Soliman v. United States
17-18
| Fed. Cl. | Aug 24, 2017Background
- Maher Soliman, a pro se former State Department Rule of Law Senior Advisor, worked for the Iraqi Transition Assistance Office (ITAO) beginning May 14, 2009 and was terminated effective December 2, 2009.
- ITAO positions were created by Executive Order No. 13431 and filled pursuant to 5 U.S.C. § 3161 as temporary excepted appointments; Soliman received an SF-50 reflecting an "Exc Appt NTE" and that his "appointment may be terminated at any time."
- Soliman sued the State Department in D.C. district court alleging discrimination and breach of contract; the D.C. Circuit ordered transfer of the breach-of-contract claim to the Court of Federal Claims.
- In the Court of Federal Claims, the government moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim.
- Soliman later asserted a Back Pay Act claim for December 3, 2009–June 13, 2010, citing various pay statutes; the court found he neither alleged a contract nor that he was employed during the back-pay period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Soliman has an express or implied-in-fact contract with the U.S. enabling Tucker Act jurisdiction | Soliman contends the government breached an employment contract when it terminated him | Government asserts Soliman was an appointee (temporary excepted appointment under §3161), so no enforceable contract exists | Court: No jurisdiction — employment was by appointment, not contract; breach-of-contract claim dismissed under RCFC 12(b)(1) |
| Whether the SF-50 and other hiring documents create contractual rights | Soliman disputes or challenges the documents (claims one SF-50 is forged) and argues contractual entitlement to pay | Government points to multiple documents (job ad, offer letter, SF-50s) showing an excepted appointment and termination language | Court: Documents establish appointive status; no contract formed |
| Whether the Back Pay Act claim is plausible for pay from Dec 3, 2009 to June 13, 2010 | Soliman asserts entitlement to back pay under 5 U.S.C. § 5596 and various pay statutes | Government argues Soliman was not an employee during the claimed period and complaint did not plead a statutory back-pay claim | Court: RCFC 12(b)(6) dismissal — plaintiff fails to state plausible back pay claim because he was not employed during the period sought and did not plead the claim properly |
| Whether the Back Pay Act itself supplies Tucker Act jurisdiction | Soliman invokes the Back Pay Act as a basis for money relief | Government notes the Back Pay Act is derivative and requires an underlying money-mandating law or violation | Court: Back Pay Act is not independently jurisdictional; plaintiff failed to identify an applicable law entitling him to pay for the post‑employment period |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts possess only jurisdiction authorized by Constitution and statute)
- Testan v. United States, 424 U.S. 392 (Tucker Act is jurisdictional but does not create substantive rights)
- Army & Air Force Exchange Serv. v. Sheehan, 456 U.S. 728 (Tucker Act covers employment-contract claims)
- Chu v. United States, 773 F.2d 1226 (Fed. Cir.) (presumption that federal employees derive benefits from appointment, not contract)
- Hamlet v. United States, 873 F.2d 1414 (Fed. Cir.) (appointment-based employment precludes contract claim)
- Charnetski v. United States, 111 F. Cl. 185 (Fed. Cl.) (analyze statutes/regulations to determine appointment vs. contract; cannot be both)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state plausible claim)
- Worthington v. United States, 168 F.3d 24 (Fed. Cir.) (Back Pay Act is money‑mandating only when tied to an applicable law or regulation)