UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SILAS BURGESS, III,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0752-17-0068-X-1

DATE: November 9, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Cassanova Hambrick, Clarkton, North Carolina, for the appellant.

Leslie L. Rowe, Esquire, New York, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On May 15, 2017, the administrative judge issued a compliance initial 

decision finding the agency in noncompliance with a settlement agreement that 

resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service, MSPB 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Docket No. NY-0752-17-0068-C-1, Tab 11, Compliance Initial Decision (CID). 

For the reasons discussed below, we now find the agency in compliance, 

DISMISS the petition for enforcement, and DENY the appellant’s request for 

compensatory and consequential damages. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On March 29, 2017, the parties entered into a settlement agreement that 

resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service, MSPB 

Docket No. NY-0752-17-0068-I-1, Initial Appeal File (IAF), Tab 22. In a 

March 30, 2017 initial decision, the administrative judge dismissed the removal 

appeal as settled and entered the parties’ settlement agreement into the record for 

enforcement purposes. IAF, Tab 23, Initial Decision (ID). 

¶3 The appellant subsequently petitioned for enforcement of the settlement 

agreement, and on May 15, 2017, the administrative judge issued a compliance 

initial decision finding the agency in noncompliance with the settlement 

agreement. CID at 1, 3-5. The administrative judge found that the agency failed 

to comply with a settlement agreement term requiring it to reinstate the appellant, 

effective April 1, 2017, to “his [Postal Service] Form 50 Assignment that was 

effectuated on August 27, 2011 at the FDR Parcel Post Annex with a schedule of 

10:00 PM to 6:30 AM with Tuesday/Wednesday rest days.” CID at 3-4; IAF, 

Tab 22 at 5. The administrative judge found that, although the agency reinstated 

the appellant, it failed to provide him with the work schedule and rest days 

required by the settlement agreement. CID at 2-4. She further found that the 

agency failed to comply with a term in the settlement agreement requiring it to 

provide the appellant with back pay. 2 CID at 4; IAF, Tab 22 at 5. The 

administrative judge ordered the agency to provide the appellant with back pay 

 

2

The settlement agreement did not require the agency to pay interest on the back pay, 

and accordingly, interest on the back pay is not at issue in this compliance matter. IAF, 

Tab 22 at 5. 
3

and to assign him to a Supervisor, Customer Services (SCS) position at the FDR 

Parcel Post Annex with the work schedule and rest days required by the 

settlement agreement within 20 days of the issuance of the compliance initial 

decision. CID at 5.

¶4 On July 10, 2017, the agency submitted a response to the compliance initial 

decision. Burgess v. U.S. Postal Service, MSPB Docket No. NY-0752-17-0068-

X-1, Compliance Referral File (CRF), Tab 4. The agency submitted evidence 

that, on July 7, 2017, it provided the appellant with $6,249.17 in back pay, and 

also submitted supporting documentation pertaining to the calculation of that 

back pay. Id. at 7-16. In addition, the agency submitted the appellant’s time and 

attendance records, which reflected that, on June 14, 2017, the agency changed 

the appellant’s schedule to place him in a position with a start time of 10:00 p.m. 

and an end time of 6:30 a.m., with rest days of Tuesdays and Wednesdays. Id.

at 18-23. However, the specific position that the agency placed the appellant in 

was not apparent from those time and attendance records. Id.

¶5 The appellant submitted two pleadings in reply to the agency’s response to 

the compliance initial decision. CRF, Tabs 6-7. He did not dispute that the 

agency provided him with back pay or contest the agency’s calculation of that 

back pay. CRF, Tab 6 at 3, Tab 7 at 3. However, he generally asserted that the 

agency failed to assign him to the position required by the settlement agreement, 

although he did not set forth any specific factual allegations to support this claim. 

CRF, Tab 6 at 3, Tab 7 at 3. 

¶6 On September 15, 2017, the Board issued an order directing the appellant to 

explain the basis for his contention that the agency failed to place him in the 

position required by the settlement agreement and to submit any evidence that he 

relied on in support of that contention. CRF, Tab 8 at 3. In response, the 

appellant submitted a pleading in which he asserted that, instead of placing him in 

the position required by the settlement agreement, the agency placed him “on an 

automation machine (ADUS Machine) that is a part of a pilot program that the 
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USPS has worked on for over three years that is domiciled at FDR Station.” 

CRF, Tab 9 at 4. 

¶7 On May 22, 2018, the Board issued an order directing the agency to submit 

additional evidence regarding whether it reinstated the appellant to the position 

required by the settlement agreement. CRF, Tab 12 at 3-4. In response, on 

June 1, 2018, the agency submitted the declaration of the Customer Services 

Manager for the agency’s FDR Station, which encompasses the FDR Parcel Post 

Annex. CRF, Tab 13 at 6-7. The Customer Services Manager declared under 

penalty of perjury that, as of June 14, 2017, the agency reinstated the appellant to 

the same position that he held on August 27, 2011, which was an SCS position at 

the FDR Parcel Post Annex with a start time of 10:00 p.m. and an end time of 

6:30 a.m., with rest days of Tuesdays and Wednesdays. Id. at 6. The Customer 

Services Manager further explained that the agency began using the ADUS 

machine on or about November 2014 and that supervising the ADUS machine had 

become a part of the duties of an SCS at the FDR Parcel Post Annex since that 

time.3 Id. at 6-7. 

¶8 In a June 19, 2018 reply to the agency’s response, the appellant generally 

asserted that the agency failed to place him in the same “work assignment” that 

he held in August 2011, but he contended that he did not intend to seek further 

relief and requested that the Board dismiss his petition for enforcement. CRF, 

Tab 14 at 3. 

 

3 Neither the agency nor the appellant provided the Board with an explanation of what 

the acronym “ADUS” refers to, or what agency function the ADUS machine performs. 

CRF, Tab 9 at 4, Tab 13 at 6-7. However, according to various U.S. Postal Service 

websites and blogs, the abbreviation appears to refer to “Automated Delivery Unit 

Sorters,” which are machines whose purpose is to try to expand package sorting 

capabilities. See, e.g., U.S. Postal Service, Office of Inspector General, Audit Report, 

Report No. 20-095-R21, Automated Delivery Unit Sorter Cost Savings (Oct. 1, 2020), 

https://www.uspsoig.gov/sites/default/files/document-library-files/2021/20-095-

R21.pdf.
5

¶9 The Board will enforce a settlement agreement that has been entered into 

the record in the same manner as a final Board decision or order. Burke v. 

Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 8 (2014). When an 

appellant alleges noncompliance with a settlement agreement, an agency must 

produce relevant material evidence of its compliance with the agreement or show 

that there was good cause for noncompliance. Id. The ultimate burden, however, 

remains with the appellant to prove breach by a preponderance of the evidence. 

Id. 

¶10 Here, the agency submitted evidence that it provided the appellant with the 

back pay required by the settlement agreement, and he does not dispute that the 

agency provided him with the correct amount of back pay. CRF, Tab 4 at 7-16. 

The agency also submitted evidence that it reinstated the appellant to the position 

and with the work schedule and rest days required by the settlement agreement. 

CRF, Tab 4 at 18-23, Tab 13 at 6-7. We find the appellant’s allegations that the 

agency failed to reinstate him to the correct position to be insufficient to 

overcome the agency’s evidence of compliance with the settlement agreement. 

The settlement agreement did not prohibit the agency from requiring the appellant 

to perform additional duties that had been added to his SCS position since 

August 27, 2011. IAF, Tab 22 at 5. In any event, the appellant—apparently 

agreeing with the agency regarding the changing nature of the agency’s 

operations—has requested that his petition for enforcement be dismissed. CRF, 

Tab 14 at 3. 

¶11 The appellant also has requested that the Board award him compensatory 

and consequential damages for the agency’s breach of the settlement agreement. 

CRF, Tab 3 at 3, Tab 7 at 3, 7-8. The Board lacks authority to award damages for 

breach of a settlement agreement, and the agency is now in compliance with the 

settlement agreement. See Principe v. U.S. Postal Service, 101 M.S.P.R. 626, ¶ 3 

(2006) (finding that the Board lacks authority to award damages for the br each of 

a settlement agreement). To the extent that the appellant requests that the Board 
6

sanction the agency for its delay in complying with the settlement agreement, the 

Board lacks authority to impose sanctions once compliance has been obtained. 

Bruton v. Department of Veterans Affairs, 112 M.S.P.R. 313, ¶ 14 (2009). 

¶12 Accordingly, for these reasons, we find that the agency is now in 

compliance with the settlement agreement and dismiss the petition for 

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

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 

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 

You must file your motion for attorney fees and costs with the office that issued 

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS4

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 

 

4

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.
7

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. 

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 
8

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 

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. ____ , 137 S. Ct. 1975 (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 
9

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: 

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. 5 The court of appeals must receive your 

 

5

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. 
10

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

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