NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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
2008-3147 4

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.