NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JULIE A. BEBERMAN,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2018-1519

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:17-cv-00179-PEC, Judge Patricia E. 

Campbell-Smith.

______________________ 

Decided: October 12, 2018

______________________ 

JULIE A. BEBERMAN, Arlington, VA, pro se. 

 MARGARET JANTZEN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for defendant-appellee. Also represented by DEBORAH ANN BYNUM, ROBERT EDWARD KIRSCHMAN,

JR., CHAD A. READLER. 

 JONATHAN R. SIEGEL, George Washington University 

Law School, Washington, DC, for amicus curiae pro se. 
2 BEBERMAN v. UNITED STATES

 ______________________ 

Before LOURIE, CHEN, and STOLL, Circuit Judges.

PER CURIAM. 

Appellant Julie A. Beberman appeals from a decision 

by the U.S. Court of Federal Claims (Claims Court) 

dismissing her Equal Pay Act (EPA) claim for lack of 

jurisdiction under 28 U.S.C. § 1500. Section 1500 states 

that the Claims Court shall not have jurisdiction over any 

claim “for or in respect to” a claim “pending in any other 

court” against the United States. Here, the Claims Court 

found that Ms. Beberman had claims pending in a Third 

Circuit appeal, based on a complaint filed in the U.S.

District Court for the Virgin Islands (District Court), that 

were “for or in respect to” the same claims in the instant 

case. Because we find that the two cases are not “for or in 

respect to” the same claims, we reverse the Claims Court’s 

dismissal for lack of jurisdiction and remand for further 

proceedings.

BACKGROUND

Ms. Beberman is an employee of the State Department. She served as a Foreign Service Officer at the U.S. 

embassy in Caracas, Venezuela from October 2011 to 

November 2012. She was then reassigned to Washington

D.C. and subsequently to Equatorial Guinea for a threeyear tour set to conclude in 2017.

In 2014, Ms. Beberman filed an action in District 

Court alleging age discrimination under the Age Discrimination in Employment Act of 1967, sex discrimination

under Title VII of the Civil Rights Act of 1964, and a 

Privacy Act of 1974 violation based on a supervisor’s 

treatment of her during her employment in Caracas. See 

Beberman v. U.S. Dep’t of State, No. 14-0020, Dkt. No. 1 

(D.V.I. May 9, 2014). Ms. Beberman filed a First Amended Complaint that withdrew the sex discrimination claim, 
BEBERMAN v. UNITED STATES 3

and the parties later stipulated to dismiss the Privacy Act 

claim. This First Amended Complaint is the relevant 

complaint for purposes of this appeal because it was the 

operative district court complaint when the instant case 

was filed. See Cent. Pines Land Co. v. United States, 697 

F.3d 1360, 1365 (Fed. Cir. 2012) (“[J]urisdiction of the 

court depends upon the state of things at the time of the

action brought.”). Beberman alleged in the First Amended Complaint that while serving at the Caracas Embassy, 

her supervisor discriminated on the basis of age by belittling her, publicly ridiculing her, challenging her visa

adjudication decisions, terminating her access to consular

systems, accusing her of violating an internal protocol

known as Visa Lookout Accountability, preventing her 

from participating in a scheduled rotation, giving that 

rotation to a younger male, and subjecting the actions of 

another woman over the age of 40 to heightened scrutiny. 

See Beberman v. U.S. Dep’t of State, No. 14-0020, Dkt. No. 

21, ¶¶ 70–93 (D.V.I. May 22, 2014).

While the District Court case was ongoing, the Winter 

2015 Commissioning and Tenure Board denied tenure for 

Ms. Beberman. Ms. Beberman, who at the time was 

posted in Equatorial Guinea, was then subjected to a 

Separation Order requiring her to leave that post and 

move to Washington D.C. Ms. Beberman filed an emergency motion for a temporary restraining order or a 

preliminary injunction with the District Court. She 

argued that the Caracas supervisor’s discriminatory

animus caused her tenure denial1 and that until her 

 

1 Specifically, Ms. Beberman argued that her supervisor’s age-based discriminatory animus and his 

influence on a subsequent reviewer led to a poor employee 

evaluation report in 2012. That report prevented her 

from being able to serve as a backup consular officer in 

Equatorial Guinea and receive any further evaluation 
4 BEBERMAN v. UNITED STATES

District Court claims were adjudicated and the legitimacy 

of her tenure denial determined, the State Department 

should be enjoined from forcing her to leave Equatorial 

Guinea. In that motion, Ms. Beberman identified two 

areas where she would suffer irreparable harm: 

(1) having to unexpectedly leave her residence and assignment in Equatorial Guinea and return to Washington 

D.C. and (2) losing substantial benefits including hardship pay, service needs differential, and access to the 

student loan repayment program, which were benefits of 

working in Equatorial Guinea, but not in Washington. 

Beberman v. U.S. Dep’t of State, No. 2014-0020, 2016 WL 

1181684, at *3 (D.V.I. Mar. 24, 2016), reconsideration 

denied, No. 2014-0020, 2016 WL 1312534 (D.V.I. Apr. 4, 

2016). The District Court found that Ms. Beberman failed 

to demonstrate irreparable harm because if she prevailed 

on her lawsuit, she would be adequately compensated by 

money damages and equitable relief; thus, the District 

Court denied Ms. Beberman’s motion for injunctive relief. 

Id. at *3–4. Ms. Beberman appealed to the Third Circuit, 

which affirmed. Beberman v. U.S. Dep’t of State, 675 F. 

App’x 131, 136 (3d Cir. 2017). Significantly, Ms. Beberman’s briefing to the Third Circuit and Claims Court

included other harm she would suffer by having to move 

to Washington: “she would not eligible for Washington 

locality pay, per diem, or home service transfer allowance[,] and would not be allowed to access her household 

effects.” Appx184. The Third Circuit judgment was 

entered on January 12, 2017, and the mandate issued on 

March 6, 2017. 

While her Third Circuit appeal was pending, Ms. Beberman was forced to move from Equatorial Guinea to 

Washington D.C. Based on the circumstances of that 

 

reports, thus allegedly proximately causing her tenure 

denial.
BEBERMAN v. UNITED STATES 5

move, Ms. Beberman separately filed an EPA claim with 

the Claims Court in 2016. See Beberman v. United States, 

No. 1:16-cv-010006, Dkt. No. 1 (Fed. Cl. Aug. 15, 2016)

(the 2016 Complaint). Her complaint alleged that she

was forced to leave Equatorial Guinea without completing 

her assignment there, and that she did not receive: (1) an 

overnight stop en route from Africa to Washington, (2) a 

temporary quarters service allowance, (3) the opportunity 

to retrieve her household effects, or (4) a Washington 

locality pay or a transit subsidy when being required to 

work in Washington. Id. at ¶¶ 10–11. The complaint sets 

forth facts that a similarly-situated male colleague, who 

was also denied tenure and whose limited appointment 

expired on the same day, was allowed to finish his assignment overseas before being moved to Washington, 

that he was moved under “Permanent Changed Station” 

(PCS) travel orders rather than a “Separation Order,” and 

that he received the above-enumerated benefits. Id. at 

¶¶ 12–20. 

The Claims Court dismissed Ms. Beberman’s 2016 

complaint for lack of jurisdiction under 28 U.S.C. § 1500. 

Beberman v. United States, 129 Fed. Cl. 539, 548 (2016). 

The statute states: 

The United States Court of Federal Claims shall 

not have jurisdiction of any claim for or in respect 

to which the plaintiff or his assignee has pending 

in any other court any suit or process against the 

United States or any person who, at the time 

when the cause of action alleged in such suit or 

process arose, was, in respect thereto, acting or 

professing to act, directly or indirectly under the 

authority of the United States.

28 U.S.C. § 1500. This court has interpreted § 1500 to 

impose two requirements in evaluating whether the 

section applies: “(1) whether there is an earlier-filed ‘suit 

or process’ pending in another court, and, if so, (2) wheth-
6 BEBERMAN v. UNITED STATES

er the claims asserted in the earlier-filed case are ‘for or 

in respect to’ the same claim(s) asserted in the later-filed 

Court of Federal Claims action.” Brandt v. United States, 

7l0 F.3d 1369, 1374 (Fed. Cir. 2013) (citations omitted). 

As for step 1, the Claims Court found that Ms. Beberman

had filed a case against the United States that was “pending” before two courts (the District Court and the Third 

Circuit). Beberman, 129 Fed. Cl. at 545. As to step two, 

the Claims Court found that the Third Circuit appeal and 

the 2016 Claims Court case were “for or in respect to the 

same claim.” Id. at 546. The Claims Court reasoned that 

“[a]lthough Ms. Beberman’s First Amended Complaint 

related to alleged discrimination in Venezuela prior to the 

denial of tenure, Ms. Beberman’s subsequent filings 

[regarding her emergency motion for injunctive relief] 

addressed events that occurred post-denial of tenure.” Id. 

Specifically, the Claims Court found that “both suits are 

based on substantially the same operative facts: Ms. 

Beberman’s departure from Equatorial Guinea, the loss of

overseas benefits, the lack of local benefits upon her 

return to Washington, and the State Department’s alleged 

discriminatory basis.” Id. at 547. The Claims Court

found that the “directive and loss of benefits are not mere 

background facts, but rather are critical” to both cases,

even though “her legal theories [in the cases] are somewhat different.” Id. Thus, the Claims Court concluded 

that § 1500 barred Ms. Beberman’s 2016 complaint and 

dismissed the case on jurisdictional grounds without 

prejudice. Id. at 548. 

On February 6, 2017, Ms. Beberman filed a new 

complaint with the Claims Court (the 2017 complaint), 

alleging substantially similar facts and the same EPA 

claim as her 2016 complaint. This time, she argued, the 

Third Circuit appeal was no longer “pending” within the 

meaning of § 1500 because the Third Circuit had entered 

judgment denying her injunctive relief on January 12,

2017. The Government moved to dismiss Ms. Beberman’s
BEBERMAN v. UNITED STATES 7

complaint under § 1500 again, arguing that the mandate 

for the Third Circuit appeal had not yet issued when Ms. 

Beberman filed her 2017 complaint—it only issued on 

March 6, 2017—and therefore, the Third Circuit case was 

still “pending” within the meaning of § 1500. 

The Claims Court granted the motion on December 

21, 2017. The Claims Court agreed with the Government 

that an appeal is still pending until a mandate has issued. 

Beberman v. United States, 135 Fed. Cl. 336, 340–41 

(2017). The Claims Court also found that the claims 

asserted in the Third Circuit appeal are “for or in respect 

to” the claims asserted in the 2017 complaint. Id. at 341–

42.2 Specifically, the Claims Court made findings as to 

the similarities between the cases, substantively reiterating the findings in its 2016 opinion, and dismissed the 

complaint for lack of jurisdiction pursuant to § 1500. Id. 

at 342.

Ms. Beberman timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) and reviews the 

Claims Court’s dismissal for lack of jurisdiction de novo. 

Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370, 1378 

(Fed. Cir. 2017). 

 

2 The Claims Court also found that “plaintiff [did] 

not contest defendant’s assertion that the claims in this 

case are sufficiently similar to those in the Third Circuit 

appeal to meet the standard under § 1500,” but instead, 

the plaintiff focused on whether her claims were still 

pending before the Third Circuit. Id. at 341. We note, 

however, that Ms. Beberman extensively contested this

issue in her opposition to the Government’s Motion to 

Dismiss below. See Appx351–71. Indeed, the Claims 

Court went on to make reviewable findings on the issue.
8 BEBERMAN v. UNITED STATES

DISCUSSION

There are two issues in this case: (1) whether Ms. 

Beberman’s Third Circuit appeal was still “pending” 

within the meaning of § 1500 if the Third Circuit had 

entered a judgment but a mandate had not issued, and 

(2) whether the Third Circuit appeal and the instant case 

are “for or in respect to” the same claims. In order for this 

court to affirm the Claims Court’s decision, both questions 

must be answered in the affirmative. We decline to 

address the first issue because we reverse on the second. 

“Two suits are for or in respect to the same claim, precluding jurisdiction in [this court], if they are based on

substantially the same operative facts, regardless of the 

relief sought in each suit.” United States v. Tohono

O’dham Nation, 563 U.S. 307, 317 (2011). “Determining 

whether claims arise from substantially the same operative facts requires a comparison of the relevant claims.” 

Trusted Integration, Inc. v. United States, 659 F.3d 1159, 

1165 (Fed. Cir. 2011). The focus of the inquiry is the facts 

that give rise to the claims, not the legal theories behind 

the claims. Keene Corp. v. United States, 508 U.S. 200, 

201 (1993).

The Supreme Court in Tohono analogized the operative facts question of § 1500 to the principles of res judicata, setting forth two governing tests for determining 

whether claims are precluded by their assertion in earlier 

litigation: the act or contract test and the evidence test. 

Tohono, 563 U.S. at 315–16. Under the evidence test, two 

suits involve the same claim if “the same evidence support[s] and establish[es] both the present and the former 

cause of action.” Id. (quoting 2 H. Black, Law of Judgments § 726, p. 866 (1891)). Under the act or contract 

test, the “true distinction between demands or rights of 

action which are single and entire, and those which are 

several and distinct, is, that the former immediately arise 

out of one and the same act . . . and the latter out of 
BEBERMAN v. UNITED STATES 9

different acts.” Id. (quoting J. Wells, Res Adjudicata and 

Stare Decisis § 241, p. 208 (1878)). 

This court applied both of these tests in Trusted Integration, Inc. v. United States and found that a claim based 

on a “distinct contract” was not barred by § 1500. 659 

F.3d at 1167–70. There, like here, the facts giving rise to 

the district court claim and the Claims Court claim arose 

out of a related sequence of facts: the DOJ had entered 

into a joint business enterprise with Trusted Integration, 

but chose to create its own product by copying Trusted 

Integration’s product. This court found that the claims 

sharing some facts did not render the claims equivalent 

under Section 1500 or res judicata principles. Id. at 

1167–69. Specifically, this court found it relevant that: 

(1) the claims were based on different contracts—a fiduciary duty as part of a joint venture versus a licensing 

agreement; (2) the DOJ conduct giving rise to each claim 

was different—breach of the fiduciary duty occurred by 

the DOJ not including Trusted Integration’s product as 

part of its Cyber Security Assessment Management

offering,3 while breach of the licensing agreement occurred by the DOJ accessing Trusted Integration’s product with the purpose of copying the program and 

developing its own alternative; and (3) the facts that 

would give rise to either breach were “not legally operative for establishing breach of the other”—the district 

court complaint was “based on the fact that the DOJ 

developed an alternative and promoted it” but “how the 

alternative was developed [was] not a legally operative 

fact,” whereas how the alternative was developed was the 

“only asserted source” for the breach of licensing agree-

 

3 This court found two other Claims Court claims 

based on this breach barred by § 1500. Trusted Integration, 659 F.3d at 1164–67.
10 BEBERMAN v. UNITED STATES

ment claim. Id. at 1167–68. Similar factors are relevant 

in the instant case. 

Here, the Claims Court analysis of the overlapping 

facts between the two cases is brief. The Claims Court 

identified the following operative facts in this case: 

(1) the State Department’s separation order forcing Ms. 

Beberman to move from Equatorial Guinea to Washington, (2) the benefits Ms. Beberman lost because of being 

forced to switch positons without completing her assignment, including “overseas comparability pay, hardship 

pay, service needs differential, a cost of living allowance, 

housing, substantial overtime compensation, and eligibility to participate in the student loan repay program,” and

(3) the denial of an overnight stop en route to Washington, home leave, a temporary quarters service allowance, 

the opportunity to retrieve her household items, locality 

pay, a transit subsidy, and a formal assignment upon 

return to Washington. Beberman, 135 Fed. Cl. at 341. 

The Claims Court then identified what it found to be the 

“same set of operative facts” in the Third Circuit appeal: 

(1) Ms. Beberman asked the court to retain her current 

assignment in Equatorial Guinea until she fulfilled her 

assignment, (2) she requested injunctive relief to remain 

in Equatorial Guinea because a State Department employee’s age-based discriminatory animus proximately 

caused her to be denied tenure, and the State Department 

was directing her to leave Equatorial Guinea in the 

middle of her three year assignment, and (3) Ms. Beberman argued that absent injunctive relief, she would lose 

not only her position in Equatorial Guinea, but also 

various benefits such as a service-needs differential and 

student loan repayment credit. Id. at 341–42. 

From these findings and the Government’s briefing on 

appeal, we ascertain that the Claims Court based its 

decision on two overlapping facts between the Third 

Circuit appeal and present case: the Separation Order 

and the employment benefits of being in Equatorial 
BEBERMAN v. UNITED STATES 11

Guinea versus Washington. These two facts do not provide enough overlap to conclude that the claims arise from 

substantially the same operative facts. 

These facts are relevant to each case for substantially 

different reasons. In the Third Circuit appeal, Ms. Beberman was seeking an injunction against the Separation 

Order because she was contesting the legitimacy of her 

tenure denial and the allegedly age-based discriminatory 

animus that caused that denial. The bulk of her argument was focused on age-based discriminatory animus in 

Caracas. See Appx159–165. The appeal did not relate to 

the order itself, i.e. whether it should have been a Permanent Change of Station Order (as it was for a similarlysituated male) rather than a Separation Order, which is 

the allegation that makes the order relevant to the EPA 

claim at issue in the instant case. And Ms. Beberman

does mention lost benefits in both. Those lost benefits 

were a part of the irreparable harm that Ms. Beberman 

argued in her Third Circuit appeal if the court allowed an 

allegedly illegitimate tenure denial to stand. See

Appx212–13; Beberman, 675 F. App’x at 134–35. In the 

instant case, those benefits are mentioned as damages 

because the male comparator on which Ms. Beberman 

relies was given those benefits despite being denied 

tenure, while Ms. Beberman was not. Unlike in the Third 

Circuit appeal, these benefits are relevant to Ms. Beberman’s Claims Court EPA claim regardless of the legitimacy of the tenure denial, since the male comparator 

received them even after being denied tenure. 

Significantly, the above two facts identified by the 

Claims Court are not, on their own, the operative facts of 

either case. This case does not satisfy the evidence res 

judicata test of Tohono because this is not a case where 

the “two suits had substantial overlap of operative facts” 

such that Ms. Beberman “could have filed two nearly 

identical complaints without changing the claim in either 

suit in any significant way.” Cent. Pines Land Co. v. 
12 BEBERMAN v. UNITED STATES

United States, 697 F.3d 1360, 1365 (Fed. Cir. 2012) (discussing Tohono). The operative facts of the Third Circuit 

appeal are Ms. Beberman’s Caracas supervisor’s agebased discriminatory animus towards her, the effect that 

animus had on her tenure denial, and the harm she would 

suffer if the allegedly illegal tenure denial went through 

while her District Court case was pending. Other than 

the benefits-related harm, none of these facts are in Ms. 

Beberman’s EPA complaint before the Claims Court, nor 

would they be relevant to the EPA claim. The operative 

facts of Ms. Beberman’s EPA claim are that she and a 

male comparator were each denied tenure, but that the 

two were treated differently after the tenure denial. 

Beberman v. United States, No. 18-1519, Dkt. No. 42, ¶¶ 

6–7, 11–24. None of the facts as to the male comparator’s 

treatment are part of, or relevant to, Ms. Beberman’s 

claims in her Third Circuit appeal. 

To be sure, Ms. Beberman’s 2017 Claims Court Complaint lists many of the injuries she suffered due to the 

alleged disparate treatment she received as compared to a 

male comparator that she also identified in her Third 

Circuit Appeal as injuries that would flow from alleged 

age-discrimination-based denial of tenure. But, importantly, the two cases allege different facts for what 

caused the injuries. In other words, the complained-of 

government acts that give rise to the claims in the two 

cases are different and thus fail the “act or contract” res 

judicata test of Tohono. Before the District Court and the 

Third Circuit, the complained of government conduct was 

the discriminatory animus of her Caracas supervisor and

the resulting denial of tenure for Ms. Beberman. 

Appx109. But before the Claims Court, the complained-of 

government conduct was the way it treated a male comparator after being denied tenure, as opposed to the way 

it treated Ms. Beberman. 

Finally, no outcome in the Third Circuit appeal would 

have had an effect on Ms. Beberman’s EPA claim before 
BEBERMAN v. UNITED STATES 13

the Claims Court. Even if the Third Circuit had found an 

injunction warranted, by the time of the Third Circuit’s

decision in early 2017, Ms. Beberman had already been 

forced to move from Equatorial Guinea to Washington, 

and the government had already engaged in the alleged 

differential treatment that forms the basis for her Claims 

Court EPA claim. Thus, the purpose of § 1500 to prevent 

duplicative relief is not triggered by allowing this case to 

proceed.

For the above reasons, while the two cases share some 

of the same facts, we find that the Third Circuit appeal 

and the underlying District Court case are not “based on 

substantially the same operative facts” as the present 

case and thus are not “for or in respect to the same claim” 

as required by § 1500. Tohono, 563 U.S. at 317. 

Accordingly, we reverse the Claims Court’s dismissal 

of Ms. Beberman’s 2017 complaint for lack of jurisdiction 

and remand for further proceedings. 

REVERSED AND REMANDED