Nicholas S. Trobovic v. General Services Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NICHOLAS S. TROBOVIC,
Petitioner
v.
GENERAL SERVICES ADMINISTRATION,
Respondent
______________________
2014-3212
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0353-07-0004-C-2.
----------------------------------------------------------------------
NICHOLAS S. TROBOVIC,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3025
______________________

-- 1 of 6 --

TROBOVIC v. GSA 2
Petition for review of the Merit Systems Protection
Board in No. PH-831E-12-00241-I-3.
______________________
Decided: April 8, 2015
______________________
N ICHOLAS S. T ROBOVIC, Berwyn, PA, pro se.
P. D AVIS O LIVER , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent in 2014-3212. Also represented by
J OYCE R. BRANDA, R OBERT E. K IRSCHMAN , J R., F RANKLIN
E. WHITE, J R.
S TEPHEN F UNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent in 2015-3025. Also represented by BRYAN G. P OLISUK.
______________________
Before D YK, MAYER , and REYNA, Circuit Judges.
P ER CURIAM .
These two consolidated appeals stem from a settle-
ment agreement between Nicholas S. Trobovic and the
General Services Administration (“GSA”). In one appeal
(2014-3212), the Merit Systems Protection Board
(“Board”) denied Trobovic’s petition to enforce the settle-
ment agreement because Trobovic materially breached
that agreement. In the other appeal (2015-3025), the
Board dismissed Trobovic’s challenge to the Office of
Personnel Management’s (“OPM”) decision to deny his
application for disability retirement benefits because
OPM rescinded that denial and granted Trobovic benefits.
We affirm.

-- 2 of 6 --

TROBOVIC v. GSA 3
BACKGROUND
On June 15, 2005, while employed as a building man-
agement specialist at GSA, Trobovic suffered a back
injury, which was ultimately determined by the Depart-
ment of Labor’s Office of Workers’ Compensation Pro-
grams to be compensable. Trobovic was then placed on
leave without pay status, and GSA sought to remove him
from service based on his unavailability for work due to
his medical condition. One year later, Trobovic applied
for a budget analyst position with GSA, and GSA denied
his application. Following the denial of his application,
Trobovic brought several appeals to the Board, claiming
constructive suspensions and violations of his restoration
to duty rights as a medically-disqualified employee.
Trobovic agreed to participate in the Board’s Mediation
Appeals Process, and on August 1, 2007, the parties
entered into a settlement agreement as to all issues in his
pending appeals (the “settlement agreement”).
Pursuant to the settlement agreement, Trobovic
agreed, inter alia, (1) to withdraw all pending litigation
against GSA with prejudice and not file any future claims
involving the same issues; (2) not to contest his removal
from service for unavailability for work; and (3) not to
seek future employment with GSA. GSA agreed, inter
alia, to “assist [Trobovic] with the filing of his application
for disability retirement.” 14-3212 App. 46. Within thirty
days of executing the settlement agreement, Trobovic
notified the Board that he rescinded the agreement, and
refiled his withdrawn appeals.
Trobovic then challenged the validity of the agree-
ment before the Board. When the Board rejected his
challenges, Trobovic appealed to this court, and we af-
firmed the validity of the settlement agreement and held
that Trobovic failed to establish that GSA violated the
settlement agreement’s assistance provision. See Trobo-

-- 3 of 6 --

TROBOVIC v. GSA 4
vic v. Gen. Servs. Admin., 328 F. App’x 643, 645 (Fed. Cir.
2009); Trobovic v. Gen. Servs. Admin., 345 F. App’x 584,
585 (Fed. Cir. 2009); Trobovic v. Gen. Servs. Admin., 370
F. App’x 112, 115 (Fed. Cir. 2010).
On May 28, 2012, Trobovic filed a petition for en-
forcement with the Board, continuing to argue that GSA
failed to comply with the terms of the settlement agree-
ment. The Board denied his petition because Trobovic
materially breached the settlement agreement prior to
any alleged breach by GSA by filing new appeals and
continuing to apply for employment with GSA. In appeal
No. 2014-3212, Trobovic appeals the Board’s denial of his
petition for enforcement of the settlement agreement.
Meanwhile, on September 3, 2008, Trobovic filed an
application for disability retirement benefits with OPM,
which was ultimately denied on January 26, 2012, be-
cause Trobovic failed to show that his cited medical
conditions caused him to be disabled prior to his removal.
Trobovic appealed to the Board, which dismissed his
appeal for lack of jurisdiction because while the appeal
was pending OPM had rescinded its January 26, 2012,
decision and granted Trobovic disability benefits. In
appeal No. 2015-3025, Trobovic appeals the Board’s
dismissal of his disability benefits appeal for lack of
subject matter jurisdiction on mootness grounds. We
have jurisdiction pursuant to 5 U.S.C. § 7703(b).
D ISCUSSION
Our review of the Board is limited. We must affirm
unless the Board’s decision was “(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) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c); see
Biggers v. Dep’t of the Navy, 745 F.3d 1360, 1362 (Fed.
Cir. 2014). We review the Board’s jurisdiction over an

-- 4 of 6 --

TROBOVIC v. GSA 5
appeal de novo. See Keira v. Merit Sys. Prot. Bd., 396 F.
App’x 703, 704 (Fed. Cir. 2010) (citing Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999)).
In appeal No. 2014-3212, Trobovic argues that GSA
violated the terms of the settlement agreement by failing
to provide medical evidence and various forms to OPM in
connection with his application for disability benefits. As
the Board found, Trobovic materially breached two provi-
sions of the settlement agreement prior to GSA’s alleged
breach by filing new appeals with the Board and applying
for employment with GSA. Thus, even if GSA’s failure to
provide the requested documents to OPM breached the
settlement agreement, Trobovic’s prior material breach
discharged GSA’s contractual obligations. See Hometown
Fin., Inc. v. United States, 409 F.3d 1360, 1370 (Fed. Cir.
2005) (“Under general contract principles, a party sued for
breach of contract may defend on a theory that its nonper-
formance is excused because the other contracting party
committed the first material breach.”). In any event, GSA
did not breach the settlement agreement by failing to
provide the requested medical evidence; this issue was
addressed and resolved in our earlier decision in Trobo-
vic’s prior appeal:
It appears that Mr. Trobovic misunderstands
the level of assistance that GSA is required to
provide him under the terms of the settlement
agreement. The settlement agreement does not
state that GSA must provide medical evidence of
Mr. Trobovic’s unfitness for duty to OPM, or that
GSA must file a disability retirement application
on Mr. Trobovic’s behalf.
Trobovic, 370 F. App’x at 115. Thus, Trobovic is collater-
ally estopped from raising these issues on appeal. See
Charles v. Merit Sys. Prot. Bd., 513 F. App’x 974, 977
(Fed. Cir. 2013).

-- 5 of 6 --

TROBOVIC v. GSA 6
In appeal No. 2015-3025, Trobovic argues that the
Board erroneously dismissed his appeal of the denial of
disability compensation for lack of jurisdiction, repeating
his argument that GSA breached the settlement agree-
ment. Trobovic fails to establish that he did not receive
the entirety of the relief that he sought because OPM
rescinded the decision on appeal and granted Trobovic’s
application for disability compensation. See Havrilla v.
Merit Sys. Prot. Bd., 582 F. App’x 881, 882 (Fed. Cir.
2014) (“[W]here the OPM has rescinded its deci-
sion . . . the rescission divests the [Board] of its jurisdic-
tion.”); Keira, 396 F. App’x at 704 (“If OPM completely
rescinds a reconsideration decision, the Board no longer
has jurisdiction over the appeal in which that decision is
at issue and must dismiss the appeal.”). The Board did
not err in dismissing Trobovic’s appeal for lack of subject
matter jurisdiction.
We have considered Trobovic’s remaining arguments,
and find them to be without merit.1
AFFIRMED
1 To the extent that Trobovic seeks to set aside the
settlement agreement, we see no error in the Board’s
determination that a petition for enforcement is not the
proper vehicle for doing so. In any event, we rejected
Trobovic’s attempt to set aside the settlement agreement
in his prior appeal. See 345 F. App’x at 584.

-- 6 of 6 --