NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3342

BYRON CRAIG STROTHERS, Petitioner, v.
UNITED STATES POSTAL SERVICE, Respondent.

______ ____________________ DECIDED: February 13, 2006

______ ____________________ Before BRYSON, LINN, and PROST, Circuit Judges

. PER CURIAM. Byron Craig Strothers (“Strot hers”) seeks review of the final decision of the Merit Systems Protection Board (“Boar d”) that dismissed his appeal for lack of jurisdiction. See Strothers v. United St ates Postal Serv. , No. PH-0752-04-0495-I-1 (M.S.P.B. July 18, 2005) (Final Order). We affirm

.I. BACKGROUND On June 13, 2003, the Unit ed States Postal Service (“Agency”) removed Strothers from his position as Mail Processing Clerk, for failure to meet attendance requirements. On October 28, 2003, the parties entered into a last chance settlement agreement in which t he gov ernm ent agreed to h o ld Strothers’ removal in abeyance in exchange for, inter alia , Strothers’ promise of regular attendance, adherenc e to proper leave proc edures, and waiver of appeal rights related to the substance of the removal action. By letter dated July 27, 2004, t he Agency inf o rmed Stro thers that he had not complied with the agreement and that the Ag ency was reinstating its removal action against him effective on receipt of the letter. Strothers appealed to the Board. Strot hers did not claim to have complied with the agreement, but instead attempted to overcome the waiver provision by c l aiming that the Agency acted in bad faith and that he lacked the mental capacity to understand the agreement at the time that he entered into it. On A ugust 2, 2004, the administrative judge (“AJ”) issued an order requiring Strother s “to file evidenc e and argument to prove that this action is within the Boar d’s jurisd ict i on

. . . within 15 calendar days.” The order stated that “[n]o evidenc e or argument on the jurisdictional iss ue filed after the close of the record will be acc epted unless you show t hat it is new and material evidence that was unavailable before the record closed.” On August 13, 2004, Strothers filed a stat ement alleging that the Agency act ed in bad faith when it added terms to the agreement which were d i fferent from the ones provided to him in writing and from those read to him by his supervisor. Specifically , Strothers claimed that one p age was missing from the copy of the agreement that he

05-3342 2had receiv ed from the Board. Strothers also claimed that he could not fully understand the terms of the agreement when he entered into it because he suffers from severe depression and post-traumatic stress disorder. No other evidenc e was submitted and no more specific facts were al leged. Nor did Strothers in form the AJ that he planned to seek medical records from the Depar tment of Veterans Affairs. On November 15, 2004, the AJ concluded that Strothers’ allegations wer e frivolous and, without holding a hearing, dismissed the appeal for lack of jurisdiction. See Strothers v. United States Postal Ser v

. , No. PH-0752-04-0495-I-1 (M.S.P.B. Nov. 15, 2004) (Initial Dec i sion). The AJ explained that Strother s did not dispute that he breached the agreement. As to the allegati on of Agency bad faith for changing terms in the agreement, the AJ noted that Strothers submitted no pr oof in support of this allegation and thus found the clai m to be nothing but a bald allega tion. As to Strothers’ mental inc apacity claim, the AJ noted t hat Strothers again o ffered no documentary evidenc e in support of his claim; that in a letter attached to his appeal, Strothers stated that he agreed to the agreement and honestly believed he coul d c o mply with it; and that the agreement itself specifi ed that Strothers had reviewed the agreement, carefully read and under stood its provisions, and volunt arily, knowingly, an d willingly int e nded to be legally bound by it. As a result, the AJ fo und that th e allegation of mental inc a pacity was frivolo u s. On December 21, 2004, Strot hers petitioned the full Board for review of the Initial Decis i on. With the petition, Strothers s ubmitted twenty-one pages of medical records to support his claim. Strothers av erred that it had taken four months to obtain the records, but submitted no affirmative evidence to show that the records were not available earlier

05-3342 3or that he was diligent in atte mpting to obtain the recor d s. On July 18, 2005, the Boar d denied the petition, c i ting the failure to meet the requir e ments of 5 C.F.R. § 1201.115. The AJ ’s decision thus becam e the Board’s final decision. Strothers filed a time ly appeal of the Final Order to this cour t. We have jurisdic tion pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSION A. Standard of Review This court must affi rm the Board’s Fin a l Order unless it is: (1) arbi trary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulatio n having been followed; or (3) unsupported by subst antial eviden ce. 5 U.S.C. § 7703(c) (2000); Chase-Bak e r v. Dep’t of Justice , 198 F.3d 843, 845 (Fed. Cir. 1999). Whet her the Bo ard has jurisdiction ov er an appeal is a question of law, which we rev i ew de nov o

. Hayes v

. United States Postal Serv. , 390 F.3d 1373, 1376 (F ed. Cir. 2004). We review the Boar d’s exclusion of evidenc e, which was submitted after a deadli ne, for abuse of discretion. Schucker v. Fed. Deposit Ins. Corp. , 401 F.3d 1347, 1353 (Fed. Cir. 2005). B. Analysis On appeal, Strothers makes three argument s to overcome the waiver and to support juri sdiction. First, Strothers argues that he made a non-frivolous allegation that the Agenc y acted in bad faith in the exec ut ion of the agreement. Second, Strothers asserts that he made a non-frivolous allega tion that he lacked the mental capacity t o understand the nature of the agreement at the time he entered into it. Third, Strothers argues that the Board abused its discretion in not consideri ng the medical records that

05-3342 4he submitted on Dec e mber 21, 2004, because he was not able to obtain the records before then. To overcome the waiver provision in t he agreement, Strothers must show that he complied with the agr eement, that the Agen cy breached the agr eemen t, or that he did not knowingly and vo luntarily enter into the agreement. Se e Link v. Dep’t of Treasury , 51 F.3d 1577, 1582 (Fed. Cir. 1995). To be entitled to a jurisd ictional he aring in this context, St rothers must make out non-frivolous allegat ions of fact that, if proven, would overcome the waiver provision. Briscoe v. Dep’t of Veterans Affairs , 55 F.3d 1571, 1573 (Fed. Cir. 1995). “Although an appellant need not prove her ent ire case before she is entitled to a hearing, the board may request sufficient ev idence to determine if, in the first ins t ance, there is any support for w hat otherwise might b e bald alle gations.” Id

. In this case, the AJ’s A ugust 2, 2004, order constituted such a request. As to the allegation of bad fa it h, Strothers, both in hi s initial pleading and in response to the AJ’s request for evidenc e, provided the AJ with nothing but bare assertions that the Agency changed the t e rms of the agreement. Strothers did not proffer specific facts or evi dence that would demonstrate in w hat respects the copies of the agreement differed, or how the alleged difference prejudiced him. Because “‘there is a presumption that public officers perform their duties correctly, fairly, in good faith, and in acc o rdance with the la w and governing regulations,’” Haley v. Dep’t the Treasur y , 977 F.2d 553, 558 (Fed. Cir. 1992) (quoting Parsons v. United States , 670 F.2d 164, 166 (Ct. Cl. 1982)), and because Strother s has produced no evidenc e to suggest otherwise, we affirm the Boar d’s determination that the al legation of bad faith was frivolous.

05-3342 5As to the allegation of mental incapac ity, Strot hers likewise made only bare assertions. Despite the AJ ’s request for evi dence, Strothers proffer ed nothing to the AJ to support his contention of mental inc apacit y. Thus, the AJ correctly denied Strothers a hearing. See Briscoe , 55 F.3d at 1573-74 (holding that no hearing was required where mental illness was claimed but not sufficiently supported follo wing request of the Board). Finally, we reject Strother s’ argument that the Board abused its discretion in not overturning the AJ ’s Initial Dec i s i on b a se d on the medical records proffered with his request for Board rev i ew. Strothers submitt ed these m edical records on Dec e mber 21, 2004, after the Initial Decision of the AJ i ssued and lon g after the deadline s e t by the A J for submission of ev idence. Under the Board’s r e gulations, “[n]ew and material evidenc e” may be asserted in support of B oard review if “despite due diligence, [such evidenc e] was not av ailable when the recor d closed.” 5 C.F.R. § 1201.115(d)(1) (2005). The Board has long held that “ [f]ailure of a party to present evidence prior to the close of the record will preclude it from doing s o by way of a petition for review . . . absent a showing that with due diligence t he ev idenc e was prev iously unav ailable.” Szczerbiak v. United States Postal Serv. , 2 M.S.P.R. 561, 563 (1980). We have affirmed that the employee bears the burden under the regulation to make a showing of due diligenc e and prior unavailabilit y of any proffered “new and material evidence.” See Azarkhish v. Office of Pers. Mg mt. , 915 F.2d 675, 678-79 (Fed. Cir. 1990). In his petition for Board review, Strothers asserted I have enc losed from the Depart m ent of Veterans Affairs, after a 4 month wait all m y medical records from my treating doc tors. Everything I submitted now is new evidenc e that needs to be considered for fairness o f this appeal.

05-3342 6Even if Strothers was correct in arguing th at the documents met the “new and material evidenc e” part of the regulati on, it was incumbent on Strothers to demonstrate to the f u ll Board that “despite due dili genc e” the medical records we re “not available when the record closed.” See Azarkhish , 915 F.2d at 678-79. The re cords were dated in 2003 and early 2004 and Strothers has made no showing of when they were requested or why he did not reques t them in time to prov ide them to the AJ bef ore the rec o rd closed on August 17, 2004. Although St rothers asserted before the Board (and asserts before this court) that it took f our months to obt ain the records, Strothers provided no support for any ass e rtions of diligence and prior unavailability, e.g. , he did not submit a copy of a timely request for records, or a confirma tion of the request from the Department of Veterans Affairs. Because the Board, on this record, c ould find that Strothers had not carried his burden of showing du e diligenc e and prior u navailabi lit y, we cannot conclude that the Board abused it s discretion in denying the petition for review. See id

. For the foregoing reasons, the decision of the Board to dismiss Strothers’ appea l for lack of jurisdiction is affirmed

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