DISMISSED FOR LACK OF JURISDICTION:  May 19, 2021
CBCA 6929
KHALIL BUGHIO,
Appellant,
v.
AGENCY FOR GLOBAL MEDIA,
Respondent.
Khalil Bughio, pro se, Alexandria, VA.
Maryellen Righi and James McLaren, Office of General Counsel, Agency for Global
Media, Washington, DC, counsel for Respondent.
Before Board Judges SULLIVAN, LESTER, and O’ROURKE.
O’ROURKE, Board Judge.
Respondent, the United States Agency for Global Media, seeks dismissal of this
appeal for lack of jurisdiction based on the contracting officer’s conversion of the
termination for cause to one for the convenience of the Government.  The conversion
rendered the appeal moot, and there is no longer a dispute before the Board.  Appellant,
Khalil Bughio, does not oppose the motion, but requested we dismiss the appeal with
prejudice.  With no dispute to decide, we dismiss the appeal for lack of jurisdiction.
Background
In January 2020, respondent awarded appellant a contract to work as an international
multimedia journalist with Voice of America (VOA).  In mid-August of that year, the agency
contracting officer issued a show cause notice to appellant for purportedly violating certain
provisions of his contract, including failing to comply with VOA’s Journalistic Code, Best
Practices Guide, Charter, and a personal services contractor (PCS) handbook.  Appellant


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denied the allegations, stating that he followed the correct procedures and complied with all
codes and directives.  Notwithstanding appellant’s protestations, the agency contracting
officer found that his actions were not beyond his fault or were negligent and terminated
appellant’s contract for cause on August 25, 2020.  Appellant appealed the termination,
insisting that he performed the contract in accordance with its terms and conditions and
noting his long history of compliance as a contract journalist with VOA.
After submission of the pleadings and the appeal file, the parties expressed a mutual
desire to engage in settlement discussions, and the Board issued a stay of proceedings to
accommodate their request.  On March 26, 2021, the agency filed a motion to dismiss the
appeal for lack of jurisdiction.  In its motion, the agency stated that the contracting officer’s
final decision had been withdrawn, and that the contracting officer had converted the
termination for cause to one for the convenience of the Government, rendering the appeal
moot.
The Board’s order of March 31, 2021, gave appellant thirty days to respond to the
motion.  However, appellant responded the same day (March 31, 2021), acknowledging
receipt of the motion and stating, “I agree to the cited motion filed by respondent.”  Because
appellant’s response was not properly filed, the Board instructed appellant to re-file his
response using the e-file email address, which he did approximately one week later,
withdrawing his reply of March 31, 2021, and stating:
The undersigned does not oppose respondent’s Motion to Dismiss for Lack of
Jurisdiction as moot submitted on March 26, 2021.  If an additional submission
is required, please let me know. . . . Kindly forgive my lack of knowledge
about the legal procedures/requirements of this Board.  I am not represented
by Counsel.
Because appellant is self-represented, the Board scheduled a teleconference with the
parties to address appellant’s submissions and a potential reply from the agency, but the call
failed to materialize.  On April 27, 2021, the Board followed up to reschedule.  Two days
later, with no intervening teleconference, appellant asked the Board to dismiss his appeal
with prejudice since the parties had entered into a settlement agreement, a copy of which he
attached to the email.  For the reasons that follow, we dismiss the appeal for lack of
jurisdiction, not with prejudice.
Discussion
The parties, perhaps unintentionally, seek different dispositions of this appeal.  While
both paths will result in removing the appeal from the Board’s docket, our only recourse here
is to dismiss the appeal for lack of jurisdiction.  As the Board stated in Mubashir Ali v.
Agency for Global Media, CBCA 6914 (Feb. 24, 2021):

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The contracting officer has withdrawn the default termination that appellant
appealed and replaced it with a termination for convenience.  The withdrawal
of the termination for default is irrevocable.  Avue Technologies Corp. v.
Agency for Global Media, CBCA 6752, et al., 20-1 BCA ¶ 37,639. 
Conversion of the default termination to a termination for convenience is the
only relief that the Board could have granted in the appeal.  Universal Home
Health & Industrial Supplies, Inc. v. Department of Veterans Affairs, CBCA
4012, et al., 16-1 BCA ¶ 36,370.  With this conversion, there is no remaining
dispute that the Board has jurisdiction to address.  Avue Technologies; H.H.
Christian Co., AGBCA 82-120-1, 83-1 BCA ¶ 16,335.
Appellant, a self-represented litigant, asks the Board to dismiss the appeal with
prejudice, but also states that he does not oppose the agency’s motion to dismiss the appeal
for lack of jurisdiction.  “Any dismissal for lack of jurisdiction is, by necessity, without
prejudice” because, “[w]ithout jurisdiction, we lack the ability to render a merits
determination and therefore ‘cannot presume to dismiss the complaint,’ or the appeal, ‘with
prejudice.’”  SRA International, Inc. v. Department of State, CBCA 6563, 20-1 BCA
¶ 37,543 (quoting Scott Aviation v. United States, 953 F.2d 1377, 1378 (Fed. Cir. 1992)). 
Conversely, “when mootness results from a bilateral settlement through which ‘the claims
are permanently withdrawn, “a dismissal with prejudice is indicated.”’”  Muhammad v.
Department of Justice, CBCA 5188, 16-1 BCA ¶ 36,541.  Appellant has provided us with
a copy of a settlement agreement that he signed three weeks after the agency filed its motion
to dismiss, but that, as far as we can tell, the agency has not yet executed.  When the agency
filed its motion, however, there was no settlement, and the case had become moot because
of the contracting officer’s irrevocable action in converting the default termination into one
for convenience.  “Once we are aware that we lack jurisdiction to entertain an appeal, we
have ‘no other recourse but to dispose of the case by dismiss[ing]’ it based upon the
jurisdictional defect.”  Duke University v. Department of Health & Human Services, CBCA
5992, 18-1 BCA ¶ 37,023.
To the extent that appellant is concerned that the dismissal order does not protect him
against future action by the agency because it does not use the words “with prejudice,” we
can assure him that the agency cannot undo the conversion of his termination to one for
convenience, Mubashir Ali, and that the form of this dismissal has no effect on the
enforceability of any settlement that he is or has been able to negotiate with the agency.

CBCA 6929 4
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
   Kathleen J. O’Rourke    
KATHLEEN J. O’ROURKE
Board Judge
We concur:
   Marian E. Sullivan              Harold D. Lester, Jr.      
MARIAN E. SULLIVAN HAROLD D. LESTER, JR.
Board Judge Board Judge