Case: 23-1341 Document: 31 Page: 1 Filed: 08/08/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID SHU,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2023-1341
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0353-11-0065-C-1, SF-0353-11-0065-X-1.
______________________
Decided: August 8, 2023
______________________
DAVID SHU, Camarillo, CA, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY.
______________________
Before PROST, CLEVENGER, and CUNNINGHAM, Circuit
Judges.
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2 SHU v. USPS
PER CURIAM.
David Shu petitions for review of the final decision of
the Merit Systems Protection Board (“Board”) in Shu v.
U.S. Postal Service, Docket Nos. SF-0353-11-0065-X-1 and
SF-0353-11-0065-C-1, slip op. (M.S.P.B. Nov. 7, 2022), 1
which dismissed Mr. Shu’s petition for enforcement of the
Board’s earlier September 25, 2014, decision in Shu v. U.S.
Postal Service, Docket No. SF-0353-11-0065-B-2, slip op.
(the “2014 Order”). 2 For the reasons set forth below, we
affirm the Board’s final decision.
I
Mr. Shu began working for the United States Postal
Service (“agency”) in the Woodland Hills, California, Post
Office as a part-time flexible letter carrier on March 23,
2002. On September 22, 2003, Mr. Shu suffered a back in-
jury that led him to being absent from work starting Sep-
tember 24, 2003. On September 30, 2003, the agency
notified Mr. Shu that he was absent without leave
(“AWOL”) and on unscheduled absent status since Septem-
ber 24, 2003. On October 20, 2003, Mr. Shu filed a workers’
compensation claim for his September 22, 2003, injury. On
November 7, 2003, the agency issued a Notice of Removal
to Mr. Shu based on the charge of Irregular Attend-
ance/AWOL, and he was removed from his job on December
12, 2003.
While Mr. Shu was out of his letter carrier job with the
agency, his request for workers’ compensation languished
in the Office of Workers’ Compensation Programs
(“OWCP”). On March 14, 2008, OWCP issued a decision on
Mr. Shu’s October 20, 2003, claim, ruling that he was
1 The relevant parts of the final decision can be
found in Petitioner’s Appendix 3–11.
2 The 2014 Order can be found in Petitioner’s Appen-
dix 53–74.
Case: 23-1341 Document: 31 Page: 3 Filed: 08/08/2023
SHU v. USPS 3
temporarily totally disabled between September 24 and
October 15, 2003, and entitled to compensation for that pe-
riod. Nearly a year after the OWCP decision, on March 1,
2009, Mr. Shu requested that he be restored to employ-
ment with the agency, but for reasons undisclosed on the
record before this court the agency rejected his request on
April 27, 2009. A little over a year later, OWCP issued an
additional decision finding that Mr. Shu suffered from a
compensable injury between September 23 and November
6, 2003. On August 27, 2010, Mr. Shu renewed his request
to the agency for restoration to duty, and the agency offered
him a letter carrier position at the Santa Maria, California,
Post Office. Mr. Shu accepted the offer and was restored to
duty on November 6, 2010.
Although restored to duty, Mr. Shu appealed to the
Board, arguing that the agency had erred in the timing and
other details of his restoration to duty. On September 25,
2014, the administrative judge assigned to his appeal is-
sued the 2014 Order finding that the agency’s delay in re-
storing Mr. Shu to duty between March 1, 2009 (the date
of Mr. Shu’s request for reinstatement) and November 6,
2010 (the date he was restored to work) was an improper
denial of restoration. The administrative judge ordered the
agency to: (1) restore Mr. Shu as of March 1, 2009, (2) pay
Mr. Shu the appropriate amount of back pay, (3) provide
Mr. Shu with service credit (for the purposes of rights and
benefits based on seniority and length of service pursuant
to
5 C.F.R. § 353.107) for the entire period of absence, from
December 12, 2003 (the date of his removal) to November
6, 2010 (the date he returned to work upon reinstatement),
and (4) inform Mr. Shu in writing of all actions taken to
comply with the initial decision. Pet’r’s App. 68–69.
Whether Mr. Shu had made an actual request for res-
toration at some time before his March 1, 2009, request,
and hence would be entitled to back pay before March 1,
2009, was at issue before the administrative judge in the
2014 Order. Mr. Shu’s arguments seeking to establish an
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4 SHU v. USPS
earlier date on which he actually made a request for resto-
ration were considered but rejected by the administrative
judge in his finding that the date of Mr. Shu’s request for
restoration was March 1, 2009. Mr. Shu did not appeal the
administrative judge’s back pay effective date, and the
2014 Order became a final decision on October 30, 2014.
On November 21, 2014, Mr. Shu filed a petition for en-
forcement of the 2014 Order, which remanded the case to
the agency to perform the curative steps for the agency’s
improper denial of restoration. Over the course of multiple
pleadings, Mr. Shu alleged that the agency failed to comply
with the 2014 Order by: (1) failing to provide Mr. Shu with
appropriate seniority status and service credit for the spec-
ified times, (2) improperly removing him from service, and
(3) failing to pay him the correct amount of back pay and
interest.
On June 29, 2016, the administrative judge issued a
compliance initial decision granting Mr. Shu’s petition for
enforcement in part. Specifically, the administrative judge
found the agency not in compliance because it failed to:
(1) provide a sufficient explanation of the back pay check
issued to Mr. Shu, (2) provide an explanation of how it cal-
culated Mr. Shu’s step increase, (3) provide an explanation
of how it arrived at the date of February 25, 2005, for re-
tirement service credit, and (4) properly withhold
Mr. Shu’s unemployment compensation withholding.
Pet’r’s App. 6. To cure these shortcomings, the administra-
tive judge specifically ordered the agency to (1) provide ev-
idence that it paid Mr. Shu all back pay, interest and
benefits for the back pay period, along with a narrative ex-
planation of how the agency arrived at its calculations,
(2) provide evidence that it credited the appropriate
amount of retirement service to Mr. Shu for the back pay
period, with narrative explanation of the amount of service,
and (3) remit appropriate payment to the State of Nevada
for the unemployment compensation withheld from
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SHU v. USPS 5
Mr. Shu’s back pay and provide evidence of such payment
to the State of Nevada.
Id. at 6, 43.
On August 26, 2016, the agency submitted a statement
of compliance to the administrative judge, which explained
that the agency had satisfied the specific requirements of
the initial compliance decision as to the back pay calcula-
tions, but the statement lacked any explanation as to how
the agency calculated Mr. Shu’s step increase for the back
pay period, and further lacked any evidence that the
agency had remitted appropriate payment to the State of
Nevada for unemployment compensation withheld from
Mr. Shu’s back pay. On July 31, 2017, the Board issued an
order requesting further information from the agency on
the step increase and unemployment compensation with-
holding issues. The agency responded to the Board on Au-
gust 14, 2017, that it had remitted the unemployment
funds to the State of Nevada and provided evidence of the
remittance. But the agency said it was still working on its
narrative for calculation of Mr. Shu’s step increase date
and would provide the necessary information “shortly
thereafter.”
Id. at 8. Almost a year later, after two more
requests by the Board for further information, the agency
on August 16, 2018, filed a new submission that explained
how employee step increases are calculated for employees
in non-pay status and included evidence supporting its ex-
planation.
II
On November 7, 2022, the Board issued the final deci-
sion, which is the subject of Mr. Shu’s petition for review.
In its final decision, the Board recited the lengthy history
of the case, beginning with Mr. Shu’s petition to enforce the
Board’s 2014 Order. The Board determined that the out-
standing compliance issues were the agency’s obligations
to (1) provide a narrative explanation of its back pay calcu-
lations, (2) explain Mr. Shu’s step increase date,
(3) demonstrate that it had remitted unemployment
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6 SHU v. USPS
compensation to the State of Nevada, and (4) provide the
appropriate amount of retirement service credit to
Mr. Shu. Pet’r’s App. 10.
The Board’s final decision concluded that the agency’s
combined submissions demonstrate that the agency had
reached full compliance with the outstanding compliance
issues. Specifically, and in each instance citing record evi-
dence, the Board found the agency satisfied its back pay,
step increase, unemployment compensation and retire-
ment service credit obligations. Accordingly, the Board dis-
missed Mr. Shu’s petition for enforcement of the Board’s
2014 Order.
Mr. Shu timely petitioned for review of the Board’s No-
vember 7, 2022, final decision, and we have jurisdiction
over his petition pursuant to
5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
III
This court reviews a final decision of the Board under
a specific standard of review. We must affirm the Board’s
final decision unless we determine that the final decision
is arbitrary, capricious, an abuse of discretion, not in ac-
cordance with law, or unsupported by substantial evidence.
See
5 U.S.C. § 7703(c); Marino v. Off. of Pers. Mgmt.,
243
F.3d 1375, 1377 (Fed. Cir. 2001).
Mr. Shu argues that the Board erred in dismissing his
enforcement petition on six enumerated issues.
His first issue relates to the time period after he was
restored to duty in 2010. On November 4, 2013, the agency
proposed to remove Mr. Shu for Unacceptable Con-
duct/Failure to Report an Accident occurring on September
21, 2013. In 2015, an arbitrator found just cause for the
removal, and Mr. Shu appealed his removal to the Board.
The Board determined that his removal was unrelated to
his previous restoration to duty following his compensable
injury, and that it lacked jurisdiction over his appeal from
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SHU v. USPS 7
his removal based on the automobile accident. This court
affirmed the Board’s dismissal of his challenge to his re-
moval. See Shu v. Merit Sys. Prot. Bd.,
689 F. App’x 971,
974 (Fed. Cir. 2017). Mr. Shu’s first issue claims that the
agency failed to consider his restored service credit in con-
nection with his removal. In response, the agency points
out that Mr. Shu’s removal in 2015 is unrelated to the
Board’s 2014 Order, and that any complaint about restored
service credit related to the removal should have been
raised in his challenge to the removal action. Further, the
agency points out that Mr. Shu did not present this issue
to the Board when it considered compliance with the
Board’s 2014 Order. Mr. Shu on reply argues that the ar-
bitration decision is “illegitimate,” Petitioner’s Informal
Reply Br. 2, but does not otherwise challenge the agency’s
argument that this issue lacks merit. We agree with the
agency that there is no merit to Mr. Shu’s first issue.
The second enumerated issue concerns a reduction to
Mr. Shu’s back pay award. The agency withheld from
Mr. Shu’s back pay award $27,117.00 that he had collected
as unemployment benefits due to his compensable injury.
Mr. Shu argues that his private sector employer for the pe-
riod leading up to his agency unemployment period should
be deemed liable to reimburse the State of Nevada, not the
agency, a result that would increase the back pay due to
him from the agency. As the agency demonstrates in re-
sponse, the law is clear that the employer liable to pay back
pay is the employer obligated to reimburse the state, and
it is undeniable that it is the agency, not some prior private
sector employer, that is liable for back pay in this case.
Resp’t’s Informal Resp. 7 (citing
Nev. Rev. Stat. §§ 612.371,
612.055); see Shu v. U.S. Postal Serv., Docket No. SF-0353-
Case: 23-1341 Document: 31 Page: 8 Filed: 08/08/2023
8 SHU v. USPS
11-0065-C-1, slip op. at 9 (M.S.P.B. Dec. 21, 2016). 3
Mr. Shu’s second enumerated issue lacks merit.
For his third enumerated issue, Mr. Shu contends that
he is entitled to back pay beginning September 23, 2003,
rather than March 1, 2009. The agency argues, as noted
above in our recitation of the case history, this very issue
was raised and finally decided by the Board’s 2014 Order,
which Mr. Shu did not contest. Furthermore, were the is-
sue still alive, the agency points out that under settled
Board law, back pay dates from the date of an employee’s
request for restoration, and not earlier. See Shiflett v. U.S.
Postal Serv.,
51 M.S.P.R. 31, 33–34, Docket No.
PH035386C0422,
1991 WL 217314 (M.S.P.B. Oct. 23,
1991); New v. Dep’t of Veterans Affs.,
2007 M.S.P.B. 166,
¶ 8, aff’d,
293 F. App’x 779, 782 (Fed. Cir. 2008). Mr. Shu’s
third enumerated issue lacks merit.
In his fourth enumerated issue, Mr. Shu contends that
his position at the Santa Maria Post Office was engineered
to deprive him of his seniority rights during the period of
his employment up to his removal in 2015 following the un-
reported vehicle accident. As the agency demonstrates in
response, Mr. Shu offers no evidence that his employment
at the Santa Maria office was improper, and further, that
a Board decision on December 21, 2016, had determined
that even if his seniority rights had been in error up to the
date of his removal, he had offered no proof that the error
caused any tangible harm, such as lost overtime that would
have been earned up to his removal under correct seniority
rights. Mr. Shu offers no more than his bare allegation
that his seniority rights were miscalculated during his
Santa Maria office tenure, and the agency proffers substan-
tial evidence that neuters this issue.
3 This order can be found in Petitioner’s Appendix
13–25. Page 9 is at Petitioner’s Appendix 21.
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SHU v. USPS 9
Mr. Shu’s fifth enumerated issue involves his Thrift
Savings Plan (“TSP”). As the Board noted in the decision
under review, the administrative judge did not explicitly
address Mr. Shu’s contention that the agency had failed
properly to account for Mr. Shu’s five percent thrift savings
contribution election. Consequently, the Board reviewed
the record evidence on the agency’s actions regarding
Mr. Shu’s TSP. Citing six specific parts of the record, the
Board concluded that the agency had properly honored
Mr. Shu’s request for a five percent contribution from his
awarded back pay to his TSP and held that the agency had
provided detailed and credible documentation reflecting
both TSP withholdings from Mr. Shu’s back pay and
matching contributions from the agency, along with corre-
sponding explanations. As the agency correctly notes, alt-
hough Mr. Shu generally complains that the Board erred
on this issue, he does not challenge any of the documenta-
tion upon which the Board relied. The agency presents
substantial evidence to support the Board’s conclusion that
the agency fully complied with its obligations regarding
Mr. Shu’s TSP, and we consequently reject Mr. Shu’s fifth
enumerated challenge to the Board’s final decision.
Finally, Mr. Shu’s sixth enumerated issue is whether
his restoration rights include entitlement to a retroactive
uniform allowance (i.e., to reimburse a U.S. Postal Service
employee for the cost of the uniform the employee is re-
quired to wear when on duty) between 2003 and 2010,
when Mr. Shu was not employed by the agency. As with
the TSP issue, the Board noted that the administrative
judge had not explicitly addressed this issue. The Board,
after reviewing the agency’s Employee and Labor Relations
Manual on the subject of uniform allowance, concluded
that uniforms are appropriate “while performing duties.”
Pet’r’s App. 17. Because Mr. Shu had not performed duties
between 2003 and 2010, the Board found him ineligible for
any uniform allowance. In the context of a restoration ap-
peal, the Board will not order an agency to act in a way that
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10 SHU v. USPS
would put an appellant in a better position than if the
wrongful action had not happened. See Corum v. U.S.
Postal Serv.,
2012 M.S.P.B. 81, ¶ 21. Accordingly, the
Board held that the agency had no duty to provide Mr. Shu
with a uniform allowance for the time he was not required
to purchase and wear a required uniform. Nonetheless,
Mr. Shu insists before this court that the agency owes him
a uniform allowance for the time he was not in service. His
argument is wholly without merit.
CONCLUSION
After thorough review of the record in this case, it is
clear that substantial evidence supports the Board’s hold-
ing that the agency is in full compliance with the Board’s
2014 Order, which (a) found the agency had failed to re-
store Mr. Shu properly to his position, after the agency im-
properly removed him for AWOL during a time he suffered
a compensable work-related injury, and (b) ordered specific
restoration actions to be taken by the agency. The Board’s
decision to deny Mr. Shu’s petition to enforce the Board’s
2014 Order is accordingly affirmed.
AFFIRMED
COSTS
No costs.
