In the United States Court of Federal Claims 

No. 10-311C 

Filed: October 17, 2013 

************************************* 

 * 

LARRY D. TALLACUS, * 

 * 

 Plaintiff, * 

 * 

v. * 

 * 

THE UNITED STATES, * 

 * 

 Defendant. * 

 * 

 * 

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Martin C. Dolan, Dolan Griggs, LLP, Portland, Oregon, Counsel for Plaintiff. 

Jane C. Dempsey, United States Department of Justice, Civil Division, Washington, D.C., 

Counsel for the Government. 

MEMORANDUM OPINION AND ORDER LIFTING STAY AND DENYING 

TRANSFER 

BRADEN, Judge. 

 On September 25, 2013, a Consent Motion (“Consent Mot.”) was filed requesting that 

the court transfer this case back to the United States District Court for the District of Oregon 

(“District Court”), pursuant to 28 U.S.C. § 1631, because the United States Court of Federal 

Claims does not have subject matter jurisdiction to adjudicate allegations concerning a 

violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

1

I. RELEVANT FACTS AND PROCEDURAL HISTORY.2

Plaintiff is an employee in the Portland Area Office of the Indian Health Service 

(“IHS”), an agency within the Department of Health and Human Services (“HHS”). Am. 

 1 The Equal Pay Act, 29 U.S.C. § 206(d), is part of the Fair Labor Standards Act, 29 

U.S.C. § 201 et seq.

2

 The relevant facts were derived from the September 22, 2010 Amended Complaint 

(“Am. Compl.”) and the September 25, 2013 Consent Motion. 

28 U.S.C. § 1331 (federal question); 

28 U.S.C. § 1391(e)(1) (venue); 

28 U.S.C. § 1631 (transfer to cure want 

of jurisdiction); 

29 U.S.C. § 206(d) (Equal Pay Act); 

29 U.S.C. § 216(b) (jurisdiction under 

the Fair Labor Standards Act); 

42 U.S.C. § 2000e et seq. (Civil Rights 

Act, Title VII); 

RCFC 40.1 (reassignment). 
 2

Compl. ¶ 2. In 1997, Plaintiff filed a Complaint in the District Court, alleging that the IHS 

violated Title VII of the Civil Rights Act by failing to promote Plaintiff or increase his pay 

grade. Am. Compl. ¶ 2; Consent Mot. 1–2. In 2000, Plaintiff and the IHS signed an 

agreement settling the Title VII District Court case (“Settlement Agreement”). Am. Compl. ¶ 

3. The Settlement Agreement provided that the IHS would pay Plaintiff a sum certain and 

change his job description to Contract Health Service Consultant/Officer (“CHSO”) at a GS11 pay grade in exchange for dismissal of the 1997 District Court Complaint. Consent Mot. 

2. 

In August 2007, the IHS Portland Area Office implemented a reduction in force. As a 

result, on November 29, 2007, Plaintiff was assigned to the position of Accounting 

Technician. Am. Compl. ¶ 7. Notwithstanding this reassignment to a lower-level position, 

Plaintiff retained the same salary as a GS-11 CHSO. Am. Compl. ¶ 13; Consent Mot. 2. 

 In December 2007, Plaintiff filed a petition with the Merit Systems Protection Board 

(“MSPB”) to appeal the IHS’s reduction in force and his reassignment to the Accounting 

Technician position. Consent Mot. 2–3. Subsequently, the MSPB affirmed the IHS’s 

decision. Consent Mot. 3. In May 2008, Plaintiff filed a second Complaint in the District 

Court to review the MSPB’s determination, simultaneously alleging a violation of Title VII, a 

breach of contract claim, and a retaliation claim. Consent Mot. 3. On April 15, 2010, the 

District Court dismissed Plaintiff’s breach of contract claim for lack of subject matter 

jurisdiction. See Opinion and Order, Tallacus v. Sebelius (No. 08-591), Dkt. 64. After a trial, 

the District Court entered a judgment on March 24, 2011, concluding that it did not have 

subject matter jurisdiction over Plaintiff’s breach of contract claim. See Judgment, 

Tallacus v. Sebelius (No. 08-591), Dkt. No. 113. 

 On May 21, 2010, Plaintiff filed a Complaint in the United States Court of Federal 

Claims alleging that the IHS breached the Settlement Agreement by: implementing the 

reduction in force; removing Plaintiff from the CHSO position; and reassigning him to the 

position of Accounting Technician. On July 4, 2010, the IHS reassigned Plaintiff from the 

Accounting Technician position to CHSO for the Portland Area Office at a GS-11 pay grade. 

Am. Compl. ¶¶ 16–17. 

On September 22, 2010, Plaintiff filed an Amended Complaint that also alleged the 

IHS violated the Equal Pay Act, 29 U.S.C. § 206(d), as a result of a pay disparity between 

Plaintiff and several similarly qualified female CHSO incumbents. Am. Compl. ¶ 14.3

 

Specifically, the Amended Complaint alleged that when Plaintiff was reassigned to the 

position of a GS-11 CHSO, he was paid less than female CHSOs with similar responsibilities 

who were paid at a GS-14 or GS-13 level. Am. Compl ¶ 25. In addition, in the past, 

individuals who performed aspects of Plaintiff’s job in the Portland Area Office were paid 

higher wages. Am. Compl. ¶ 25. The Amended Complaint requested money damages for 

lost pay, liquidated damages for the Government’s bad faith conduct and Plaintiff’s 

 3

 Plaintiff’s Equal Pay Act claim is herein referred to as the FLSA claim, to conform 

to how it is described by the parties. 
 3

reinstatement at a higher GS pay grade. Am. Compl. 9. In the aggregate, these claims appear 

to exceed $10,000. Am. Compl. 9–10. 

 On February 4, 2011, the Government filed a Motion To Dismiss, In Part, arguing that 

the court did not have jurisdiction over Plaintiff’s breach of contract claim, pursuant to 28 

U.S.C. § 1500, because the District Court suit was pending prior to the filing of the lawsuit in 

this court. In addition, the Government argued that a breach of the Settlement Agreement 

necessarily did not establish a right to recover money damages. 

On June 30, 2011, Senior Judge Lawrence S. Margolis, then presiding over this case, 

issued an opinion dismissing Plaintiff’s breach of contract claim under 28 U.S.C. § 1500, but 

did not adjudicate Plaintiff’s FLSA claim. See Tallacus v. United States, 99 Fed. Cl. 235 

(2011).4

 In May 2012, Plaintiff added the breach of contract claim to a new action proceeding 

before the District Court. That claim, like the one dismissed by Senior Judge Margolis, 

alleged that the IHS breached the Settlement Agreement by actions taken in connection with 

the reduction in force. 

 4 Neither Senior Judge Margolis’ decision nor the Consent Motion addressed the 

court’s jurisdiction over Plaintiff’s FLSA claim pursuant to 28 U.S.C. § 1500. 

The United States Court of Federal Claims has no jurisdiction over a claim if the 

plaintiff has another suit “for or in respect to” that claim pending against the United States in 

another court. 28 U.S.C. § 1500. More specifically, jurisdiction is precluded if the two 

lawsuits are based on substantially the same operative facts, regardless of the relief sought in 

each suit. See United States v. Tohono O’Odham Nation, 131 S. Ct. 1723, 1731 (2011) 

(interpreting “for or in respect to” as requiring that claims be “based on the same operative 

facts, regardless of the relief sought”). 

The FLSA claim in this case alleges that the IHS’s decision on July 4, 2010 to award 

Mr. Tallacus a GS-11 pay grade violated the Equal Pay Act’s prohibition on gender-based 

discrimination. In contrast, the District Court case was filed in 2007, three years before the 

July 4, 2010 IHS decision. Thus, the FLSA claim involves facts that are related to—and 

follow logically from—the facts underpinning the District Court lawsuit. The District Court 

lawsuit involves events that all precede July 4, 2010, whereas the FLSA claim involves events 

postdating July 4, 2010. Therefore, the two are not based on “substantially the same operative 

facts.” Tohono, 131 S. Ct. at 1731. 

Nor does the FLSA claim “arise from the same operative facts” as those at issue in the 

District Court case. See Harbuck v. United States, 378 F.3d 1324, 1329 (Fed. Cir. 2004) 

(emphasis added). It would “require[] different conduct,” occurring in different time periods, 

on the part of the IHS for Plaintiff to prevail in both the District Court lawsuit and the FLSA 

claim filed in this action. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1168 

(Fed. Cir. 2011). Here, the “facts that . . . give rise to [his District Court lawsuit] . . . are not 

legally operative for establishing” that the IHS violated the Equal Pay Act, because Plaintiff’s 

FLSA claim involves events that only postdate the reduction in force. Id. at 1168. Therefore, 

the court has determined that it is not divested of subject matter jurisdiction under § 1500, as 

to Plaintiff’s FLSA claim. 
 4

 

 On June 27, 2013, Senior Judge Margolis sua sponte issued a stay in this case in light 

of two recent opinions issued by the United States Court of Appeals for the Federal Circuit, 

bearing on whether the court had jurisdiction over Plaintiff’s breach of contract claim. In the 

first case, the appellate court held that the United States Court of Federal Claims had 

jurisdiction over claims alleging breach of a Title VII settlement agreement. See 

Homes v. United States, 657 F.3d 1303, 1312 (Fed. Cir. 2011). In the second case, on March 

26, 2013, the appellate court held that “once a claim is dismissed or denied, it is no longer 

‘pending’ for § 1500 purposes until a motion for reconsideration or notice of appeal is filed.” 

Brandt v. United States, 710 F.3d 1369, 1379–80 (Fed. Cir. 2013).5

 Upon the retirement of Senior Judge Margolis, on August 29, 2013, this case was 

reassigned to the undersigned judge, pursuant to Rule 40.1 of the Rules of the United States 

Court of Federal Claims. 

 On September 25, 2013, the Government filed a Consent Motion to Transfer 

Plaintiff’s FLSA claim to the District Court, pursuant to 28 U.S.C. § 1631. Consent Mot. 6. 

On September 27, 2013, the court held a telephone status conference to discuss the pending 

motion, wherein the court indicated it would grant the Consent Motion. After further 

research, the court has reconsidered and determined that ruling was in error. 

II. WHETHER THE UNITED STATES COURT OF FEDERAL CLAIMS HAS 

JURISDICTION TO ADJUDICATE A CLAIM ARISING UNDER THE FAIR 

LABOR STANDARDS ACT. 

The Consent Motion argues that the court should transfer Plaintiff’s FLSA claim to the 

District Court, pursuant to 28 U.S.C. § 1631.6

 Consent Mot. 9–10 (concluding that United 

 5

 But, on May 29, 2013, the United States Court of Appeals for the Ninth Circuit 

affirmed the District Court’s 2011 decision that it did not have subject matter jurisdiction over 

Plaintiff’s breach of contract claims. See Tallacus v. Sebelius, No. 12-35046, 2013 WL 

2321923 (9th Cir. May 29, 2013). 

6

 Section 1631 provides: 

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

or an appeal, including a petition for review of administrative action, is noticed 

for or filed with such a court 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 

or appeal to any other such court in which the action or appeal could have been 

brought at the time it was filed or noticed, and the action or appeal shall 

proceed as if it had been filed in or noticed for the court to which it is 

transferred on the date upon which it was actually filed in or noticed for the 

court from which it is transferred. 

28 U.S.C. § 1631. 
 5

States v. Bormes, 133 S. Ct. 12, 18 (2012) stands for the proposition that the “Tucker Act is 

displaced . . . when a law assertedly imposing monetary liability on the United States contains 

its own judicial remedies”). Therefore, when a statute establishes a self-executing remedial 

framework, the United States Court of Federal Claims lacks jurisdiction, because a “precisely 

drawn, detailed statute pre-empts more general remedies . . . [and] supersedes the gap-filling 

role of the Tucker Act.” Consent Mot. 10 (quoting Bormes, 133 S. Ct. at 18) (internal 

citations and quotations omitted). 

The Consent Motion also argues that the Fair Labor Standards Act, of which the Equal 

Pay Act is a part, is a detailed remedial statute that displaces this court’s jurisdiction under the 

Tucker Act, as it “establishes liability, a cause of action, a measure of damages, and an 

applicable statute of limitations.” Consent Mot. 6. Therefore, this court does not have 

jurisdiction to adjudicate Plaintiff’s FLSA claim. Consent Mot. 6. Moreover, when a law 

imposing monetary liability contains internally specified judicial remedies, the Tucker Act 

does not apply. Consent Mot. 6 (citing Bormes, 133 S. Ct. at 12). 

Finally, this case originally could have been brought in the District Court, because 

Plaintiff’s FLSA claim falls within 28 U.S.C. § 1331 and venue is proper in the District Court 

under 28 U.S.C. § 1391(e)(1).7

 Consent. Mot. 11–12. Transfer, however, rather than a 

dismissal, is in the interest of justice here, because Plaintiff’s FLSA claim is “nonfrivolous 

and as such should be decided on the merits.” Consent Mot. 12 (quoting Galloway Farms, 

Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987)). 

The United States Court of Federal Claims has jurisdiction under the Tucker Act “to 

render judgment upon any 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. § 1491(a)(1). The Tucker Act, however, is 

“a jurisdictional statute; it does not create any substantive right enforceable against the United 

States for money damages . . . the Act merely confers jurisdiction upon [the United States 

Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 

U.S. 392, 398 (1976) (citations omitted). Therefore, to pursue a substantive right under the 

Tucker Act, a plaintiff must identify and plead an independent contractual relationship, 

Constitutional provision, federal statute, and/or executive agency regulation that provides a 

substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed. 

Cir. 2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive 

right for money damages against the United States separate from the Tucker Act itself.”). 

 In Bormes, the United States Supreme Court considered whether the Little Tucker Act, 

28 U.S.C. § 1346(a)(2), waives the sovereign immunity of the United States with respect to 

damages actions for violations of the Fair Credit Reporting Act (“FCRA”). See Bormes, 133 

S. Ct. at 15. In answering this question, the Court held that, “[w]here, as in FCRA, a statute 

 7 Section 1391(e)(1) provides that suits against the United States may be filed in any 

judicial district where a “substantial part of the events or omissions giving rise to the claim 

occurred.” 28 U.S.C. § 1391(e)(1).
 6

contains its own self-executing remedial scheme, [the lower federal courts must] look only to 

that statute to determine whether Congress intended to subject the United States to damages 

liability.” Id. at 17 (emphasis added). In addition, the Court stated that the “Tucker Act is 

displaced . . . when a law assertedly imposing monetary liability on the United States contains 

its own judicial remedies. In that event, the specific remedial scheme establishes the 

exclusive framework for the liability Congress created under the statute.” Id. at 18; see also 

King v. United States, 112 Fed. Cl. 396, 399 ( 2013) (explaining that “the Tucker Act may not 

be invoked to provide jurisdiction independently and instead of the terms of a detailed 

remedial statute.” (emphasis added)). For this reason, the United States Court of Federal 

Claims has jurisdiction under the Tucker Act when jurisdiction is “authorized by the terms of 

the [detailed remedial] statute,” and “where a statute with a comprehensive remedial scheme 

provides for its own waiver of sovereign immunity independent of the Tucker Act.” King, 

112 Fed. Cl. at 399. 

Therefore, the court first will determine whether the terms of a statute—here, the 

FLSA—specifically provide the required waiver of sovereign immunity. See Bormes, 133 S. 

Ct. at 17 (explaining that lower courts must “look only to [the terms of a detailed remedial 

statute] to determine whether Congress intended to subject the United States to damages 

liability”). Next, the court will examine the “purpose of the [FLSA], the entirety of its text, 

and the structure of review that it establishes” to determine jurisdiction. See Horne, 133 S. 

Ct. 2053, 2062–63 (2013) (quoting United States v. Fausto, 484 U.S. 439, 444 (1988)). 

 The United States Court of Appeals for the Federal Circuit has held that the FLSA 

contains an express waiver of sovereign immunity. See El-Sheikh v. United States, 177 F.3d 

1321, 1324 (Fed. Cir. 1999) (concluding that the “[Fair Labor Standards] Act waives the 

United States’ sovereign immunity” for suits by employees of the United States); see also 

Saraco v. United States, 61 F.3d 863, 865–66 (Fed. Cir. 1995) (same). In these cases, the 

appellate court explained that the “1974 amendments to the FLSA expanded the definition of 

‘employee’ under the Act to include ‘any individual employed by the government of the 

United States . . . in any executive agency.’” King, 112 Fed. Cl. at 399 (quoting 29 U.S.C. § 

203(e)(2)(A)). That provision, when read together with the “private right of action in 29 

U.S.C. § 216(b), provides an explicit waiver of sovereign immunity authorizing federal 

employees to sue their employer, the United States.” Id. (citing El-Sheikh, 177 F.3d at 1323–

24). Because the terms of the FLSA explicitly waive the sovereign immunity of the United 

States, the only remaining issue is whether the court has jurisdiction to adjudicate Plaintiff’s 

FLSA claim in this case. 

“[T]he Supreme Court has recognized that jurisdiction in the [Court of Federal 

Claims] (or its predecessors) is foreclosed where Congress has prescribed a different, specific 

avenue for review.” King, 112 Fed. Cl. at 399 (citing Bormes, 133 S. Ct. at 18). And 

Congress, of course, may “precisely define[] the appropriate forum.” Hinck v. United States, 

550 U.S. 501, 507 (2007). When a statute provides a “ready avenue” for assertion of claims, 

that statute withdraws this court’s jurisdiction under the Tucker Act. See Horne, 133 S. Ct at 

2063 (determining that the Agricultural Marketing Agreement Act of 1937 (“AMAA”), which 

vests the “District Courts of the United States” with jurisdiction, “withdraws Tucker Act 

jurisdiction” in the United States Court of Federal Claims). 
 7

Therefore, as the King court recognized, “the FLSA authorizes suits by federal 

employees against the United States in the [Court of Federal Claims,] because the FLSA 

provides for judicial review ‘in any Federal . . . court of competent jurisdiction,’” and this 

court is one of competent jurisdiction. See King, 112 Fed. Cl. at 400 (quoting 29 

U.S.C. § 216(b)); see also Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 380 (2d Cir. 2003) 

(explaining that a “court of competent jurisdiction . . . [is] a court that has jurisdiction to hear 

the claim brought before it”). Moreover, the FLSA’s jurisdictional grant is broader than the 

statutes at issue in both Bormes and Horne. Compare 15 U.S.C. § 1681p (stating that suits 

under the FCRA are proper “in any appropriate United States district court”), and 7 

U.S.C. § 608c(15)(B) (stating that under the AMAA “[t]he District Courts of the United 

States in any district where such handler is an inhabitant, or has his principal place of 

business, are hereby vested with jurisdiction”), with 29 U.S.C. § 216(b) (allowing an action 

under the FLSA to be maintained “in any Federal or State court of competent jurisdiction”). 

As such, far from providing a “different, specific avenue for review” in another court, by 

FLSA’s specific terms, cases may be heard in any court, state or federal. These protections 

extend, inter alia, to “any individual employed by the Government of the United States” in 

any executive agency, unit of the judicial branch or as a civilian in the military. See 29 

U.S.C. § 203(e)(2)(A). 

This case also differs from Bormes, wherein the plaintiffs attempted to “mix and 

match FCRA’s provisions with the Little Tucker Act’s immunity waiver to create an action 

against the United States.” Bormes, 133 S. Ct. at 19. Here, the FLSA “confer[s] the right to 

recover money from the United States, that is, the FLSA contain[s] the requisite waiver of 

sovereign immunity.” Saraco, 61 F.3d at 865. In allowing suits to be maintained in any court 

of competent jurisdiction, including the United States Court of Federal Claims, the FLSA’s 

“remedial and humanitarian” purposes are effectuated. See Tennessee Coal, Iron & R. 

Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944) (discussing the goals and purposes of the 

FLSA). 

Of course, “an additional remedy in the Court of [Federal] Claims is foreclosed when 

it contradicts the limits of a precise remedial scheme.” Bormes, 133 S. Ct. at 18 (emphasis 

added). In this case, however, the court’s exercise of jurisdiction over Plaintiff’s claim is 

consonant with the FLSA, because that statute provides for jurisdiction “in any Federal or 

State court of competent jurisdiction.” 29 U.S.C. § 216(b). Indeed, the remedial scheme 

established by the FLSA, as noted by the King court, “do[es] not limit jurisdiction to the 

federal district courts or bar this court's ability to hear FLSA claims against the federal 

government. Rather, the FLSA's broad forum provision provides for cases to be heard in any 

court.” King, 112 Fed. Cl. at 400. In addition, as the King court observed, “the Supreme 

Court did not . . . [hold] in Bormes that any statute containing a ‘detailed remedial scheme’ 

necessarily eliminates the [Court of Federal Claims] from hearing cases under that scheme.” 

King, 112 Fed. Cl. at 399. Bormes determined that in the presence of a sufficiently detailed 

remedial statute, courts must look to the terms of that statute—and not to the more general 

provisions of the Tucker Act—to determine if jurisdiction in the United States Court of 

Federal Claims is proper and whether there has been the requisite waiver of sovereign 

immunity. Bormes, 133 S. Ct. at 17–18; see also Horne, 133 S. Ct. at 2062–63 (explaining 
 8

that lower courts must determine if jurisdiction in the United States Court of Federal Claims is 

proper based on a thorough review of the detailed remedial statute).8 

The Tucker Act and the court’s jurisdiction are not summarily displaced by the 

presence of a comprehensive remedial scheme. Rather, the United States Supreme Court has 

held “[w]here a specific statutory scheme provides the accoutrements of a judicial action, the 

metes and bounds of the liability Congress intended to create can only be divined from the 

text of the statute itself.” Bormes, 133 S. Ct. at 19 (emphasis added). It is only when an 

additional remedy “contradicts the limits of a precise remedial scheme” that adjudication in 

this court is foreclosed. Id. at 18 (“[A]n additional remedy in the Court of Claims is 

foreclosed when it contradicts the limits of a precise remedial scheme.”). 

Since the FLSA expressly waives sovereign immunity and allows for suits to be 

maintained in any court of competent jurisdiction, the United States Court of Federal Claims 

has jurisdiction to adjudicate Plaintiff’s FLSA claim. 

III. CONCLUSION 

For the reasons discussed herein, the Consent Motion To Lift Stay And To Transfer is 

granted, insofar as it requests that the court lift the June 27, 2013 stay, but denied, insofar as it 

requests a transfer to the United States District Court for the District of Oregon. 

 IT IS SO ORDERED.

 s/ Susan G. Braden

 SUSAN G. BRADEN 

 Judge

 8

 The court recognizes that Foster v. United States, 111 Fed. Cl. 658 (2013) read 

Bormes broadly, determining that, “[i]f ‘statutory provisions afford . . . a ready avenue to 

bring [a claim],’ those provisions effectively withdraw Tucker Act jurisdiction.” Id. at 664–

65 (quoting Horne, 133 S. Ct. at 2063) (alterations in original). To the extent that Bormes 

stands for the broader proposition articulated in Foster, that case is easily distinguishable, 

because the statute at issue in that case provided for original jurisdiction in “[t]he district 

courts of the United States.” Foster, 111 Fed. Cl. at 663 (quoting 38 U.S.C. § 1975); see also 

King, 112 Fed. Cl. at 400 n. 4 (same). In contrast, the FLSA provides for jurisdiction “in any 

Federal or State court of competent jurisdiction.” 29 U.S.C. § 216(b). Because the United 

States Court of Federal Claims is not a “district court,” the assertion of jurisdiction in Foster 

would have been improper. See, e.g., Fisherman's Harvest, Inc. v. PBS & J, 490 F.3d 1371, 

1378 (Fed. Cir. 2007) (concluding that the United States Court of Federal Claims is not a 

“district or division,” as those terms are used in 28 U.S.C. § 1404(a), that allows a district 

court to “transfer any civil action to any other district or division”).