                  IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                                    No. 13-457C

                                       (Filed: December 4, 2013)

                                                 )
TAMARA BARRY, et al.,                            )
                                                 )        Claims brought under the Fair Labor
                         Plaintiffs,             )        Standards Act, 29 U.S.C. § 216(b);
                                                 )        motion to transfer based upon asserted
       v.                                        )        absence of jurisdiction in this court;
                                                 )        Bormes distinguished; King followed
UNITED STATES,                                   )
                                                 )
                         Defendant.              )
                                                 )
                                                 )

       Jacob Y. Statman, Snider & Associates, LLC, Baltimore, Maryland, for plaintiffs. With
him on the brief was Jason I. Weisbrot, Snider & Associates, LLC, Baltimore, Maryland.

       Martin M. Tomlinson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.

                                                 ORDER

LETTOW, Judge

        On July 5, 2013, plaintiffs (“the Barry plaintiffs”), past or present employees of the
Department of Homeland Security, brought claims in this court under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 216(b). Rather than answer and defend against the plaintiffs’ claims
on the merits, the government has asserted that this court lacks jurisdiction to hear FLSA claims
and has moved to transfer the case to the United States District Court for the District of
Nebraska, pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims and 28 U.S.C. §
1631. 1

       1
           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
                                        I. BACKGROUND

        The Barry plaintiffs are or were employees of the U.S. Department of Homeland
Security, U.S. Citizenship and Immigration Services, Office of Fraud Detection and National
Security. Compl. at 3, ¶ 2. The Barry plaintiffs allege that they were wrongly classified as
exempt from the FLSA prior to February 12, 2012 and request back pay at the appropriate rate
for any and all hours worked in excess of eight hours per day or forty hours per week, as well as
declarative relief. Compl. at 6. On February 12, 2012, the government reclassified the Barry
plaintiffs as non-exempt for purposes of the FLSA. Compl. at 3, ¶¶ 3-4. According to the Barry
plaintiffs, they “did not have any change in duties prior to or subsequent to the Agency’s
conversion of them from exempt to non-exempt,” and their positions are consistent with duties
that are non-exempt. Compl. at 3, ¶¶ 5, 7. Subsection 207(a) of the FLSA, codified at 29 U.S.C
§ 207(a), requires that a covered employer compensate its non-exempt employees at a rate not
less than one and one-half times the regular rate of pay for any hours worked in excess of forty
hours per week. 29 U.S.C. § 207(a)(1). The Barry plaintiffs claim that they were wrongly
designated as exempt prior to February 12, 2012 and seek damages in the amount of overtime
pay wrongfully withheld under Subection 207(a). See Compl. at 4-5, ¶¶ 3, 6. The Barry
plaintiffs assert that this court has jurisdiction pursuant to statutes that include 29 U.S.C. §§ 201
– 219, 28 U.S.C. § 1331, 28 U.S.C. § 1337, 28 U.S.C. § 1346(a), and 28 U.S.C. § 1491. Compl.
at 2. 2

        On September 5, 2013, the government filed a motion to transfer the case to the United
States District Court for the District of Nebraska, challenging this court’s subject matter
jurisdiction over the Barry plaintiffs’ claims. See Def.’s Mot. to Transfer (“Def.’s Mot.”). The
Barry plaintiffs responded on October 2, 2013, see Pl.’s Resp. in Opp’n to Def.’s Mot. to
Transfer (“Pl.’s Opp’n”), and the government replied on October 31, 2013, see Def.’s Reply to
Pl.’s Resp. to Def.’s Mot. to Transfer (“Def.’s Reply”). The motion is ready for decision.

                                           II. ANALYSIS

        This jurisdictional dispute rests on the relationship between the Tucker Act, the principal
jurisdiction-granting statute applicable to this court, and the FLSA, the statute providing the
substantive right the Barry plaintiffs seek to enforce.


               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
       2
         The Barry plaintiffs refer to 28 U.S.C. § 1491 as a basis for relief, but do not directly
state that it is the jurisdictional foundation for their action. The government correctly notes that
most of the statutes that plaintiffs do cite as bases for jurisdiction are inappropriate, including 28
U.S.C § 1331, 28 U.S.C. § 1337, and 28 U.S.C. § 1346(a)(2).


                                                  2
                                       A. The Tucker Act

        The Tucker Act, codified at 28 U.S.C. § 1491(a)(1), provides this court with jurisdiction
over claims for monetary relief 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.” 28 U.S.C. § 1491(a)(1). Although constituting a grant
of jurisdiction, the Tucker Act does not create a substantive legal right. See United States v.
Mitchell, 445 U.S. 535, 538 (1980) (citing United States v. Testan, 424 U.S. 392, 398 (1976)).
Claimants must also identify a separate source of substantive law creating a right to money
damages. Id. at 538-39. The Tucker Act and its predecessors “open[ed] a judicial avenue for
certain monetary claims against the United States.” United States v. Bormes, _ U.S. _, _, 133 S.
Ct. 12, 17 (2012). Prior to enactment of the Tucker Act, many laws imposing monetary
obligations on the federal government provided no mechanism of enforcement, leaving claimants
individually to petition Congress for redress. See id., _ U.S. at _ & n.3, 133 S. Ct. at 17 & n.3.
Sovereign immunity barred federal district courts from assuming jurisdiction under the federal-
question jurisdictional statute, 28 U.S.C. § 1331. See, e.g., Berman v. United States, 264 F.3d
16, 20 (1st Cir. 2001) (“General jurisdiction statutes such as [Section 1331] do not waive
sovereign immunity and therefore cannot be the basis for jurisdiction over a civil action against
the federal government.”); Reed v. Reno, 146 F.3d 392, 397-98 (6th Cir. 1998) (holding that
Section 1331 “does not by its own terms waive sovereign immunity” over claims for money
judgments against the federal government) (quoting Sibley v. Ball, 924 F.2d 25, 28 (1st Cir.
1991), aff’d upon transfer, 944 F.2d 913 (Fed. Cir. 1991) (unpublished opinion, aff’d pursuant to
Fed. Cir. R. 36)); Gochnour v. Marsh, 754 F.2d 1137, 1138 (5th Cir. 1985) (“Section 1331
cannot be the basis of monetary relief since there is no waiver of sovereign immunity.”).

        As originally written, the Tucker Act gave this court’s predecessor, the Court of Claims,
jurisdiction to “hear and determine” any claim for monetary relief

       founded upon the Constitution of the United States or any law of Congress . . . or
       upon any regulation of an Executive Department, or upon any contract . . . with
       the Government of the United States, or for damages, liquidated or unliquidated,
       in cases not sounding in tort, in respect of which claims the party would be
       entitled to redress against the United States either in a court of law, equity, or
       admiralty if the United States were suable.

Act of Mar. 3, 1887 § 1, 24 Stat. 505 (emphasis added); see also Bormes, _ U.S. at _, 133 S. Ct.
at 18. It served as a general waiver of sovereign immunity for the specified claims to be heard
in the Court of Claims. 3 The Supreme Court described the Tucker Act as “suppl[ying] the
missing ingredient for an action against the United States for the breach of monetary obligations
not otherwise judicially enforceable.” Bormes, _ U.S. at _, 133 S. Ct. at 18. The Tucker Act is
not materially different in its present form.



       3
        Section 2 of the 1887 Act provided for concurrent jurisdiction in the district courts for
claims less than $1,000 dollars. That threshold has since been raised to $10,000. See 28 U.S.C.
1346(a)(2) (commonly denominated the “Little Tucker Act”).


                                                3
                                    B. Understanding Bormes

         The government presents the question whether the Tucker Act’s general grant of
jurisdiction to this court is wholly displaced by the remedial scheme set out in the FLSA. See
Def.’s Mot. at 7. The government avers that after the Supreme Court’s decision in Bormes, the
Tucker Act’s grant of jurisdiction is necessarily displaced by a statute creating a substantive legal
right and also providing a detailed remedial scheme. Def.’s Mot. at 2, 7. As the government
would have it, in such a situation, this court would be deprived of subject matter jurisdiction
unless jurisdiction was specifically granted to it by the statute providing the substantive cause of
action. The government contends that the FLSA presents such a situation because it “establishes
liability, a cause of action, a measure of damages, and an applicable statute of limitations. . . .
[T]he liability that Congress intended to create can be determined from only the text of the
FLSA, and the Tucker Act is displaced.” Id. at 2.

        The Barry plaintiffs dispute the government’s reading of Bormes, contending that Bormes
calls for displacement when a statute waives sovereign immunity and specifies a forum other
than this court within a statute’s detailed remedial scheme. See Pl.’s Opp’n at 3-4. But, they
argue, “the Supreme Court did not . . . hold that any statute containing a ‘detailed remedial
scheme’ necessarily eliminates the C[ourt] [of] F[ederal] C[laims] from hearing cases under that
scheme; rather, the terms of the detailed remedial statute itself govern.” Id. at 3. Specifically,
here they point to the detailed remedial scheme of the FLSA, which authorizes judicial power to
be exercised by “any [f]ederal or [s]tate court of competent jurisdiction.” Id. at 4 (quoting 29
U.S.C. § 216(b)). This court, the Barry plaintiffs assert, is undoubtedly a court of competent
jurisdiction. Id. at 3. 4

        In Bormes, the plaintiff originally brought suit in the District Court for the Northern
District of Illinois, alleging that the government violated the Fair Credit Reporting Act
(“FCRA”). The government moved to dismiss for lack of subject matter jurisdiction based upon
sovereign immunity. See Bormes v. United States, 638 F. Supp. 2d 958, 959-60 (N.D. Ill. 2009).
The plaintiff had relied on both the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and the FCRA’s
own forum provision, which provided for suit “in any appropriate United States district court,
without regard to the amount in controversy, or in any other court of competent jurisdiction,” 15
U.S.C. § 1681p; Bormes, 638 F. Supp. 2d at 960 n.1, 961. The district court dismissed the
complaint, holding that the language of the FCRA did not “unequivocally express[]” a waiver of
sovereign immunity for the plaintiff’s claims. Bormes, 638 F. Supp. 2d at 961-62 (citing, inter
alia, United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992)). 5

       4
        The Barry plaintiffs extend this argument to contend that the Court of Federal Claims
has exclusive jurisdiction of FLSA claims over $10,000. Pl.’s Opp’n at 5-6.
       5
         The district court treated the government’s motion as having been filed under Fed. R.
Civ. P. 12(b)(6) and not Fed. R. Civ. P. 12(b)(1), after determining that sovereign immunity does
not divest district courts of jurisdiction but rather bears on the court’s ability to provide relief.
Bormes, 638 F. Supp. 2d at 960. The court did not consider the alternative basis for jurisdiction
under the Little Tucker Act after finding that it had jurisdiction under the FCRA itself. See id. at
960 & n.1.


                                                  4
        The plaintiff appealed to the Federal Circuit, and the government filed a motion to
transfer to the Court of Appeals for the Seventh Circuit. See Bormes v. United States, No. 2009-
1546, 2010 WL 331771, at *1 (Fed. Cir. Jan. 27, 2010). A motions panel for the Federal Circuit
denied the motion to transfer because the plaintiff’s claim could properly be based on the Little
Tucker Act, requiring that appeals go to the Federal Circuit. Id. at *2. A later panel then
reversed the district court’s decision to dismiss and held that the FCRA was properly considered
a “money-mandating statute that supported jurisdiction under 28 U.S.C. § 1346(a)(2)[, the Little
Tucker Act].” Bormes v. United States, 626 F.3d 574, 576 (Fed. Cir. 2010). In so deciding, the
court held it did not need to locate the government’s waiver of sovereign immunity in the FCRA
because the jurisdictional provisions of the Little Tucker Act waived the government’s sovereign
immunity for claims based on any money-mandating law of Congress. Id. at 578. The court of
appeals combined the damages provisions of the FCRA with the waiver of sovereign immunity
from the Little Tucker Act to find that the plaintiff could properly sue the federal government for
violations of the FCRA. See Bormes, _ U.S. at _, 133 S. Ct. at 16.

         The Supreme Court first focused on sovereign immunity, reiterating that “[s]overeign
immunity shields the United States from suit absent a consent to be sued that is ‘unequivocally
expressed.’” Bormes, _ U.S at _, 133 S. Ct. at 16 (internal citations omitted). It reminded that
sovereign immunity is a protection that may not be lightly assumed away by the courts and that
the Tucker Act was adopted to clarify that the United States intended to waive its right to
sovereign immunity in certain situations where waiver could not be implied from many money-
mandating statutes themselves. The broad waiver of sovereign immunity located in the Tucker
Act, however, does not apply when the statute providing the cause of action provides a remedial
scheme with a divergent jurisdictional avenue. See id., _ U.S. at _, 133 S. Ct. at 18 (“[A]
‘precisely drawn, detailed statute pre-empts more general remedies.’”) (quoting Hinck v. United
States, 550 U.S. 501, 506 (2007))). The Tucker Act may be called upon when “‘[n]o special
remedy has been provided’ to enforce a payment to which the claimant was entitled.” Id., _ U.S.
at _, 133 S. Ct. at 18 (quoting United States v. Kaufman, 96 U.S. 567, 569 (1878)). Congress
need not explicitly preclude Tucker Act jurisdiction to negate its applicability: “Where 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.” Id., _
U.S. at _, 133 S. Ct. at 19.

        In naming the federal district courts as a proper venue, the FCRA provides a complete
judicial remedial scheme that eliminates any need to resort to the Little Tucker Act to identify a
judicial avenue for enforcement. See Bormes, _ U.S. at _, 133 S. Ct. at 19. Because there was
no need for resort to the Little Tucker Act, it was wholly displaced as a basis for such a claim.
Consequently also, the Tucker Act’s waiver of sovereign immunity could not be applied to
FCRA claims, and those claims could not be heard in the Court of Federal Claims. The Supreme
Court remanded the case to the Seventh Circuit for determination of whether the remedial
scheme Congress created in the FCRA contained a waiver of sovereign immunity. Id., _ U.S. at
_, 133 S. Ct. at 20.




                                                  5
                         C. Jurisdiction under the FLSA after Bormes

         A recent decision from this court, King v. United States, 112 Fed. Cl. 396 (2013), rejects
the government’s reading of Bormes to affect this court’s jurisdiction over FLSA cases. In King,
the court faced an almost identical motion by the government to transfer an FLSA claim to a
district court due to this court’s supposed lack of subject matter jurisdiction following Bormes.
King, 112 Fed. Cl. at 398. The court asked two questions to determine whether this court retains
jurisdiction when a statute contains its own remedial scheme: (1) whether sovereign immunity
has been waived by the statute itself, and (2) where Congress intended that claims be heard. Id.
at 401. The court held that the government “improperly conflate[d] the issue of sovereign
immunity waiver with the issue of proper forum in every case involving a detailed remedial
federal statute.” Id. at 399. The court explained that “the specific issue decided in Bormes was
that the Tucker Act could not replace FCRA’s ‘detailed remedial scheme’ to provide, in the first
instance, a waiver of sovereign immunity.” Id. (quoting Bormes, _ U.S. at _, 133 S. Ct. at 15).
Accordingly, where a statute provides a comprehensive remedial scheme that includes an
attendant waiver of sovereign immunity, the Court of Federal Claims may still have jurisdiction
through the Tucker Act “if Congress so intended under the terms of the statute.” Id. The court
determined that Congress did so intend for the FLSA by using the phrase “any [f]ederal or [s]tate
court of competent jurisdiction.” Id. at 400 (quoting 29 U.S.C. § 216(b)).

        The court in King also recognized Federal Circuit precedent holding that FLSA claims in
excess of $10,000 are exclusively the province of the Court of Federal Claims. King, 112 Fed.
Cl. at 400 (citing Saraco v. United States, 61 F.3d 863, 865-66 (Fed. Cir. 1995) (concluding that
for claims under the FLSA exceeding $10,000, district courts no longer have concurrent
jurisdiction under the Little Tucker Act)). This court is unaware of any court disputing the
exclusivity of jurisdiction in this court of FLSA claims over $10,000. At least one district court
has recently applied Saraco to give effect to this exclusive jurisdiction. See Moore v. Donley,
No. CIV-12-1003-HE, 2013 WL 3940898, at *2 (W.D. Okla. July 30, 2013) (granting
government’s motion to transfer plaintiffs’ FLSA claim to the Court of Federal Claims where
plaintiffs failed to state a claim amount or waive recovery in excess of $10,000). 6



       6
          The continuing validity of Saraco could be questioned, however, after the Supreme
Court’s holding in Bormes. In Bormes, the Supreme Court held that the statutory text of the
FCRA was sufficient to provide the district courts with jurisdiction, independent of the Tucker
Act, and so the Tucker Act did not apply. Bormes, _ U.S. at _, 133 S. Ct. at 19 (“Without resort
to the Tucker Act, FCRA enables claimants to pursue in court the monetary relief contemplated
by the statute.”). The language of the forum provision in the FCRA, which the Supreme Court
interpreted as a jurisdictional grant, provides for jurisdiction in “any appropriate United States
district court . . . or in any other court of competent jurisdiction.” 15 U.S.C. § 1681p. The forum
provision in the FLSA is similar, but omits any reference to district courts, authorizing claims to
be heard by “any [f]ederal or [s]tate court of competent jurisdiction.” 29 U.S.C. § 216(b).
Whether this allows federal district courts to exercise jurisdiction over FLSA claims under 28
U.S.C. § 1331 is an open question. Saraco interpreted the FLSA forum provision not to be an
independent jurisdictional grant, thus relying on the Tucker Act and the Little Tucker Act for
jurisdiction of FLSA claims. Saraco, 61 F.3d at 865-66.


                                                 6
        This analysis in King has been adopted in several subsequently decided cases in this
court. See, e.g., Farzam v. United States, No. 13-075C, 2013 WL 5819273, at *1 (Fed. Cl. Oct.
29, 2013); Tallacus v. United States, _ Fed. Cl. _, _, No. 10-311C, 2013 WL 5665260, at *5
(Fed. Cl. Oct. 17, 2013) (finding that the FLSA contains a waiver of sovereign immunity and that
jurisdiction in the Court of Federal Claims is contemplated by the statute); Frost v. United States,
No. 13-050C (Fed. Cl. Sept. 10, 2013) (order denying defendant’s motion to transfer FLSA
claim); Miller v. United States, No. 11-766C (Fed. Cl. Sept. 24, 2013) (same); Federal Air
Marshall (FAM) 5001 v. United States, No. 11-613C (Fed. Cl. Sept. 30, 2013) (same).

        This court reaches the same result. First, unlike the FCRA, it is well-settled that the
FLSA contains an express waiver of sovereign immunity distinct and separate from the Tucker
Act. See El-Sheikh v. United States, 177 F.3d 1321, 1323-24 (Fed. Cir. 1999). Second, again
unlike the FCRA, the forum provision of the FLSA does not grant jurisdiction to any specified
court, providing only that jurisdiction is appropriate in any “competent” state or federal court.
29 U.S.C. § 216(b). This reference to forum is sufficiently wide-ranging to encompass that
enabled by the Tucker Act. See El-Sheikh, 177 F.3d at 1324. Unlike the FCRA, the FLSA thus
requires resort to another statute to determine whether a court is “competent.” There is no
reason to believe Congress intended to exclude the Tucker Act from the possible alternatives.
The FLSA is not similar to other statutes that have been interpreted to foreclose jurisdiction in
the Court of Federal Claims, including the FCRA. See, e.g., Hinck, 550 U.S. at 503 (holding that
the Tax Court is the exclusive forum for judicial review of the Secretary’s decision not to abate
interest under 26 U.S.C. § 6404(e)(1)); United States v. Fausto, 484 U.S. 439, 455 (1988)
(holding that the Civil Service Reform Act created a complete remedial scheme, precluding
claims in the Claims Court under the Back Pay Act); United States v. Erika, Inc., 456 U.S. 201,
206 (1982) (holding that agency determinations regarding Medicare Part B reimbursements are
final and unreviewable by the Court of Claims). Instead, juridically, the FLSA is expressly
open-ended. Congress never excluded FLSA claims from this court’s purview, either expressly
or impliedly. This court is appropriately a “competent” court within the terms of the FLSA when
jurisdiction is invoked under the Tucker Act. In short, this court has jurisdiction over the Barry
plaintiffs’ claims, and transfer under 28 U.S.C. § 1631 is inappropriate.

                                       III. CONCLUSION

       For the reasons stated, Defendant’s motion is DENIED.

       It is so ORDERED.

                                              s/ Charles F. Lettow
                                              Charles F. Lettow
                                              Judge


        Although the Barry plaintiffs claim that the Court of Federal Claims would have
exclusive jurisdiction over this case because the individuals’ claims are over $10,000, a decision
that this court has jurisdiction under the Tucker Act suffices to negate the motion to transfer
without also deciding whether a district court may also have jurisdiction under 28 U.S.C. § 1331
or another statute. See Pl.’s Opp’n at 5-6.


                                                 7
