N OTE : This disposition is nonprecedential.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

______________________

K

ATHLYN M. S TEIN , Shutesbury, MA, pro se.

S TEVEN M ICHAEL M AGER , Commercial LitigationBranch, Civil Division, United States Department of Justice, Washington, DC, for defendant

- appellee. Also represented by R EGINALD T HOMAS B LADES , J R ., B RIAN M. B OYNTON , P ATRICIA M. M C C ARTHY

.

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

Before P ROST , S CHALL , and H UGHES , Circuit Judges

. P ER C URIAM

. Kathlyn M. Stein appeals from an order of the U.S. District Court for the District of Massachusetts transferringher Equal Pay Act (“EPA”) claim to the U.S. Court of Federal Claims under 28 U.S.C. § 1631. We affirm.

B ACKGROUND

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 s he 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 ha s 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, t he Little Tucker Act , which (as relevant here) gives distr ict Case: 23-1265 Document: 13 Page: 2 Filed: 06/09/2023STEIN 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 F ederal Claims lacked jurisdiction. Despite our having long held that the Tucker Act g ives the Court of Federal Claims jurisdiction over FLSA money- damages claim s 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 supplie s 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 remain s 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 conclud e 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 t he 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 L ittle versions.

4 Although § 1631 references transfer of a “ civil action,” we have held that it authorizes transfer of individual Case: 23-1265 Document: 13 Page: 3 Filed: 06/09/2023STEIN v. GILL 4

court dismissed the EPA claim for lack of jurisdiction

. Ms. Stein then appeal ed 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.

L ike 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 move d— 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). T he 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 thedistrict court shouldn’t have transferred because it had jurisdiction all along

. U nlike in Ms. Stein’s appeal, howe ver, 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.

- Appelle es 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). Case: 23-1265 Document: 13 Page: 4 Filed: 06/09/2023STEIN v. GILL 5

and every other court to consider thi s 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, d u ring 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. Stei n’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, w e affirm ed the district court’s § 1631 transfer of Dr. Metzinger’s EPA c laim 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. 2 0- 1906, https://oralarguments.cafc.uscourts.gov/d e fault.aspx?fl=20

- 1906_06102021.mp3

. Case: 23-1265 Document: 13 Page: 5 Filed: 06/09/2023STEIN v. GILL 6

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 . T he 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 ju risdiction over EPA money

- damages claims against the government— meaning that district courts lack jurisdiction

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

supra note 3. We therefore affirmed the transfer. The government did not seek reheari ng 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 d ischarging 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.

T he district court initially dismissed the claim for lack of jurisdiction . But, after receiving and construing a request from Ms. Stein, it o rdered the claim transferred instead to the Court of Federal Claims under § 1631. Case: 23-1265 Document: 13 Page: 6 Filed: 06/09/2023STEIN 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).

D ISCUSSION 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. W e review these conclusions de novo. Metzinger , 20 F.4th at 780

– 81.
The part ies 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 o ur precedent in Abbey and Metzinger plainly forecloses these arguments. T he parties do not suggest otherwise . I nstea d, 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. N owhere among the parties’ briefing

, however, do they acknowledge that we, as a panel, “arebound by prior panel decisions of this court unless and until overturned en banc.” Metzinger , 20 F.4th at 781 (citing Newell Cos. v. Kenn e y Mfg. Co. , 864 F.2d 757, 765 (Fed. Cir. 1988)). Because thes e 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. Case: 23-1265 Document: 13 Page: 7 Filed: 06/09/2023STEIN v. GILL 8

been presented no other valid reason to disturb that order, we affirm it.

T he 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).

C ONCLUSION We have considered the parties’ remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

C OSTS

No costs. Case: 23-1265 Document: 13 Page: 8 Filed: 06/09/2023