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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NOT FOR PUBLICATION F| L E D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).
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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 Tucl