 

"1| ,..i

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NOT FOR PUBLICATION F| L E D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<er Act grants this Court jurisdiction to consider claims based “upon any express
or implied contract with the United States.” 28 U.S.C. § l49l(a)(1). The Court does not,
however, possess jurisdiction to consider claims against the United States “based on contracts
implied in law.” United States v. Mirchell, 463 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. 637, 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.

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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.

 

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