NOTE: This disposition is nonprecedential.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 Justice, 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 injury that led him to being absent from work starting September 24, 2003. On September 30, 2003, the agency 

notified Mr. Shu that he was absent without leave 

(“AWOL”) and on unscheduled absent status since September 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 Attendance/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 Appendix 53–74.

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SHU v. USPS 3

temporarily totally disabled between September 24 and 

October 15, 2003, and entitled to compensation for that period. Nearly a year after the OWCP decision, on March 1, 

2009, Mr. Shu requested that he be restored to employment 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 issued the 2014 Order finding that the agency’s delay in restoring 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 restoration 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 restoration 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 enforcement 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 specified 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 calculated Mr. Shu’s step increase, (3) provide an explanation 

of how it arrived at the date of February 25, 2005, for retirement service credit, and (4) properly withhold 

Mr. Shu’s unemployment compensation withholding. 

Pet’r’s App. 6. To cure these shortcomings, the administrative judge specifically ordered the agency to (1) provide evidence that it paid Mr. Shu all back pay, interest and 

benefits for the back pay period, along with a narrative explanation 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 calculations, 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 withholding issues. The agency responded to the Board on August 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 explanation.

II

On November 7, 2022, the Board issued the final decision, 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 outstanding compliance issues were the agency’s obligations 

to (1) provide a narrative explanation of its back pay calculations, (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 evidence, the Board found the agency satisfied its back pay, 

step increase, unemployment compensation and retirement service credit obligations. Accordingly, the Board dismissed Mr. Shu’s petition for enforcement of the Board’s 

2014 Order. 

Mr. Shu timely petitioned for review of the Board’s November 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 accordance 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 Conduct/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 removal. 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 connection 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 arbitration 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 period 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 response, 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-

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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 issue 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 unreported 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 substantial 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 corresponding explanations. As the agency correctly notes, although Mr. Shu generally complains that the Board erred 

on this issue, he does not challenge any of the documentation 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 required 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 appeal, 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 holding that the agency is in full compliance with the Board’s 

2014 Order, which (a) found the agency had failed to restore Mr. Shu properly to his position, after the agency improperly 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.

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