Refaei v. United States
129 Fed. Cl. 1
| Fed. Cl. | 2016Background
- Dr. Mohd N. Refaei, a VA-appointed internal medicine resident (SF-50: Excepted Appointment under 38 U.S.C. § 7406), trained at William Beaumont Army Medical Center (WBAMC) from July 2008 and was terminated effective Sept. 26, 2011 shortly before completing residency.
- Refaei signed WBAMC documents (Resident Agreement and a Due Process Policy) describing termination procedures and trainees’ procedural rights (notice, hearings, right to counsel, appeal). He alleges procedural irregularities at an Aug. 31, 2011 hearing and that the termination relied on uncharged misconduct.
- Refaei sued in federal district court alleging Title VII, ADEA, breach of contract, due process, and other tort claims; District Court granted summary judgment on statutory discrimination claims and dismissed breach-of-contract for lack of jurisdiction; the Fifth Circuit transferred the breach-of-contract claim to the Court of Federal Claims.
- In the Court of Federal Claims Refaei asserted: (1) breach of an express/implied contract (Resident Agreement + Due Process Policy), (2) violation of Army/ WBAMC due-process policies and regulations, and (3) Fifth Amendment denial of property/liberty. He sought monetary damages (about $2.5 million).
- The government moved to dismiss for lack of jurisdiction (Tucker Act): (a) Refaei was a VA appointee, not a contractual employee; (b) CSRA/Merit Systems scheme precludes CFC review of his personnel action; and (c) neither statutes nor regulations cited are money-mandating.
- The court found (i) Refaei was appointed by the VA (SF-50 evidence) and thus not a contractual employee, (ii) his due-process personnel claim is barred from CFC review by the CSRA/Fausto framework and, alternatively, not supported by a money-mandating source, and (iii) Fifth Amendment due-process claims are not money-mandating—thus dismissing all claims for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract jurisdiction — was there an express or implied contract with the Army? | Refaei: Resident Agreement + Due Process Policy (and ACGME/AR 351-3 requirements) created an express or implied contract and incorporated due-process promises. | Gov’t: SF-50 and §7406 show VA appointment; federal appointees derive rights from appointment/statute not contract; no evidence of Army appointment or contracting authority. | Court: Employment was by VA appointment (SF-50); presumption against contractual status applies; breach-of-contract claim dismissed for lack of Tucker Act jurisdiction. |
| Due-process / regulatory claim — can CFC hear alleged violation of Army/WBAMC procedures? | Refaei: Army regs (AR 351-3, AR 40-68) and Due Process Policy create enforceable procedural rights; Back Pay Act is an alternate remedy. | Gov’t: CSRA precludes CFC review of covered personnel actions (Fausto); cited statutes/regulations are not money-mandating; Back Pay Act is derivative and needs a money-mandating source. | Court: CSRA bars CFC review (excepted-service/Title 38 context); even absent CSRA bar, cited regs/statutes are not money-mandating; claim dismissed for lack of jurisdiction. |
| Fifth Amendment due process — is the Due Process Clause money-mandating under Tucker Act? | Refaei: Termination without constitutionally sufficient process deprived him of property/liberty (salary, reputation) entitling him to monetary relief. | Gov’t: The Due Process Clause does not by itself mandate payment of money; therefore not a Tucker Act jurisdictional basis. | Court: Fifth Amendment is not money-mandating; CFC lacks jurisdiction; claim dismissed. |
| ACGME / accreditation network theory — can external accreditation requirements convert procedural promises into a money-mandating contract? | Refaei: ACGME institutional requirements (and AR cross-reference) compelled WBAMC to issue contractual written agreements guaranteeing due process, creating enforceable rights. | Gov’t: ACGME and ARs require procedures but do not transform appointment-based status into contractual obligations or mandate payment; network theory cannot create an express contract here. | Court: ACGME/AR requirements do not convert appointment into contract nor create a money-mandating source for Tucker Act jurisdiction. |
Key Cases Cited
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (subject-matter jurisdiction may be raised at any time and courts must assess jurisdiction sua sponte)
- United States v. Navajo Nation, 556 U.S. 287 (2009) (limits on "network theory" — statutes/regulations must create specific, money-mandating rights)
- United States v. Fausto, 484 U.S. 439 (1988) (CSRA precludes other judicial review of adverse personnel actions covered by the Act)
- United States v. Testan, 424 U.S. 392 (1976) (Tucker Act requires an independent money-mandating source to permit recovery)
- Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004) (federal employees’ rights flow from appointment/statute, not contract)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (absence of money-mandating source is fatal to CFC jurisdiction)