Beberman v. United States

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No. 16-1006C FILED

(Filed: December 8, 2016) DEC - 8 20f6

* *** *** * * *r( * **,* *** * {. *** *+,t +

'l.* ***,*:t *,t * U.S. COUBT OF

FEDERAL CLAIMS

JULIE BEBERMAN, Claim under the Equal Pay Act of 1963,

alleging gender-based discrimination; 29

Plaintiff, U.S.C. $ 206(d); previously-filed pending

suit in Federal District Court and on

appeal; application of 28 U.S.C. $ 1500

UNITED STATES,

Defendant,

********* :t * *'r.,r * + ** + ***************** *

Julie Beberman, pro se, Arlington, Virginia.

Agatha Koprowski, Trial Attomey, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With her on the briefs

were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and

Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of

counsel was Jessica Thibodeau, Attomey Adviser, Office ofthe Legal Adviser, United States

Department of State, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, Julie Beberman ("Ms. Beberman"), an employee of the United States

Department of State ("State Department"), brings this action under the Equal Pay Act of 1963

("Equal Pay Act"), Pub. L. No. 88-38, $ 3(d), 77 Stat. 56 (codified at 29 U.S.C. $ 206(d)),

alleging gender-based discrimination in pay and benefits. Compl. tfJf 1, 3,21. Ms. Beberman

alleges that the govemment discriminated against her by paying her less and providing her with

fewer benefits than those received by a similar male employee within the State Department. ,See

Compl. flfl 9-23. The government seeks to dismiss Ms. Beberman's complaint pursuant to 28

U.S.C. $ 1500 on the ground that prior to bringing this suit, Ms. Beberman filed an action against

the United States in the United States District Court for the District of the Virgin Islands and an

appeal in the United States Court ofAppeals for the Third Circuit from the district court's denial

of preliminary injunctive relief, both of which remain pending. See Def.'s Mot. to Dismiss

?ul,q 1200 00BB 1813 3135

Pursuant to 28 U.S.C. $ 1500 or, in the Altemative, Mot. to Stay ("Def.'s Mot.") at 6-9, ECF No.

6. Altematively, the government requests that the court stay Ms. Beberman's suit until her

pending claims in the district court and court ofappeals are resolved. Id. at9-10.

For the reasons stated, the govemment's motion to dismiss pursuant to 28 U.S.C. $ 1500

is granted.

BACKGROUND

s Beberman i

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M member of ,he

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Foreign Service. Compl. flfl 3, 5. Upon entry to the Foreign Service, employees serve under a

limited appointment for a trial period. 22 U.S.C. $ 39a6@). A commissioning and tenure board

recommends whether an employee should receive tenure and a career appointmenl. See 22

U.S.C. $ 3946(b); 3 Foreign Affairs Manual $ 2245 (available at https://fam.state.gov); Def.'s

Mot. at 1-2. In March 2016, Ms. Beberman was serving at Embassy Malabo in Equatorial

Guinea, where she allegedly received various benefits, including "overseas comparability pay,

hardship pay, service-needs differential, a cost of living allowance, housing, substantial overtime

compensation, and . . . the student loan repayment program." Compl. Jlll 6-8. On March27,

2016, Ms. Beberman's limited career appointment expired without a recommendation of tenure.

Compl. fl 6. Ms. Beberman challenged the denial of tenure before the Foreign Service Grievance

Board and received interim relief. See Def.'s Mot. at 2; Pl.'s Opp'n to Mot. to Dismiss or for a

Stay ("P1.'s Opp'n") at 3, ECF No. 7. Pursuant to the State Department's inlemal standard

operating procedure regarding mandatory separations, see Def.'s Mot. App. A2l, A27 -A28,t the

State Department placed Ms. Beberman on "separation orders" and directed her to retum to

Washington, D.C. before the completion of her assignment in Equatorial Guinea. Compl. fl 9.2

Ms. Beberman alleges that she did not receive an ovemight stop, a temporary quarters service

allowance, or the opportunity to retrieve her household effects. Compl. !f 10. Additionally, Ms.

Beberman alleges that she has not received "Washington locality pay or a transit subsidy" since

retuming to Washington, D.C. Compl. r I l.r

rThe appendix to the government's motion consists of the State Department's intemal

standard operating procedure and ten documents related to Ms. Beberman's suit in the district

court and appeal in the Third Circuit, tallying 245 sequentially numbered pages. The appendix

will be cited as "Def.'s Mot. App. A_," showing the pertinent page number.

2In addition to alleging violations of the Equal Pay

Act, Ms. Beberman alleges that the

State Department's separation orders violated 22U.5.C, Q 4136,22 C.F.R. $ 904.4(a), and 3

Foreign Affairs Manual g 4453(a), all of which pertain to proceedings before the Foreign Service

Grievance Board. Compl. !l 9.

rOn December 1,2016,the govemment filed a Notice of Related Agency Action, ECF

No. 10, advising that the State Department had changed its policies and procedures regarding

mandatory separations. As a result, the Department has now placed Ms. Beberman on orders for

a permanent change of station to Washington, D.C., retroactive to April 11,2016, the first

working day after Ms. Beberman departed her assignment in Malabo, Equatorial Guinea. See

Ms. Beberman brought this action on August 15, 2016 under the Equal Pay Act, 29

U.S.C. $ 206(dX1). Compl. fl 1.4 Ms. Beberman alleges that the govemment discriminated

against her on the basis of sex by paying her at a lower rate and providing her with fewer

benefits than were provided to an equally-ranked and situated male employee. Compl. flfl 21-23.

Specifically, Ms. Beberman alleges that a male Foreign Service employee's limited appointment

also terminated on March 27,2016 without a recommendation of tenure, but the State

Department allowed that employee to remain overseas and retain overseas benefits until the

completion of his assignment, even though the employee and Ms. Beberman allegedly are of

equal rank and have similar responsibilities. Compl. flfi] 12-17 ,22-23. Af\er completing his

assignment and retuming to the United States, the male employee is now allegedly receiving

"Washington locality pay and a transit subsidy." Compl. u 20.

Ms. Beberman requests that the court reinstate her to service at the embassy in Equatorial

Guinea until the completion ofher assignment there, thus enabling her to obtain the benefits she

previously received, including hardship pay, service-needs differential, housing, overtime

compensation, and pa(icipation in the student loan repayment program. Compl. fl 26. Ms.

Beberman also requests Washington locality pay, temporary quarters service allowance, and

transit subsidy benefits until she departs for Equatorial Guinea. Compl. fl 26. Additionally, Ms.

Beberman seeks back pay for the benefits she lost when she was directed to leave Equatorial

Guinea, repayment for transit subsidies she has not received since retuming to Washington, D.C.,

and back pay for the temporary quarters service allowance she was denied upon being placed on

separation orders and leaving Equatorial Guinea. Compl.ilf 27.

B, Ms. Beberman's Suil in the District Court

In May 2014, Ms. Beberman filed a complaint in the United States District Court for the

District ofthe Virgin Islands against the State Department and Secretary of State John Kerry in

his official capacity. Beberman v. United States Dep't of State, No.2014-0020,2016 WL

1 I 81684, at

* 1 (D.V.l. Mu. 24,2016) ("Beberman I'), recons. denied,2016 WL 13 12531

(D.V.l. Apr. 4,2016) ("Beberman Il'). In that suit, Ms. Beberman brought a gender

discrimination claim under Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, $ 717,

78 Stat. 241, as amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-

261, 86 Stat. 103, 111, an age discrimination claim under the Age Discrimination in Employment

Act of 1967, Pub. L. No. 90-202,515, as amended by the Fair Labor Standards Amendments of

Notice of Related Agency Action, appended Decl. of Brian Wilson (Dec. 1,2016) fl 4. Ms.

Beberman has moved to strike defendant's notice ofrelated agency action, contending that the

agency's action is irrelevant to the court's inquiry into jurisdiction under 28 U.S.C. $ 1500. Pl.'s

Mot. to Strike Dei's Notice of Related Agency Action at 3, ECF No. 1 1.

aCongress enacted the Equal Pay Act in 1963 as an amendment to the Fair Labor

Standards Act, Pub. L. No. 75-718, 52 Stat. 1060 (1938) (codified at 29 U.S.C. $$ 201-19). See

Yantv. UnitedStates,5SS F.3d 1369, 1371 (Fed. Cir.2009). In1974, Congress adopted a

statutory amendment that applies the Equal Pay Act to the federal government. See Pub. L. No.

93-259, $ 6(a)(1), 88 Stat. 55, 58 (codified at 29 U.S.C. $ 203(eX2)); see also Jordan v. United

States,l22 Fed. C1.230,241 n.21 (2015).

1974, Pub. L. No. 93-259, S 28(bX2), 88 Stat. 55, 75, and a claim under the Privacy Act of 1974,

Pub.L.No.93-579,S3,88Stat. 1896, 1901 (codifiedat5U.S.C.$522a(gXlXD)). Bebermanl,

2016 WL 1181684, at *1. However, Ms. Beberman withdrew the gender discrimination claim in

her First Amended Complaint, and the Privacy Act claim was dismissed by agreement of the

parties. Id.

The First Amended Complaint, filed May 22,2014, alleged that Ms. Beberman's

supervisor repeatedly discriminated against Ms. Beberman due to her "age and gender" while she

was serving in Caracas, Venezuela. First Amended Complaint, Bebermon r. United States Dep't

of State, No. 2014-0020, fllT 97-110 (D.V.I. May 22,2014), Def 's Mot. App. A12-A14. Ms.

Beberman's supervisor allegedly treated her differently with respect to Ms. Beberman's work at

Embassy Caracas. See id. After moving to Equatorial Guinea, and while the complaint was still

pending, Ms. Beberman filed a motion for a temporary restraining order or preliminary

injunction on March 20,2016, in which Ms. Beberman requested that the district court direct the

State Department to retain Ms. Beberman "in her current assignrnent at the U.S. Embassy in

Malabo, Equatorial Guinea until she fulfills her assignment in December 2017." Beberman I,

2016 WL 1i81684, at *2. Ms. Beberman claimed that her supervisor's "discriminatory animus"

caused the denial oftenure, which resulted in the expiration ofher limited career appointment.

Beberman II,2016WL 1312534, at * l. In support of the motion, Ms. Beberman argued that a

departure from Equatorial Guinea would result in "irreparable harm" because she would be

required to leave her residence and retum to Washington, D.C., and because she would lose

"hardship pay, service[-]needs differential, [and] access to the Student Loan Repayment

Program." Id. at*3. The district court denied the motion and Ms. Beberman's subsequent

motion for reconsideration. See generally Beberman 1,2016 WL 1181684; Beberman 11,2016

wL 1312534.

Ms. Beberman filed a notice ofappeal and an urgent motion for an injunction, but the

United States Court of Appeals for the Third Circuit denied the motion on April 5, 2016 without

addressing the pending appeal. Order, Beberman v. United States Dep't of State,No. 16-1788

(3dCir,Apr.5,20l6),Def.'sMot.App.4107. OnJune2T,20l6,Ms.Bebermanfiledabriefin

support ofher appeal of the district court's denial ofinjunctive relief. Brief of Appellant,

Beberman v. United States Dep't of State, No. l6- 1788 (3d Cir. June 27,2016) ("Appellant's

Br."), Def.'s Mot. App. A108-4186. In that brief, Ms. Beberman stated that she had sought

injunctive relief in March 2016 "to remain at Embassy Malabo, because [the govemment's]

discriminatory and retaliatory animus proximately caused her to be denied tenure and [the

govemmentl directed her to depart Embassy Malabo for Washington in the middle of her three-

year assignment." Appellant's Br. at 4, Def.'s Mot. App. 4.121. Ms. Beberman asserted that the

district court improperly denied her "request to complete her assignment in Equatorial Guinea'"

Appellant's Br. at 38, Def.'s Mot. App. A155.

In support ofher appeal for injunctive relief, Ms. Beberman argued that she adequately

demonstrated ineparable harm, likelihood of success on the merits, and public interest in favor of

relief. See Appellant's Br. at 36-65, Def.'s Mot. App. A153-4182. Specifically, Ms. Beberman

claimed that without a preliminary injunction or temporary restraining order, she would suffer

ineparable harm by "being forced to give up her position . . . at Embassy Malabo and . . . take up

an unspecified position in Washington." Appellant's Br. at 25, Def.'s Mot. App. A142; see also

Appellant's Br. at 40, 44-45,66-67, Def.'s Mot. App. A157, A161-62, A183-84. Ms. Beberman

noted that her departure would result in the loss ofhardship benefits, service-needs differential,

and student loan repayments. Appellant's Br. at 48, Def.'s Mot. App. .A165; see slso

Appellant's Br. at 42, Def.'s Mot. App. A159 (arguing that Ms. Beberman's position in

Equatorial Guinea was unique due to the hardship and service-needs differential associated with

the position); Appellant's Br. at 44-45, Dei's Mot. App. A161-A162 (claiming that Ms.

Beberman could no longer participate in the student loan repayment program if transfened to

Washington, D.C.). Ms. Beberman also noted she would suffer harm while in Washinglon, D.C.

because "she would not be eligible for Washington locality pay, per diem, or home service

transfer allowance[,] and would not be allowed access to her household effects." Appellant's Br.

at 16, Def.'s Mot. App. A133. In addressing the public interest aspect ofthe district court's

analysis, Ms. Beberman stated that the directive to depart from Equatorial Guinea resulted from

her denial of tenure, "which was tainted by discriminatory animus." Appellant's Br. at 63, Def.'s

Mot. App. A180; see a/so Appellant's Br. at 8, Def.'s Mot. App. ,4'125 (noting that Ms.

Beberman did not want her assignment to end based upon "the long lasting effects ofpast

discrimination"); Appellant's Br. at64, Def.'s Mot. App. A181 (arguing that the goverffnent

failed to stop the discrimination against Ms. Beberman, and instead took further adverse action

by removing her lrom Equatorial Guinea and sending her to Washington, D.C.). Ms.

Beberman's appeal remains pending. Beberman v. United Stdtes Dep't of Slale, No. 2014-0020,

appeal docketed,No. I6-1788 (3d Cir. Apr. 4,2016).s

C. The Government's Pending Motion to Dismiss or Stay the Case

The government seeks to dismiss Ms. Beberman's complaint pursuant to 28 U.S.C. $

1500. Def.'s Mot. The govemment argues that under 28 U.S.C. $ 1500, this court does not have

jurisdiction over Ms. Beberman's suit because she has an earlier-filed pending suit in the district

court and an earlier-filed pending appeal in the Third Circuit, and those pending suits are "for or

in respect to" the same claims at issue here. Def.'s Mot. at 7-9; Def.'s Reply in Support of Def.'s

Mot. to Dismiss Pursuant to 28 U.S.C. $ 1500 or, in the Altemative, Mot. to Stay ("Def.'s

Reply") at 1-5, ECF No. 8. Ms. Beberman opposes this motion, arguing instead that the claims

in this court are based on different operative facts than those alleged in the earlier-filed claims in

the district court. Pl.'s Opp'n at l-4. Altematively, the govemment requests that the court stay

Ms. Beberman's suit until her claims in the district court are resolved, Def.'s Mot. at 9-10, which

5On July 19,2016, the district court stayed proceedings before it. Order, Beberman v.

IlnitedStatesDep'tofState,No.2014-0020(D.V.l.July19,2016),Def.'sMot.App.4228. On

September 7, 2016, subsequent to filing suit in this court, Ms. Beberman moved for leave to file

a Fourth Amended Complaint in the district court. Fourth Amended Complaint, Beberman v.

United States Dep't of State, No. 2014-0020 (D.V.l. Sept. 7,2016), Def.'s Mot. App. Al94; .ree

a/so Dcf.'s Mot. App. 4229. On November 8,2016, the district court granted Ms. Beberman's

motion to lift the stay for the limited purpose of filing a motion to amend the complaint to meet

the statute of limitations. Order, Beberman v. v. United States Dep't of Stqte, No.2014-0020

(D.V.l. Nov. 8, 2016). Ms. Beberman filed a fifth amended complaint on the same day. Fifth

Amended Complaint, Beberman v. United States Dep't of State,No.2014-0020 (D.V.l. Nov. 8,

2016).

Ms. Beberman also opposes, Pl.'s Opp'n at 9-13. The motion has been briefed and was

addressed at a hearing on December 2, 2016.

STANDARDS FOR DECISION

As plaintiff, Ms. Beberman has the burden of establishing jurisdiction. See Reynolds v.

Army&Air Force Exch.\erv.,846F.2d746,748 (Fed. Cir. 1988). In determining whether the

court has jurisdiction, the court "must accept as true all undisputed facts asserted in the plaintiff s

complaint and draw all reasonable inferences in favor ofthe plaintiff" Trusted Integration, Inc.

v. United States,659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States,60F.3d

795,797 (Fed. Cir. 1995)).

Under the Tucker Act, this court has jurisdiction over "any claim against the United

States founded either upon the Constitution, or any Act ofCongress or any regulation ofan

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. $ 1a91(a)(1). This

court generally has jurisdiction under the Tucker Act over claims brought in respect ofthe Equal

Pay Act. See, e.g., Harbuckv. IJnited States,378 F.3d 1324,1330 (Fed. Cir.2004);Jordan'122

Fed. Cl. at 238 (citations omitted). Nonetheless, 28 U.S,C. $ 1500 acts as a jurisdictional

limitation. When it applies, this court lacks jurisdiction and must dismiss the complaint. See 28

U.S.C. $ 1500; (lnited States v. Tohono O'Odham Nation,563 U.S. 307, 314, 318 (2011).

ANALYSIS

Section 1500 provides:

The United States Court ofFederal Claims shall not have jurisdiction ofany claim

for or in respect to which the plaintiffor 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 Euose, was' in respect

thereto, acting or professing to act, directly or indirectly under the authority ofthe

United States.

28 U.S.C. $ 1500. Section 1500 originates from a Reconstruction-era statute that was enacted to

prevent duplicative suits by cotton claimants seeking to recover for the value ofcotton taken by

the government during the Civil War. See Keene Corp. v. United States,508 U.S. 200, 206-07

(1993\; Nez Perce Tribe v. United States, S3 Fed. Cl. 186, 189(2008). The Supreme Court has

explained that the purpose ofthe statute is to "save the [g]ovemment from burdens of redundant

titigation." Tohono,563u.S.at3l5. In evaluating whether Section 1500 applies, the court must

determine "(1) whether there is an earlier-filed 'suit or process' pending in another court, and, if

so, (2) whether 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) (citing Trusted Integration,659 F.3d at 1163-64 (intum citing

Tohono,563 U.S. at 309-11))

As to the first prong, a suit is pending from the time it is filed until the entry of final

judgment, and is again pending when a motion for reconsideration or appeal is f:I,ed,. Brandt,

71 0 F.3d at I 379-80. The court assesses whether an earlier-filed suit is pending "at the time the

complaint is filed" in this court. Id. at 1375 (citing Keene,508 U.S. at 207 ("[T]he jurisdiction

ofthe [c]ourt depends upon the state of things at the time of the action brought.")).

Here, Ms. Beberman concedes that she filed suit against the State Department in the

district court prior to bringing claims before this court, and such suit remains pending. Pl.'s

Opp'n at 2. Ms. Beberman also appealed the district court's denial of her motion for preliminary

injunctive relief before she filed suit in this court, and that appeal is pending as well. .See

generally Appellant's Br., Dei's Mot. App. Al08-4186. The claims presented in a pending

appeal before an appellate court are deemed pending claims for purposes ofapplying Section

1500. See, e.g., Williams v. United States, Tl Fed. Cl. 194, 199 (2006) (holding that plaintiffhad

a pending claim in an appeal before the D.C. Circuit at the time plaintiff filed suit in the Court of

Federal Claims); Ifilson v. United States,32 Fed. Cl. 794,795-96 (1995) (same); see also

Hornback v. United States,36 Fed. Cl. 552, 555-56 (1996) (dismissing plaintiff s complaint

pursuant to Section 1500 because the complaint addressed the same claim as plaintiff s earlier-

filed pending appeal in the Ninth Circuit). Thus, Ms. Beberman's First Amended Complaint in

the district court and appeal in the Third Circuit constitute earlier-filed pending suits.

The government urges reliance on that context for its motion, but it also attempts to rely

on allegations in Ms. Beberman's Fourth Amended Complaint in the district court, filed

September 7,2016, aftcr Ms. Beberman filed her complaint in this court. ,See Def.'s Mot. at 7-8.

Because the inquiry as to applicability of Section 1500 is made as ofthe date of filing in this

court, the court cannot consider Ms. Beberman's subsequently filed Fourth Amended Complaint

in the district cou(. See, e.g., Low v. United States,90 Fed. Cl. 447 , 451 (2009) (explaining that

unlike plaintiff s original complaint in the district court, plaintiffs amended district court

complaint was "irrelevant" to the Section 1500 analysis because it was filed after plaintiff frled

suit in this court).

Regarding the second prong, the Supreme Court has stated that "[t]wo suits are for or in

respect to the same claim, precluding jurisdiction in [this court], ifthey are based on

substantially the same operative facts, regardless ofthe relief sought in each suit." Tohono, 563

U.S. at 317. Notably, the inquiry focuses on the facts underlying the challenged government

conduct, rather than the plaintiffs legal theories. See, e.g., Central Pines Land Co. v. United

States,69J F.3d 1360, 1365 (Fed. Cir.2012) (finding a "substantial overlap ofoperative facts"

because the two suits, "at best, repackaged the same conduct into two different theories");

Trusted Integration,659 F.3d at 1164 ("Importantly, the legal theories underlying the asserted

claims are not relevant to this inquiry.") (citing Keene,508 U.S. at 210). Courts applying this

test have distinguished "between background facts, which describe the context for the claims

presented in each suit, and operative facts, which provide the essential elements of the

government conduct at issue in the two suits." United States Home Corp. v. United States,l08

Fed. Cl. 191, 195 (2012) (citing Central Pines Land Co.,697 F.3d at 1365; Trusted Integration,

659 F.3d at 1168), aff'd,550 Fed. Appx. 895 (Fed. Cir. 2014). Although the operative facts must

substantially overlap, they need not be identical. Harbuck v. United States,58 Fed. Cl. 266,269

(2003), sff'd,378 F.3d 1324 (Fed. Cir. 2004).

Here, Ms. Beberman argues that the operative facts in the two suits are "completely

different." Pl.'s Opp'n at 2. Specifically, Ms. Beberman focuses on her First Amended

Complaint and motion for preliminary injunction in the district court, which she claims

addressed the State Department's alleged age discrimination in 2012 in Caracas, Venezuela, and

the impact of that discrimination on her employee evaluations and denial of tenure. Id. at 2-3.

Ms. Beberman argues that her complaint in this court focuses on a different time period and

dilferent govemment action by addressing only the State Department's actions after the denial of

tenure occuned. Id. at3-4. In support, Ms. Beberman primarily relies on Cooke v. United

States,77 Fed. Cl. 173 (2007), where the court ruled that Section 1500 did not apply due to

material factual differences between the two claims. In Cooke, plaintiff brought a gender

discrimination claim under the Equal Pay Act in this court, and a retaliation claim under the Fair

Labor Standards Act in the district court. Id. at 175,177-78. The court held that plaintifls

retaliation claim related to "later and different conduct" as compared to the discrimination claim,

explaining that the two claims involved "distinct time periods and distinct [g]ovemment

conduct." Id. at177-'78. Specifically, the gender discrimination pertained to alleged unequal pay

between 1997 and 2005, whereas the retaliation claim related to changes in plaintiff s

employment after February 2005, when plaintiff filed a formal complaint. Id. at 177 .

Ms. Beberman's argument and reliance on Coole might have been persuasive but for her

request to the district court for temporary or preliminary injunctive relief and her subsequent

appeal of the district court's denial of that relief. Although Ms. Beberman's First Amended

Complaint related to alleged discrimination in Venezuela prior to the denial of tenure, Ms.

Beberman's subsequent filings addressed events that occurred post-denial oftenure. In her

cunently pending appeal before the Third Circuit, which was filed before Ms. Beberman filed

suit in this court, Ms. Beberman specifically challenged the State Department's 2016 directive

for Ms. Beberman to leave Equatorial Guinea and retum to Washington, D.C. See, e.9.,

Appellant's Br. at 4, 38, Def.'s Mot. App. A121, A155. Unlike in Coolce, where the two suits

involved distinct time periods and distinct government conduct, the critical facts and time

periods underlying Ms. Beberman's claims are substantially the same in both suits even though

her legal theories are somewhat different, albeit related. Ms. Beberman's pending appeal in the

Third Circuit and complaint filed with this court both address the State Department's conduct

after the denial oftenure in2016, not before. See generally Compl.; Appellant's Br. Further,

Ms. Beberman argues in both suits that the State Department wrongly directed her to leave

Equatorial Guinea before the completion ofher assignment, resulting in an alleged loss of

benefits. Compl. fTl'I 9-23; Appellant's Br. at 4, 16, 48, Def.'s Mot. App. A121, A133, A165.

The State Department directive and loss ofbenefits are not mere background facts, but rather ate

critical to both Ms. Beberman's pending appeal and her complaint in this court. Thus, the two

suits are based on substantially the same operative facts: Ms. Beberman's departure from

Equatorial Guinea, the loss ofoverseas benefits, the lack oflocal benefits upon her return to

Washington, D.C., and the State Department's alleged discriminatory basis.6

oHere, Ms. Beberman claims that the State Department directly discriminated against her

by ordering her to leave Equatorial Guinea, whereas Ms. Beberman claims in her pending appeal

before the Third Circuit that her departure was the consequence ofprevious discrimination.

Compare Compl. (alleging that the government discriminated against Ms. Beberman on the basis

of her sex when she was directed to leave Equatorial Guinea and retum to Washington, D.C.),

The cou('s jurisdictional assessment is confirmed by principles ofresjudicata. See

Trusted Integration,659 F.3d at 1164; United States Home Corp.,l08 Fed. Cl. at 199-200

(citing Trusted Integration,659 F.3d at 1 170 n.5); see also Tohono, 563 U.S. at 31 5

( "Concentrating on operative facts is also consistent with the doctrine of claim preclusion, or res

judicata, which bars repetitious suits involving the same cause ofaction . . . .") (intemal

quotation marks and citations omitted). As the Federal Circuit explained in Trusted Integration,

the two relevant resjudicata tests for purposes ofa Section 1500 analysis are (1) "the act or

contract test" and (2) "the evidence test." 659 F.3d at 1 168-69 (citing Tohono,563 U.S. at 3 1 5-

1 6). "lf two suits are determined to arise from the same claim under either of these res judicata

tests, . . . application of the bar of [Section] 1500 is likely compelled." Id. at 1170 n.5.

Here, Ms. Beberman's pending suits require the Third Circuit and this court to examine

the same evidence. The evidence test asks whelher "the same evidence support[s] and

establish[es] both the present and the former cause of action." Trusted Integration, 659 F .3d at

1169 (quoting Tohono,563 U.S. at 316). In both Ms. Beberman's pending appeal and complaint

before this court, Ms. Beberman's claims center on Ms. Beberman's departure from her post in

Equatorial Guinea before the completion ofher assignment, and whether such departure was the

result ofwrongful conduct by the State Department. Further, Ms. Beberman supports both suits

by alleging that she has suffered harm as a result ofher departure, specifically through the loss of

hardship pay, service-needs differential, and student loan repayments, as well as the lack oflocal

benefits in Washington, D,C. See llinnebago Tribe of Neb. v. United States,101 Fed. Cl. 229,

233-34 (2011) (finding substantial factual overlap between two suits because, inter alia,both

courts would be required to examine the same evidence in evaluating plaintiff s claims).

Although Ms. Beberman's suit in the district court suit also encompasses events prior to the 2016

State Department directive, this alone does not change the court's conclusion. Ms. Beberman's

allegations in this court are merely a "subset ofthe same factual allegations" presented in the

district court and the Third Circuit. See Harbuck,58 Fed. Cl. a|269-70.

wil, Appellant's Br. at 63, Def.'s Mot. App. A180 (stating that the directive to depart from

Equatorial Guinea resulted from Ms. Beberman's denial of tenure, "which was tainted by

discriminatory animus"). This distinction does not affect the outcome ofthe oourt's analysis.

The critical facts regarding Ms. Beberman's departure from Equatorial Guinea and diminution in

benefits remain the same. Additionally, both suits allege that but for the State Department's

alleged discrimination, the harm to Ms. Beberman would not have occurred. The facts thus

substantially overlap.

Conelatively, the fact that Ms. Beberman brought an age discrimination claim in the

district court and a gender discrimination claim here does not alter the analysis. Both suits relate

to alleged discrimination by the State Department, and Ms. Beberman's First Amended

Complaint in the district court repeatedly referred to alleged discrimination based on "age and

gender." See First Amended Complaint, Beberman v. United States Dep't of State,No.2014-

0020, flfl 97-110 (D.V.I. May 22,2014), Def.'s Mot. App. A12-A14 (emphasis added).

Regardless of Ms. Beberman's legal theories, the facts underlying her two claims are intertwined

and thus the claims are based on substantiallv the same oDerative facts.

CONCLUSION

For the reasons stated, the govemment's motion to dismiss pursuant to 28 U.S.C. $ 1500

is GRANTED. This dismissal on jurisdictional gounds is without prejudice. The govemment's

motion to stay is DENIED as moot.? The clerk shall enter judgment in accord with this

disposition.

No costs.

It is so ORDERED.

Charled

'Plaintiff s motion to strike defendant's notice of related agency action is DENIED.

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