NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3286
JOHN JAVAN WALLACE
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
John Javan Wallace, of Landover, Maryland, pro se.
Michelle A. Windmueller, Appellate Counsel, Office of the General Counsel,
United States Postal Service, of Washington, DC, for respondent. With her on the brief
were Gregory G. Katsas, Assistant Attorney General, and Lori J. Dym, Chief Counsel,
Commercial Litigation Branch, Civil Division, United States Department of Justice, of
Washington, DC. Of counsel was Robert C. Bigler, Trial Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3286
JOHN JAVAN WALLACE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board
in DC0752070893-I-1.
___________________________
DECIDED: December 5, 2008
___________________________
Before MAYER, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
DECISION
John Javan Wallace appeals from a final decision of the Merit Systems
Protection Board sustaining his removal from his position with the United States Postal
Service. We affirm.
BACKGROUND
On August 22, 2007, the Postal Service removed Mr. Wallace from his position
as a Parcel Post Machine Distribution Operator Clerk at the Washington Bulk Mail
Center (BMC) in Washington, D.C. The agency’s removal decision was predicated on a
joint assessment by Mr. Wallace’s direct supervisor, Ms. Constuella Cuffie, and the
manager of distribution operations at the BMC, Ms. Paula Johnson, that Mr. Wallace
was unfit for duty because he had frequently been away from his station during his shift
and because his unexplained absences and irregular schedule had continued unabated
in spite of repeated warnings and disciplinary actions stemming from his generally
unsatisfactory attendance.
Mr. Wallace timely appealed the removal decision to the Merit Systems
Protection Board. Shortly thereafter, the administrative judge who was assigned to the
case issued a scheduling order that set a hearing date of November 16, 2007, and
notified the parties of their obligation to submit their exhibit and witness lists by
November 2, 2007. The scheduling order also warned the parties that, “[i]n presenting
evidence at the hearing, you will be limited by your prehearing submissions, except for
good cause shown.” It is undisputed that Mr. Wallace did not file a prehearing
disclosure or seek leave to proffer any evidence after the submission deadline had
passed. Following the hearing on Mr. Wallace’s appeal, the administrative judge ruled
(1) that “the evidence overwhelmingly establishes that appellant was often away from
his workstation or was asleep at the worksite as alleged by the agency,” and (2) that Mr.
Wallace’s admitted absenteeism was not excused by his entitlement to leave under the
Family and Medical Leave Act of 1993 (“FMLA”) because the Postal Service had shown
2008-3286 2
that “the appellant failed to submit medical documentation” supporting an award of
FMLA leave.
In his petition for review by the full Board, Mr. Wallace claimed to be in
possession of new and material evidence that had not been admitted into the record
below because he had been unaware of his obligation to disclose that evidence prior to
the hearing date. Since Mr. Wallace had not included what he characterized as
corroborating “letters and documents” in his petition, the Board directed him to submit
copies of those materials by January 24, 2008. Mr. Wallace failed to respond by the
stated deadline and, on May 6, 2008, the Board rejected his petition. This appeal
followed.
DISCUSSION
Mr. Wallace’s petition for review by this court does not challenge any aspect of
the underlying proceedings except the Board’s denial of his request to reopen the initial
decision on the basis of new and material evidence. The Board's regulations authorize
it to grant a petition for review when it is presented with new and material evidence that,
despite due diligence, was not available to the petitioner when the record closed. 5
C.F.R. § 1201.115(d)(1). The party seeking to introduce new evidence in connection
with a petition for review shoulders the burden of showing that the evidence is material
and that it could not have been obtained earlier with the exercise of due diligence.
Brenneman v. Office of Personnel Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006). We
find no error in the Board’s conclusion that Mr. Wallace failed to meet the requirements
for reopening the record on appeal.
2008-3286 3
First, Mr. Wallace did not meet his burden of demonstrating the materiality of his
proposed submissions. In his petition for review by the Board, Mr. Wallace suggested
that “letters and documents” in his possession would undermine the credibility of Ms.
Cuffie and Ms. Johnson and prove that he was present and awake at his work station.
However, Mr. Wallace failed to provide the Board with copies of the documents that he
was seeking to admit into the record. In determining the materiality of the documents to
which Mr. Wallace referred, the Board was entitled to conduct its own review of those
documents rather than rely on Mr. Wallace’s unsupported characterizations of them. In
light of the fact that Mr. Wallace did not proffer the documents or otherwise prove how
they would be material to his claims on appeal, the Board properly denied the petition
for review.
Even if Mr. Wallace had submitted the “letters and documents” to which he
alluded, his petition would still be without merit because it is clear that those materials
did not constitute “new” evidence. Mr. Wallace readily acknowledges that the letters
and documents were in his possession prior to the date of the initial hearing.
Finally, Mr. Wallace has not advanced any legally cognizable excuse for the
delay in submitting his evidence to the Board. Although Mr. Wallace has asserted that
he was unaware of the prehearing disclosure requirements and that he “did not know
that” the November 16, 2007, proceeding “was a hearing,” his actual knowledge or
subjective understanding of MSPB procedures is irrelevant to the question of whether
he has exercised due diligence, which is an objective inquiry into what he should have
known had he exercised reasonable prudence. Even treating Mr. Wallace’s petition as
challenging the adequacy of the notices sent by the administrative judge regarding the
2008-3286 4
procedures for presenting evidence in support of his appeal, Mr. Wallace cannot prevail.
The various notices and orders issued by the administrative judge stated that a hearing
would be held on November 16, 2007, that evidence proffered at the hearing had to be
disclosed by the prehearing submission deadline, and that Mr. Wallace would be
afforded an opportunity to demonstrate good cause for introducing evidence not
disclosed by that deadline. It is clear that Mr. Wallace was on notice of his procedural
rights but failed to take advantage of them in a timely fashion.
We sustain the decision of the Board.
2008-3286 5