NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ADAM DELGADO,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2022-1988

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-1221-09-0299-X-1.

______________________ 

Decided: November 17, 2022

______________________ 

ADAM DELGADO, Ft. Meade, MD, pro se. 

 CATHARINE PARNELL, Civil Division, Commercial Litigation Branch, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

BRIAN M. BOYNTON, DEBORAH ANN BYNUM, PATRICIA M.

MCCARTHY. 

 ______________________ 

Before NEWMAN, REYNA, and STOLL, Circuit Judges.

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2 DELGADO v. DOJ

PER CURIAM. 

Adam Delgado appeals a decision from the U.S. Merits 

System Protection Board affirming that the Bureau of Alcohol, Tobacco, Firearms, and Explosives complied with a 

settlement agreement between Mr. Delgado and the 

agency. We affirm.

BACKGROUND

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “agency”) posted Mr. Delgado in Puerto Rico as a 

Special Agent. SAppx 3–51. Between 2005 and 2006, Mr. 

Delgado repeatedly requested the agency change his post 

to Chicago. SAppx 4–5. After multiple denials of his request for transfer, Mr. Delgado filed an Equal Employment 

Opportunity complaint. SAppx 4. Mr. Delgado also filed a 

discrimination claim against the agency in the U.S. District Court for the District of Columbia. SAppx 4, 76. Mr. 

Delgado continued to request and be denied transfer until 

he resigned in 2006. SAppx 4–5. 

In 2009, Mr. Delgado filed an appeal before the Merit 

Systems Protection Board (the “Board”), alleging that he 

had been constructively removed from his position when 

the agency refused to transfer him. SAppx 23, 75. The 

Board later dismissed the appeal without prejudice so that 

Mr. Delgado’s newly obtained counsel could refile an appeal after completing his review of the record. SAppx 76. 

Mr. Delgado refiled an appeal in January 2010, alleging 

that his supervisor discriminated against him for not 

speaking Spanish and threatened his career. SAppx 82. 

In January 2011, Mr. Delgado and the agency entered 

into a Settlement Agreement (the “Settlement”) to resolve 

the district court litigation and the appeal to the Board. 

1 “SAppx” refers to the appendix submitted with the 

Department of Justice’s Response Brief.

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DELGADO v. DOJ 3

SAppx 22–23, 75–76, 82, 89–92. Under the Settlement, the 

agency would cancel Mr. Delgado’s resignation, the agency 

would then reinstate and post him in Chicago, and the 

agency would pay both “the employer’s and employee’s 

share of Federal Employee Retirement System contributions from the date of resignation until the effective date of 

cancellation of the resignation.” SAppx 91. The Settlement 

also required the agency to pay $20,000 for Mr. Delgado’s 

attorney fees and costs accrued in district court and in appeal to the Board. Id. In signing the Settlement, Mr. Delgado “waive[d] any claims of back pay or any other 

damages of any kind whatsoever.” Id. Mr. Delgado’s appeal to the Board was dismissed as a result. SAppx 96. 

The agency cancelled Mr. Delgado’s resignation and then 

reinstated and posted him in Chicago. SAppx 117.

Following the Settlement, at Mr. Delgado’s request, the 

agency informed Mr. Delgado that it had made $122,581.06 

in retirement contributions on behalf of the employer as of 

March 2012. SAppx 101, 103, 112. Chief of Payroll Processing & Operations Branch Chris Kopeck also suggested 

in his correspondence that the agency had overpaid the 

contribution by $1,351.48, and that the correct contribution 

should have been $121,229.58. SAppx 103. 

In March 2016, Mr. Delgado filed a petition for enforcement with the Merits System Protection Board Field Office, arguing that the agency lacked proof of paying the 

Federal Employee Retirement System contributions as required by the Settlement and that the correct employer 

contribution amounted to $156,777.94. SAppx 101. The 

Administrative Judge found the agency’s discrepant calculations for the employer contribution—$122,581.06 versus 

$121,229.58—required further attention and clarity. 

SAppx 120–21. The Administrative Judge granted Mr. 

Delgado’s petition and found that, to comply with the Settlement, the agency must explain its $122,581.06 contribution computations between April 4, 2006, and July 16, 

2011. SAppx 121. 

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4 DELGADO v. DOJ

In July 2017, the agency provided a statement of compliance with the Administrative Judge’s order. SAppx 135. 

The agency explained that it used Chicago rates to compute 

Mr. Delgado’s retirement contribution and the agency’s 

contributions to be $7,326.35 and $139,341.22, respectively. SAppx 144–45. These amounts were a correction to 

the original calculations, which relied on a lower Puerto 

Rico locality rate. SAppx 143. The agency noted that 

$6,040.18 of the corrected contributions were outstanding 

and in process of disbursement. SAppx 146–47. 

Mr. Delgado argued in response that the agency’s delay 

in correcting the contributions entitled him to back wages, 

legal fees, other benefits, a new post and grade, as well as 

relocation and transportation costs. SAppx 318. Mr. Delgado further argued that the agency’s submission failed to 

provide proof of payment, and that it was improper to calculate the contributions using Chicago rather than Puerto 

Rico locality rates. SAppx 318. The agency supplemented 

its statement of compliance in April 2018, to confirm that 

the one outstanding contribution had been made. SAppx 

295. 

Mr. Delgado continued to argue that (1) Puerto Rico 

and not Chicago locality rates apply, and (2) the agency 

failed to provide proof of making the required contributions. SAppx 318–19. He contended that independent confirmation from the Office of Personnel Management was 

necessary and requested certified copies of documents be 

sent to him, the agency, and the Board. Id. 

On May 26, 2022, the Board found that the agency had 

complied with the Settlement. SAppx 315–20. The Board 

also rejected Mr. Delgado’s requests for wages, costs, fees, 

and benefits that were outside the scope of the Settlement. 

Id. Mr. Delgado timely appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

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DELGADO v. DOJ 5

STANDARD OF REVIEW

Our review of Board decisions is statutorily limited. 

We must set aside a Board decision when it is “[1] arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law; [2] obtained without procedures required by law, rule or regulation having been followed; or 

[3] unsupported by substantial evidence.” Hayes v. Dep’t of 

the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984) (citing 5 

U.S.C. § 7703(c)). “Substantial evidence is defined simply 

as ‘more than a mere scintilla’ and ‘such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.’” DuoProSS Meditech Corp. v. Inviro Med. 

Devices, Ltd., 695 F.3d 1247, 1252 (Fed. Cir. 2012) (citation 

omitted). 

DISCUSSION

We affirm the Board’s determination that the agency 

complied with the Settlement. SAppx 315-20. Mr. Delgado

argues that the Board did not have sufficient evidence to 

find that the agency paid “the $122,[581.06] employer portion payment” to his federal employee retirement account 

as required by the Settlement. Appellant Op. Br. 2. Mr. 

Delgado also seeks “back pay, seniority, benefits, moving 

costs, attorneys fees, court reporter fees, court costs, annual leave, sick leave, military leave, home leave, home buy 

back program and other entitlements.” Id. 

We conclude that substantial evidence supports the 

Board’s determination that the agency complied with the 

Settlement. The agency provided sworn declarations and 

evidentiary support showing that the agency paid an adjusted contribution of $139,341.22 as of April 12, 2018. 

SAppx 146–47, 271–73, 299–301. Mr. Delgado’s demand 

for additional evidence for a portion of this payment is unnecessary where, as here, there is “such relevant evidence

as a reasonable mind might accept as adequate to support 

a conclusion.” DuoProSS Meditech Corp., 695 F.3d at 1252. 

Requiring additional evidence is also improper because Mr. 

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6 DELGADO v. DOJ

Delgado appears to concede that payment has been made. 

Appellant Reply Br. at 6 (“Mr. Delgado believes that [the 

agency] may have made the $122,581.06 payment post the 

filing of the Petition to Enforce to avoid sanctions....”). 

We also affirm the Board’s rejection of Mr. Delgado’s 

requests for wages, fees, costs, and benefits outside the 

scope of the Settlement. Mr. Delgado claims that he is entitled to these remedies for an alleged breach of the Settlement. Appellant Reply Br. 7. Most of Mr. Delgado’s 

requested relief is monetary. “The [Board] does not possess 

authority to award monetary damages for the breach of a 

settlement agreement.” Cunningham v. United States, 748 

F.3d 1172, 1180 (Fed. Cir. 2014). Even for non-monetary 

relief, the Board is statutorily limited to enforcing compliance with a settlement agreement. See id.; see also 5 U.S.C. 

§ 1204(a)(2). Thus, the Board correctly rejected each monetary and non-monetary request outside the scope of the 

Settlement. 

CONCLUSION

We affirm the Board’s determination that the agency 

complied with the Settlement. We also affirm the Board’s 

rejection of Mr. Delgado’s requests for wages, costs, fees, 

and benefits outside the scope of the Settlement. 

AFFIRMED

COSTS

No costs. 

Case: 22-1988 Document: 28 Page: 6 Filed: 11/17/2022