NOTE: This disposition is nonprecedential.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 res pondent. With him on the brief were Lori J. Dym , Chief Counsel, Appellate Division, and Michelle Wiindmueller , Attorney. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Syst ems 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 Un ited 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 ca rrier for USPS in Pittsburgh, Pennsylvania. Mr. Ballouris’s du ties included delivering mail to customers and to relay boxes. On March 27, 2006, Mr. Balouris was invo lved in an altercation with

* Honorable Janet Bond Arterton, Dis trict Judge, United States District Court for the District of Connecticut, sitting by designation.Terrance Sullivan, another le tter carrier. There were no witnesses to the altercation other than Mr. Balouris and Mr. Su llivan, and their accounts of t he 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 arriv ed 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 allege s that Mr. Sullivan inte ntionally spit in his face and that he accidentally struck Mr. Sulliv an 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 issu ed a Notice of Propos ed Removal and a subsequent Letter of Decision. In the Lette r of Decision, USPS found that the charge of “Unacceptable Conduct / Assault” was “fu lly 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—b y his own admission— Mr. Ballouris had struck Mr. Sullivan. In re viewing 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 hi s part in the altercation. T he AJ also identified similar situations where the Boar d had held that 60-day suspensions were the “maximum reasonable penalty.” Consequentl y, the AJ ordered that t he penalty be reduced from removal to a 60-day suspension. USPS petitioned for review. The Board granted the petition for review and, with on e member dissenting, sustained Mr. Ballouris’s removal,

2008-3147 2holding 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 discr etion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by subst antial 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 determinati on of the proper discipl inary action to be taken to promote the efficiency of the serv ice 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 penalt y 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. Regar dless of his intent, Mr. Ballouris struck Mr. Sullivan on a publi c street and was removed because USPS determined that it “cannot maintain safe operat ions or operate efficiently with employees who commit acts of violence against co-wor kers.” The Board deferred to the agency’s penalty determination and sustained Mr. Ballour is’s removal. We cannot conclude under our very deferential standard of review t hat the Board abused it s discretion.

2008-3147 32008-3147 4 Mr. Ballouris has also petitioned this cour t 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 seek s 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 c onnection with a petition for review must satisfy the burden of showing that the evidence is material and that it could not have been obtai ned earlier with the exer cise 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.