Appeals of

FRANK BAIAMONTE

PSBCA Nos. 5297 and 5324

Under Contract No. HCR 863C5

APPEARANCE FOR APPELLANT:
Frank Baiamonte

APPEARANCE FOR RESPONDENT:
Gary Shapiro, Esq.
Office of the General Counsel
United States Postal Service

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            Appellant, Frank Baiamonte, has filed a motion seeking reconsideration of the Board’s Opinion in the captioned appeals, Frank Baiamonte, PSBCA Nos. 5297 and 5324, 08-1 BCA ¶ 33,852.  Respondent opposes the motion.  The facts are stated in the Opinion and will be repeated here only as necessary to address Appellant’s motion.

            In the Opinion, the Board denied Appellant’s appeal of Respondent’s termination of his mail transportation contract for default (PSBCA No. 5297) and found Respondent entitled to recover its cost of obtaining replacement service on Appellant’s route after the termination (PSBCA No. 5324).  The Board made findings of material fact on which it based its decision.  Appellant complains that the Board failed to include in its findings many of his factual allegations and failed to cite many of the documents he submitted as evidence.  It is the function of the Board to weigh the documentary evidence submitted by the parties and to rely on evidence that is material to the decision reached by the Board.  See Dominion Eng’g Works, ENG BCA No. 6140-R, 97-1 BCA ¶ 28,850; 39 C.F.R. §955.14 (c).  Documents not cited in the Opinion were not found by the Board to support findings of fact material to deciding the appeals.

            In his Motion for Reconsideration, Appellant repeats at length substantially the same arguments he made before and urges the Board to rely on the evidence he submitted to reach a different result on reconsideration.  However, “reargument of issues previously raised and fully considered in the Board decision does not provide a basis for reconsideration.”  Patricia J. Stevens, PSBCA No. 3272, 94-2 BCA ¶ 26,951 at 134,210 (citations omitted); accord Dominion Eng’g, ENG BCA No. 6140-R, 97-1 BCA ¶ 28,850.  The Board fully considered Appellant’s arguments and evidence in reaching our decision, and after a further review we find in them no basis for reaching a different conclusion on reconsideration.

            Appellant also argues that he has newly discovered evidence bearing on these appeals that he was prevented from submitting before because of an ongoing investigation.  Although cast as a motion for reconsideration, we presume that Appellant is asking the Board to reopen the record to accept this newly discovered evidence.  The Board’s rules provide that except as the Board in its discretion may permit, “no proof shall be received in evidence after . . . notification by the Board that the case is ready for decision.”  39 C.F.R. §955.14 (b).[1]  That notification occurred on September 20, 2006 (Order dated September 20, 2006).

            The Board will exercise its discretion to reopen the record only in the most compelling circumstances when necessary to prevent an unjust result, and generally, only (1) if the “newly discovered” evidence was in existence at the time the record was closed, (2) if Appellant was excusably ignorant of its existence, (3) if the evidence is not merely cumulative, and (4) if the evidence is of such a material nature that its admission would probably change the outcome of the appeal.  See BAE Sys. Info. & Elec. Sys. Integration, Inc., ASBCA No. 44832, 03-1 BCA ¶ 32,193 at 159,115; Rockwell Int’l Corp., EBCA Nos. C-9509187, et al., 02-2 BCA ¶ 32,014 at 158,185; AEC Corp., ASBCA No. 42920, 99-1 BCA ¶ 30,181 at 149,322.

            The documents Appellant offers fall into two categories.  The first consists of written statements that Appellant alleges were given by postal employees as part of an EEO investigation.  The offered statements, dated in November of 2006, were from persons whose testimony in these appeals was submitted by declarations under penalty of perjury, and the statements substantially confirm what the witnesses stated in their declarations.  Appellant offers these statements to demonstrate that before his contract was terminated, the contracting officer and other postal officials knew that he had contacted Respondent’s Equal Employment Opportunity office regarding his treatment at the Cottonwood Post Office.  According to Appellant, this shows that the termination of his contract was in retaliation for making that contact and was a product of bad faith on the part of Respondent’s officials.  That the officials might have known that he had contacted the EEO office does not prove Appellant’s charge that his contract was terminated in retaliation for that contact.  We considered Appellant’s arguments in this regard and the evidence in the record and concluded that the termination was not shown to relate to Appellant’s contact with the EEO office.  These statements were not in existence when the record was closed in his appeals, are merely cumulative of evidence already in the record, and would not be likely to change the outcome of the appeals.[2]

            The second category of documents appears to be Postal Service documents relating to the terminations in 2006 of two mail transportation contractors in the Cottonwood Post Office.  Appellant argues that these demonstrate that working conditions in the Cottonwood Post Office remained stressful after he was terminated in September of 2005.  He also argues that these documents show that he was treated worse than other mail transportation contractors were.  Findings on these issues were not material to the Board’s Opinion and consideration of the documents would not likely change the outcome of the appeals.

            Accordingly, Appellant has not shown that reopening the record is necessary to prevent an unjust result, see BAE Sys. Info. & Elec. Sys. Integration, Inc., ASBCA No. 44832, 03-1 BCA ¶ 32,193 at 159,115, or presented any other ground for reopening the record to consider the offered documents.[3]

            Appellant also complains that he learned for the first time from the offered documents that the contracting officer and other postal officials had consulted with Postal Service counsel “behind his back” when considering what action to take with respect to Appellant’s contract.  Such consultation breaches no duty Respondent may have had to Appellant under his contract.

            Finally, Appellant contends the Board’s Opinion incorrectly noted the start date of the contract at issue to be May 17, 2003, when it actually commenced May 31, 2003.  The “Transportation Services Proposal & Contract for Regular Service” (Appeal File page 166), signed by Appellant and the contracting officer, reflects a contract beginning date of May 17, 2003.  The “Notice of Acceptance – Transportation Services Contract for Regular Service” (Appeal File page 165) shows a contract beginning date of May 31, 2003.  The start date of the contract is immaterial under the circumstances of these appeals, so there is no need to resolve this inconsistency in the contract documents.

            Appellant’s appeal of Respondent’s reprocurement cost claim was denied in PSBCA No. 5324.  Appellant’s Motion for Reconsideration argues that reprocurement costs should be denied because the termination for default was improper and should be converted to a termination for convenience, but Appellant does not separately challenge the calculation of the reprocurement costs.  Having rejected Appellant’s Motion for Reconsideration insofar as it challenges the Board’s determination that the termination was proper, we find no basis for reconsidering the award of Respondent’s reprocurement costs.

            Appellant has not shown any factual or legal errors that would warrant changing our decision in these appeals, see Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607, and has shown no basis for reopening the record. 

            Appellant’s Motion for Reconsideration is denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:                                                                      I concur:
William A. Campbell                                                     David I. Brochstein
Administrative Judge                                                  Administrative Judge
Chairman                                                                    Vice Chairman

[1] At the election of the parties, these appeals were submitted on the record without an oral hearing.  39 C.F.R. §955.12.

[2] Additionally, discovery was available to Appellant, 39 C.F.R. §§955.15, 955.16, through which he could have explored whether Respondent’s officials were aware that he had contacted Respondent’s EEO office, and he could have offered evidence in that regard as part of the original appeal process.

[3] Appellant does not say when he came into possession of the new evidence.  “As a matter of fairness the losing party should not be permitted to wait until after it receives an adverse decision before offering evidence that it could easily have presented before the adverse decision was rendered, except for the most compelling reasons.”  Philco-Ford Corp., ASBCA No. 16198, 73-2 BCA ¶ 10,051 at 47,147; accord BAE Sys. Info. & Elec. Sys. Integration, Inc., ASBCA No. 44832, 03-1 BCA ¶ 32,193 at 159,115.