NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MAHER SOLIMAN,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2017-2529

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:17-cv-00018-LKG, Judge Lydia Kay 

Griggsby.

______________________ 

Decided: February 6, 2018

______________________ 

 MAHER SOLIMAN, San Francisco, CA, pro se.

 

 ANDREW JAMES HUNTER, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant-appellee. Also 

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., DEBORAH A. BYNUM. 

______________________ 

Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
2 SOLIMAN v. UNITED STATES

PER CURIAM. 

Maher Soliman (“Soliman”) appeals from the decision 

of the United States Court of Federal Claims (“the Claims 

Court”) dismissing his complaint for lack of subjectmatter jurisdiction and failure to state a claim upon 

which relief can be granted. See Soliman v. United 

States, No. 17-18C, 2017 WL 3634240 (Fed. Cl. Aug. 24, 

2017) (“Opinion”). For the reasons that follow, we affirm. 

BACKGROUND 

Soliman is a former State Department employee who 

served as a legal advisor in the State Department’s Iraqi 

Transition Assistance Office (“ITAO”). Executive Order 

13,431 established ITAO as a temporary office 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). ITAO personnel were hired pursuant to 5 U.S.C. § 3161, id., which 

authorizes appointment of personnel to a temporary 

organization within the government.

On April 30, 2009, the State Department confirmed 

Soliman’s “temporary excepted appointment” as a “PRT 

Rule of Law Senior Advisor” in the ITAO for a term 

effective May 14, 2009 and not to exceed June 13, 2010. 

Appellee Appendix (“A.A.”) 27. The State Department 

terminated Soliman’s “temporary appointment” with the 

ITAO effective December 2, 2009. A.A. 28. 

In 2010, Soliman initiated unsuccessful Equal 

Employment Opportunity Commission proceedings 

against the State Department alleging discrimination in 

connection with his termination. In 2013, Soliman filed 

suit against the government in the United States District 

Court for the District of Columbia (“D.C. District Court”)

challenging the termination of his employment on multi-
SOLIMAN v. UNITED STATES 3

ple grounds, including breach of contract. The district 

court dismissed Soliman’s breach of contract claim. See 

Soliman v. Kerry, No. 16-5155, 2016 WL 6238578, at *1 

(D.C. Cir. Sept. 22, 2016). On appeal, the United States 

Court of Appeals for the District of Columbia vacated the 

district court’s dismissal of the breach of contract claim

and remanded with instructions to transfer Soliman’s 

breach of contract claim to the Claims Court. Id. 

On January 23, 2017, Soliman filed an amended

complaint in the Claims Court alleging that the government “terminated its employment contract with [Soliman] 

without a cause or due process and breached its contract 

with [Soliman]” and seeking damages, including “back 

pay,” in excess of $10,000. A.A. 18, 20–22. The government filed a motion to dismiss the amended complaint. 

After briefing on the motion to dismiss concluded, Soliman filed a document titled “Plaintiff’s Request for 

Judicial Notice in Support of Opposition to Defendant’s 

Motion to Dismiss for Lack of Jurisdiction or, in the 

Alternative[,] for Failure to State a Claim” (“Plaintiff’s 

Request”). A.A. 33. Plaintiff’s Request included the 

statement: “If the court finds that [Soliman’s] exhibits to 

his Amended Complaint insufficient [to] substitute for 

detailed allegations, [Soliman] respectfully request[s] a 

leave to amend pursuant to Rule 15(a) to add detailed 

factual allegations.” A.A. 41–42. The Claims Court never 

issued an order addressing Soliman’s conditional request. 

The Claims Court then granted the government’s motion to dismiss the amended complaint for lack of subject 

matter jurisdiction and failure to state a claim upon 

which relief can be granted. The court held that it lacked 

subject matter jurisdiction over Soliman’s breach of 

contract claim because he had not established the existence of a valid contract with the government. Opinion, 

2017 WL 3634240, at *8. The court explained that the 

undisputed facts, including Soliman’s own documents, 
4 SOLIMAN v. UNITED STATES

“demonstrate that [Soliman’s] employment with the ITAO 

was by appointment rather than pursuant to an employment contract,” and that he “fail[ed] to identify any legislation that would overcome the presumption that his 

employment was by appointment.” Id. at *6–7. The court 

held that Soliman failed to state a plausible back pay 

claim because “he was not a government employee during 

the time period that he seeks to recover back pay.” Id. at 

*8. 

Soliman timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the Claims Court’s decision to dismiss a 

claim for lack of subject matter jurisdiction de novo. 

Waltner v. United States, 679 F.3d 1329, 1332 (Fed. Cir. 

2012). A plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence, Taylor v. 

United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and 

the leniency afforded pro se litigants with respect to mere 

formalities does not relieve them of jurisdictional requirements, Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 

1378, 1380 (Fed. Cir. 1987). 

The Tucker Act provides the Claims Court with jurisdiction over claims “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. § 1491(a)(1). The Tucker Act is “only a 

jurisdictional statute; it does not create any substantive 

right enforceable against the United States for money 

damages.” United States v. Testan, 424 U.S. 392, 398 

(1976). “Instead, to invoke jurisdiction under the Tucker 

Act, a plaintiff must identify a contractual relationship, 

constitutional provision, statute, or regulation that pro-
SOLIMAN v. UNITED STATES 5

vides a substantive right to money damages.” Khan v. 

United States, 201 F.3d 1375, 1377 (Fed. Cir. 2000). 

We first address Soliman’s claims relating to termination of his employment. Soliman argues that the Claims 

Court erred in holding that it did not have jurisdiction 

over his breach of contract, back pay, and due process 

claims. Soliman contends that the May 14, 2009 Standard Form 50 (“May 2009 SF50”) relied on by the court was 

“fraudulent.” Appellant Br. 19. Soliman argues that the 

government violated his due process rights and his rights 

pursuant to Chapter 75 of Title 5 in terminating his 

employment. 

The government responds that the Claims Court correctly concluded that it lacks jurisdiction over Soliman’s 

breach of contract claim. The government contends that 

the court correctly found that Soliman failed to rebut the 

presumption that his employment was by appointment, 

not contract. The government argues that the May 2009 

SF50 was not a forgery and not necessary to the Claims 

Court’s decision. The government contends that the court 

properly dismissed Soliman’s back pay claims for failure 

to state a claim, not lack of subject matter jurisdiction.1

We agree with the government that the Claims Court 

properly concluded that it lacked jurisdiction to adjudicate Soliman’s breach of contract claim. There is a “wellestablished principle 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 

 

1 The Claims Court did not dismiss Soliman’s back 

pay claim for lack of jurisdiction. See Opinion, 2017 WL 

3634240, at *7–8. Soliman does not appear to challenge 

the court’s ruling that he failed to state a plausible back 

pay claim. 
6 SOLIMAN v. UNITED STATES

government.” Chu v. United States, 773 F.2d 1226, 1229 

(Fed. Cir. 1985) (emphasis added). Although “Tucker Act 

jurisdiction may be premised on an employment contract,” 

Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 

735 (1982) (citing United States v. Hopkins, 427 U.S. 123, 

126 (1976)), if an employee’s “employment was by ‘appointment,’ a breach of contract action against the government would be precluded,” Hamlet v. United States, 

873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989). Whether an 

employee serves by appointment or contract depends on 

an analysis of the relevant statutes and regulations and 

whatever evidence is adduced as to an employee’s particular status. Hopkins, 427 U.S. at 130. 

Here, “[n]othing in the record rebuts the presumption 

that a federal employee is employed by appointment and 

not by contract or quasi-contract.” Hamlet v. United 

States, 63 F.3d 1097, 1102 (Fed. Cir. 1995). Executive 

Order 13,431 established the ITAO as a “temporary 

organization” “in accordance with section 3161 of title 5, 

United States Code.” Section 3161 authorizes “the head 

of a temporary organization [to] appoint persons to positions of employment . . . .” 5 U.S.C. § 3161(b)(1) (emphasis added). The documents submitted by Soliman confirm 

that his employment was by “appointment.” See Amended Complaint Ex. B (A.A. 25) (position described as “Full 

Time Temporary Excepted Appointment NTE 13 

months”), Ex. C (A.A. 27) (“We are pleased to confirm your 

temporary excepted appointment . . . .”), Ex. D (same), Ex. 

E (A.A. 28) (“Please be advised that your temporary 

appointment with the [ITAO] is being terminated . . . .”)

(emphases added).2 The Claims Court thus correctly 

 

2 We need not reach Soliman’s allegations relating 

to the May 2009 SF50 because it was unnecessary to the 

Claims Court’s decision. The court determined that 

Soliman’s “own documents show that he had been em-
SOLIMAN v. UNITED STATES 7

dismissed the breach of contract claim for lack of jurisdiction. See Sheehan, 456 U.S. at 738, 741 (explaining “all 

the evidence in the record is to the effect that respondent

was appointed to his positions” and holding “[b]ecause . . . 

respondent was [not] hired pursuant to an express employment contract, we find that the Tucker Act did not 

confer jurisdiction over respondent’s claims for monetary 

relief”); Hamlet, 63 F.3d at 1102 (holding appellant’s 

employment was by appointment and, “[t]hus, [appellant’s] breach of contract count . . . cannot provide for 

jurisdiction under the Tucker Act”). 

The Claims Court also did not err in not exercising jurisdiction over Soliman’s due process claims. The Claims 

Court lacks jurisdiction over claims based on the Due 

Process clauses of the Fifth and Fourteenth Amendments 

because they are not “money-mandating.” LeBlanc v. 

United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (The 

“Due Process Clauses of the Fifth and Fourteenth 

Amendments” are not “a sufficient basis for jurisdiction 

because they do not mandate payment of money by the 

government.”).

Similarly, Soliman’s argument based on Chapter 75 of 

Title 5 is not well taken. Soliman does not appear to have

raised this issue before the Claims Court. Even where a 

party appears pro se, “[i]ssues not properly raised before 

the [trial] court are waived on appeal.” Stauffer v. Brooks 

Bros. Grp., 758 F.3d 1314, 1322 (Fed. Cir. 2014). Moreover, the Claims Court does not have jurisdiction over 

claims brought pursuant to Chapter 75 of Title 5, see 5 

U.S.C. § 7513(d) (“An employee against whom an action is 

taken under this section is entitled to appeal to the Merit 

Systems Protection Board under section 7701 of this 

 

ployed with the ITAO by appointment.” Opinion, 2017 

WL 3634240, at *6. The court merely referred to the May 

2009 SF50 as “reinforce[ing]” its determination. Id. 
8 SOLIMAN v. UNITED STATES

title.”), or personnel actions covered by that chapter, see

United States v. Fausto, 484 U.S. 439, 447 (1988) (“In the 

context of the entire statutory scheme, we think it displays a clear congressional intent to deny the excluded 

employees the protections of Chapter 75—including 

judicial review—for personnel action covered by that 

chapter.”); Bosco v. United States, 931 F.2d 879, 883 (Fed. 

Cir. 1991), adhered to on reh’g, 976 F.2d 710 (Fed. Cir. 

1992) (explaining that in Fausto the Supreme Court held 

that the Civil Service Reform Act “was the only means of 

review as to the types of adverse personnel action specifically covered by the [Civil Service Reform Act]”).

Soliman additionally argues that the Claims Court 

erred in not sua sponte transferring the case to another 

court pursuant to 28 U.S.C. § 1631, and in denying his 

request for leave to amend his complaint pursuant to Rule 

15. The government responds that § 1631 did not require 

the Claims Court to transfer Soliman’s claims and it was 

within its discretion to dismiss them. The government 

argues that the Claims Court did not abuse its discretion 

in not addressing his request to amend, which was not 

properly raised, and that the proposed amendment would 

have been futile.

We agree with the government that 28 U.S.C. § 1631 

did not require the Claims Court to transfer this case. 

Section 1631 provides in relevant part: 

Whenever a civil action is filed in a court as defined in section 610 of this title . . . and that court 

finds that there is a want of jurisdiction, the court 

shall, if it is in the interest of justice, transfer 

such action . . . to any other such court in which 

the action . . . could have been brought at the time 

it was filed or noticed . . . .

28 U.S.C. § 1631 (emphases added). Section 610 defines 

“court” as “the courts of appeals and district courts of the 

United States, the United States District Court for the 
SOLIMAN v. UNITED STATES 9

District of the Canal Zone, the District Court of Guam, 

the District Court of the Virgin Islands, the United States 

Court of Federal Claims, and the Court of International 

Trade.” 28 U.S.C. § 610. 

Soliman has not identified another court in which this 

action could have been brought, and we are aware of 

none. Soliman’s contract termination claims exceed

$10,000 in damages and thus are not within the jurisdiction of any district court. See 28 U.S.C. § 1346(a)(2). 

Indeed, the D.C. District Court previously transferred the 

breach of contract claim to the Claims Court. Additionally, no trial level “court” as defined in 28 U.S.C. § 610 has 

jurisdiction over claims pursuant to Chapter 75 of Title 5. 

See 5 U.S.C. § 7513(d). Thus, the Claims Court did not 

err in not transferring this case.

The Claims Court also did not err in not granting Soliman leave to amend his complaint. Assuming arguendo

that Soliman made a proper request for leave to amend 

the complaint, his request was conditioned on “the court 

find[ing] [his] exhibits to his Amended Complaint insufficient [to] substitute for detailed allegations . . . .” A.A.

41–42. The Claims Court did not dismiss for lack of 

detailed allegations. Moreover, even amending the complaint to include all of the factual allegations in Plaintiff’s 

Request would have been futile because those allegations 

could not cure the defects identified by the Claims Court. 

See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro 

S.A. de C.V., 464 F.3d 1339, 1353–54 (Fed. Cir. 2006). 

We have considered Soliman’s remaining arguments, 

but find them unpersuasive. 

CONCLUSION

For the foregoing reasons, we affirm the Claims 

Court’s decision dismissing Soliman’s claims. 

AFFIRMED
10 SOLIMAN v. UNITED STATES

COSTS

No costs.