Larry D. Tallacus v. United States

In the United States Court of Federal Claims

No. 10-311C

Filed: October 17, 2013

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*

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).

*

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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”).

8