Dachman v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-5023

SARAH R. DACHMAN,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Sarah R. Dachman, of Silver Spring, Maryland, pro se.

Kent G. Huntington, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Peter D. Keisler, Assistant Attorney General, and Kathryn A.
Bleecker, Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Marian Blank Horn
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-5023

SARAH R. DACHMAN,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

DECIDED: April 30, 2007
__________________________

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and LOURIE, Circuit
Judge.

PER CURIAM.

Dr. Sarah R. Dachman seeks review of the dismissal of her complaint by the United

States Court of Federal Claims. Dachman v. United States, No. 05-772C (Ct. Cl. October

4, 2006). We affirm the dismissal.
 DISCUSSION

Dr. Dachman, a physician, was employed since 1988 by the Food and Drug

Administration of the Department of Health and Human Services. On September 23, 1997

the FDA placed Dr. Dachman on non-duty and then AWOL status on September 29, 1997

based on various charges. The FDA removed Dr. Dachman from federal service on

February 6, 1998. In the "Notification of Personnel Action" the HHS demanded

approximately $7,995 from Dr. Dachman based on her non-completion of the Physicians'

Comparability Allowance Program. Dr. Bachman appealed unsuccessfully to the district

court in Maryland and the Fourth Circuit Court of Appeals. She then appealed to the Court

of Federal Claims. Relying in part on United States v. Fausto, 484 U.S. 439, 455 (1988),

the Court of Federal Claims held that jurisdiction of Dr. Dachman's claim for back pay and

employment benefits based on wrongful removal arises under the Civil Service Reform Act

and that her appeal is with the Merit Systems Protection Board, not the Court of Federal

Claims. The court also held that the suit was barred on statute of limitations grounds, and

was res judicata based on the district court and Fourth Circuit actions.

Dr. Dachman advances two principal arguments on this appeal. First, she argues

that this suit is not based on the removal action but on the FDA's wrongful classification of

her status as AWOL. Dr. Dachman argues that AWOL "is not a personnel action as

defined by CSRA and MSPB" and that her claim arises under the Tucker Act. The Court of

Federal Claims correctly held that the underlying action is the removal action and is not

within that court's jurisdiction.

2007-5023 2
 Dr. Dachman also argues that the Physicians' Comparability Allowance Program is a

contract-based jurisdictional basis for suit in the Court of Federal Claims, referring to the

repayment assessment as a breach of that contract. The Court of Federal Claims correctly

held that this claim is not separable from the removal action, which is barred by any or all of

the statute of limitations, res judicata, and lack of subject matter jurisdiction. The dismissal

is affirmed.

2007-5023 3