his petition for review, Mr. Baney

petitioned for review by this court.

                                              B

       Mr. Baney filed a second appeal with the Board on June 5, 2008, claiming that

the Bureau of Prisons was “retaliating against employees after they engage EEO,

MSPB, Civil cases.” Because Mr. Baney had not alleged any retaliation against him

personally, the administrative judge who was assigned to the case instructed him to

identify the protected disclosures and personnel actions that were at issue in his appeal.

Mr. Baney responded on July 17, 2008, by alleging that the Bureau of Prisons had

placed him on leave without pay status for eight hours on January 14, 2008, while he

was attending a Board hearing in connection with a previously filed USERRA claim. His

response did not, however, include any additional facts pertaining to the whistleblower

claim that was the initial basis for his appeal.




2009-3068, 2009-3097                          4
       The administrative judge subsequently ordered Mr. Baney to show why the

appeal should not be dismissed in light of one of his earlier appeals that appeared to

arise out of the same set of operative facts. That appeal was dismissed as moot after

the Bureau of Prisons acknowledged its error and compensated Mr. Baney for the eight

hours of leave that had been improperly withheld. Mr. Baney's response to the second

order to show cause did not supply any legal or factual basis for distinguishing the

instant appeal from the earlier appeal that had been adjudicated by the Board. The

administrative judge therefore dismissed Mr. Baney's appeal on the ground that he was

collaterally estopped from challenging the Board’s earlier decision with respect to the

restoration of eight hours of leave on January 14, 2008. Mr. Baney’s petition for review

by the full Board was denied. Mr. Baney then petitioned for review by this court.

                                            II

       We first address the USERRA claims pertaining to Mr. Baney’s use of military

leave between 1987 and 2000 and to his being placed on leave without pay status on

January 14, 2008.    The Board held that Mr. Baney was collaterally estopped from

asserting those claims in light of two earlier-filed appeals that were dismissed on

mootness grounds. We see no reason to disturb the Board’s ruling on either claim.

       On October 5, 2005, Mr. Baney appealed to the Board contending that the

Bureau of Prisons had erroneously charged him military leave for attending to his

reservist duties on certain non-work days between 1987 and 2001.             The Board

dismissed that appeal as moot after the Bureau of Prisons restored 13 days of leave to

Mr. Baney.    This court subsequently affirmed the Board’s dismissal of that leave

restoration claim.




2009-3068, 2009-3097                        5
       In early 2008, the Board addressed Mr. Baney’s claim “that the agency had

placed him in a LWOP status for eight hours on January 14, 2008 . . . as a result of his

absence from work to participate in a Board hearing on that date.” Because the Bureau

of Prisons conceded its error and submitted documentation reflecting that the eight

hours of leave had been restored, the Board dismissed the claim as moot.

       On the record before us, it is clear that Mr. Baney is collaterally estopped from

appealing both the Bureau of Prisons’ decision to place him on leave without pay status

on January 14, 2008, and its calculation of the amount of military leave that he accrued

between 1987 and 2000. Mr. Baney has not offered any ground for distinguishing the

claims resolved in the two earlier appeals from the seemingly identical claims raised in

the current appeals. In both of the earlier appeals, the Board expressly considered

whether Mr. Baney’s claims had been rendered moot by the Bureau of Prisons’ decision

to remedy the errors identified by Mr. Baney. In both appeals, the Board decided that

the Bureau of Prisons had afforded Mr. Baney all the relief to which he was entitled and

that there was nothing left for the Board to do.       We therefore sustain the Board’s

decision as to the collateral estoppel effect of the prior adjudication of Mr. Baney's leave

status on January 14, 2008, and his military leave balance in 2000.

                                             III

       We next turn to Mr. Baney’s claim that he was improperly charged 208 hours of

annual leave while he was serving on active military duty from July 6 to August 6, 2006.

The Board held that the doctrine of res judicata precluded Mr. Baney from relitigating

that claim. We find no error in the Board's decision on that score.




2009-3068, 2009-3097                         6
       On August 21, 2006, Mr. Baney filed an appeal with the Board alleging that the

Bureau of Prisons had improperly accounted for his military service between July 6 and

August 5, 2006. Mr. Baney contended that the Bureau of Prisons had required him to

account for his absence by using 15 days of annual leave and 8 days of regular military

leave, rather than permitting him to use “emergency” military leave as authorized by 5

U.S.C. § 6323(b). The Board denied Mr. Baney's claim, finding that Mr. Baney did not

qualify for emergency leave under Section 6323(b) because he had volunteered for

active duty.   On appeal, this court summarily affirmed the Board’s dismissal of the

appeal.

       Mr. Baney does not dispute that the Board's decision as to his USERRA claim for

restoration of annual leave in July 2006 is final. Nor has he pointed to any factual or

legal distinctions between the claim decided in the earlier-filed appeal and the claim

raised in this appeal. Accordingly, we sustain the Board's decision that Mr. Baney's

claim for restoration of annual leave in July 2006 is barred by res judicata.

                                             IV

       Mr. Baney contends that he is entitled to a hearing on his USERRA claims

merely because he invoked USERRA and requested a hearing before the administrative

judge. Citing our decision in Kirkendall v. Department of the Army, 479 F.3d 830 (Fed.

Cir. 2007) (en banc), Mr. Baney argues that “an appellant who raises a USERRA claim

has an unconditional right to a hearing.” In Kirkendall, this court held that a USERRA

claimant has a right to a hearing upon request, see 479 F.3d at 844-46, 862-63, but the

court’s analogy to appeals governed by 5 U.S.C. § 7701 indicates that if a USERRA

claimant fails to make a non-frivolous allegation of Board jurisdiction he is not entitled to




2009-3068, 2009-3097                         7
a hearing. Id.; see also Downs v. Dep’t of Veterans Affairs, 110 M.S.P.R. 139, 147-48

(2008).

      The full Board upheld the jurisdictional dismissal of Mr. Baney’s USERRA claim

for the years between 1987 and 2000 on purely legal grounds based on the earlier

adjudication with regard to those years. As to his claim regarding the period from July

6, 2007, to August 6, 2007, the full Board remanded the case to the administrative

judge, and the administrative judge scheduled a hearing. However, when Mr. Baney

advised the administrative judge that the period for which he was claiming benefits was

actually in 2006, not 2007, the administrative judge noted that his claim relating to July

and August of 2006 had already been adjudicated and rejected in an earlier Board

proceeding. Accordingly, the administrative judge concluded that Mr. Baney’s claim

was barred by res judicata and canceled the hearing.

      The right to a hearing for USERRA claims does not entail the right to relitigate

already resolved claims and to require the administrative judge to conduct a hearing

whenever such previously resolved claims are reasserted.         Because there was no

factual dispute to be resolved once Mr. Baney acknowledged that he had no claim

regarding July and August of 2007, the administrative judge correctly declined to hold a

hearing on the 2006 claim that had previously been fully adjudicated and rejected.

                                            V

      Mr. Baney challenges the Board’s ruling that he failed to allege a prima facie

case under the WPA. Although Mr. Baney was given several opportunities to set forth a

factual basis for his whistleblower claim, his responses to the Board’s orders were

conclusory and unsupported by specific allegations of reprisals for whistleblowing




2009-3068, 2009-3097                        8
activity. Before the full Board, Mr. Baney represented that he was in possession of a

sworn affidavit supporting his allegation that he had been “threaten[ed] with his job and

his career . . . for the last three years.” The Board can grant a petition for review when it

is presented with new and material evidence that, despite due diligence, was not

available when the record closed. 5 C.F.R. § 1201.115(d)(1); see also Brenneman v.

Office of Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006). However, Mr. Baney

failed to provide the Board with a copy of the affidavit in question, and he failed to

explain how the affidavit qualified as “new and material” evidence under the Board’s

regulations. Accordingly, the Board did not err in concluding that he failed to make

sufficient allegations to support his whistleblower claim.

                                             VI

       Mr. Baney's briefs in this court include reference to several USERRA claims that

were not presented to the Board in the first instance. For example, Mr. Baney alleges

that the Bureau of Prisons improperly charged him 256 hours of annual leave between

2002 and 2004, 208 hours of annual leave between 2005 and 2006, and 400 hours of

sick leave between 2001 and 2004.         He seeks an order compelling the Bureau of

Prisons to restore that leave and to compensate him in the amount of $150,000 for the

alleged retaliation, harassment, and violations of privacy.

       We have previously stated that a “party in an MSPB proceeding must raise an

issue before the administrative judge if the issue is to be preserved for review in this

court.” Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). Because

there is no indication in the record that the foregoing claims for restoration of annual and




2009-3068, 2009-3097                         9
sick leave were advanced before the Board, those claims have not been preserved for

review. We therefore sustain the decisions of the Board in both cases before us.




2009-3068, 2009-3097                      10
