       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               JULIE A. BEBERMAN,
                 Plaintiff-Appellant

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2018-1519
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:17-cv-00179-PEC, Judge Patricia E.
Campbell-Smith.
                ______________________

              Decided: October 12, 2018
               ______________________

   JULIE A. BEBERMAN, Arlington, VA, pro se.

    MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by DEBORAH ANN BYNUM, ROBERT EDWARD KIRSCHMAN,
JR., CHAD A. READLER.

   JONATHAN R. SIEGEL, George Washington University
Law School, Washington, DC, for amicus curiae pro se.
2                                BEBERMAN v. UNITED STATES




                 ______________________

    Before LOURIE, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
    Appellant Julie A. Beberman appeals from a decision
by the U.S. Court of Federal Claims (Claims Court)
dismissing her Equal Pay Act (EPA) claim for lack of
jurisdiction under 28 U.S.C. § 1500. Section 1500 states
that the Claims Court shall not have jurisdiction over any
claim “for or in respect to” a claim “pending in any other
court” against the United States. Here, the Claims Court
found that Ms. Beberman had claims pending in a Third
Circuit appeal, based on a complaint filed in the U.S.
District Court for the Virgin Islands (District Court), that
were “for or in respect to” the same claims in the instant
case. Because we find that the two cases are not “for or in
respect to” the same claims, we reverse the Claims Court’s
dismissal for lack of jurisdiction and remand for further
proceedings.
                       BACKGROUND
   Ms. Beberman is an employee of the State Depart-
ment. She served as a Foreign Service Officer at the U.S.
embassy in Caracas, Venezuela from October 2011 to
November 2012. She was then reassigned to Washington
D.C. and subsequently to Equatorial Guinea for a three-
year tour set to conclude in 2017.
    In 2014, Ms. Beberman filed an action in District
Court alleging age discrimination under the Age Discrim-
ination in Employment Act of 1967, sex discrimination
under Title VII of the Civil Rights Act of 1964, and a
Privacy Act of 1974 violation based on a supervisor’s
treatment of her during her employment in Caracas. See
Beberman v. U.S. Dep’t of State, No. 14-0020, Dkt. No. 1
(D.V.I. May 9, 2014). Ms. Beberman filed a First Amend-
ed Complaint that withdrew the sex discrimination claim,
BEBERMAN v. UNITED STATES                                3



and the parties later stipulated to dismiss the Privacy Act
claim. This First Amended Complaint is the relevant
complaint for purposes of this appeal because it was the
operative district court complaint when the instant case
was filed. See Cent. Pines Land Co. v. United States, 697
F.3d 1360, 1365 (Fed. Cir. 2012) (“[J]urisdiction of the
court depends upon the state of things at the time of the
action brought.”). Beberman alleged in the First Amend-
ed Complaint that while serving at the Caracas Embassy,
her supervisor discriminated on the basis of age by belit-
tling her, publicly ridiculing her, challenging her visa
adjudication decisions, terminating her access to consular
systems, accusing her of violating an internal protocol
known as Visa Lookout Accountability, preventing her
from participating in a scheduled rotation, giving that
rotation to a younger male, and subjecting the actions of
another woman over the age of 40 to heightened scrutiny.
See Beberman v. U.S. Dep’t of State, No. 14-0020, Dkt. No.
21, ¶¶ 70–93 (D.V.I. May 22, 2014).
    While the District Court case was ongoing, the Winter
2015 Commissioning and Tenure Board denied tenure for
Ms. Beberman. Ms. Beberman, who at the time was
posted in Equatorial Guinea, was then subjected to a
Separation Order requiring her to leave that post and
move to Washington D.C. Ms. Beberman filed an emer-
gency motion for a temporary restraining order or a
preliminary injunction with the District Court. She
argued that the Caracas supervisor’s discriminatory
animus caused her tenure denial 1 and that until her



   1    Specifically, Ms. Beberman argued that her su-
pervisor’s age-based discriminatory animus and his
influence on a subsequent reviewer led to a poor employee
evaluation report in 2012. That report prevented her
from being able to serve as a backup consular officer in
Equatorial Guinea and receive any further evaluation
4                              BEBERMAN v. UNITED STATES




District Court claims were adjudicated and the legitimacy
of her tenure denial determined, the State Department
should be enjoined from forcing her to leave Equatorial
Guinea. In that motion, Ms. Beberman identified two
areas where she would suffer irreparable harm:
(1) having to unexpectedly leave her residence and as-
signment in Equatorial Guinea and return to Washington
D.C. and (2) losing substantial benefits including hard-
ship pay, service needs differential, and access to the
student loan repayment program, which were benefits of
working in Equatorial Guinea, but not in Washington.
Beberman v. U.S. Dep’t of State, No. 2014-0020, 2016 WL
1181684, at *3 (D.V.I. Mar. 24, 2016), reconsideration
denied, No. 2014-0020, 2016 WL 1312534 (D.V.I. Apr. 4,
2016). The District Court found that Ms. Beberman failed
to demonstrate irreparable harm because if she prevailed
on her lawsuit, she would be adequately compensated by
money damages and equitable relief; thus, the District
Court denied Ms. Beberman’s motion for injunctive relief.
Id. at *3–4. Ms. Beberman appealed to the Third Circuit,
which affirmed. Beberman v. U.S. Dep’t of State, 675 F.
App’x 131, 136 (3d Cir. 2017). Significantly, Ms. Beber-
man’s briefing to the Third Circuit and Claims Court
included other harm she would suffer by having to move
to Washington: “she would not eligible for Washington
locality pay, per diem, or home service transfer allow-
ance[,] and would not be allowed to access her household
effects.” Appx184. The Third Circuit judgment was
entered on January 12, 2017, and the mandate issued on
March 6, 2017.
   While her Third Circuit appeal was pending, Ms. Be-
berman was forced to move from Equatorial Guinea to
Washington D.C. Based on the circumstances of that



reports, thus allegedly proximately causing her tenure
denial.
BEBERMAN v. UNITED STATES                                  5



move, Ms. Beberman separately filed an EPA claim with
the Claims Court in 2016. See Beberman v. United States,
No. 1:16-cv-010006, Dkt. No. 1 (Fed. Cl. Aug. 15, 2016)
(the 2016 Complaint). Her complaint alleged that she
was forced to leave Equatorial Guinea without completing
her assignment there, and that she did not receive: (1) an
overnight stop en route from Africa to Washington, (2) a
temporary quarters service allowance, (3) the opportunity
to retrieve her household effects, or (4) a Washington
locality pay or a transit subsidy when being required to
work in Washington. Id. at ¶¶ 10–11. The complaint sets
forth facts that a similarly-situated male colleague, who
was also denied tenure and whose limited appointment
expired on the same day, was allowed to finish his as-
signment overseas before being moved to Washington,
that he was moved under “Permanent Changed Station”
(PCS) travel orders rather than a “Separation Order,” and
that he received the above-enumerated benefits. Id. at
¶¶ 12–20.
   The Claims Court dismissed Ms. Beberman’s 2016
complaint for lack of jurisdiction under 28 U.S.C. § 1500.
Beberman v. United States, 129 Fed. Cl. 539, 548 (2016).
The statute states:
    The United States Court of Federal Claims shall
    not have jurisdiction of any claim for or in respect
    to which the plaintiff or his assignee has pending
    in any other court any suit or process against the
    United States or any person who, at the time
    when the cause of action alleged in such suit or
    process arose, was, in respect thereto, acting or
    professing to act, directly or indirectly under the
    authority of the United States.
28 U.S.C. § 1500. This court has interpreted § 1500 to
impose two requirements in evaluating whether the
section applies: “(1) whether there is an earlier-filed ‘suit
or process’ pending in another court, and, if so, (2) wheth-
6                                BEBERMAN v. UNITED STATES




er the claims asserted in the earlier-filed case are ‘for or
in respect to’ the same claim(s) asserted in the later-filed
Court of Federal Claims action.” Brandt v. United States,
7l0 F.3d 1369, 1374 (Fed. Cir. 2013) (citations omitted).
As for step 1, the Claims Court found that Ms. Beberman
had filed a case against the United States that was “pend-
ing” before two courts (the District Court and the Third
Circuit). Beberman, 129 Fed. Cl. at 545. As to step two,
the Claims Court found that the Third Circuit appeal and
the 2016 Claims Court case were “for or in respect to the
same claim.” Id. at 546. The Claims Court reasoned that
“[a]lthough Ms. Beberman’s First Amended Complaint
related to alleged discrimination in Venezuela prior to the
denial of tenure, Ms. Beberman’s subsequent filings
[regarding her emergency motion for injunctive relief]
addressed events that occurred post-denial of tenure.” Id.
Specifically, the Claims Court found that “both suits are
based on substantially the same operative facts: Ms.
Beberman’s departure from Equatorial Guinea, the loss of
overseas benefits, the lack of local benefits upon her
return to Washington, and the State Department’s alleged
discriminatory basis.” Id. at 547. The Claims Court
found that the “directive and loss of benefits are not mere
background facts, but rather are critical” to both cases,
even though “her legal theories [in the cases] are some-
what different.” Id. Thus, the Claims Court concluded
that § 1500 barred Ms. Beberman’s 2016 complaint and
dismissed the case on jurisdictional grounds without
prejudice. Id. at 548.
    On February 6, 2017, Ms. Beberman filed a new
complaint with the Claims Court (the 2017 complaint),
alleging substantially similar facts and the same EPA
claim as her 2016 complaint. This time, she argued, the
Third Circuit appeal was no longer “pending” within the
meaning of § 1500 because the Third Circuit had entered
judgment denying her injunctive relief on January 12,
2017. The Government moved to dismiss Ms. Beberman’s
BEBERMAN v. UNITED STATES                                7



complaint under § 1500 again, arguing that the mandate
for the Third Circuit appeal had not yet issued when Ms.
Beberman filed her 2017 complaint—it only issued on
March 6, 2017—and therefore, the Third Circuit case was
still “pending” within the meaning of § 1500.
     The Claims Court granted the motion on December
21, 2017. The Claims Court agreed with the Government
that an appeal is still pending until a mandate has issued.
Beberman v. United States, 135 Fed. Cl. 336, 340–41
(2017). The Claims Court also found that the claims
asserted in the Third Circuit appeal are “for or in respect
to” the claims asserted in the 2017 complaint. Id. at 341–
42. 2 Specifically, the Claims Court made findings as to
the similarities between the cases, substantively reiterat-
ing the findings in its 2016 opinion, and dismissed the
complaint for lack of jurisdiction pursuant to § 1500. Id.
at 342.
    Ms. Beberman timely appeals. This court has juris-
diction pursuant to 28 U.S.C. § 1295(a)(3) and reviews the
Claims Court’s dismissal for lack of jurisdiction de novo.
Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370, 1378
(Fed. Cir. 2017).




   2    The Claims Court also found that “plaintiff [did]
not contest defendant’s assertion that the claims in this
case are sufficiently similar to those in the Third Circuit
appeal to meet the standard under § 1500,” but instead,
the plaintiff focused on whether her claims were still
pending before the Third Circuit. Id. at 341. We note,
however, that Ms. Beberman extensively contested this
issue in her opposition to the Government’s Motion to
Dismiss below. See Appx351–71. Indeed, the Claims
Court went on to make reviewable findings on the issue.
8                                 BEBERMAN v. UNITED STATES




                        DISCUSSION
    There are two issues in this case: (1) whether Ms.
Beberman’s Third Circuit appeal was still “pending”
within the meaning of § 1500 if the Third Circuit had
entered a judgment but a mandate had not issued, and
(2) whether the Third Circuit appeal and the instant case
are “for or in respect to” the same claims. In order for this
court to affirm the Claims Court’s decision, both questions
must be answered in the affirmative. We decline to
address the first issue because we reverse on the second.
    “Two suits are for or in respect to the same claim, pre-
cluding jurisdiction in [this court], if they are based on
substantially the same operative facts, regardless of the
relief sought in each suit.” United States v. Tohono
O’dham Nation, 563 U.S. 307, 317 (2011). “Determining
whether claims arise from substantially the same opera-
tive facts requires a comparison of the relevant claims.”
Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1165 (Fed. Cir. 2011). The focus of the inquiry is the facts
that give rise to the claims, not the legal theories behind
the claims. Keene Corp. v. United States, 508 U.S. 200,
201 (1993).
     The Supreme Court in Tohono analogized the opera-
tive facts question of § 1500 to the principles of res judica-
ta, setting forth two governing tests for determining
whether claims are precluded by their assertion in earlier
litigation: the act or contract test and the evidence test.
Tohono, 563 U.S. at 315–16. Under the evidence test, two
suits involve the same claim if “the same evidence sup-
port[s] and establish[es] both the present and the former
cause of action.” Id. (quoting 2 H. Black, Law of Judg-
ments § 726, p. 866 (1891)). Under the act or contract
test, the “true distinction between demands or rights of
action which are single and entire, and those which are
several and distinct, is, that the former immediately arise
out of one and the same act . . . and the latter out of
BEBERMAN v. UNITED STATES                                 9



different acts.” Id. (quoting J. Wells, Res Adjudicata and
Stare Decisis § 241, p. 208 (1878)).
     This court applied both of these tests in Trusted Inte-
gration, Inc. v. United States and found that a claim based
on a “distinct contract” was not barred by § 1500. 659
F.3d at 1167–70. There, like here, the facts giving rise to
the district court claim and the Claims Court claim arose
out of a related sequence of facts: the DOJ had entered
into a joint business enterprise with Trusted Integration,
but chose to create its own product by copying Trusted
Integration’s product. This court found that the claims
sharing some facts did not render the claims equivalent
under Section 1500 or res judicata principles. Id. at
1167–69. Specifically, this court found it relevant that:
(1) the claims were based on different contracts—a fiduci-
ary duty as part of a joint venture versus a licensing
agreement; (2) the DOJ conduct giving rise to each claim
was different—breach of the fiduciary duty occurred by
the DOJ not including Trusted Integration’s product as
part of its Cyber Security Assessment Management
offering, 3 while breach of the licensing agreement oc-
curred by the DOJ accessing Trusted Integration’s prod-
uct with the purpose of copying the program and
developing its own alternative; and (3) the facts that
would give rise to either breach were “not legally opera-
tive for establishing breach of the other”—the district
court complaint was “based on the fact that the DOJ
developed an alternative and promoted it” but “how the
alternative was developed [was] not a legally operative
fact,” whereas how the alternative was developed was the
“only asserted source” for the breach of licensing agree-




   3    This court found two other Claims Court claims
based on this breach barred by § 1500. Trusted Integra-
tion, 659 F.3d at 1164–67.
10                               BEBERMAN v. UNITED STATES




ment claim. Id. at 1167–68. Similar factors are relevant
in the instant case.
     Here, the Claims Court analysis of the overlapping
facts between the two cases is brief. The Claims Court
identified the following operative facts in this case:
(1) the State Department’s separation order forcing Ms.
Beberman to move from Equatorial Guinea to Washing-
ton, (2) the benefits Ms. Beberman lost because of being
forced to switch positons without completing her assign-
ment, including “overseas comparability pay, hardship
pay, service needs differential, a cost of living allowance,
housing, substantial overtime compensation, and eligibil-
ity to participate in the student loan repay program,” and
(3) the denial of an overnight stop en route to Washing-
ton, home leave, a temporary quarters service allowance,
the opportunity to retrieve her household items, locality
pay, a transit subsidy, and a formal assignment upon
return to Washington. Beberman, 135 Fed. Cl. at 341.
The Claims Court then identified what it found to be the
“same set of operative facts” in the Third Circuit appeal:
(1) Ms. Beberman asked the court to retain her current
assignment in Equatorial Guinea until she fulfilled her
assignment, (2) she requested injunctive relief to remain
in Equatorial Guinea because a State Department em-
ployee’s age-based discriminatory animus proximately
caused her to be denied tenure, and the State Department
was directing her to leave Equatorial Guinea in the
middle of her three year assignment, and (3) Ms. Beber-
man argued that absent injunctive relief, she would lose
not only her position in Equatorial Guinea, but also
various benefits such as a service-needs differential and
student loan repayment credit. Id. at 341–42.
    From these findings and the Government’s briefing on
appeal, we ascertain that the Claims Court based its
decision on two overlapping facts between the Third
Circuit appeal and present case: the Separation Order
and the employment benefits of being in Equatorial
BEBERMAN v. UNITED STATES                                11



Guinea versus Washington. These two facts do not pro-
vide enough overlap to conclude that the claims arise from
substantially the same operative facts.
     These facts are relevant to each case for substantially
different reasons. In the Third Circuit appeal, Ms. Be-
berman was seeking an injunction against the Separation
Order because she was contesting the legitimacy of her
tenure denial and the allegedly age-based discriminatory
animus that caused that denial. The bulk of her argu-
ment was focused on age-based discriminatory animus in
Caracas. See Appx159–165. The appeal did not relate to
the order itself, i.e. whether it should have been a Perma-
nent Change of Station Order (as it was for a similarly-
situated male) rather than a Separation Order, which is
the allegation that makes the order relevant to the EPA
claim at issue in the instant case. And Ms. Beberman
does mention lost benefits in both. Those lost benefits
were a part of the irreparable harm that Ms. Beberman
argued in her Third Circuit appeal if the court allowed an
allegedly illegitimate tenure denial to stand.          See
Appx212–13; Beberman, 675 F. App’x at 134–35. In the
instant case, those benefits are mentioned as damages
because the male comparator on which Ms. Beberman
relies was given those benefits despite being denied
tenure, while Ms. Beberman was not. Unlike in the Third
Circuit appeal, these benefits are relevant to Ms. Beber-
man’s Claims Court EPA claim regardless of the legitima-
cy of the tenure denial, since the male comparator
received them even after being denied tenure.
    Significantly, the above two facts identified by the
Claims Court are not, on their own, the operative facts of
either case. This case does not satisfy the evidence res
judicata test of Tohono because this is not a case where
the “two suits had substantial overlap of operative facts”
such that Ms. Beberman “could have filed two nearly
identical complaints without changing the claim in either
suit in any significant way.” Cent. Pines Land Co. v.
12                              BEBERMAN v. UNITED STATES




United States, 697 F.3d 1360, 1365 (Fed. Cir. 2012) (dis-
cussing Tohono). The operative facts of the Third Circuit
appeal are Ms. Beberman’s Caracas supervisor’s age-
based discriminatory animus towards her, the effect that
animus had on her tenure denial, and the harm she would
suffer if the allegedly illegal tenure denial went through
while her District Court case was pending. Other than
the benefits-related harm, none of these facts are in Ms.
Beberman’s EPA complaint before the Claims Court, nor
would they be relevant to the EPA claim. The operative
facts of Ms. Beberman’s EPA claim are that she and a
male comparator were each denied tenure, but that the
two were treated differently after the tenure denial.
Beberman v. United States, No. 18-1519, Dkt. No. 42, ¶¶
6–7, 11–24. None of the facts as to the male comparator’s
treatment are part of, or relevant to, Ms. Beberman’s
claims in her Third Circuit appeal.
     To be sure, Ms. Beberman’s 2017 Claims Court Com-
plaint lists many of the injuries she suffered due to the
alleged disparate treatment she received as compared to a
male comparator that she also identified in her Third
Circuit Appeal as injuries that would flow from alleged
age-discrimination-based denial of tenure.       But, im-
portantly, the two cases allege different facts for what
caused the injuries. In other words, the complained-of
government acts that give rise to the claims in the two
cases are different and thus fail the “act or contract” res
judicata test of Tohono. Before the District Court and the
Third Circuit, the complained of government conduct was
the discriminatory animus of her Caracas supervisor and
the resulting denial of tenure for Ms. Beberman.
Appx109. But before the Claims Court, the complained-of
government conduct was the way it treated a male com-
parator after being denied tenure, as opposed to the way
it treated Ms. Beberman.
   Finally, no outcome in the Third Circuit appeal would
have had an effect on Ms. Beberman’s EPA claim before
BEBERMAN v. UNITED STATES                                13



the Claims Court. Even if the Third Circuit had found an
injunction warranted, by the time of the Third Circuit’s
decision in early 2017, Ms. Beberman had already been
forced to move from Equatorial Guinea to Washington,
and the government had already engaged in the alleged
differential treatment that forms the basis for her Claims
Court EPA claim. Thus, the purpose of § 1500 to prevent
duplicative relief is not triggered by allowing this case to
proceed.
    For the above reasons, while the two cases share some
of the same facts, we find that the Third Circuit appeal
and the underlying District Court case are not “based on
substantially the same operative facts” as the present
case and thus are not “for or in respect to the same claim”
as required by § 1500. Tohono, 563 U.S. at 317.
    Accordingly, we reverse the Claims Court’s dismissal
of Ms. Beberman’s 2017 complaint for lack of jurisdiction
and remand for further proceedings.
            REVERSED AND REMANDED
