UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID B. GILL,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DA-3443-14-0096-B-1

DATE: June 11, 2015

THIS ORDER IS NONPRECEDENTIAL1

Phil Truman, Fort Worth, Texas, for the appellant.

Steven P. Hester, Pensacola, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his constructive suspension appeal as settled. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For 

the reasons discussed below, we DENY the appellant’s petition for review,

VACATE the remand initial decision, and REMAND the case to the regional 

office for further adjudication in accordance with this Order. 

BACKGROUND

¶2 On November 20, 2013, the appellant filed a constructive suspension appeal 

alleging that the agency improperly required him to use leave, rather than placing 

him on administrative leave or assigning him to light duty, after his doctor 

cleared him to return to work following his hospitalization.2

 MSPB Docket No. 

DA-3443-14-0096-I-1 (I-1), Initial Appeal File (IAF), Tab 1 at 7, Tab 11 at 3. 

The appellant also alleged that the agency discriminated against him on the basis 

of his disability by denying him reasonable accommodations. I-1, IAF, Tab 11 

at 3. Without holding the appellant’s requested hearing, the administrative judge 

dismissed the appeal for lack of jurisdiction. I-1, IAF, Tab 13, Initial Decision. 

The administrative judge found that the appellant failed to nonfrivolously allege 

facts which, if proven, would establish Board jurisdiction over his appeal, and as 

a result, the Board also lacked jurisdiction over his claims of discrimination. See 

id. at 2-6. 

¶3 After the appellant filed a petition for review of the initial decision, the 

Board found that he made a nonfrivolous allegation of jurisdiction and remanded 

 2 Although the appellant indicated that he was “Denied Admin Leave for Fitness for 

duty” and did not expressly allege that the agency constructively suspended him, the 

administrative judge characterized his claim as a constructive suspension. MSPB 

Docket No. DA-3443-14-0096-I-1, Initial Appeal File, Tab 1 at 5, Tab 10 at 1. 
3

the case for a jurisdictional hearing. I-1, Petition for Review (PFR) File, Tab 1, 

Tab 5, Remand Order. On remand, the appellant’s appeal was resolved through a 

settlement agreement. MSPB Docket No. DA-3443-14-0096-B-1 (B-1), Remand 

File (RF), Tab 10 at 4-8. The administrative judge stated that the Board has 

jurisdiction over the underlying appeal, accepted the agreement into the record 

for enforcement purposes, and dismissed the appeal as settled. RF, Tab 11, 

Remand Initial Decision (RID). 

¶4 The appellant has filed what he characterizes as a petition for review in 

which he alleges that the agency failed to comply with the terms of the settlement 

agreement because it has not paid him for 341 hours of annual leave and 18.5 

hours of sick leave. 3

 B-1, Remand Petition for Review (RPFR) File, Tab 1 at 3; 

Tab 5 at 4. The agency has filed a response to the appellant’s petition

acknowledging that the appellant’s leave has not been restored and arguing that 

the appellant’s petition for review should be construed as a petition for 

enforcement. RPFR File, Tab 4 at 4-5. The appellant has filed a reply. RPFR 

File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant’s submission is in the nature of a petition for enforcement, 

not a petition for review. On review, the appellant does not challenge the validity 

of the settlement agreement or seek to set it aside as unlawful, involuntary, or the 

result of fraud or mutual mistake. RPFR File, Tabs 1, 5. Nor does he allege any 

error in the administrative judge’s dismissal of his appeal as settled. Id., Tabs 1, 

5. Thus, we find no basis for granting the petition for review. See Armstrong v. 

Department of the Treasury, 110 M.S.P.R. 533, ¶ 10 (2009) (an attack on the 

validity of a settlement agreement must be made in the form of a petition for 

review of the initial decision dismissing the case as settled), aff’d in part, vacated 

 3 The appellant also alleges that the agency improperly deducted $1,543.85 from his 

retirement pay. B-1, Remand Petition for Review File, Tab 5 at 4. 
4

in part by Armstrong v. Department of the Treasury, 591 F.3d 1358 (Fed. Cir. 

2010); Barker v. Department of Agriculture, 100 M.S.P.R. 695, ¶ 5 (2006) 

(finding that because the appellant neither argued that the administrative judge 

erred in dismissing the appeal as settled nor challenged the validity of the 

settlement agreement by asserting that it was unlawful, involuntary, or the result 

of fraud or mutual mistake, his pleading was in substance a petition for 

enforcement).

¶6 Instead, the appellant’s petition alleges that the agency has failed to comply 

with the terms of the settlement agreement by failing to pay him for his annual 

and sick leave. RPFR File, Tab 1 at 3, Tab 5 at 4. Allegations that a party has 

failed to comply with a settlement agreement are to be raised in the first instance 

before the regional office that accepted the agreement into the record. Harris v. 

U.S. Postal Service, 59 M.S.P.R. 222, 225 (1993). Where allegations of 

noncompliance are raised for the first time before the full Board, the Board will 

forward the submission to the appropriate regional office for adjudication as a 

petition for enforcement. Id.; 5 C.F.R. § 1201.182(a). 

¶7 Here, as noted above, the Board remanded the appeal to the administrative 

judge because it found that the appellant had made a nonfrivolous allegation of 

Board jurisdiction. Remand Order at 6. To be clear, the Board did not make a 

finding of jurisdiction but rather remanded the appeal to the administrative judge 

to afford the appellant an opportunity to prove jurisdiction by preponderant 

evidence. Id. On remand, the administrative judge stated that the Board had 

jurisdiction over the underlying constructive suspension appeal, but he provided 

no analysis to support that claim. 

¶8 Because the administrative judge did not make a reasoned finding regarding 

the threshold jurisdictional issue prior to dismissing the case as settled, before the 

appellant’s petition for enforcement can be resolved, the Board’s jurisdiction over 

the underlying appeal must be resolved. See Parks v. Department of Defense, 

56 M.S.P.R. 74, 76 (1992) (before dismissing a matter as settled and entering the 
5

agreement into the record, the Board must, among other things, determine 

whether it has jurisdiction over the underlying appeal). Accordingly, we 

VACATE the remand initial decision and REMAND the case to the regional 

office to make a reasoned finding regarding whether the Board has jurisdiction 

over the underlying appeal. 4

 If the administrative judge determines that the 

Board has jurisdiction, then he also shall adjudicate the appellant’s allegations of 

noncompliance with the settlement agreement.

ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board

 4 Nothing in this order, however, prevents the parties from opting not to pursue the 

issue of the Board’s jurisdiction and instead settling the appeal without entering the 

agreement into the record for enforcement purposes.