           In the United States Court of Federal Claims
                                        No. 10-311C
                                   Filed: October 17, 2013

*************************************
                                    *
LARRY D. TALLACUS,                  *              28 U.S.C. § 1331 (federal question);
                                    *              28 U.S.C. § 1391(e)(1) (venue);
      Plaintiff,                    *              28 U.S.C. § 1631 (transfer to cure want
                                    *                 of jurisdiction);
v.                                  *              29 U.S.C. § 206(d) (Equal Pay Act);
                                    *              29 U.S.C. § 216(b) (jurisdiction under
THE UNITED STATES,                  *                 the Fair Labor Standards Act);
                                    *              42 U.S.C. § 2000e et seq. (Civil Rights
      Defendant.                    *                 Act, Title VII);
                                    *              RCFC 40.1 (reassignment).
                                    *
*************************************

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.
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 GS-
11 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.



                                              2
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.



                                                 3
        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.



                                                  4
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).



                                                 5
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).



                                               6
        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




                                                 7
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”).



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