Saraco v. U.S., 94-1073

• Decision Date: 28 July 1995
• Docket Number: No. 94-1073,94-1073
• Citation: 61 F.3d 863
• Court: U.S. Court of Appeals — Federal Circuit
• Parties: 130 Lab.Cas. P 33,259, 2 Wage & Hour Cas.2d (BNA) 1433 Frank SARACO and 800 similarly situated individuals, Plaintiffs-Appellants, v. The UNITED STATES and Carol Boyd Hallett in her capacity as Commissioner, United States Customs Service, Defendants-Appellees.

Page 863

61 F.3d 863

130 Lab.Cas. P 33,259, 2 Wage & Hour Cas.2d

(BNA) 1433

Frank SARACO and 800 similarly situated individuals, Plaintiffs-Appellants, v. The UNITED STATES and Carol Boyd Hallett in her capacity as

Commissioner, United States Customs Service,

Defendants-Appellees.

No. 94-1073.

United States Court of Appeals, Federal Circuit.

July 28, 1995.

Rehearing Denied Sept. 22, 1995.

Elaine Kaplan, Deputy General Counsel, National Treasury Employees Union, argued, Washington, DC, for plaintiffs-appellants. With her on the brief was Gregory O'Duden, General Counsel.

Shalom Brilliant, Sr. Trial Counsel, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for defendants-appellees. With him on the brief were Frank W. Hunger, Asst. Atty. Gen., and David M. Cohen, Director.

Before ARCHER, Chief Judge, NEWMAN and MICHEL, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

Frank Saraco and 800 similarly situated individuals appeal the decision of the United States District Court for the Eastern District of Pennsylvania, transferring this case to the United States Court of Federal Claims. ¹ This appeal is taken in accordance with 28 U.S.C. Sec. 1292(d)(4)(A), which assigns to the Federal Circuit exclusive jurisdiction of interlocutory appeals of the issue of jurisdiction

as between the district court and the Court of Federal Claims.

BACKGROUND

Appellants are Customs Inspectors and Import Specialists who are classified as employed in an "administrative capacity" within the meaning of 29 U.S.C. Sec. 213(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq. They are considered "exempt" employees for the purposes of the FLSA. The gravamen of their suit is that they are improperly classified as exempt, and that this classification impairs their right to compensation for overtime work. In Count I they challenge their classification under the applicable regulations of the Office of Personnel Management, and seek back pay and liquidated damages as provided by the FLSA. In Count II they challenge the validity of OPM's classification regulations in administration of the FLSA.

The district court, on motion of the government, transferred Count I to the Court of Federal Claims. Rejecting the appellants' position that the appropriate jurisdictional statute is Sec. 216(b) of the FLSA, the district court held that only the Tucker Act grants jurisdiction of such suits against the United States. Tucker Act suits for amounts in excess of $10,000 can be brought only in the Court of Federal Claims:

28 U.S.C. Sec. 1491(a)(1) The United States Court of Federal Claims shall have jurisdiction 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.

"Little" Tucker Act suits, for claims not exceeding $10,000, can be brought in the district courts:

28 U.S.C. Sec. 1346(a)(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, 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, ... [except for claims subject to] the Contract Disputes Act of 1978.

28 U.S.C. Sec. 1402(a)(1) provides that claims brought under section 1346(a), other than by a corporation, may be prosecuted only in the judicial district where the plaintiff resides.

The district court denied the appellants' motion to amend their complaint to limit to $10,000 the damages sought by each plaintiff, an opportunity that is usually granted to Tucker Act plaintiffs who wish to remain in the district court. The district court ruled that venue was improper as to those plaintiffs (a majority of the total) who reside outside of the Eastern District of Pennsylvania. The court explained that amendment of the complaint would be futile in light of the venue problem.

The district court also transferred Count II of the complaint. The court observed that although the Court of Federal Claims does not have original jurisdiction over the classification action, which was brought pursuant to the Administrative Procedure Act, that court does have power to afford complete relief:

28 U.S.C. Sec. 1491(a)(2). To provide an entire remedy and to complete the relief afforded by the judgment, the [Court of Federal Claims] may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, ... and such orders may be issued to any appropriate official of the United States.

Neither side challenges the correctness of the transfer of Count II, if Count I were properly transferred.

DISCUSSION

A waiver of governmental immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). When so expressed, however, it must be applied in accordance with its terms, and not reinterpreted contrary to congressional intent. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126-27, 100 L.Ed. 48 (1955) ("Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.")

Appellants argue that the district court was incorrect in holding that the Tucker Act is the only statute conferring jurisdiction with respect to Count I. They argue that the intent of the Fair Labor Standards Act is clear, and that it confers jurisdiction on the district court without distinguishing between government and private employers, in that the FLSA authorizes suit "against any employer (including a public agency) in any Federal or State court of competent jurisdiction":

29 U.S.C. Sec. 216(b) Damages; right of action; ...

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.... An action to recover the liability prescribed in either of the preceding sentences 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.

Appellants argue that this provision authorizes suit in the district court because that court's federal question jurisdiction makes it a court "of competent jurisdiction" for actions under the FLSA, and that Sec. 216(b) does not distinguish between private and public employers. The government's response is that only the Tucker Act confers jurisdiction for monetary claims against the government arising under the FLSA.

The question of jurisdiction is a recurring one in suits against the government. In Zumerling v. Devine, 769 F.2d 745 (Fed.Cir.1985), federal firefighters challenged, in the district court, the government's method of calculating their overtime pay under the FLSA. The question was raised of whether the district court's jurisdiction was based on the Tucker Act or the FLSA, since that would determine whether claims in excess of $10,000 could be...