NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

KATHLYN M. STEIN,

Plaintiff-Appellant

v.

DUANE B. GILL, DIRECTOR, VA CENTRAL 

WESTERN MA HEALTH CARE SYSTEM, IN HIS 

OFFICIAL CAPACITY,

Defendant-Appellee

______________________ 

2023-1265

______________________ 

Appeal from the United States District Court for the 

District of Massachusetts in No. 3:18-cv-30201-MGM, 

Judge Mark G. Mastroianni.

______________________ 

Decided: June 9, 2023

______________________ 

KATHLYN M. STEIN, Shutesbury, MA, pro se.

 STEVEN MICHAEL MAGER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by REGINALD THOMAS BLADES, JR., BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY. 

______________________ 

Case: 23-1265 Document: 13 Page: 1 Filed: 06/09/2023
2 STEIN v. GILL

Before PROST, SCHALL, and HUGHES, Circuit Judges. 

PER CURIAM. 

Kathlyn M. Stein appeals from an order of the U.S. District Court for the District of Massachusetts transferring 

her Equal Pay Act (“EPA”) claim to the U.S. Court of Federal Claims under 28 U.S.C. § 1631. We affirm.

BACKGROUND

I 

In December 2018, Ms. Stein filed an EPA claim

against her employer, the Department of Veterans Affairs

(“VA”),1 in the U.S. District Court for the District of Massachusetts. She alleged that the government violated the 

EPA, 29 U.S.C. § 206(d), by paying her less than male employees doing equal work, and she sought over $10,000 in 

damages. 

The government moved to dismiss Ms. Stein’s EPA 

claim under Federal Rule of Civil Procedure 12(b)(1) for 

lack of subject-matter jurisdiction.2 It argued that, per the 

Tucker Act, 28 U.S.C. § 1491(a)(1), the Court of Federal 

Claims has exclusive jurisdiction over EPA money-damages claims against the government for over $10,000.3 The 

1 Although Ms. Stein’s complaint named (as relevant 

here) the then Director of the VA Central Western Massachusetts Health Care System in his official capacity as the 

“Defendant Employer,” because any distinction is immaterial to our discussion, we refer to the defendant-employer 

simply as the VA. 

2 Subsequent references to jurisdiction should be understood as referring to subject-matter jurisdiction.

3 The Tucker Act, 28 U.S.C. § 1491(a)(1), is sometimes called the Big Tucker Act. It has a companion, the 

Little Tucker Act, which (as relevant here) gives district 

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STEIN v. GILL 3

government relied on Abbey v. United States, 745 F.3d 1363 

(Fed. Cir. 2014), to support this argument. 

In Abbey, government employees sued the government 

in the Court of Federal Claims seeking money damages for 

an alleged violation of the Fair Labor Standards Act of 

1938 (“FLSA”), of which the EPA is a part. On appeal to 

this court, the government argued that the Court of Federal Claims lacked jurisdiction. Despite our having long 

held that the Tucker Act gives the Court of Federal Claims 

jurisdiction over FLSA money-damages claims against the 

government (and exclusive jurisdiction when the claim exceeds $10,000), it argued that an intervening Supreme 

Court case, United States v. Bormes, 568 U.S. 6 (2012), required concluding that the Tucker Act no longer supplies 

such jurisdiction. See Abbey, 745 F.3d at 1368–69. The 

Abbey court disagreed; it held that, Bormes notwithstanding, jurisdiction in the Court of Federal Claims remains 

proper under the Tucker Act. Abbey, 745 F.3d at 1368–72. 

The government did not seek rehearing in Abbey. 

In Ms. Stein’s case, the Massachusetts district court relied on Abbey to conclude that it lacked jurisdiction over 

her EPA claim. Stein v. McMahon, No. 18-30201, 2020 WL 

6074157, at *1–2 (D. Mass. Aug. 24, 2020). Instead of dismissing the claim, the district court gave Ms. Stein the opportunity to request that it be transferred to the Court of 

Federal Claims under 28 U.S.C. § 1631, which allows a 

court that lacks jurisdiction to transfer a claim to one that 

has it.4 When Ms. Stein failed to request a transfer, the 

courts the same jurisdiction that the Tucker Act gives the 

Court of Federal Claims, but only over claims not exceeding 

$10,000. 28 U.S.C. § 1346(a)(2). Unless otherwise specified, subsequent references to the Tucker Act contemplate 

both the Big and Little versions.

4 Although § 1631 references transfer of a “civil action,” we have held that it authorizes transfer of individual 

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4 STEIN v. GILL

court dismissed the EPA claim for lack of jurisdiction. 

Ms. Stein then appealed to the First Circuit, maintaining 

that the district court had jurisdiction all along. 

II

While Ms. Stein’s appeal was pending before the First 

Circuit, an unrelated appeal brought by Dr. Rebecca Metzinger was pending before this court. Her case had much in 

common with Ms. Stein’s.

Like Ms. Stein, Dr. Metzinger had filed an EPA claim

for over $10,000 against the VA in district court. And, as

in Ms. Stein’s case, the government moved—successfully, 

and relying on Abbey—to have the district court declare itself without jurisdiction. See Metzinger v. U.S. Dep’t of Veterans Affs., No. 19-10614, 2020 WL 13562907, at *2–3 (E.D. 

La. May 4, 2020). The district court transferred the claim 

to the Court of Federal Claims under § 1631, id. at *4, and 

Dr. Metzinger appealed to this court, maintaining that the 

district court shouldn’t have transferred because it had jurisdiction all along. 

Unlike in Ms. Stein’s appeal, however, the government 

in Dr. Metzinger’s appeal changed its position before its 

brief came due. It now agreed that the district court had 

jurisdiction all along, making the § 1631 transfer to the 

Court of Federal Claims improper. Resp. Br. for Def.-Appellees at 4–5, Metzinger v. Dep’t of Veterans Affs., 

No. 20-1906 (Fed. Cir. Dec. 7, 2020). It also said that Abbey

was wrongly decided—that, in light of Bormes, the Court of 

Federal Claims lacks jurisdiction over FLSA or EPA claims 

against the government. Id. at 7, 10–13. Yet, in its brief 

filed just two months later in Ms. Stein’s appeal to the First 

Circuit, the government stuck to its original position and 

urged the First Circuit to “follow the reasoning of Abbey, 

claims as well. United States v. County of Cook, 170 F.3d 

1084, 1087–89 (Fed. Cir. 1999).

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STEIN v. GILL 5

and every other court to consider this question, and hold 

that the Court of Federal Claims has exclusive jurisdiction 

over [EPA] claims against the federal government in excess 

of $10,000.” Br. for Defs.-Appellees at 18, Stein v. Collins, 

No. 20-1906 (1st Cir. Feb. 8, 2021). 

In June 2021, during oral argument in Dr. Metzinger’s 

appeal, we notified government counsel that the government was taking inconsistent positions as between 

Dr. Metzinger’s and Ms. Stein’s appeals.5 After that revelation, the government changed its position in Ms. Stein’s 

appeal to align with the one taken in Dr. Metzinger’s appeal, and it notified the First Circuit accordingly. Appellees’ Resp. to Appellant’s Pet. for Reh’g En Banc at 1–2, 8, 

Stein v. Collins, No. 20-1906 (1st Cir. Aug. 30, 2021). The 

First Circuit then vacated the Massachusetts district 

court’s dismissal and remanded, observing that the district 

court “may determine in the first instance whether there is 

subject-matter jurisdiction to hear [Ms.] Stein’s official-capacity EPA claim and may consider the [g]overnment’s updated position on the issue when doing so.” Judgment at 2, 

Stein v. Collins, No. 20-1906 (1st Cir. Oct. 12, 2021).

In December 2021, we affirmed the district court’s

§ 1631 transfer of Dr. Metzinger’s EPA claim to the Court 

of Federal Claims. Metzinger v. Dep’t of Veterans Affs., 

20 F.4th 778 (Fed. Cir. 2021). We noted that a § 1631 

transfer requires two relevant things: the transferor court

(district court) must lack jurisdiction, and the transferee 

court (Court of Federal Claims) must have it. As to 

whether the Court of Federal Claims had jurisdiction, we 

noted that Abbey unquestionably held that it did. We 

acknowledged the government’s argument that Abbey was 

wrongly decided, but we explained that the argument was 

5 Oral Arg. at 15:51–17:00, No. 20-1906, 

https://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

-1906_06102021.mp3. 

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6 STEIN v. GILL

misplaced: panels are bound by prior panel decisions of this 

court unless and until overturned en banc. Id. at 781. As

to whether the district court lacked jurisdiction, that issue 

was not squarely presented in Abbey. The plaintiffs there 

had filed their complaint in the Court of Federal Claims, so 

the issue was simply whether that court had jurisdiction. 

Nevertheless, we concluded in Metzinger that, under Abbey’s reasoning, the Tucker Act provides the only basis for 

jurisdiction over EPA money-damages claims against the 

government—meaning that district courts lack jurisdiction 

over such claims exceeding $10,000. Id. at 784; see also 

supra note 3. We therefore affirmed the transfer. The government did not seek rehearing in Metzinger. 

III

After the First Circuit’s remand to the Massachusetts 

district court in Ms. Stein’s case, the government again 

moved to dismiss her EPA claim—not for jurisdictional reasons this time, but for failure to state a claim under Federal 

Rule of Civil Procedure 12(b)(6). Ms. Stein opposed. 

In July 2022, the district court again concluded that it 

lacked jurisdiction over Ms. Stein’s EPA claim. Although 

neither party’s brief discussed the jurisdictional issue, the 

district court correctly observed that it had an independent 

duty to confirm for itself its own jurisdiction. See Stein v. 

Gill, No. 18-30201, 2022 WL 2980680, at *1–2 (D. Mass. 

July 1, 2022). In discharging that duty, the district court 

again relied on Abbey (and now Metzinger as well) to support its conclusion that it lacked jurisdiction. Id. The district court stated in the alternative that, even if it had 

jurisdiction, it would dismiss the claim as inadequately 

pleaded under Rule 12(b)(6). Id. at *2. 

The district court initially dismissed the claim for lack 

of jurisdiction. But, after receiving and construing a request from Ms. Stein, it ordered the claim transferred instead to the Court of Federal Claims under § 1631. 

Case: 23-1265 Document: 13 Page: 6 Filed: 06/09/2023
STEIN v. GILL 7

Ms. Stein initially appealed the district court’s transfer 

order to the First Circuit. See Appx. 63.6 The First Circuit, 

however, noted that this court has exclusive jurisdiction 

over this appeal from an interlocutory § 1631 transfer order to the Court of Federal Claims. Appx. 63 (citing 

28 U.S.C. § 1292(d)(4)(A)); see also Appx. 65–66. It therefore transferred Ms. Stein’s appeal to this court under 

§ 1631. Appx. 65–66.

We have exclusive jurisdiction over this appeal from 

the district court’s transfer order. 28 U.S.C. 

§ 1292(d)(4)(A).

DISCUSSION

Both parties challenge the jurisdictional conclusions 

underpinning the district court’s transfer order. E.g., Appellant’s Informal Br. 2; Appellee’s Br. 8–9. We review 

these conclusions de novo. Metzinger, 20 F.4th at 780–81. 

The parties argue that, in light of the Supreme Court’s 

decision in Bormes, the district court has jurisdiction over 

Ms. Stein’s EPA claim and the Court of Federal Claims 

does not. But our precedent in Abbey and Metzinger plainly 

forecloses these arguments. The parties do not suggest 

otherwise. Instead, they (particularly the government) 

dedicate many pages of briefing to explaining why they 

think Abbey and Metzinger were wrongly decided. E.g., Appellee’s Br. 15–27. Nowhere among the parties’ briefing, 

however, do they acknowledge that we, as a panel, “are 

bound by prior panel decisions of this court unless and until overturned en banc.” Metzinger, 20 F.4th at 781 (citing 

Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 

1988)). Because these decisions bind us, we must reject the 

parties’ challenges to the jurisdictional conclusions underpinning the district court’s transfer order. And, having 

6 “Appx.” refers to the appendix included with the 

government’s brief.

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8 STEIN v. GILL

been presented no other valid reason to disturb that order, 

we affirm it.

The parties also address the implications of the district 

court’s alternative conclusion that, if it had jurisdiction, it 

would dismiss the EPA claim under Rule 12(b)(6) as being 

inadequately pleaded. Ms. Stein asks us to vacate this aspect of the district court’s decision if we conclude that the 

district court lacked jurisdiction. See Appellant’s Informal 

Br. 3. Setting aside our authority to do so, we deem such 

action unnecessary. As the government notes, this aspect 

of the district court’s decision “would have no legal effect 

and could not bind the Court of Federal Claims in any 

transferred matter” if we conclude—as we have—that the 

district court lacked jurisdiction. Appellee’s Br. 29 (cleaned 

up).

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm.

AFFIRMED

COSTS

No costs. 

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