UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GENE CLICK, JR.,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0752-17-0388-X-1

DATE: May 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Nolan Lim, Esquire, Seattle, Washington, for the appellant.

Steven B. Schwartzman, Esquire, Seattle, Washington, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 On March 29, 2018, the administrative judge issued a compliance initial 

decision finding the agency in noncompliance with the Board’s October 3, 2017 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

final decision dismissing the underlying case pursuant to the parties’ settlement 

agreement. Click v. U.S. Postal Service, MSPB Docket No. SF-0752-17-0388-C1, Compliance File, Tab 10, Compliance Initial Decision (CID); Click v. U.S.

Postal Service, MSPB Docket No. SF-0752-17-0388-I-1, Initial Appeal File 

(IAF), Tab 22, Initial Decision (ID). 3 For the reasons discussed below, we now 

find the agency in compliance and DISMISS the appellant’s petition for 

enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 The settlement agreement required the agency, among other things, to pay 

the appellant “all back pay and benefits (less payroll deductions) from the date of 

his removal through his resignation.” IAF, Tab 21 at 6. The administrative judge 

determined that the agency had paid the appellant some back pay but had not paid 

him overtime pay as part of the back pay award or interest due on the entire back 

pay amount (including overtime). CID at 5. The administrative judge therefore 

ordered the agency to pay the appellant for 79.95 hours of overtime work, plus 

interest on the entire back pay amount.4 CID at 5.

¶3 After neither party filed a petition for review, the case was referred to the 

MSPB’s Office of General Counsel for a final decision on the issues of 

compliance, pursuant to 5 C.F.R. § 1201.183(b)-(c). Click v. U.S. Postal Service, 

MSPB Docket No. SF-0752-17-0388-X-1, Compliance Referral File (CRF), Tab 1 

at 2. The Clerk’s Office issued an acknowledgment order directing the agency to 

 

3

The October 3, 2017 initial decision became the final decision of the Board after 

neither party filed a petition for administrative review by November 7, 2017. ID at 3.

4

The administrative judge’s order is somewhat ambiguous as to whether the interest 

was to be paid on the entire back pay amount or merely on the unpaid overtime. 

However, the administrative judge’s discussion of the agency’s contentions regarding 

its obligations under the settlement agreement notes that the agency paid no interest 

previously. CID at 3-4. Thus, interest was owed on the entire back pay amount.
3

submit evidence that it had complied with all actions identified in the compliance 

initial decision. Id. at 3. 

¶4 Subsequently, on May 22, 2018, the agency submitted a statement of 

compliance, providing its calculation of the overtime amount due to the appellant 

as required by the Board’s decision. CRF, Tab 2. The agency also stated in its 

response that the interest due to the appellant was being calculated on an 

expedited basis and that full compliance with the actions identified in the 

compliance initial decision would be completed in a timely manner. Id. at 2-3.

¶5 On June 8, 2018, the agency submitted a supplemental statement of 

compliance stating that, on June 1, 2018, a check representing the overtime pay 

due to the appellant was delivered to the appellant’s home and that the appellant’s 

counsel had confirmed that the appellant received the check for the unpaid 

overtime. CRF, Tab 3 at 4. The agency also stated that, on June 1, 2018, agency 

counsel received the check for the unpaid interest on back pay/overtime due to 

the appellant in the amount of $918.36 and that the check would be mailed to the 

appellant on that date. Id. The appellant did not file a response to either 

submission.

¶6 In the acknowledgment order referring the compliance matter to the 

MSPB’s Office of General Counsel, the appellant was provided 20 calendar days 

from the date of service of the agency’s submission to respond to it. CRF, Tab 1 

at 3-4. The acknowledgment order also informed the appellant that, if no 

response was received within the 20 calendar days provided, the Board may 

assume that he was satisfied and dismiss the petition for enforcement. Id. at 4. 

As the appellant has not responded to the agency’s evidence of compliance , we 

assume he is satisfied. See Baumgartner v. Department of Housing and Urban 

Development, 111 M.S.P.R. 86, ¶ 9 (2009). 

¶7 In view of the agency’s evidence of compliance and the appellant’s failure 

to respond, we find the agency in compliance and dismiss the petition for 

enforcement. This is the final decision of the Merit Systems Protection Board in 
4

this compliance proceeding. Title 5 of the Code of Federal Regulations, section 

1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). 

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You 

must file your attorney fees motion with the office that issued the initial decision 

on your appeal.

NOTICE OF APPEAL RIGHTS5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
5

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
6

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
7

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.6 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
8

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board