Matsuo v. U.S.
| Decision Date | 21 February 2006 |
| Docket Number | No. 05-00398 PMP-LEK.,05-00398 PMP-LEK. |
| Citation | 416 F.Supp.2d 982 |
| Parties | Joyce MATSUO; Sharon Warren; Ronald Franklin; Frank Hardt; Russell Holland; Roy Matsuo; Michael McCrary; Fred Nolke; Charles Roberts; Ronald Scherler; Roman Buyson; Peter Newman; Thomas Warren; John J. Kato; and Michael C. Shearer, on behalf of themselves and others similarly situated, Plaintiffs, v. The UNITED STATES, and Linda M. Springer, Director, Office of Personnel Management, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Gregory K. McGillivary, Woodley & McGillivary, Washington, DC, Margery S. Bronster, Bronster Crabtree & Hoshibata, Rex Y. Fujichaku, Bronster Crabtree & Hoshibata, Honolulu, HI, for Joyce K. Matsuo on behalf of herself and others similarly situated, Sharon Warren on behalf of herself and others similarly situated, Ronald Franklin on behalf of himself and others similarly situated, Frank Hardt on behalf of himself and others similarly situated, Russell Holland on behalf of himself and others similarly situated, Roy Matsuo on behalf of himself and others similarly situated, Michael McCrary on behalf of himself and others similarly situated, Fred Nolke on behalf of himself and others similarly situated, Charles Roberts on behalf of himself and others similarly situated, Ronald Scherler on behalf of himself and others similarly situated, Roman Buyson, Peter Newman, Thomas Warren, John J. Kato, Michael C. Shearer, Plaintiffs.
Harry Yee, Office of the United States Attorney, Honolulu, John W. Showalter, Department of Justice, Civil Division, Richard P. Nockett, Department of Justice, Civil Division, Washington, DC, for United States of America, Dan G. Blair Acting Director of the Office of Personnel Management, Linda M Springer Director, Personnel Management, Office of, Defendants.
ORDER DENYING MOTION TO DISMISS OR TRANSFER
This is a proposed class action challenging the constitutionality of the Federal Employees Pay Comparability Act of 1990 ("FEPCA"), which provides locality-based comparability pay to federal employees. Plaintiffs are former or current federal employees, some of whom have worked in Hawaii and Alaska. (First Am. Compl. (Doc. # 7) ¶¶1-16.) They accurately allege FEPCA applies only to federal employees within the contiguous United States, thus excluding federal employees in Hawaii and Alaska from receiving locality pay.1 (Id. ¶¶24(a), 34.) Plaintiffs further allege that although Hawaii and Alaska federal employees receive a cost of living adjustment ("COLA") as part of their pay, Defendant United States does not include the COLA payments in calculating their retirement benefits. (Id. ¶24(c).)
Plaintiffs claim the locality pay exclusion for Hawaiian and Alaskan federal employees is based on residence and therefore unconstitutionally restricts interstate travel in violation of the equal protection clause of the Fifth Amendment to the United States Constitution (Count 1). (Id. ¶¶32-35.) Plaintiffs also claim federal employees have a property interest in their salary and FEPCA's arbitrary exclusion of Hawaiian and Alaskan federal employees from receiving locality pay and the United States' failure to include COLA payments in their retirement calculation violate substantive due process under the Fifth Amendment (Counts 2 and 3). (Id. ¶¶36-41.) Finally, Plaintiffs assert a claim under the Administrative Procedures Act ("APA"), alleging the Office of Personnel Management's ("OPM") decision not to include COLA payments as "basic pay" for retirement calculations for Alaskan and Hawaiian employees is an arbitrary and capricious interpretation of retirement statutes (Count 4). (Id. ¶¶42-43.)
Plaintiffs propose to represent two classes. The first class includes all federal employees in the contiguous United States who are entitled to locality pay under FEPCA who cannot reside in Alaska or Hawaii and work for the United States without losing locality pay. (Id. ¶23(a).) The second class consists of federal employees residing in Hawaii and Alaska who are not eligible for locality pay and do not have COLAs included in their retirement pay calculations. (Id. ¶24(b).) Plaintiffs seek declaratory and injunctive relief, damages for constitutional rights violations, and back pay under the Back Pay Act, 5 U.S.C. § 5596. (Id. ¶¶44-46.)
Presently before the Court is Defendants' Motion to Dismiss or, in the Alternative, to Transfer (Doc. # 8), filed on August 17, 2005. Plaintiffs filed an Opposition (Doc. # 13) on September 23, 2005. Defendants filed a Reply (Doc. # 24) on October 27, 2005. With leave of the Court, Plaintiffs filed a Surreply (Doc. # 26) on November 21, 2005. The Court held a hearing on this matter on January 31, 2006 (Doc. # 28).
Defendants contend this Court lacks jurisdiction because sovereign immunity bars Plaintiffs' claims unless those claims are brought under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), which waives the United States' sovereign immunity for suits brought in federal district court, but only for claims under $10,000. Defendants assert a preliminary review of the named Plaintiffs' personnel records suggests fourteen of them would have back pay claims worth over $10,000 if Plaintiffs prevail. Additionally, Defendants estimate nearly half the putative class of Alaskan and Hawaiian federal employees also would have claims over $10,000. Defendants further argue the APA is not an applicable waiver of sovereign immunity in this case because the APA's waiver is limited to suits seeking only non-monetary relief, and does not apply where there is an alternative adequate remedy, which Defendants insist exists and is available in the form of a claim under the Tucker Act before the Court of Federal Claims.2
Defendants also argue venue is improper in this Court because under 28 U.S.C. § 1402, which governs suits against the United States brought under § 1346(a), venue is proper only in the judicial district in which the plaintiff resides. Here, note Defendants, only five of the named Plaintiffs reside in Hawaii and the entirety of one class proposed by Plaintiffs resides in the contiguous United States. Defendants contend this Court should transfer the action to the Court of Claims which would have jurisdiction under the Big Tucker Act, 28 U.S.C. § 1491, which would not limit the dollar amount of a plaintiff's claims, or pose the venue difficulty Defendants contend exists in this Court.
Finally, Defendants argue that Plaintiff's COLA claims must be dismissed because they are subject to exclusive review provisions in the Civil Service Retirement Act ("CSRA") and Federal Employees Retirement System Act ("FERSA").
The United States Court of Appeals for the Federal Circuit has "exclusive jurisdiction of an appeal from an interlocutory order of a district court ... granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under [28 U.S.C. §] 1631." 28 U.S.C. § 1292(d)(4)(A); see also Christopher Village, L.P. v. U.S., 360 F.3d 1319, 1328 (Fed.Cir.2004). Under § 1631, where a court finds it has no jurisdiction over an action, "the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action or appeal could have been brought at the time it was filed." 28 U.S.C. § 1631. Accordingly, Federal Circuit law guides this Court on the question of whether this Court or the Court of Claims has jurisdiction over this action and the Federal Circuit has exclusive jurisdiction over an appeal of this Court's Order.
The United States, as a sovereign, is immune from suit unless it has waived its immunity. Ins. Co. of the W. v. United States, 243 F.3d 1367, 1372 (Fed. Cir.2001). Sovereign immunity is a jurisdictional bar if the United States has not consented to be sued on a particular claim. RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998). The United States must express unequivocally its waiver of sovereign immunity, and the terms of the waiver define the court's jurisdiction. Id.; Ins. Co. of the W., 243 F.3d at 1372. A party bringing an action against the United States bears the burden of demonstrating an unequivocal waiver of immunity. Booth v. United States, 990 F.2d 617, 619 (Fed.Cir.1993).
Defendants argue this Court has no jurisdiction over this action because the United States has not waived its sovereign immunity for Plaintiffs' claims. Defendants argue the United States has waived its sovereign immunity for damages claims over $10,000 only if the claim is brought in the Court of Claims. Defendants contend that although Plaintiffs style their claims as equitable in nature, the claims substantively seek over $10,000 in damages from the United States. Defendants assert this Court therefore lacks jurisdiction, and the Court should transfer the case to the Court of Claims. Plaintiffs respond that their claims are primarily equitable in nature, and the United States waived sovereign immunity for claims seeking nonmonetary relief under the APA. Plaintiffs contend the Claims Court does not have jurisdiction in this action because it has no power to award the declaratory or injunctive relief Plaintiffs seek.
The Tucker Act waives sovereign immunity for actions for monetary relief against the United States for claims "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), 1346(a)(2). The Tucker Act provides three waivers of sovereign immunity: the Big Tucker Act, 28 U.S.C. § 1491; the Little Tucker Act, 28 U.S.C. § 1346(a)(2); and the Indian Tucker Act, 28 U.S.C. § 1505. D.C. v. United States, 67 Fed.Cl. 292, 305 n. 5 (Fed...
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