                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 THOMAS ADAIR, et al.,

                        Plaintiffs,

                        v.                           Case No. 13-cv-01093 (CRC)

 BUREAU OF CUSTOMS AND BORDER
 PROTECTION, et al.,

                        Defendants.

                             MEMORANDUM OPINION AND ORDER

       Forty-five employees of the Office of Air and Marine in the Bureau of Customs and

Border Protection 1 claim that their positions have been misclassified as “administrative,”

improperly exempting them from protections of the Fair Labor Standards Act (“FLSA”). They

contend that they are entitled to, but have been denied, overtime compensation under the Act and

now bring suit against the United States for back pay and liquidated damages. Plaintiffs do not

waive any FLSA claims exceeding $10,000. Because exclusive jurisdiction to hear those claims

rests with the Court of Federal Claims, this Court lacks subject-matter jurisdiction over them. It

will therefore deny both sides’ motions for summary judgment without prejudice. Rather than

dismiss the case outright, however, the interest of justice requires that the Court transfer this

matter to the Court of Federal Claims.




       1
        The Bureau’s Office of Air and Marine was recently renamed Air and Marine
Operations.
       I.      Background

               A.      Procedural Background

       In July 2013, an initial set of plaintiffs filed a complaint in this Court charging the United

States with violating the FLSA by erroneously exempting them from the Act’s overtime-pay

requirements. They subsequently amended their complaint three times, adding additional

plaintiffs who were also employed in the Office of Air and Marine. Discovery commenced in

February 2014. Nine months later, before the close of discovery, Plaintiffs moved the Court to

transfer this matter to the Court of Federal Claims. See Pls.’ Mot. Transfer, ECF No. 35. They

asserted that they did “not waive recovery in excess of $10,000,” argued that the Court of

Federal Claims “ha[d] exclusive jurisdiction over [their] claims,” and urged this Court to transfer

the case pursuant to its authority under 28 U.S.C. § 1631 (“Transfer to cure want of

jurisdiction”). Id. at 1–2. Defendants opposed this motion, contending that the Supreme Court’s

opinion in United States v. Bormes, 133 S. Ct. 12 (2012), upended precedent from multiple

circuits (including the D.C. Circuit) holding that only the Court of Federal Claims has

jurisdiction in this circumstance. Defs.’ Opp’n Pls.’ Mot. Transfer, ECF No. 36, at 4. Plaintiffs

then withdrew their motion to transfer. See ECF No. 37. The parties proceeded to complete

discovery and brief summary judgment on the merits of Plaintiffs’ claims. These cross-motions

for summary judgment are ripe, and the Court is now squarely faced with the question of

whether it has subject-matter jurisdiction over those claims.

       Anticipating this question, the Court directed the parties to submit supplemental briefing

on the jurisdictional issue. In response, Plaintiffs readopted the arguments they advanced in their

motion to transfer and reiterated their view that the Court of Federal Claims has exclusive

jurisdiction “over [FLSA] claims, like those asserted here, against the United States exceeding


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$10,000.” Pls.’ Suppl. Br. 1. They also emphasized that the Court of Federal Claims possesses

“unique expertise in adjudicating FLSA claims against the federal government.” Id. Defendants

still maintain that this Court has jurisdiction over the matter. See Defs.’ Not., ECF No. 67.

               B.      Statutory Background

        The Tucker Act grants the Court of Federal Claims “jurisdiction over a nontort monetary

claim ‘against the United States founded . . . upon . . . any Act of Congress.’” Abbey v. United

States, 745 F.3d 1363, 1368–69 (Fed. Cir. 2014) (quoting 28 U.S.C. § 1491(a)(1)). Courts have

long held, “since soon after the FLSA was extended to the federal government by the Fair Labor

Standards Amendments Act of 1974, . . . [that] the Tucker Act applies to a claim against the

government under the monetary-damages provision of the FLSA, 29 U.S.C. § 216(b).” Id. at

1369.

        The Tucker Act’s statutory scheme differs somewhat depending on the amount of the

claim. Specifically, the “‘Little Tucker Act’ grants United States district courts concurrent

jurisdiction with the United States Court of Federal Claims over civil actions or claims against

the United States not exceeding $10,000 in amount,” Waters v. Rumsfeld, 320 F.3d 265, 270

(D.C. Cir. 2003) (internal quotation mark omitted) (quoting 28 U.S.C. § 1346(a)(2)), whereas,

generally speaking, “[u]nder the (Big) Tucker Act, claims ‘exceeding the $10,000 jurisdictional

ceiling . . . are within the exclusive jurisdiction of the Court of Claims,’” id. (quoting Goble v.

Marsh, 684 F.2d 12, 15 (D.C. Cir. 1982)).

        II.    Standard of Review

        This Court has “an independent obligation to determine whether subject-matter

jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,

546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).


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If it finds that it lacks jurisdiction over a civil action, the Court may, in the interest of justice,

transfer that action to another court where it could have been brought at the time it was filed. 28

U.S.C. § 1631. Otherwise, it must dismiss.

         When “the existence of jurisdiction in the District Court depends on the plaintiff[s’]

choice” to waive claims in excess of a certain threshold, the Court should give plaintiffs “an

opportunity to amend their complaints to effect an adequate waiver” before transferring the

action. Goble, 684 F.2d at 17. This requirement follows from 28 U.S.C. § 1653, which allows

“[d]efective allegations of jurisdiction [to] be amended, upon terms, in the trial or appellate

courts.” See Goble, 684 F.2d at 17. If plaintiffs do not choose to effect such a waiver, and the

Court lacks jurisdiction as a result, the Court may then transfer the matter to the appropriate

court.

         III.   Analysis

         The D.C. Circuit has held that “the Court of Federal Claims has exclusive jurisdiction to

adjudicate” all “FLSA claims in excess of $10,000.” Waters, 320 F.3d at 272. Unless plaintiffs

waive their claims in excess of $10,000, “the district court [is] without jurisdiction to rule on

their merits.” Id. This view has long prevailed in other circuits as well. See, e.g., Parker v.

King, 935 F.2d 1174, 1177 (11th Cir. 1991); Graham v. Henegar, 640 F.2d 732, 734 (5th Cir.

1981). The government contends, however, that a recent Supreme Court case (analyzing a

different statute) necessarily dooms the “30-year-old, multi-circuit, apparently unbroken

precedent” that exclusive jurisdiction over FLSA claims exceeding $10,000 lies in the Court of

Federal Claims. Abbey, 745 F.3d at 1369 (citing, e.g., Waters, 320 F.3d at 270–72).

         The case is United States v. Bormes, which considered whether the Little Tucker Act

waives the United States’ sovereign immunity against claims brought under the Fair Credit


                                                    4
Reporting Act (“FCRA”). Finding that it does not, the Court reasoned that “[t]he Tucker Act is

displaced . . . when a law assertedly imposing monetary liability on the United States contains its

own judicial remedies. In that event, the [law’s] specific remedial scheme establishes the

exclusive framework for the liability Congress created under the statute.” Bormes, 133 S. Ct. at

18. The Supreme Court thus concluded that since the FCRA included “a detailed remedial

scheme, only [that statute’s] own text can determine whether the damages liability Congress

crafted extends to the Federal Government.” Id. at 19. As the government sees it, because the

FLSA likewise provides a detailed remedial scheme, the Tucker Act does not apply here and

jurisdiction is proper in this Court.

        The government raises a colorable argument, but the Court is ultimately unpersuaded. As

an initial matter, Bormes is not primarily on point—it does not directly overrule any precedent in

this or any other circuit specifying which court(s) may properly exercise jurisdiction over FLSA

claims against the government. Indeed, the Supreme Court analyzed the FCRA, not the FLSA,

and it only decided the Tucker Act’s role in the sovereign-immunity inquiry, not in the

jurisdictional inquiry. The government’s argument consequently would require this Court to

conclude that the general principles articulated in Bormes override controlling D.C. Circuit

precedent on the precise question at hand.

        Moreover, the only circuit court to have considered the government’s argument since

Bormes—and the one most familiar with the Tucker Act—disagreed that Bormes “makes so

great a change in analyzing Tucker Act jurisdiction that it requires overturning the longstanding

. . . interpretation that the Tucker Act applies to FLSA damages cases against the United States,

even though Bormes did not involve the FLSA.” Abbey, 745 F.3d at 1369. In Abbey, the

Federal Circuit considered the very same arguments the government advances here, found


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significant distinctions between the FCRA and the FLSA, and held that Bormes did not disturb

the settled precedent that exclusive jurisdiction over FLSA claims exceeding $10,000 lies in the

Court of Federal Claims. See generally id.; see also ElHelbawy v. Pritzker, No. 14-CV-01707-

CBS, 2015 WL 5535246, at *13 (D. Colo. Sept. 21, 2015) (describing Abbey as holding that the

Tucker Act gives the “Court of Federal Claims exclusive jurisdiction over FLSA claims seeking

more than ten thousand dollars in damages”); Janoski v. United States, No. 13-272C, 2014 WL

1267010, at *1 (Fed. Cl. Mar. 26, 2014) (unpublished) (“[T]he Federal Circuit confirmed [in

Abbey] the correctness of this Court’s view, holding that the Tucker Act gives our court

exclusive jurisdiction over FLSA claims seeking more than ten thousand dollars in damages.”).

Therefore, accepting the government’s argument would not only require rejecting longstanding

D.C. Circuit precedent; it would also require rejecting the view of the only circuit to have

considered the matter post-Bormes. 2

       Finally, the Supreme Court’s opinion in Bormes appears to this Court to be quite

compatible with the rule that the Court of Federal Claims possesses exclusive jurisdiction over

FLSA claims against the government exceeding $10,000. In Bormes, the Supreme Court found

that the Tucker Act plays no role when a plaintiff sues the United States for a violation of the

FCRA, because the FCRA’s remedial scheme was sufficiently complete to “supersede” the




       2
         While no judge on this Court has yet directly addressed the impact of Bormes on
FLSA/Tucker Act jurisprudence, a post-Bormes opinion by Judge Collyer implied that the
Tucker Act applies to FLSA claims against the United States. See Gonda v. Donahoe, 79 F.
Supp. 3d 284, 305 (D.D.C. 2015). A post-Bormes opinion from another Court explicitly reached
the same conclusion. See ElHelbawy, 2015 WL 5535246, at *13 (“Jurisdiction lies in the Court
of Federal Claims for any FLSA claim exceeding $10,000, unless [the plaintiff] waives her right
to recover anything in excess of that amount.”).



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Tucker Act as a basis for suing the United States. The Court reached this determination, in part,

because it found that the FCRA “gives jurisdiction to identified courts—including ‘any

appropriate United States district court,’—and hence ‘precisely define[s] the appropriate

forum.’” Abbey, 745 F.3d at 1369 (alteration in original) (quoting 15 U.S.C. § 1681p; Bormes,

133 S. Ct. at 19). That is, the FCRA “itself ‘enables claimants to pursue in court the monetary

relief contemplated by the statute’ without any resort to the Tucker Act.” Id. at 1369–70. As the

Abbey court explained, however,

       [Bormes] and its rationale do not extend to . . . FLSA suit[s]. In sharp contrast to
       the statute at issue in Bormes, the FLSA contains no congressional specification of
       a non-Tucker Act forum for damages suits, or any other basis, from which one can
       infer that application of the Tucker Act would override choices about suing the
       government embodied in the remedial scheme of the statute providing the basis for
       liability. That statute-specific conclusion takes this FLSA case outside the reach of
       the Bormes principle.

Id. at 1370.

       The FLSA provides that “[a]n action . . . may be maintained against any employer

(including a public agency) in any Federal or State court of competent jurisdiction by any one or

more employees for and in behalf of himself or themselves and other employees similarly

situated,” 29 U.S.C. § 216, but it provides no guidance as to which court is competent to exercise

jurisdiction over those claims brought against the United States. Its language “does not specify a

forum that is contrary to that specified by the Tucker Act,” which “differs critically from the Fair

Credit Reporting Act.” Abbey, 745 F.3d at 1370. Again, the Federal Circuit’s analysis is

persuasive:

       [G]iven that, in the FLSA, Congress plainly meant to subject the United States to
       damages suits for violations (a disputed point for the statute at issue in Bormes),
       the fairest reading of section 216(b) is that it affirmatively invokes the forum
       specification for those damages suits found outside the four corners of the FLSA.
       The Tucker Act is the only available specification that has been identified. Thus,
       not only does the FLSA embody no choices about remedy that might be impaired

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        by Tucker Act coverage; it is best read as affirmatively, if implicitly, invoking such
        coverage.

Id. at 1370. In other words, the best reading of the FLSA is one that treats that statute as

effectively incorporating the Tucker Act for purposes of determining what constitutes the “court

of competent jurisdiction” in this situation.

        This conclusion is only bolstered by the fact that Congress has acted repeatedly to amend

the FLSA since 1981, yet has not seen fit to disturb the “consistent body” of FLSA-jurisdiction

precedent that multiple circuits began to follow “soon after Congress extended the FLSA to

authorize money suits against the United States for its violation.” Id. at 1371. The Court thus

finds that, although the government’s argument is not without merit, Waters v. Rumsfeld is still

good law in light of Bormes. Because “the Court of Federal Claims has exclusive jurisdiction to

adjudicate” all “FLSA claims in excess of $10,000,” Waters, 320 F.3d at 272—and because these

plaintiffs do not waive their claims in excess of $10,000, see Pls.’ Mot. Transfer 1; Pls.’ Suppl.

Br. 1—this Court lacks jurisdiction to resolve the matter. As a result, the Court will transfer this

action to the Court of Federal Claims in the interest of justice pursuant to 28 U.S.C. § 1631.

        IV.     Conclusion

        For the foregoing reasons, it is hereby

        ORDERED that Defendants’ [50] Motion for Summary Judgment be DENIED without

prejudice. It is further

        ORDERED that [52] Plaintiffs’ Sealed Motion for Partial Summary Judgment and [54]

Cross-Motion for Summary Judgment be DENIED without prejudice. It is further




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        ORDERED that this action be TRANSFERRED to the United States Court of Federal

Claims.

        SO ORDERED.




                                                      CHRISTOPHER R. COOPER
                                                      United States District Judge

Date:     June 13, 2016




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