Steven Lalliss v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN LALLISS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2025-1948
______________________
Appeal from the United States Court of Federal Claims
in No. 1:25-cv-00208-CNL, Judge Carolyn N. Lerner.
______________________
Decided: April 16, 2026
______________________
STEVEN L ALLISS , Roseville, CA, pro se.
BRENDAN D AVID J ORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by T ARA K. HOGAN, P ATRICIA M. MC CARTHY , BRETT
SHUMATE.
______________________
Before REYNA, T ARANTO, and STOLL , Circuit Judges.
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LALLISS v. US 2
P ER CURIAM .
Steven J. Lalliss, M.D., appeals from the decision of
the Court of Federal Claims, dismissing his claim for back-
pay and declaratory relief for lack of jurisdiction. For the
reasons discussed below, we affirm.
BACKGROUND
In October 2017, the Department of Veterans Affairs
appointed Dr. Lalliss to an excepted service position as an
orthopedic surgeon, pursuant to 38 U.S.C. § 7401(1), at a
VA medical facility in California. SAppx 4.1 His appoint-
ment was subject to a two-year probationary period. Id.;
38 U.S.C. § 7403(b)(1). While Dr. Lalliss was in his proba-
tionary period, a Professional Standards Board—convened
pursuant to 38 U.S.C. § 7403(b)(4)—recommended his ter-
mination and he was subsequently terminated in February
2019. SAppx 4.
Dr. Lalliss filed an individual right of action appeal
with the Merit Systems Protection Board, arguing that the
VA removed him in retaliation for protected whistleblow-
ing activity. See Lalliss v. Dep’t of Veterans Affs.,
848 F. App’x 894, 895–96 (Fed. Cir. 2021). The Board de-
nied Dr. Lalliss’s request for corrective action, and we af-
firmed. See id. at 896, 898.
On February 3, 2025, Dr. Lalliss filed a complaint with
the Court of Federal Claims, arguing that the Professional
Standards Board that the VA convened to conduct his pro-
bationary review was improperly constituted, which there-
fore rendered his subsequent removal improper. See
SAppx 9–11. Based on his allegedly improper removal,
1 “SAppx” refers to the Supplemental Appendix filed
by the Government with its Informal Brief. See ECF No. 9.
We use the pagination provided in the footer of the Supple-
mental Appendix.
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LALLISS v. US 3
Dr. Lalliss requested “back pay, allowances, differentials,
interest, restoration to office or position, reasonable attor-
ney fees, annual and sick leave owed, and creditable service
for retirement purposes during the time of the unwar-
ranted action.” SAppx 10–11. The United States moved to
dismiss the complaint for lack of subject matter jurisdiction
or, alternatively, because Dr. Lalliss’s claims were barred
by res judicata given his prior litigation before the Board
and unsuccessful appeal to this court. SAppx 1–2. The
Court of Federal Claims dismissed Dr. Lalliss’s complaint
for lack of jurisdiction because the statutory scheme of the
Civil Service Reform Act (CSRA), Pub. L. No. 95-454,
92 Stat. 1111 (1978), applies to Dr. Lalliss’s personnel ac-
tion and displaces the Court of Federal Claims’ jurisdic-
tion. SAppx 2. The Court of Federal Claims did not reach
the issue of res judicata. Id.
Dr. Lalliss then filed a motion for reconsideration with
the Court of Federal Claims, arguing that the court erred
because it failed to consider that the CSRA chapters on re-
moval do not apply to physicians appointed to a VA position
under 38 U.S.C. § 7401(1), so he could not bring his termi-
nation claims before the Board. SAppx 4–5. The Court of
Federal Claims denied Dr. Lalliss’s motion for reconsider-
ation. SAppx 6.
Dr. Lalliss appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review the Court of Federal Claims’ decision to dis-
miss 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 jurisdic-
tion by a preponderance of the evidence, Taylor v. United
States, 303 F.3d 1357, 1359 (Fed. Cir. 2002), and the leni-
ency afforded pro se litigants with respect to formalities
does not relieve them of jurisdictional requirements, Kelley
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LALLISS v. US 4
v. Sec’y, U.S. Dep’t of Lab., 812 F.2d 1378, 1380 (Fed. Cir.
1987).
On appeal, Dr. Lalliss argues that the CSRA does not
displace the Court of Federal Claims’ jurisdiction regard-
ing his removal action2 because probationary employees
hired under 38 U.S.C. § 7401(1) are not considered a cate-
gory of employee covered under the CSRA. Appellant’s Inf.
Br. 2. Dr. Lalliss also asserts that 38 U.S.C. § 7403(b)(4)
gives employees “protections in how they are treated dur-
ing their probationary period,” and “should there be no ju-
dicial review of those actions, [§ 7403(b)(4)] is powerless.”
Id. In response, the Government agrees that physicians
such as Dr. Lalliss are excluded from the protections of the
CSRA, but when the CSRA excludes a certain class of em-
ployees from its coverage, those employees are nonetheless
precluded from seeking judicial review for personnel
2 The Court of Federal Claims characterized Dr. Lal-
liss’s case as challenging his removal from his appointed
position. While Dr. Lalliss occasionally contends that he is
not actually challenging his removal but rather challenges
the formation of the Professional Standards Board that ter-
minated him as improperly convened under § 7403(b)(4),
Appellant’s Inf. Reply Br. 5, we look at what Dr. Lalliss’s
challenge is actually seeking to achieve. See Gallo
v. United States, 76 Fed. Cl. 593, 601 (2007), aff’d, 529 F.3d
1345 (Fed. Cir. 2008). Here, Dr. Lalliss explicitly states
that the CSRA “does not cover a removal of an employee
hired under 38 U.S.C. § 7401(1) . . . which is the personnel
action that I am challenging.” Appellant’s Inf. Br. 2 (em-
phases added). Moreover, Dr. Lalliss seeks restoration of
his position and the money he would have earned but for
his removal. SAppx 10–11. Dr. Lalliss therefore chal-
lenges his removal and his cause of action is of the type
specifically envisioned by the CSRA.
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LALLISS v. US 5
actions covered by the CSRA, including removals, in the
Court of Federal Claims. Appellee’s Inf. Br. 6–7. We agree
with the Government.
The CSRA granted the Board the exclusive authority
to adjudicate specific claims raised by federal employees
that arise out of certain adverse personnel actions.
5 U.S.C. §§ 7512–7513; Worthington v. United States,
168 F.3d 24, 26 (Fed. Cir. 1999) (“[T]he CSRA provides the
[Board] exclusive jurisdiction to review federal employee
disputes within its terms.”). Although “[t]he CSRA, by its
terms, . . . does not encompass every adverse personnel ac-
tion against a federal employee,” Worthington, 168 F.3d
at 26, removal is typically a type of adverse action that is
appealable to the Board. See, e.g., Bosco v. United States,
931 F.2d 879, 883 (Fed. Cir. 1991) (explaining that Chap-
ters 43 and 75 of the CSRA cover removals).
However, a physician appointed under 38 U.S.C.
§ 7401(1), such as Dr. Lalliss, is excluded from the compet-
itive service and therefore not entitled to appeal removals
to the Board under Chapters 43 or 75 of the CSRA. See
Khan v. United States, 201 F.3d 1375, 1380–81 (Fed. Cir.
2000) (holding that a physician appointed under 38 U.S.C.
§ 7401(1) was excluded from the competitive service and
therefore not entitled to appeal an involuntary retirement
to the Board under Chapter 75); 5 U.S.C. § 4303(e) (limit-
ing appeals under Chapter 43 to federal employees in the
competitive service or in the excepted service and ap-
pointed under 5 U.S.C. § 7511); see also 5 U.S.C.
§ 7511(b)(10) (excluding excepted service VA employees
from appealing their action to the Board unless appointed
under 38 U.S.C. § 7401(3)). Thus, even though Dr. Lalliss’s
claim is of the type that can be characterized as covered by
the CSRA and appealed exclusively to the Board, he is not
entitled to appeal his claim to the Board.
Dr. Lalliss’s apparent lack of remedy under the CSRA
does not, however, mean that his claim falls within the
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LALLISS v. US 6
jurisdiction of the Court of Federal Claims. Dr. Lalliss ar-
gues that we should determine that the Court of Federal
Claims has jurisdiction because if “38 U.S.C. § 7403(b)(4)
does not give appellant rights to any employee affected by
that law, then it is stating that Congress creates laws with-
out any effect and that federal courts can dictate which
laws Congress creates will actually have any meaning.”
Appellant’s Inf. Reply Br. 4. However, in United States
v. Fausto, the Supreme Court rejected the opinion of this
court that “the exclusion of nonpreference members of the
excepted service from the definitional sections of [CSRA]
Chapter 75” constituted “congressional silence on the issue
of what review these employees should receive for the cat-
egories of personnel action covered by that chapter.”
484 U.S. 439, 447 (1988). Instead, the Supreme Court held
that it was:
evident that the absence of provision for these em-
ployees to obtain judicial review is not an unin-
formative consequence of the limited scope of the
statute, but rather manifestation of a considered
congressional judgment that they should not have
statutory entitlement to review for adverse action
of the type governed by Chapter 75.
Id. at 448–49. According to the Supreme Court, the
CSRA’s “deliberate exclusion of employees . . . from the
provisions establishing administrative and judicial review
for personnel action of the sort at issue” prevented the
plaintiff in Fausto from seeking review of the agency’s ac-
tion. Id. at 455.
Similarly, here, Dr. Lalliss lacks a remedy under the
CSRA, but that does not entitle him to have his claims
heard in the Court of Federal Claims. See Semper
v. United States, 694 F.3d 90, 92 (Fed. Cir. 2012)
(“[B]ecause Mr. Semper is a member of the excepted ser-
vice, the CSRA forecloses his right to seek review of his ter-
mination in the Court of Federal Claims.”); see Khan,
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LALLISS v. US 7
201 F.3d at 1381–82 (“[T]he specific exclusion of Dr. Khan
from the CSRA provisions covering involuntary retirement
claims prevents him from seeking review in the Court of
Federal Claims under the Tucker Act.” (emphasis re-
moved)); see also United States v. Connolly, 716 F.2d 882,
886 (Fed. Cir. 1983) (en banc) (holding that the Court of
Federal Claims does not possess jurisdiction to decide a
probationary employee’s removal challenge even though
they are specifically exempted from Chapter 75). “To allow
resort to alternative remedies for complaints about matters
within the statute’s scope would undermine the CSRA be-
cause the statute prescribes in great detail the protections
and remedies applicable to such action, including the avail-
ability of administrative and judicial review.” Gallo,
76 Fed. Cl. at 600 (citation modified). Thus, the Court of
Federal Claims did not err in determining that it lacked
jurisdiction over Dr. Lalliss’s adverse action appeal.
CONCLUSION
We have considered Dr. Lalliss’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Court of Federal Claims’ dismissal of Dr. Lalliss’s com-
plaint.
AFFIRMED
COSTS
No costs.
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