                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID B. GILL,                                  DOCKET NUMBER
                         Appellant,                  DA-3443-14-0096-B-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: June 11, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

                  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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.




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.
