Opinion

Pawan Juneja v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 21, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAWAN JUNEJA, DOCKET NUMBERS

Appellant, SF-1221-15-0504-X-1

SF-1221-15-0504-C-1

DEPARTMENT OF VETERANS

AFFAIRS, DATE: July 21, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Pawan Juneja, Beverly Hills, California, pro se.

Thomas L. Davis, Los Angeles, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 In an October 25, 2016 compliance initial decision, the administrative judge

found the agency in noncompliance with the Board’s June 12, 2015 decision

dismissing the appellant’s appeal based on a settlement agreement entered into

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the record for enforcement by the Board. Juneja v. Department of Veterans

Affairs, MSPB Docket No. SF-1221-15-0504-C-1, Compliance File (CF), Tab 12,

Compliance Initial Decision (CID); Juneja v. Department of Veterans Affairs,

MSPB Docket No. SF-1221-15-0504-W-1, Initial Appeal File (IAF), Tab 12,

Initial Decision (ID). The appellant filed a petition for review of the CID, which

the Board granted on June 21, 2022. Juneja v. Department of Veterans Affairs,

MSPB Docket No. SF-1221-15-0504-C-1, Order at 1 (June 21, 2022); Juneja v.

Department of Veterans Affairs, MSPB Docket No. SF-1221-15-0504-C-1,

Compliance Petition for Review (CPFR) File, Tab 5. The Board referred the

outstanding compliance issues to the Board’s Office of General Counsel for

further consideration, docketing the subsequent proceedings under Juneja v.

Department of Veterans Affairs, MSPB Docket No. SF-1221-15-0504-X-1,

Compliance Referral File (CRF). June 21, 2022 Order, ¶¶ 12-14; CPFR File,

Tab 5. We now JOIN these appeals for processing, and for the reasons discussed

below, we find the agency is now in compliance and DISMISS the petition for

enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the June 21, 2022 Order, the Board found that the agency was not in

compliance with the settlement agreement because it uploaded to the appellant’s

Official Personnel File (OPF) an incorrect copy of the appellant’s written

comment that he supplied to the agency pursuant to the terms of their settlement

agreement. June 21, 2022 Order, ¶¶ 7-9; CPFR File, Tab 5. As a result, the

Board ordered the agency to remove the incorrect copy of the appellant’s written

comment from his OPF and replace it with a clean copy of his written comment–

one without markings on the document indicating it was submitted through the

Board’s e-Appeal application. June 21, 2022 Order, ¶ 10; CPFR File, Tab 5.

¶3 On August 5, 2022, the agency submitted a pleading in response to the

Board’s June 21, 2022 Order. CRF, Tab 2. The agency stated that the agency

replaced the incorrect copy of the appellant’s submitted comment from his OPF

with a correct copy that did not include the Board’s e -Appeal markings on the

document, and provided evidence in support of its assertion. Id. The appellant

did not file any response to the agency’s submission.

ANALYSIS

¶4 A settlement agreement is a contract and, as such, will be enforced in

accordance with contract law. Burke v. Department of Veterans Affairs,

121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement

that has been entered into the record in the same manner as a final Board decision

or order. Id. When the appellant alleges noncompliance with a settlement

agreement, the agency must produce relevant material evidence of its compliance

with the agreement or show that there was good cause for noncompliance. Id.

The ultimate burden, however, remains with the appellant to prove breach by a

preponderance of the evidence. Id.

¶5 Here, the agency has submitted an explanation of its compliance efforts,

supported by documentary evidence. CRF, Tab 2 at 3, 5-9. The appellant has not

responded, despite the notice in the Board’s order that if he failed to respond, the

Board might assume he was satisfied and dismiss the petition for enforcement.

June 21, 2022 Order, ¶ 15; CPFR File, Tab 5. Accordingly, the Board assumes

that he is satisfied. Therefore, based on the agency’s submission and the

appellant’s lack of response, we find that the agency is now in full compliance

with the Board’s June 12, 2015 Order.

¶6 Accordingly, the Board finds that the agency is in compliance an d dismisses

the petition for enforcement. This is the final decision of the Merit Systems

Protection Board in these compliance proceedings. Title 5 of the Code of Federal

Regulations, section 1201.183(b) (5 C.F.R. § 1201.183(b)).

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which case s fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S .

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial deliver y or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protectio n

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice descri bed in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the