                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-3147

                                 DEAN J. BALOURIS,

                                                             Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                             Respondent.


      Dean J. Balouris, of West Mifflin, Pennsylvania, pro se.

       Ray E. Donahue, Attorney, Office of General Counsel, United States Postal
Service, of Washington, DC, for respondent. With him on the brief were Lori J. Dym,
Chief Counsel, Appellate Division, and Michelle Wiindmueller, Attorney.

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                      NOTE: This disposition is nonprecedential.



 United States Court of Appeals for the Federal Circuit

                                       2008-3147

                                  DEAN J. BALOURIS,

                                                               Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                               Respondent.


Petition for review of the Merit Systems Protection Board in PH0752060495-I-1.

                           __________________________

                           DECIDED: February 19, 2009
                           __________________________


Before GAJARSA and MOORE, Circuit Judges, and ARTERTON, District Judge. *

PER CURIAM.

      Dean J. Ballouris appeals a final decision of the Merit Systems Protection Board

(Board) affirming his removal from the United States Postal Service (USPS).         See

Ballouris v. U.S. Postal Serv., No. PH0752060495-I-1 (M.S.P.B. Jan. 4, 2008) (Final

Decision). We affirm the final decision of the Board.

      Prior to his removal, Mr. Ballouris was a full-time letter carrier for USPS in

Pittsburgh, Pennsylvania. Mr. Ballouris’s duties included delivering mail to customers

and to relay boxes. On March 27, 2006, Mr. Balouris was involved in an altercation with


      *
              Honorable Janet Bond Arterton, District Judge, United States District Court
for the District of Connecticut, sitting by designation.
Terrance Sullivan, another letter carrier. There were no witnesses to the altercation

other than Mr. Balouris and Mr. Sullivan, and their accounts of the incident differ. It is

agreed that Mr. Ballouris was late in delivering the mail to a relay box, thereby delaying

Mr. Sullivan, and that once Mr. Ballouris arrived at the relay, he and Mr. Sullivan began

yelling at one another. Mr. Sullivan alleges that at this point Mr. Ballouris punched him

in the face. By contrast, Mr. Ballouris alleges that Mr. Sullivan intentionally spit in his

face and that he accidentally struck Mr. Sullivan in the face while trying to protect

himself. Mr. Sullivan reported the incident to USPS, which responded by conducting an

investigation.

       Following the investigation, USPS issued a Notice of Proposed Removal and a

subsequent Letter of Decision. In the Letter of Decision, USPS found that the charge of

“Unacceptable Conduct / Assault” was “fully supported by the evidence.”               After

considering the Douglas factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 307-

08 (1981), USPS removed Mr. Ballouris. Mr. Ballouris appealed to the Board.

       In an Initial Decision, the administrative judge (AJ) sustained the sole charge of

“Unacceptable Conduct / Assault” based on her finding that—by his own admission—

Mr. Ballouris had struck Mr. Sullivan. In reviewing the penalty, however, the AJ noted

that Mr. Ballouris was provoked by Mr. Sullivan, and that Mr. Sullivan only received a

“mere letter of warning” for his part in the altercation. The AJ also identified similar

situations where the Board had held that 60-day suspensions were the “maximum

reasonable penalty.” Consequently, the AJ ordered that the penalty be reduced from

removal to a 60-day suspension. USPS petitioned for review. The Board granted the

petition for review and, with one member dissenting, sustained Mr. Ballouris’s removal,




2008-3147                                   2
holding that when it sustains a charge it must give deference to the agency’s

punishment determination. Mr. Ballouris timely appealed the final decision.

      We have jurisdiction under 28 U.S.C. § 1295(a)(9), pursuant to the procedures

set forth in 5 U.S.C. § 7703. Accordingly, we must set aside Board decisions that are

“(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); Cheeseman

v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

      It is well established that the determination of the proper disciplinary action to be

taken to promote the efficiency of the service is a matter within the discretion of the

agency. Miguel v. Dep’t of Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984). Accordingly,

we give deference to the agency's judgment unless a penalty violates a statute or

regulation or is “so harsh and unconscionably disproportionate to the offense that it

amounts to an abuse of discretion.” Villela v. Dep't of the Air Force, 727 F.2d 1574,

1576 (Fed. Cir. 1984). This means that we do not decide the reasonableness of a

penalty, but only whether the agency’s penalty amounts to an abuse of discretion.

      In this case, USPS considered the relevant Douglas factors and determined that

Mr. Ballouris’s removal promoted the efficiency of the service. Regardless of his intent,

Mr. Ballouris struck Mr. Sullivan on a public street and was removed because USPS

determined that it “cannot maintain safe operations or operate efficiently with employees

who commit acts of violence against co-workers.” The Board deferred to the agency’s

penalty determination and sustained Mr. Ballouris’s removal.        We cannot conclude

under our very deferential standard of review that the Board abused its discretion.




2008-3147                                   3
        Mr. Ballouris has also petitioned this court to remand the case back to the Board

for consideration of additional evidence that he claims was not available to him prior to

his appeal. Specifically, Mr. Ballouris seeks to introduce an affidavit from a co-worker

who claims to have heard Mr. Sullivan express his intention to spit in Mr. Ballouris’s

face.   Both this court and the Board have held that:

        a party submitting new evidence in connection with a petition for review
        must satisfy the burden of showing that the evidence is material and that it
        could not have been obtained earlier with the exercise of due diligence.
        When documentary materials are asserted to be new and material
        evidence, “the information contained in the documents, not just the
        documents themselves, must have been unavailable despite due diligence
        when the record closed.”

Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006) (emphasis

added) (internal citations omitted). Because Mr. Ballouris has not alleged that he could

not have obtained the affidavit or the information contained therein earlier with the

exercise of due diligence, we deny this petition.

        For the foregoing reasons, we affirm.

                                             COSTS

        No costs.




2008-3147                                    4
