Gamal Kalini v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAMAL A. KALINI, DOCKET NUMBERS
Appellant, SF-1221-21-0056-C-2
SF-1221-21-0056-X-1
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: February 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cindi Fox , Esquire, Berkeley, California, for the appellant.
Laura Heller , Esquire, and Michael Halperin , Monterey, California, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a motion to vacate the compliance initial decision,
which granted, in part, and denied, in part, the appellant’s petition for
enforcement, to enter a settlement agreement into the record for enforcement
purposes, and to dismiss the proceedings as settled. For the reasons set forth
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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below, we JOIN the matters listed above, 2 REOPEN Kalini v. Department of the
Army, MSPB Docket No. SF-1221-21-0056-C-2, on the Board’s own motion
under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118, VACATE the Board’s
final compliance decision, and DISMISS both matters as settled.
¶2 In October 2020, the appellant filed an individual right of action appeal.
Kalini v. Department of the Army, MSPB Docket No. SF-1221-21-0056-W-1,
Initial Appeal File (IAF), Tab 1. The parties reached a settlement and, thereafter,
an administrative judge issued an initial decision dismissing the appeal as settled.
IAF, Tab 30, Initial Decision. The appellant later filed a petition for
enforcement, alleging that the agency was not in compliance with the settlement
agreement. Kalini v. Department of the Army, MSPB Docket No. SF-1221-21-
0056-C-1, Compliance File (C-1 CF), Tab 1. The appellant’s petition for
enforcement was dismissed without prejudice, C-1 CF, Tab 16, and later refiled,
resulting in Kalini v. Department of the Army, MSPB Docket No. SF-1221-21-
0056-C-2, Compliance File (C-2 CF), Tab 1. In a compliance initial decision, an
administrative judge granted, in part, and denied, in part, the appellant’s petition
for enforcement. C-2 CF, Tab 10, Compliance Initial Decision (CID). The
compliance initial decision, which became final on August 18, 2022, ordered the
agency to take certain actions to come into compliance with the settlement
agreement. CID at 16-17. Thereafter, the administrative judge’s finding of
noncompliance was docketed as Kalini v. Department of the Army, MSPB Docket
No. SF-1221-21-0056-X-1, Compliance Referral File (CRF), Tab 1.
¶3 While the finding of noncompliance was pending with the Board’s Office of
General Counsel in MSPB Docket No. SF-1221-21-0056-X-1, the parties reached
a global settlement agreement. CRF, Tab 9 at 4-8. The agency filed a copy of the
2
Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and will not adversely affect the interests of
the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010);
5 C.F.R. § 1201.36(a)(2), (b). We find these appeals meet the regulatory requirement;
therefore, we join them.
3
settlement agreement in the MSPB Docket Nos. SF-1221-21-0056-X -1 and
SF-1221-21-0056-C-2 and requested to enter the agreement into the record for
enforcement purposes, to dismiss both matters, and to vacate the compliance
initial decision. 3 Id.; Kalini v. Department of the Army, MSPB Docket
No. SF-1221-21-0056-C-2, Petition for Review File, Tab 1.
¶4 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146,
149 (1988). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. CRF, Tab 9 at 7.
¶5 In addition, before accepting a settlement agreement into the record for
enforcement purposes, the Board must determine whether the agreement is lawful
on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017). We further find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Accordingly, we
find it appropriate under the circumstances to vacate the Board’s final compliance
decision, dated July 14, 2022, and dismiss the appellant’s petition for
enforcement and subsequent enforcement proceedings with prejudice to refiling
(i.e., the parties normally may not refile this appeal).
¶6 This is the final decision of the Merit Systems Protection Board in these
appeals. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
3
The appellant has not objected to the agency’s request to vacate the initial decision.
4
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS 4
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 cases 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.
4
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.
5
(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:
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
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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 security. 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 delivery or
by a method requiring a signature, it must be addressed to:
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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 Protection
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 described 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. 5 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
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.