Barry v. United States

• Decision Date: 04 December 2013
• Docket Number: No. 13-457C,13-457C
• Parties: TAMARA BARRY, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

TAMARA BARRY, et al., Plaintiffs, v. UNITED STATES, Defendant.

No. 13-457C

UNITED STATES COURT OF FEDERAL CLAIMS

Filed: December 4, 2013

Claims brought under the Fair Labor

Standards Act, 29 U.S.C. § 216(b);

motion to transfer based upon asserted

absence of jurisdiction in this court;

Bormes distinguished; King followed

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

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

ORDER

LETTOW, Judge

On July 5, 2013, plaintiffs ("the Barry plaintiffs"), past or present employees of the Department of Homeland Security, brought claims in this court under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). Rather than answer and defend against the plaintiffs' claims on the merits, the government has asserted that this court lacks jurisdiction to hear FLSA claims and has moved to transfer the case to the United States District Court for the District of Nebraska, pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims and 28 U.S.C. § 1631.¹

I. BACKGROUND

The Barry plaintiffs are or were employees of the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Fraud Detection and National Security. Compl. at 3, ¶ 2. The Barry plaintiffs allege that they were wrongly classified as exempt from the FLSA prior to February 12, 2012 and request back pay at the appropriate rate for any and all hours worked in excess of eight hours per day or forty hours per week, as well as declarative relief. Compl. at 6. On February 12, 2012, the government reclassified the Barry plaintiffs as non-exempt for purposes of the FLSA. Compl. at 3, ¶¶ 3-4. According to the Barry plaintiffs, they "did not have any change in duties prior to or subsequent to the Agency's conversion of them from exempt to non-exempt," and their positions are consistent with duties that are non-exempt. Compl. at 3, ¶¶ 5, 7. Subsection 207(a) of the FLSA, codified at 29 U.S.C § 207(a), requires that a covered employer compensate its non-exempt employees at a rate not less than one and one-half times the regular rate of pay for any hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The Barry plaintiffs claim that they were wrongly designated as exempt prior to February 12, 2012 and seek damages in the amount of overtime pay wrongfully withheld under Subection 207(a). See Compl. at 4-5, ¶¶ 3, 6. The Barry plaintiffs assert that this court has jurisdiction pursuant to statutes that include 29 U.S.C. §§ 201 - 219, 28 U.S.C. § 1331, 28 U.S.C. § 1337, 28 U.S.C. § 1346(a), and 28 U.S.C. § 1491. Compl. at 2.²

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

II. ANALYSIS

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

A. The Tucker Act

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

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

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

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

B. Understanding Bormes

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

The Barry plaintiffs dispute the government's reading of Bormes, contending that Bormes calls for displacement when a statute waives sovereign immunity and specifies a forum other than this court within a statute's detailed remedial scheme. See Pl.'s Opp'n at 3-4. But, they argue, "the Supreme Court did not . . . hold that any statute containing a 'detailed remedial scheme' necessarily eliminates the C[ourt] [of] F[ederal] C[laims] from hearing cases under that scheme; rather, the terms of the detailed remedial statute itself govern." Id. at 3. Specifically, here they point to the detailed remedial scheme of the FLSA, which authorizes judicial power to be exercised by "any [f]ederal or [s]tate court of competent jurisdiction." Id. at 4 (quoting 29 U.S.C. § 216(b)). This court, the Barry plaintiffs assert, is undoubtedly a court of competent jurisdiction. Id. at 3.⁴

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

The...