UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

PAWAN JUNEJA, Appellant,

v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF

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DATE: June 21, 2022



### THIS ORDER IS NONPRECEDENTIAL 1

Pawan Juneja , Beverly Hills, California, pro se. Joseph Manuel Briones , Los Angeles, California, for the agency.

BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt , Member

ORDER ¶1 The appellant h as filed a petition for review of the compliance initial decision, which dismissed his petition for enforcement as moot

. For the following reasons, we GRANT the petition for review , VACATE the compliance initial decision , and find the agency in NONCOMPLIANCE

.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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

BACKGROUND ¶2 On April 23, 20 1 5, the appellant filed an individual right of action (IRA) appeal with the Board. Juneja v. Department of Veterans Affairs , MSPB Docket No. SF

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- 1, Initial Appeal File (IAF), Tab 1 at 1. On June 1 2, 2015, the parties entered into a settlement agreement in which the appellant agreed to withdraw his appeal in exchange for, among other things, the agency’s agreement to revise his Fiscal Year (FY) 2013 P roficiency R eport pursuant to explicit terms in t he agreement and remov e any references to the prior FY 2013 Proficiency Report from his Official Personn el File (OPF). IAF, Tab 11 at 2 . As a result, the administrative judge issued an initial decision dismissing the appeal as settled. Juneja v. Departm ent of Veterans Affairs , MSPB Docket No. SF

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- 1, Initial Decision (June 12, 2015). Neither party petitioned for review. ¶3 On June 29, 2016, after learning that the agency did not revise the FY 2013 Proficiency R eport or update his OPF pursuant to the agreement’s terms , the appellant filed a petition for enforcement

. Juneja v. Department of Veterans Affairs , MSPB Docket No. SF

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- 1, Compliance File (CF), Tab 1
at 3

. The appellant requested the enforcement of the settlement agreement and sanctions against the agency. Id. ¶4 In response to the petition for enforcement, the agency acknowledged that it failed to update the revised FY 2013 Proficiency Report in the appellant’s OPF but claimed that it was a technical oversight. CF, Tab 6 at 4. It asserted th at it had corrected the FY 2013 Proficiency Report in a timely manner but that it failed to upload the document to the appellant’s OPF. Id. It also asserted that it uploaded the r eport to the appellant’s OPF on July 1, 2016 , after he filed his petition for enforcement

. Id. at 5. The agency provided documentation to support its a ssertions. Id. at 7

- 12. ¶5 In the compliance initial decision, the administrative judge dismissed the appellant’s petition for enforcement as moot. Juneja v . Department of Veterans3

Affairs , MSPB Docket No. SF

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- 1, Compliance Initial Decision (CID). She found that, although the appellant’s frustration concerning the agency’s delay in complying with the settlement agreement was reasonable, the
age ncy submitted credible documentation to support its assertion of full compliance with the settlement agreement . CID at 4. She also denied the appellant’s request for sanctions. CID at 3. ¶6 The appellant has filed a petition for review, the agency has resp onded in opposition, and the appellant has replied to the agency’s opposition. Petition for Review (PFR) File, Tabs 1, 3

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DISCUSSION OF ARGUME NTS ON REVIEW ¶7 A settlement agreement is a contract, and the Board will adjudicate a petition to enforce a settl ement agreement in accordance with contract law. Allen v. Department of Veterans Affairs , 112 M.S.P.R. 659 , ¶ 7 (2009), aff’d , 420 F. App’ x 980 (Fed. Cir. 2011). When, as here, an appellant alleges noncompliance with a settlement agreement, the agency must produce relevant, material, and credible evidence of its compliance with the agreement. Id. The ultimate burden, however, remains with the appellant, as the party seeking enforcement, to prove breach by a preponderance of the evidence. Id. ¶8 On review, t he appellant’s primary challenge to the compliance initial decision is the administrative judge’s f ailure to address his argu ment that the revised FY 2013 Proficiency Report contains harmful information that constitutes a breach of the settlement agreement . PFR File, Tab 1 at 3

- 4, Tab 4 at 3 ; CF, Tab 11

. P ursuant to the agreement, the agency agreed to make certain revisions
to the FY 2013 Proficiency Report, including allowing the appellant to submit a written comment for attachment to the report in his OPF. IAF, Tab 11 at 2. Upon review of the evidence that the agency submitted in support of its compliance, however, it appea rs that it uploaded to the appellant’s OPF the written comment that he attached to his petition for enforcement , and not the written comment that4

he supplied to the agency pursuant to the agreement’s terms . CF, Tab 6 at 9. As a result, the uploaded copy of the appellant’s written comment contains the Board’s e

- Appeal information concerning the document, including the pleading number and the 2016 submission da te

. Id. The appellant argues that the agency has b reached the agreement because, by uploading the document containing the Board’s e

- Appeal information to his OPF, the agency revealed that the FY 2013 Proficiency R eport was the subject of a Board appeal . PFR File, Tab 1 at 3

- 4, Tab 4 at 3

. The appellant claims that he would be “better o ff” without the written comment uploaded by the agency because of the harmful information it contains

. PFR File, Tab 4 at 3. ¶9 A breach of a settlement agreement is material when it relates to a matter of vital importance or goes to the essence of the contract. Kitt v. Department of the Navy , 116 M.S.P.R. 680 , ¶ 11 (2011). In his IRA appeal, the appellant identified the FY 2013 Proficiency Report as the personnel action that the agency took against him in retaliation for making several protected disclosures. IAF, Tab 1
at 5

. The settlement agreement specifically called for the agency to revise the report and remove all references to the prior report from his OPF. IAF, Tab 11
at 2

. Therefore, we find that the essence of the contract was a clean record regarding the FY 2013 Proficiency Report and that , by alerting anyone who reads the report that it was the subject of a Board appeal , it essentially negates the benefit of his bargain. See King v. Department of the Navy , 130 F.3d 1031 , 1033

- 34 (Fed. Cir. 1997). Accordingly, we find that the inclusion of the

e - Appeal information on the appellant’s written comment constitutes a material breach of the agreement. See , e.g. , Kitt , 116 M.S.P.R. 680 , ¶¶ 2

– 3, 9, 11 (finding that the agency materially breached a settlement agreement by reta ining a record of the appellant’ s removal despite a provision in the agreement requiring it to change the removal to a 30

‐ day suspension). Because we find that the agency breached a material provision of the settlement agreement, the appellant is not5

required to establish that the breach caused him actual harm. See Mullins v. Department of the Air Force , 79 M.S.P.R. 206 , ¶ 13 (1998) (explaining that the breach was material not because it resulted in a monetary loss but because the breached provision was material to the agreement). ¶10 When one party commits a mat erial breach of a settlement agreement, the other party ordinarily is entitled either to enforce the settlement agreement or to rescind it and to reinstate his appeal. Kitt , 116 M.S.P.R. 680 , ¶ 12. Here, the appellant seeks enforcement of the agreement. CF, Tab 1 at 3 ; PFR File, Tab 1
at 6. Accordingly, we order the agency to remove the copy of the appellant’s written comment from h is OPF that it uploaded initially and replace it with a clean copy of his written comment; that is, a copy that does not include the Board’s e

- Appeal information

. ¶11 The appellant again seeks the imposition of sanctions against the agency for its failure to c omply with the settlement agreement. PFR File, Tab 1 at 6. We find , however, that sanctions are not warranted at this time. See, e.g. , Mercado v. Office of Personnel Management , 115 M.S.P.R. 65 , ¶ 8 (2010). ¶12 Because we have found the agency in noncompliance, the agency is directed to file evidence of complia nce with the Clerk of the Board, and the appellant will be afforded the opportunity to respond to that evidence. The appellant’ s petition for enforcemen t will be referred to the Board’ s Office of General Counsel, and, depending on the nature of the submis sions, an attorney with the Office of General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual in good faith. Because the purpose of the proceeding is to obtain complian ce, when appropriate, an Office of General Counsel attorney or paralegal may engage in ex parte communications to, among other things, better understand the evidence of compliance and any objections to that evidence. Thereafter, the Board will issue a fin al decision fully addressing the appellant’ s petition for review of t he6

compliance initial decision and setting forth the appellant’ s further appeal rights and the right to attorney fees, if applicable

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ORDER ¶13 We ORDER the agency to submit to the Clerk of the Board within 45 days of the date of this Order satisfactory evidence of compliance. This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), includi ng submission of evidence and a narrative statement of compliance. The agency’ s submission shall demonstrate that it removed the appellant’s written comment from his OPF and replaced it with a clean copy, as set forth above

. The agency must serve all par ties with copies of its submission

. ¶14 The agency’s submission should be filed under the new docket number assigned to this compliance referral matter, MSPB Docket No. SF

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- 1 . All subsequent filings should refer to the compliance referral docket number set forth above and should be faxed to (202) 653

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U.S. Merit Systems Protection Board 1615 M Street, N.W. Washington, D.C. 20419 Submissions also may be made by electronic filing at the Boa rd’s e

- Appeal site (https://e

- appeal.mspb.gov) in accordance with its regulation at 5 C.F.R. § 1201.14

. ¶15 The appellant may respond to the agency’s evidence of compliance within 20 days of the date of service of the agency’s submission. 5 C.F.R. § 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of compliance, the Board may assume that he is satisfied with the agency’s actions and dismiss the petition for enforcement.

2 The subsequent decision may incorporate the analysis and findings set forth in this Order

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¶16 The agency is reminded that, if it fails to provide adequate evidence of compliance, the responsib le agency official and the agency’s representative may be required to appear before the General Counsel of the Merit Systems Protection Board to show cause why the Board should not impose sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183 (c ). The Board’s authority to impose sanctions includes the authority to order that the responsible agency official “shall not be entitled to receive payment for service as an em ployee during any period that the order has not been complied with.” 5 U.S.C. § 1204 (e)(2)(A). ¶17 This Order does not constitute a final order and therefore is not subject to judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of the remaining issues in the petition for enforcement, a final order shall be issued, which then shall be subject to judicial review.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board