Case: 22-1988 Document: 28 Page: 1 Filed: 11/17/2022
NOTE: This disposition is nonprecedential.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 Liti-
gation 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.
Case: 22-1988 Document: 28 Page: 2 Filed: 11/17/2022
2 DELGADO v. DOJ
PER CURIAM.
Adam Delgado appeals a decision from the U.S. Merits
System Protection Board affirming that the Bureau of Al-
cohol, 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 Explo-
sives (the “agency”) posted Mr. Delgado in Puerto Rico as a
Special Agent. SAppx 3–5 1. Between 2005 and 2006, Mr.
Delgado repeatedly requested the agency change his post
to Chicago. SAppx 4–5. After multiple denials of his re-
quest 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. Dis-
trict 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 ap-
peal 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 contribu-
tions 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 ap-
peal to the Board. Id. In signing the Settlement, Mr. Del-
gado “waive[d] any claims of back pay or any other
damages of any kind whatsoever.” Id. Mr. Delgado’s ap-
peal 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 Pro-
cessing & 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 enforce-
ment with the Merits System Protection Board Field Of-
fice, arguing that the agency lacked proof of paying the
Federal Employee Retirement System contributions as re-
quired by the Settlement and that the correct employer
contribution amounted to $156,777.94. SAppx 101. The
Administrative Judge found the agency’s discrepant calcu-
lations 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 Set-
tlement, the agency must explain its $122,581.06 contribu-
tion 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 com-
pliance 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, respec-
tively. 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. Del-
gado further argued that the agency’s submission failed to
provide proof of payment, and that it was improper to cal-
culate 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 contribu-
tions. SAppx 318–19. He contended that independent con-
firmation 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 un-
der 28 U.S.C. § 1295(a)(9).
Case: 22-1988 Document: 28 Page: 5 Filed: 11/17/2022
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] arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; [2] obtained without procedures re-
quired 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 por-
tion 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, an-
nual 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 ad-
justed 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 un-
necessary 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.
Case: 22-1988 Document: 28 Page: 6 Filed: 11/17/2022
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 en-
titled to these remedies for an alleged breach of the Settle-
ment. 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 compli-
ance with a settlement agreement. See id.; see also 5 U.S.C.
§ 1204(a)(2). Thus, the Board correctly rejected each mon-
etary 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.