NOTE: This disposition is nonprecedential.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

______________________ 
2 TROBOVIC v. GSA

Petition for review of the Merit Systems Protection 

Board in No. PH-831E-12-00241-I-3.

______________________ 

Decided: April 8, 2015 

______________________ 

NICHOLAS S. TROBOVIC, Berwyn, PA, pro se.

P. DAVIS OLIVER, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent in 2014-3212. Also represented by

JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., FRANKLIN 

E. WHITE, JR. 

STEPHEN FUNG, Office of the General Counsel, Merit 

Systems Protection Board, Washington, DC, for respondent in 2015-3025. Also represented by BRYAN G. POLISUK. 

______________________ 

Before DYK, MAYER, and REYNA, Circuit Judges.

PER CURIAM. 

These two consolidated appeals stem from a settlement 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 settlement 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OPM rescinded that denial and granted Trobovic benefits.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.
TROBOVIC v. GSA 3

BACKGROUND

On June 15, 2005, while employed as a building management specialist at GSA, Trobovic suffered a back 

injury, which was ultimately determined by the Department of Labor’s Office of Workers’ Compensation Programs 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 agreement before the Board. When the Board rejected his 

challenges, Trobovic appealed to this court, and we affirmed the validity of the settlement agreement and held 

that Trobovic failed to establish that GSA violated the 

settlement agreement’s assistance provision. See Trobo-
4 TROBOVIC v. GSA

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 enforcement with the Board, continuing to argue that GSA 

failed to comply with the terms of the settlement agreement. 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, because 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).

DISCUSSION

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) unsupported 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 
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 provisions 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 nonperformance 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 Trobovic’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 collaterally estopped from raising these issues on appeal. See 

Charles v. Merit Sys. Prot. Bd., 513 F. App’x 974, 977 

(Fed. Cir. 2013).
6 TROBOVIC v. GSA

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 agreement. 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 decision . . . the rescission divests the [Board] of its jurisdiction.”); 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.