Soliman v. United States ( 2017 )


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    In the United States Court of Federal Claims
    No. 17-18C
    Filed August 24, 2017
    NOT FOR PUBLICATION F| L E D
    AUG 2 h 2017
    )
    MAHER soLIMAN, ) U-S¢ COURT OF
    ) FEDERAL CLA!MS
    Plaintiff, )
    ) Pro Se; RCFC 12(b)(1); RCFC 12(b)(6);
    V. ) Subj ect-Matter Jurisdiction; Failure to
    ) State a Claim.
    THE UNITED STATES, )
    )
    Defendant. )
    )
    Maher Soliman, San Francisco, CA, plaintiff pro se.
    Shari A. Rose, Senior Trial Counsel, Deborah A. Bymzm, Assistant Director, Robert E.
    K:.'rschman, Jr. , Director, Chad A. Readler, Acting Assistant Attorney General, Commercial
    Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
    defendant
    MEMORANDUM OPINI()N AND ORDER
    GRlGGSBY, .ludge
    I. INTRODUCTION
    Plaintiffpro se, Maher Soliman, brought this action seeking to recover damages and back
    pay for the government’s alleged breach of an employment contract by and between plaintiff and
    the United States Department of State (the “State Department”). The government has moved to
    dismiss this matter for lack of subject-matter jurisdiction and for failure to state a claim upon
    Which relief may be granted, pursuant to Rules lZ(b)(l) and (b)(6) of the Rules of the United
    States Court of Federal Claims (“RCFC”). For the reasons set forth below, the Court GRANTS
    the government’s motion to dismiss
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    II. FACTUAL AND PROCEDURAL BACKGROUND1
    A. Factuai Background
    Plaintiffpro se, Maher Soliman, is a former State Department employee Who served as a
    Rule of LaW Senior Advisor in the State Department’s Iraqi Transition Assistance Offlce
    (“ITAO”). Compl ii 9. Following the termination of his employment, plaintiff filed an
    employment discrimination and breach of contract lawsuit against the State Departrnent in the
    United States District Court for the District of Columbia. 
    Id. 1[ 17.
    The district court
    subsequently transferred plaintiffs breach of contract claim to this Court. Ia’. 11 18. In this case,
    plaintiff Seeks to recover, among other things, back pay and damages as compensation for the
    alleged breach of this employment contract Compl. at Prayer for Relief.
    1. Plaintiff’s Employment History And The ITAO
    In April 2009, plaintiff applied for a Rule of LaW Senior Advisor position With the State
    Department. 
    Id. ii 9.
    The position Was to be based in Iraq and located Within the ITAOea
    temporary office created by executive order to support the United States in “concluding
    remaining large infrastructure 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).
    All ITAO personnel are hired pursuant to 5 U.S.C. § 3161, Which authorizes the
    appointment of personnel to “temporary organizations” Within the government Id.; 5 U.S.C. §
    3 l6l(a) (2012); Def. Mot. at 4. On April 30, 2009, the State Department informed plaintiff by
    letter that he had been accepted for the Rule of LaW Senior Advisor position. See Pl. Ex. D.
    This letter states that plaintiff Will receive a “temporary excepted appointment” to the State
    Department and that the appointment Would begin on May 14, 2009. 
    Id. On May
    14, 2009, the Secretary of State issued a Standard Form 50 entitled “Notification
    of Personnei Action” to plaintiff Def. Ex. A. The form provides that the nature of the action is
    f The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
    (“Compl.”) and the exhibits thereto (“Pl. Ex.”), the government’s motion to dismiss (“Def. Mot.”) and the
    appendix thereto (“Def. App.”)', and plaintiffs response and opposition to the government’s motion to
    dismiss (“Pl. Resp.”).
    “Exc Appt NTE 06-13~2010,” indicating that plaintiff Will receive an excepted appointment for a
    period that Would not exceed June 13, 2010. Id.; Pl. Ex. D at l. The Standard Form 50 also
    provides in the “Remarks” section that “your appointment may be terminated at any time.” 
    Id. Several months
    after plaintiff began Worl<, the State Department terminated plaintiffs
    employment, effective December 2, 2009. Compl. ii 14; Pl. Ex. E. in connection With the
    termination, the State Department issued another Standard Form 50 on December 2, 2009. Pi.
    Resp. at Ex. F. 'I``his form provides that the nature of the action is a “termination,” and the form
    also contains an explanation of post»termination benefits and procedures Def. Ex. A.
    2. Plaintiff’s EEO Claim And District Court Litigation
    ln early 20l0, plaintiff brought an unsuccessful claim against the State Department
    before the Equal Employment Opportunity Commission alleging employment discrimination in
    connection With the termination of his employmentl See So!iman v. Kerry, 
    177 F. Supp. 3d 182
    ,
    187 (D.D.C. 2014). On February 4, 2013, plaintiff filed an employment discrimination and
    breach of contract action against the government challenging the termination of his employment
    in the United States District Court for the District of Columbia. See Solimcm, 177 F. Supp. at
    l89. The district court dismissed some of plaintiffs claims in that case, including the breach of
    contract claim, and the district court ultimately granted the government’s motion for summary
    judgment on the remaining employment discrimination claims. 
    Solz'man, 177 F. Supp. 3d at 184
    ~
    85.
    After plaintiff appealed to the United States Court of Appeals for the District of
    Colurnbia Circuit, the D.C. Circuit vacated the district court’s decision and remanded the matter
    to the district court With instructions to transfer plaintiffs breach of contract claim to this Court.
    Soliman v. Ker'ry, No. 16-5155, 
    2016 WL 6238578
    (D.C. Cir. Sept. 22, 2016). Plaintiff
    commenced this action on January 23, 2017.
    B. Procedural Background
    Plaintiff filed the transfer complaint in this matter on lanuary 23, 2017. See generally
    Compl. On March 27, 2017, the government filed a motion to dismiss the complaintl See
    generally Def. Mot.
    On April 24, 2017, plaintiff filed a response and opposition to the government’s motion
    to dismiss See generally Pl. Resp. On May ll, 2017, the government filed a reply in support of
    its motion to dismiss See generally Def. Reply. On May lS, 2017, the Court granted the
    government leave to file a corrected reply in support of its motion to dismiss See Order
    Granting Leave for l\/[otion for Leave to File Corrected Reply and Supplemental Appendix. On
    May 30, 2017, plaintiff filed a request for judicial notice by leave of the Court. See Plaintiffs
    Request for ludicial Notice.
    These matters having been fully briefed, the Court resolves the pending motion to
    dismiss
    IH. LEGAL STANDARDS
    A. Pro Se Litigants
    Plaintiff is proceeding in this matter pro se. The Court recognizes that parties proceeding
    pro se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner,
    
    404 U.S. 519
    , 520~2l (1972) (holding that pro se complaints are held to “less stringent standards
    than formal pleadings drafted by lawyers”). Nonetheless, “[w]hile a court should be receptive to
    pro se plaintiffs and assist them, justice is ill-served When a jurist crosses the line from finder of
    fact to advocate.” Demes v. United Stafes, 
    52 Fed. Cl. 365
    , 369 (2002). And so, the Court may
    excuse ambiguities in plaintiffs complaint, but the Court does not excuse the complaint’s
    failures See Henlce v. United States, 
    60 F.3d 795
    , 799 (Fed. Cir. 1995).
    The Supreme Court has also recognized that, “{e]ven a skilled lawyer who represents
    himself is at a disadvantage in contested litigation,” because “[h]e is deprived of the judgment of
    an independent third party in framing the theory of the case . . . and in making sure that reason,
    rather than emotion, dictates the proper tactical response to unforeseen developments in the
    courtroom.” Kay v. Ehrler, 
    499 U.S. 432
    , 437 (l991). And so, where, as is the case here, a pro
    se plaintiff is an attomey, the Court may afford plaintiff the same leeway customarily granted to
    all pro se plaintiffs Al)bas v. United States, 
    124 Fed. Cl. 46
    , 50 (2015); but see Harrz'son v.
    United Stares, 
    120 Fed. Cl. 53
    3, 536 n.l (2015).
    i
    |
    |
    l
    l
    §
    §
    l
    B. RCFC 12(b)(1)
    When deciding a motion to dismiss for lacl< of subject~matter jurisdiction, this Court must
    assume that all undisputed facts alleged in the complaint are true and must draw all reasonable
    inferences in the non-movant’s favor. See Erickson v. Paralas, 
    551 U.S. 89
    , 94 (2007); United
    Pac. Ins. Co. v. United States, 
    464 F.3d 1325
    , 1327-28 (Fed. Cir. 2006); RCFC 12(b)(l).
    Plaintiff bears the burden of establishing subject~matter jurisdiction, and must do so by a
    preponderance of the evidence. Reynola's v. Army & Air F arce Exch. Serv., 
    846 F.2d 746
    , 748
    (Fed. Cir. 1988). And so, should the Court determine that “it lacks jurisdiction over the subject
    matter, it must dismiss the claim.” Mallhews v. United States, 
    72 Fed. Cl. 274
    , 278 (2006).
    ln this regard, the United States Court of Federal Claims is a court of limited jurisdiction
    and “possess[es] only that power authorized by Constitution and statute.” Kokkanen v. Guara'ia.n
    Life Ins. Co. ofAm. , 
    511 U.S. 375
    , 377 (1994). Specifically, the Tucker Act grants the Court
    jurisdiction over:
    [A]ny claim 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. § l491(a)(l) (2012). The Tucker Act, however, is “a jurisdictional statute; it does not
    create any substantive right enforceable against the United States for money damages . . . . [T]he
    Act merely confers jurisdiction upon [the United States Court of Federal Claims] Whenever the
    substantive right exists.” United Stales v. Teslan, 
    424 U.S. 392
    , 398 (1976). And so, to come
    within the jurisdictional reach and waiver of the Tucker Act, a plaintiff must identify a separate
    source of substantive law that creates the right to money damages Fisher v. United States, 
    402 F.3d 1167
    , 1172 (Fed. Cir. 2005). If the Court finds that the source of law alleged is not money-
    mandating, the Court must dismiss the case for lack of jurisdiction la'. at ll73; RCFC 12(b)(1).
    C. RCFC l2(b)(6)
    Similarly, when deciding a motion to dismiss based upon failure to state a claim upon
    which relief can be granted pursuant to RCFC 12(b)(6), this Court must assume that all
    undisputed facts alleged in the complaint are true and draw all reasonable inferences in the non-
    movant’s favor. 
    Erickson, 551 U.S. at 94
    ; see also RCFC 12(b)(6). To survive a motion to
    dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim to
    relief that is plausible on its face.” Bell Atl. Corp. v. Twoml)ly, 
    550 U.S. 544
    , 570 (2007); see
    also alsthon v. lql)al, 
    556 U.S. 662
    , 678 (2009) (citation omitted). And so, when the complaint
    fails to “state a claim to relief that is plausible on its face,” the Court must dismiss the complaint
    
    Iql)al, 556 U.S. at 678
    . On the other hand, “[w]hen there are Well-pleaded factual allegations a
    court should assume their veracity” and determine whether it is plausible, based upon these facts,
    to find against defendant Ia’. at 679.
    D. Contracts With The United States
    The Tucl463 U.S. 206
    , 218 (1983) (citing Merritt v. United
    States, 
    267 U.S. 338
    , 341 (1925)); AbOO v. United States, 
    86 Fed. Cl. 618
    , 626 a]j”d, 347 F.
    App’x 581 (Fed. Cir. 2009). And so, to bring a valid contract claim against the United States in
    this Court, plaintiff must establish either an express or implied-in-fact contract with the
    government 
    Al)oo, 86 Fed. Cl. at 626
    . Such a contract claim must also be for “actual, presently
    due money damages . . . .” King v. United Stales, 
    395 U.S. 1
    , 3 (1969); see also Speea' v. United
    States, 
    97 Fed. Cl. 58
    , 66 (2011).
    in addition, plaintiff bears the burden of proving the existence of a contract With the
    United States, and plaintiff must show that there is “sornething more than a cloud of evidence
    that could be consistent with a contract to prove a contract and enforceable contract rights.” D &
    N Bank v. United States, 
    331 F.3d 1374
    , 1377 (Fed. Cir. 2003). To establish the existence of
    either an express or implied-in-fact contract with the United States, a plaintiff must show: (1)
    mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4)
    actual authority to bind the government in contract on the part of the government official Whose
    conduct is relied upon. Kam-Almaz v. United States, 
    682 F.3d 1364
    , 1368 (Fed. Cir. 2012); Ciry
    ofEl Cem‘ro v. United Slates, 
    922 F.2d 816
    , 820 (Fed. Cir. 1990). A government official’s
    authority to bind the United States must be express or implied. Roy v. United Srares, 
    38 Fed. Cl. 184
    , l87-89, dismissed 
    124 F.3d 224
    (Fed. Cir. 1997). And so, “the [g}overnment, unlike
    private parties, cannot be bound by the apparent authority of its agents.” 
    Id. at 187.
    in this regard, a government official possesses express actual authority to bind the United
    States in contract “only when the Constitution, a statute, or a regulation grants it to that agent in
    unambiguous terms.” Jumah v. United Stales, 
    90 Fed. Cl. 603
    , 612 (2009) affd, 385 F. App’x
    987 (Fed. Cir. 2010) (internal citations omitted); see also El 
    Centro, 922 F.2d at 820
    . On the
    other hand, a government official possesses implied actual authority to bind the United States in
    contract “When the employee cannot perform his assigned tasks without such authority and when
    the relevant agency’s regulations do not grant the authority to other agency employees.” SGS-
    92-X003 v, United States, 
    74 Fed. Cl. 63
    7, 652 (2006) (citations omitted); see also Abao, 86 Fed.
    Cl. at 627 (“[Ijmplied authority is restricted to situations where ‘such authority is considered to
    be an integral part of the duties assigned to a [g]overnment employee.”’ (quoting H. Landau &
    Co. v. United States, 
    886 F.2d 322
    , 324 (Fed. Cir. 1989))). In addition, when a government
    agent does not possess express or implied actual authority to bind the United States in contract,
    the government can still be bound by contract if the contract was ratified by an official with the
    necessary authority. Jarzawsky v. United States, 
    133 F.3d 888
    , 891-92 (Fed. Cir. 1998).2
    it is also well-established that Tucker Act jurisdiction may be based up on an
    employment contract. Army & Air F arce Exch. Serv. v. Sheehan, 
    456 U.S. 728
    , 735 (1982).
    But, it is presumed 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 govermnent.” Chu v. United Slales, 
    773 F.2d 1226
    , 1229 (Fed.
    Cir. 1985). And so, the Federal Circuit has held that, if an individual's “employrnent was by
    ‘appointment,’ a breach of contract action against the government would be precluded.” Hamler
    v. United Srales, 
    873 F.2d 1414
    , l4l7 n.5 (Fed. Cir. 1989). Given this, a federal employee's
    “relationship with the government cannot be simultaneously governed by both an appointment
    and a contract.” Collier v. United Stales, 
    56 Fed. Cl. 354
    , 356 (2003).
    2 Ratiiication may take place at the individual or institutional level. SGS-92-X003 v. United States, 
    74 Fed. Cl. 63
    7, 653-54 (2006). Individual ratification occurs when a supervisor: (l) possesses the actual
    authority to contract; (2) fully knew the material facts surrounding the unauthorized action of his or her
    subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized action of the
    subordinate 
    Id. at 654
    (quoting Leanarda v. United States, 
    63 Fed. Cl. 552
    , 560 (2005)). In contrast,
    institutional ratification occurs when the government “seeks and receives the benefits from an otherwise
    unauthorized contract.” Icl.; see also Janawsky vi United States, 
    133 F.3d 888
    , 891-92 (Fed. Cir. 1998).
    E. The Back Pay Act
    Lastly, the Back Pay Act allows certain federal employees to seek restoration of
    employment benefits which have been improperly denied. The Back Pay Act provides, in
    relevant part, that:
    (1) An employee of an agency who, on the basis of a timely appeal or an
    administrative determination (including a decision relating to an unfair labor
    practice or a grievance) is found by appropriate authority under applicable law, rule,
    regulation, or collective bargaining agreement, to have been affected by an
    unjustified or unwarranted personnel action which has resulted in the withdrawal
    or reduction of all or part of the pay, allowances, or differentials of the employee~»
    (A) is entitled, on correction of the personnel action, to receive for the
    period for which the personnel action was in effect-
    (i) an amount equal to all or any part of the pay, allowances, or
    differentialsj as applicable which the employee normally would have earned or
    received during the period if the personnel action had not occurred, less any
    amounts earned by the employee through other employment during that period . . . .
    5 U.S.C. § 5596(b)(1) (2012). The Back Pay Act has generally been described as a money-
    mandating provision See Bowen v. Massachuserts, 
    487 U.S. 879
    , 907 n.42, (1988). But, the
    Federal Circuit has held that this statute “is merely derivative in application; it is not itself a
    jurisdictional statute.” United Srafes v. Cormolly, 
    716 F.2d 882
    , 887 (Fed.Cir.1983)', see also
    Contreras v. United States, 
    64 Fed. Cl. 583
    , 592 n.9 (2005) (discussing Connolly); Carroll v.
    United Srales, 
    67 Fed. Cl. 82
    , 88 (2005).
    The Federal Circuit has also held that the Back Pay Act only mandates the payment of
    money when a plaintiff identifies an “applicable law, rule, regulation, or collective bargaining
    agreement” which has been violated, leading to a reduction in pay. Worthington v. United
    Stares, 
    168 F.3d 24
    , 26 (Fed. Cir. 1999) (discussing Connolly) (“The Back Pay Act is such a
    ‘money-mandating’ statute when based on violations of statutes or regulations covered by the
    Tucker Act.”)', 
    Carroll, 67 Fed. Cl. at 85
    . And so, the Back Pay Act by itself, cannot serve as the
    exclusive basis for establishing Tucker Act jurisdiction 
    Carroll, 67 Fed. Cl. at 85
    .
    IV. LEGAL ANALYSIS
    A. The Court Does N0t Possess Jurisdiction To
    Consider Plaintiff’s Breach Of Contract Claim
    As an initial matter, the Court does not possess subject-matter jurisdiction to consider
    plaintiffs breach of contract claim, because plaintiff fails to establish the existence of a valid
    contract with the governmentl lt is well-established that the Tucker Act grants this Court
    jurisdiction to consider claims based “upon any express or implied contract with the United
    States” and that Tucker Act jurisdiction may be based upon an employment contract. 28 U.S.C.
    § l49l(a)(l); Army & Az'r Force Exch. Serv. v, Sheehan, 
    456 U.S. 728
    , 735 (1982). But, the
    Federal Circuit has also held that, “absent specific legislation, [it is presumed that] federal
    employees derive the benefits and emoluments of their positions from appointment rather than
    from any contractual or quasi-contractual relationship with the government.” Chu v. United
    Srales, 
    773 F.2d 1226
    , 1229 (Fed. Cir. 1985). And so, if plaintiffs “employment was by
    ‘appointment,’ a breach of contract action against the government would be precluded” in this
    case. Hamlet v. United Stales, 
    873 F.2d 1414
    , 1417 n.5 (Fed. Cir. 1989); Charnetski v. United
    Srales, ill Fed. Cl. 185, 188 (2013).
    This Court has also recognized that it must analyze the relevant statutes and regulations in
    light of other evidence presented to determine how an individual is employed by the government
    
    Charnetski, 111 Fed. Cl. at 188
    . And so, if the Court determines during this analysis that a
    federal employee serves by appointment, the Court must dismiss the employee's breach of
    contract claim for lack of subject-matter jurisdiction la’. at 188-89.
    The undisputed facts in this case demonstrate that plaintiff s employment with the lTAO
    was by appointment rather than pursuant to an employment contract. First, as the government
    correctly observes in its motion to dismiss, plaintiff points to no facts to establish that he was
    employed pursuant to a contract with the government Def. Mot. at 8 3 see also Compl. ln fact,
    the undisputed facts in this case show that plaintiff s employment was by appointment rather
    than pursuant to an employment contract. See Pl. Resp. at 17; Def. l\/lot. at 7.
    ln this regard, it is undisputed that the advertisement for the position that plaintiff
    ultimately accepted at the ITAO-which plaintiff attaches as Exhibit B to the complaint-refers to
    the position as a “full time temporary excepted appointment.” Pl. Ex. B at 1. lt is also
    undisputed that a letter from the State Department to plaintiff, dated April 30, 2009, confirming
    plaintiffs employment with the ITAOmwhich plaintiff also attaches to Exhibit C to the
    complaint-similarly refers to this position as a “temporary excepted appointment.” Pl. Ex. C. ln
    addition, a November 29, 2009, State Department letter to plaintiff terminating plaintiffs
    employment with lTAO“-which plaintiff attaches as Exhibit E to the complaint-also refers to the
    position as a “ternporary appointment”. And so, plaintiffs own documents show that he had
    been employed with the lTAO by appointment
    The fact that plaintiff had been employed by appointment is further reinforced by the
    personnel forms executed at the time of plaintiff s hiring. The Standard Form-SO that the State
    Department issued on May 14, 2009, when plaintiff commenced his employment with ITAO
    provides that the nature of the action taken is “Exc Appt NTE 06-13-2010”. Def. App. at Al.
    Plaintiff does not dispute that such a designation means that the position at issue involves an
    excepted appointment for a period of time not to exceed June 13, 2010. See generally Pl. Resp.
    The remarks section of this form also provides that, “your appointment may be terminated at any
    time”. Ia’. Plaintiff does not dispute this salient fact.3 See generally Pl. Resp. And so, the
    undisputed facts in this case reflect the appointive nature of plaintiffs employment with the
    lTAO. See Piper v. United States, 
    90 Fed. Cl. 498
    , 505 (2009) (considering a similarly worded
    SF-50 and finding that “[t]he language of the SF450 explicitly reflects the appointive nature of
    plaintiffs empioyment”).
    Plaintiff also fails to identify any legislation that would overcome the presumption that
    his employment was by appointment As the government notes in its motion to dismiss, the
    ITAO has been established pursuant to Executive Order 13,431, which President George W.
    Bush signed on May 8, 2007. Def. Mot. at 4; Exec. Order No. 13,431, 72 Fed. Reg. 26,709 (l``\/Iay
    8, 2007). Executive Order 13,431 establishes lTAO as a temporary organization “in accordance
    with section 3l61 of title 5, United States Code”. Notably, Section 3161 provides that the heads
    of such organizations “may appoint persons to positions of employment” and refers to such
    3 In his response and opposition to the government’s motion to dismiss, plaintiff alleges that the May 14,
    2009, SF-50 form set forth in the appendix to the government’s motion to dismiss is a “forged document,”
    because this form differs from the SF-50 form, dated December 2, 2009, which plaintiff attaches as an
    exhibit to his response brief. Pl. Resp. at 13-14‘ But, as the government explains in its reply brief, the
    State Department issued the former document at the time plaintiff commenced his employment and the
    later document upon plaintiffs termination
    10
    employment as a “period of appointment”. 5 U.S.C. §§ 3161(b)(1)-(2), (d)(l) (emphasis
    supplied). Given this, it is not surprising that plaintiff acknowledges in his opposition to the
    government’s motion to dismiss that he was a “civilian employee serving by appointment.” Pl.
    Resp. at l7. And so, plaintiff simply has not overcome the presumption that he derived the
    benefits and emoluments of his position with the ITAO from appointment rather than from any
    contractual relationship with the government
    Because the undisputed facts in this case show that plaintiffs employment with the ITAO
    was by appointment plaintiff s breach of contract action against the government is
    jurisdictionally precluded Charnetsla`` v. United 
    States, 111 Fed. Cl. at 188
    (holding that a
    federal employee’s “relationship with the Government cannot be simultaneously governed by
    both an appointment and a contract.”). And so, the Court must dismiss this claim. RCFC
    12(b)(1).
    B. Plaintiff Fails To State A Plausible Civilian Pay Claim
    To the extent that plaintiff alleges a back pay claim based upon a money-mandating
    source of law, plaintiff also fails to state a plausible claim for relief in the complaint And so, the
    Court must dismiss plaintiffs back pay claim pursuant to RCFC l2(b)(6).
    In his response and opposition to the government’s motion to dismiss, plaintiff alleges for
    the first time that he is entitled to recover back pay from the government for the period
    December 3, 2009 to lune 13, 2010, pursuant to the Back Pay Act Pl. Resp. at 17-24. To
    support this claim, plaintiff cites a litany of pay statutes, including 5 U.S.C. § 5596 (the Back
    Pay Act), 5 U.S.C. § 5928 (Danger Pay Allowance), 5 U.S.C. § 5925 (Post Differential), 5
    U.S.C. § 5305 (Retention Bonus), 5 U.S.C. § 5924 (Post Allowance), 5 U.S.C. § 5542 (Overtime
    Pay), and 5 U.S.C. § 5755 (Supervisory Differentials). Ial.
    Generally, this Court possesses subject-matter jurisdiction to consider a claim brought
    under the Back Pay Act, when a plaintiff identifies an “applicable law, rule, regulation, or
    collective bargaining agreement” which has been violated, leading to a reduction in pay. 5
    U.S.C. § 5596(b)(1); see Worrhington v. United Stares, 
    168 F.3d 24
    , 26 (Fed. Cir. 1999)
    (discussing Connolly) (“The Back Pay Act is such a ‘money-mandating’ statute when based on
    violations of statutes or regulations covered by the Tucker Act.”); 
    Carroll, 67 Fed. Cl. at 85
    .
    11
    But, plaintiff must show that he is entitled to receive the pay that he seeks 
    Carroll, 67 Fed. Cl. at 85
    .
    When read in the light most favorable to plaintiff, the complaint shows that plaintiff fails
    to state a plausible claim for back pay. First, as the government correctly observes in its reply
    brief, plaintiff does not alleged a back pay claim in the complaint Def. Mot. at 7. Rather,
    plaintiff alleges in the complaint that the government breached an employment contract with
    plaintiff, by terminating his employment in December 2009 “vvithout cause or due process”.
    Compl. at 11 14.
    Plaintiff also does not allege that he was improperly compensated during the period of his
    government employment in the complaintl To the contrary, plaintiff acknowledges in the
    complaint that he received “a salary of $l02,721 .00 per annum; 35% salary foreign post
    differential pay; 30% danger pay; [and] “30 hours [sicj weekly pay in mandatory overtime,”
    during the period of his employment with the ITAO. Compl. at‘|l 12. And so, plaintiff does not
    allege in the complaint that he is entitled to back pay for the period of time that he was employed
    with the ITAO.
    Rather, a plain reading of the complaint makes clear that plaintiff seeks to recover pay for
    the period after December 2, 2009, during which he was not a government employee Compl. at
    11 14-15. Even if plaintiff could establish that he is entitled to compensation under the pay
    statutes that he cites, plaintiff has not shown that he is entitled to receive such pay for the period
    after his government employment ceased. And so, plaintiff fails to state a plausible back pay
    claim in the complaint
    ln addition, as the government correctly argues in its reply brief, plaintiffs reliance upon
    this Court’s decision in Aa’cle v. United States, 
    81 Fed. Cl. 415
    (2008), to support his back pay
    claim is misplaced Def. Mot. at 9-10. ln Aclcle, the Court held that a plaintiff who alleged a
    claim for a post allowance under 5 U.S.C. 5924(1) stated a plausible claim for relief, because she
    had been employed by the govermnent overseas during the period of time at issue and she may
    have “fulfilled the condition which [made] the allowance applicable.” 
    Aa’de, 81 Fed. Cl. at 419
    -
    21. But, unlike the plaintiff in Aclcle, there is no dispute that the plaintiff in this case was not
    employed by the government during the period of time that he seeks to recover back pay. Given
    this, Aalde is a factually distinguishable from this case and does not aid plaintiff s claim.
    12
    Because plaintiff fails to state a plausible claim for back pay in the complaint, the Court
    must dismiss plaintiff’s back pay claim pursuant to RCFC lZ(b)(6).
    V. CONCLUSION
    In sum, when read in the light most favorable to plaintiff, the complaint shows that the
    Court does not possess subject-matter jurisdiction to consider plaintiff’ s breach of contract claim,
    because plaintiff has not established the existence of a valid contract with the government. In
    addition, plaintiff fails to state a plausible back pay claim in the complaint, because he was not a
    government employee during the time period that he seeks to recover back pay.
    And so, for the foregoing reasons, the Court GRANTS the government’s motion to
    dismiss and DISMISSES the complaint
    The Clerk is directed to ENTER judgment accordingly.
    No costs.
    IT IS SO OR])ERED.
    13