# In the United States Court of Federal Claims

No. 10-311C Filed: October 17, 2013

*************************************
* LARRY D. TALLACUS, *
* Plaintiff, *
*
v. *
* THE UNITED STATES, *
*
Defendant. *
*
*
*************************************

Martin C. Dolan , Dolan Griggs, LLP, Portland, Or egon, Counsel for Plaintiff.

Jane C. Dempsey , United States Department of Justi ce, 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 (“C onsent Mot.”) was fi led requesting that
the court transfer this case back to the United States District Court fo r the District of Oregon (“District Court”), pursuant to 28 U.S.C. § 16 31, because the United St ates Court of Federal Claims does not have subject matter jurisdic tion to adjudicate alle gations 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 Ar ea 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 pa rt of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq

.

2 The relevant facts were derived fro m 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 fai ling 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 Di strict Court case (“Settlement Agreement”). Am. Compl. ¶ 3. The Settlement Agreement provided that th e 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 di smissal of the 1997 District C ourt Complaint. Consent Mot.
2.

In August 2007, the IHS Portland Area Office implemented a re duction in force. As a result, on November 29, 2007, Plaintiff was a ssigned to the posi tion of Accounting Technician. Am. Compl. ¶ 7. Notwithstanding this reassignme nt 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. S ubsequently, the MSPB affirmed the IHS’s decision. Consent Mot. 3. In May 2008, Plainti ff filed a second Complaint in the District Court to review the MSPB’s determination, simu ltaneously alleging a violation of Title VII, a breach of contract claim, and a retaliation cl aim. 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 Marc h 24, 2011, concluding that it did not have subject matter jurisdiction over Plain tiff’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 IH S breached the Settlement Agreement by: implementing the reduction in force; removing Pl aintiff 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 Am ended 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 fe male 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 si milar responsibilities who were paid at a GS-14 or GS-13 level. Am. Compl ¶ 25. In addition, in the past, individuals who performed aspect s of Plaintiff’s job in the Portland Area Office were paid higher wages. Am. Compl. ¶ 25. The Amen ded Complaint requested money damages for lost pay, liquidated damages for the Govern ment’s bad faith conduct and Plaintiff’s

3 Plaintiff’s Equal Pay Act clai m 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. Comp l. 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 esta blish a right to recove r 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, lik e the one dismissed by Se nior 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’ decisi on nor the Consent Motion addressed the court’s jurisdiction over Plai ntiff’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 specif ically, jurisdiction is precluded if the two
lawsuits are based on substantiall y the same operative facts, rega rdless 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 Cour t case was filed in 2007, three years before the July 4, 2010 IHS decision. Thus, the FLSA clai m 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 th e FLSA claim involves events postdating July 4, 2010. Therefore, the two are not based on “substantiall y 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 “r equire[] different conduct,” occurr ing in different time periods, on the part of the IHS for Plaintiff to prevail in both the District Cour t 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 th at . . . give rise to [his Distri ct Court lawsuit] . . . are not legally operative for establishing” that the IHS vi olated 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 dive sted 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 A ppeals for the Federal Circuit, bearing on whether the court had jurisdiction over Pl aintiff’s breach of contract claim. In the first case, the appellate court held that th e 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 cl aim is dismissed or denied, it is no longer ‘pending’ for § 1500 purposes until a motion for rec onsideration 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 Mo tion 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 recons idered 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 shou ld 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 f iled in a court as defined in section 610 of this title or an appeal, including a petition for revi ew 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 sh all, if it is in the interest of justice, transfer such action or appeal to any ot her such court in which the acti on or appeal could have been brought at the time it was filed or not iced, 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 ac tually 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 assert edly imposing monetary liabilit y 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 Cl aims lacks jurisdiction, because a “precisely drawn, detailed statute pre-empts more general re medies . . . [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 cau se of action, a measure of damages, and an applicable statute of limitations.” Consent Mot. 6. Therefore, th is court does not have jurisdiction to adjudicate Plaintiff’s FLSA clai m. 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 b een brought in the District Court, because
Plaintiff’s FLSA claim falls with in 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. Transf er, however, rather than a dismissal, is in the interest of justice here, because Plainti ff’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 th e United States founded either upon the Constitution, or any Act of Congress or any re gulation of an executive department, or upon any express or implied contract with the Un ited States, or for liqui dated 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). Theref ore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent co ntractual 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 th e Tucker Act requires the litig ant 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 consid ered whether the Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives the sovereign imm unity of the United Stat es 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 Co urt 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 “substa ntial part of the events or om issions giving rise to the claim occurred.” 28 U.S.C. § 1391(e)(1).6 contains its own self-executing remedial sc heme, [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 mo netary 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 ( 20 13) (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 reas on, the United States Court of Federal Claims has jurisdiction under the Tucker Act wh en jurisdiction is “aut horized by the terms of the [detailed remedial] statute,” and “where a statute with a comprehensive remedial scheme provides for its own waiver of sovereign im munity 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 intend ed 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 es tablishes” 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 th e 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 empl oyed by the government of the
United States . . . in an y executive agency.’” King , 112 Fed. Cl. at 399 (quoting 29 U.S.C. § 203(e)(2)(A)). That provision, when read togeth er with the “private right of action in 29 U.S.C. § 216(b), provides an e xplicit 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 sove reign 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 wh ere Congress has prescrib ed 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 Agri cultural Marketing Agreement Act of 1937 (“AMAA”), which
vests the “District Courts of the United States” with juri sdiction, “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 [C ourt of Federal Claims,] because the FLSA provides for judicial review ‘in any Federal . . . court of competent jurisdiction,’” and this court is one of comp etent 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 appropri ate 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 vest ed 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 fo r review” in another court, by FLSA’s specific terms, cases may be heard in a ny court, state or federa l. These protections extend, inter alia , to “any individual employed by the Go vernment 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 th e 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 Fede ral 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 C ourt 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 ex ercise 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 jurisd iction.” 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 provi sion 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 [Cour t of Federal Claims] from hear ing 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 ha s been the requisite waiver of sovereign immunity. Bormes , 133 S. Ct. at 17–18; see also Horne , 133 S. Ct. at 2062–63 (explaining8 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 stat utory scheme provides the accout rements 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 a dded). It is only when an additional remedy “contradicts the limits of a pr ecise 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 sovereig n immunity and allows for suits to be maintained in any court of competent jurisdicti on, the United States Co urt of Federal Claims has jurisdiction to adjudicate Plaintiff’s FLSA claim.

III. CONCLUSION

For the reasons discussed here in, 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 de nied, insofar as it requests a transfer to the United States Dist rict Court for the Di strict 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 effectiv ely 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 pr oposition articulated in Foster , that case is easily distinguishable, because the statute at issue in that case provided for original jurisdicti on 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 jurisdic tion.” 29 U.S.C. § 216(b). Because the United
States Court of Federal Claims is not a “district court,” th e 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 th at 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 ci vil action to any other district or division”).