Soliman v. United States ( 2018 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAHER SOLIMAN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2529
______________________
Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00018-LKG, Judge Lydia Kay
Griggsby.
______________________
Decided: February 6, 2018
______________________
MAHER SOLIMAN, San Francisco, CA, pro se.
ANDREW JAMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., DEBORAH A. BYNUM.
______________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
2 SOLIMAN v. UNITED STATES
PER CURIAM.
Maher Soliman (“Soliman”) appeals from the decision
of the United States Court of Federal Claims (“the Claims
Court”) dismissing his complaint for lack of subject-
matter jurisdiction and failure to state a claim upon
which relief can be granted. See Soliman v. United
States, No. 17-18C, 2017 WL 3634240 (Fed. Cl. Aug. 24,
2017) (“Opinion”). For the reasons that follow, we affirm.
BACKGROUND
Soliman is a former State Department employee who
served as a legal advisor in the State Department’s Iraqi
Transition Assistance Office (“ITAO”). Executive Order
13,431 established ITAO as a temporary office to support
the United States in “concluding remaining large infra-
structure projects expeditiously in Iraq, in facilitating
Iraq’s transition to self-sufficiency, and in maintaining an
effective diplomatic presence in Iraq.” Exec. Order No.
13,431, 72 Fed. Reg. 26,709 (May 8, 2007). ITAO person-
nel were hired pursuant to 5 U.S.C. § 3161, id., which
authorizes appointment of personnel to a temporary
organization within the government.
On April 30, 2009, the State Department confirmed
Soliman’s “temporary excepted appointment” as a “PRT
Rule of Law Senior Advisor” in the ITAO for a term
effective May 14, 2009 and not to exceed June 13, 2010.
Appellee Appendix (“A.A.”) 27. The State Department
terminated Soliman’s “temporary appointment” with the
ITAO effective December 2, 2009. A.A. 28.
In 2010, Soliman initiated unsuccessful Equal
Employment Opportunity Commission proceedings
against the State Department alleging discrimination in
connection with his termination. In 2013, Soliman filed
suit against the government in the United States District
Court for the District of Columbia (“D.C. District Court”)
challenging the termination of his employment on multi-
SOLIMAN v. UNITED STATES 3
ple grounds, including breach of contract. The district
court dismissed Soliman’s breach of contract claim. See
Soliman v. Kerry, No. 16-5155, 2016 WL 6238578, at *1
(D.C. Cir. Sept. 22, 2016). On appeal, the United States
Court of Appeals for the District of Columbia vacated the
district court’s dismissal of the breach of contract claim
and remanded with instructions to transfer Soliman’s
breach of contract claim to the Claims Court. Id.
On January 23, 2017, Soliman filed an amended
complaint in the Claims Court alleging that the govern-
ment “terminated its employment contract with [Soliman]
without a cause or due process and breached its contract
with [Soliman]” and seeking damages, including “back
pay,” in excess of $10,000. A.A. 18, 20–22. The govern-
ment filed a motion to dismiss the amended complaint.
After briefing on the motion to dismiss concluded, So-
liman filed a document titled “Plaintiff’s Request for
Judicial Notice in Support of Opposition to Defendant’s
Motion to Dismiss for Lack of Jurisdiction or, in the
Alternative[,] for Failure to State a Claim” (“Plaintiff’s
Request”). A.A. 33. Plaintiff’s Request included the
statement: “If the court finds that [Soliman’s] exhibits to
his Amended Complaint insufficient [to] substitute for
detailed allegations, [Soliman] respectfully request[s] a
leave to amend pursuant to Rule 15(a) to add detailed
factual allegations.” A.A. 41–42. The Claims Court never
issued an order addressing Soliman’s conditional request.
The Claims Court then granted the government’s mo-
tion to dismiss the amended complaint for lack of subject
matter jurisdiction and failure to state a claim upon
which relief can be granted. The court held that it lacked
subject matter jurisdiction over Soliman’s breach of
contract claim because he had not established the exist-
ence of a valid contract with the government. Opinion,
2017 WL 3634240, at *8. The court explained that the
undisputed facts, including Soliman’s own documents,
4 SOLIMAN v. UNITED STATES
“demonstrate that [Soliman’s] employment with the ITAO
was by appointment rather than pursuant to an employ-
ment contract,” and that he “fail[ed] to identify any legis-
lation that would overcome the presumption that his
employment was by appointment.” Id. at *6–7. The court
held that Soliman failed to state a plausible back pay
claim because “he was not a government employee during
the time period that he seeks to recover back pay.” Id. at
*8.
Soliman timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review the Claims Court’s decision to dismiss a
claim for lack of subject matter jurisdiction de novo.
Waltner v. United States, 679 F.3d 1329, 1332 (Fed. Cir.
2012). A plaintiff bears the burden of establishing juris-
diction by a preponderance of the evidence, Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and
the leniency afforded pro se litigants with respect to mere
formalities does not relieve them of jurisdictional re-
quirements, Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d
1378, 1380 (Fed. Cir. 1987).
The Tucker Act provides the Claims Court with juris-
diction over claims “against the United States founded
either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any
express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act is “only a
jurisdictional statute; it does not create any substantive
right enforceable against the United States for money
damages.” United States v. Testan, 424 U.S. 392, 398
(1976). “Instead, to invoke jurisdiction under the Tucker
Act, a plaintiff must identify a contractual relationship,
constitutional provision, statute, or regulation that pro-
SOLIMAN v. UNITED STATES 5
vides a substantive right to money damages.” Khan v.
United States, 201 F.3d 1375, 1377 (Fed. Cir. 2000).
We first address Soliman’s claims relating to termina-
tion of his employment. Soliman argues that the Claims
Court erred in holding that it did not have jurisdiction
over his breach of contract, back pay, and due process
claims. Soliman contends that the May 14, 2009 Stand-
ard Form 50 (“May 2009 SF50”) relied on by the court was
“fraudulent.” Appellant Br. 19. Soliman argues that the
government violated his due process rights and his rights
pursuant to Chapter 75 of Title 5 in terminating his
employment.
The government responds that the Claims Court cor-
rectly concluded that it lacks jurisdiction over Soliman’s
breach of contract claim. The government contends that
the court correctly found that Soliman failed to rebut the
presumption that his employment was by appointment,
not contract. The government argues that the May 2009
SF50 was not a forgery and not necessary to the Claims
Court’s decision. The government contends that the court
properly dismissed Soliman’s back pay claims for failure
to state a claim, not lack of subject matter jurisdiction. 1
We agree with the government that the Claims Court
properly concluded that it lacked jurisdiction to adjudi-
cate Soliman’s breach of contract claim. There is a “well-
established principle that, absent specific legislation,
federal employees derive the benefits and emoluments of
their positions from appointment rather than from any
contractual or quasi-contractual relationship with the
1 The Claims Court did not dismiss Soliman’s back
pay claim for lack of jurisdiction. See Opinion, 2017 WL
3634240, at *7–8. Soliman does not appear to challenge
the court’s ruling that he failed to state a plausible back
pay claim.
6 SOLIMAN v. UNITED STATES
government.” Chu v. United States, 773 F.2d 1226, 1229
(Fed. Cir. 1985) (emphasis added). Although “Tucker Act
jurisdiction may be premised on an employment contract,”
Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728,
735 (1982) (citing United States v. Hopkins, 427 U.S. 123,
126 (1976)), if an employee’s “employment was by ‘ap-
pointment,’ a breach of contract action against the gov-
ernment would be precluded,” Hamlet v. United States,
873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989). Whether an
employee serves by appointment or contract depends on
an analysis of the relevant statutes and regulations and
whatever evidence is adduced as to an employee’s particu-
lar status. Hopkins, 427 U.S. at 130.
Here, “[n]othing in the record rebuts the presumption
that a federal employee is employed by appointment and
not by contract or quasi-contract.” Hamlet v. United
States, 63 F.3d 1097, 1102 (Fed. Cir. 1995). Executive
Order 13,431 established the ITAO as a “temporary
organization” “in accordance with section 3161 of title 5,
United States Code.” Section 3161 authorizes “the head
of a temporary organization [to] appoint persons to posi-
tions of employment . . . .” 5 U.S.C. § 3161(b)(1) (empha-
sis added). The documents submitted by Soliman confirm
that his employment was by “appointment.” See Amend-
ed Complaint Ex. B (A.A. 25) (position described as “Full
Time Temporary Excepted Appointment NTE 13
months”), Ex. C (A.A. 27) (“We are pleased to confirm your
temporary excepted appointment . . . .”), Ex. D (same), Ex.
E (A.A. 28) (“Please be advised that your temporary
appointment with the [ITAO] is being terminated . . . .”)
(emphases added). 2 The Claims Court thus correctly
2 We need not reach Soliman’s allegations relating
to the May 2009 SF50 because it was unnecessary to the
Claims Court’s decision. The court determined that
Soliman’s “own documents show that he had been em-
SOLIMAN v. UNITED STATES 7
dismissed the breach of contract claim for lack of jurisdic-
tion. See Sheehan, 456 U.S. at 738, 741 (explaining “all
the evidence in the record is to the effect that respondent
was appointed to his positions” and holding “[b]ecause . . .
respondent was [not] hired pursuant to an express em-
ployment contract, we find that the Tucker Act did not
confer jurisdiction over respondent’s claims for monetary
relief”); Hamlet, 63 F.3d at 1102 (holding appellant’s
employment was by appointment and, “[t]hus, [appel-
lant’s] breach of contract count . . . cannot provide for
jurisdiction under the Tucker Act”).
The Claims Court also did not err in not exercising ju-
risdiction over Soliman’s due process claims. The Claims
Court lacks jurisdiction over claims based on the Due
Process clauses of the Fifth and Fourteenth Amendments
because they are not “money-mandating.” LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (The
“Due Process Clauses of the Fifth and Fourteenth
Amendments” are not “a sufficient basis for jurisdiction
because they do not mandate payment of money by the
government.”).
Similarly, Soliman’s argument based on Chapter 75 of
Title 5 is not well taken. Soliman does not appear to have
raised this issue before the Claims Court. Even where a
party appears pro se, “[i]ssues not properly raised before
the [trial] court are waived on appeal.” Stauffer v. Brooks
Bros. Grp., 758 F.3d 1314, 1322 (Fed. Cir. 2014). Moreo-
ver, the Claims Court does not have jurisdiction over
claims brought pursuant to Chapter 75 of Title 5, see 5
U.S.C. § 7513(d) (“An employee against whom an action is
taken under this section is entitled to appeal to the Merit
Systems Protection Board under section 7701 of this
ployed with the ITAO by appointment.” Opinion, 2017
WL 3634240, at *6. The court merely referred to the May
2009 SF50 as “reinforce[ing]” its determination. Id.
8 SOLIMAN v. UNITED STATES
title.”), or personnel actions covered by that chapter, see
United States v. Fausto, 484 U.S. 439, 447 (1988) (“In the
context of the entire statutory scheme, we think it dis-
plays a clear congressional intent to deny the excluded
employees the protections of Chapter 75—including
judicial review—for personnel action covered by that
chapter.”); Bosco v. United States, 931 F.2d 879, 883 (Fed.
Cir. 1991), adhered to on reh’g, 976 F.2d 710 (Fed. Cir.
1992) (explaining that in Fausto the Supreme Court held
that the Civil Service Reform Act “was the only means of
review as to the types of adverse personnel action specifi-
cally covered by the [Civil Service Reform Act]”).
Soliman additionally argues that the Claims Court
erred in not sua sponte transferring the case to another
court pursuant to 28 U.S.C. § 1631, and in denying his
request for leave to amend his complaint pursuant to Rule
15. The government responds that § 1631 did not require
the Claims Court to transfer Soliman’s claims and it was
within its discretion to dismiss them. The government
argues that the Claims Court did not abuse its discretion
in not addressing his request to amend, which was not
properly raised, and that the proposed amendment would
have been futile.
We agree with the government that 28 U.S.C. § 1631
did not require the Claims Court to transfer this case.
Section 1631 provides in relevant part:
Whenever a civil action is filed in a court as de-
fined in section 610 of this title . . . and that court
finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer
such action . . . to any other such court in which
the action . . . could have been brought at the time
it was filed or noticed . . . .
28 U.S.C. § 1631 (emphases added). Section 610 defines
“court” as “the courts of appeals and district courts of the
United States, the United States District Court for the
SOLIMAN v. UNITED STATES 9
District of the Canal Zone, the District Court of Guam,
the District Court of the Virgin Islands, the United States
Court of Federal Claims, and the Court of International
Trade.” 28 U.S.C. § 610.
Soliman has not identified another court in which this
action could have been brought, and we are aware of
none. Soliman’s contract termination claims exceed
$10,000 in damages and thus are not within the jurisdic-
tion of any district court. See 28 U.S.C. § 1346(a)(2).
Indeed, the D.C. District Court previously transferred the
breach of contract claim to the Claims Court. Additional-
ly, no trial level “court” as defined in 28 U.S.C. § 610 has
jurisdiction over claims pursuant to Chapter 75 of Title 5.
See 5 U.S.C. § 7513(d). Thus, the Claims Court did not
err in not transferring this case.
The Claims Court also did not err in not granting So-
liman leave to amend his complaint. Assuming arguendo
that Soliman made a proper request for leave to amend
the complaint, his request was conditioned on “the court
find[ing] [his] exhibits to his Amended Complaint insuffi-
cient [to] substitute for detailed allegations . . . .” A.A.
41–42. The Claims Court did not dismiss for lack of
detailed allegations. Moreover, even amending the com-
plaint to include all of the factual allegations in Plaintiff’s
Request would have been futile because those allegations
could not cure the defects identified by the Claims Court.
See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro
S.A. de C.V., 464 F.3d 1339, 1353–54 (Fed. Cir. 2006).
We have considered Soliman’s remaining arguments,
but find them unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the Claims
Court’s decision dismissing Soliman’s claims.
AFFIRMED
10 SOLIMAN v. UNITED STATES
COSTS
No costs.