UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS ADAIR, et al.,
Plaintiffs,
v. Case No. 13-cv-01093 (CRC)
BUREAU OF CUSTOMS AND BORDER
PROTECTION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Forty-five employees of the Office of Air and Marine in the Bureau of Customs and
Border Protection 1 claim that their positions have been misclassified as “administrative,”
improperly exempting them from protections of the Fair Labor Standards Act (“FLSA”). They
contend that they are entitled to, but have been denied, overtime compensation under the Act and
now bring suit against the United States for back pay and liquidated damages. Plaintiffs do not
waive any FLSA claims exceeding $10,000. Because exclusive jurisdiction to hear those claims
rests with the Court of Federal Claims, this Court lacks subject-matter jurisdiction over them. It
will therefore deny both sides’ motions for summary judgment without prejudice. Rather than
dismiss the case outright, however, the interest of justice requires that the Court transfer this
matter to the Court of Federal Claims.
1
The Bureau’s Office of Air and Marine was recently renamed Air and Marine
Operations.
I. Background
A. Procedural Background
In July 2013, an initial set of plaintiffs filed a complaint in this Court charging the United
States with violating the FLSA by erroneously exempting them from the Act’s overtime-pay
requirements. They subsequently amended their complaint three times, adding additional
plaintiffs who were also employed in the Office of Air and Marine. Discovery commenced in
February 2014. Nine months later, before the close of discovery, Plaintiffs moved the Court to
transfer this matter to the Court of Federal Claims. See Pls.’ Mot. Transfer, ECF No. 35. They
asserted that they did “not waive recovery in excess of $10,000,” argued that the Court of
Federal Claims “ha[d] exclusive jurisdiction over [their] claims,” and urged this Court to transfer
the case pursuant to its authority under 28 U.S.C. § 1631 (“Transfer to cure want of
jurisdiction”). Id. at 1–2. Defendants opposed this motion, contending that the Supreme Court’s
opinion in United States v. Bormes, 133 S. Ct. 12 (2012), upended precedent from multiple
circuits (including the D.C. Circuit) holding that only the Court of Federal Claims has
jurisdiction in this circumstance. Defs.’ Opp’n Pls.’ Mot. Transfer, ECF No. 36, at 4. Plaintiffs
then withdrew their motion to transfer. See ECF No. 37. The parties proceeded to complete
discovery and brief summary judgment on the merits of Plaintiffs’ claims. These cross-motions
for summary judgment are ripe, and the Court is now squarely faced with the question of
whether it has subject-matter jurisdiction over those claims.
Anticipating this question, the Court directed the parties to submit supplemental briefing
on the jurisdictional issue. In response, Plaintiffs readopted the arguments they advanced in their
motion to transfer and reiterated their view that the Court of Federal Claims has exclusive
jurisdiction “over [FLSA] claims, like those asserted here, against the United States exceeding
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$10,000.” Pls.’ Suppl. Br. 1. They also emphasized that the Court of Federal Claims possesses
“unique expertise in adjudicating FLSA claims against the federal government.” Id. Defendants
still maintain that this Court has jurisdiction over the matter. See Defs.’ Not., ECF No. 67.
B. Statutory Background
The Tucker Act grants the Court of Federal Claims “jurisdiction over a nontort monetary
claim ‘against the United States founded . . . upon . . . any Act of Congress.’” Abbey v. United
States, 745 F.3d 1363, 1368–69 (Fed. Cir. 2014) (quoting 28 U.S.C. § 1491(a)(1)). Courts have
long held, “since soon after the FLSA was extended to the federal government by the Fair Labor
Standards Amendments Act of 1974, . . . [that] the Tucker Act applies to a claim against the
government under the monetary-damages provision of the FLSA, 29 U.S.C. § 216(b).” Id. at
1369.
The Tucker Act’s statutory scheme differs somewhat depending on the amount of the
claim. Specifically, the “‘Little Tucker Act’ grants United States district courts concurrent
jurisdiction with the United States Court of Federal Claims over civil actions or claims against
the United States not exceeding $10,000 in amount,” Waters v. Rumsfeld, 320 F.3d 265, 270
(D.C. Cir. 2003) (internal quotation mark omitted) (quoting 28 U.S.C. § 1346(a)(2)), whereas,
generally speaking, “[u]nder the (Big) Tucker Act, claims ‘exceeding the $10,000 jurisdictional
ceiling . . . are within the exclusive jurisdiction of the Court of Claims,’” id. (quoting Goble v.
Marsh, 684 F.2d 12, 15 (D.C. Cir. 1982)).
II. Standard of Review
This Court has “an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).
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If it finds that it lacks jurisdiction over a civil action, the Court may, in the interest of justice,
transfer that action to another court where it could have been brought at the time it was filed. 28
U.S.C. § 1631. Otherwise, it must dismiss.
When “the existence of jurisdiction in the District Court depends on the plaintiff[s’]
choice” to waive claims in excess of a certain threshold, the Court should give plaintiffs “an
opportunity to amend their complaints to effect an adequate waiver” before transferring the
action. Goble, 684 F.2d at 17. This requirement follows from 28 U.S.C. § 1653, which allows
“[d]efective allegations of jurisdiction [to] be amended, upon terms, in the trial or appellate
courts.” See Goble, 684 F.2d at 17. If plaintiffs do not choose to effect such a waiver, and the
Court lacks jurisdiction as a result, the Court may then transfer the matter to the appropriate
court.
III. Analysis
The D.C. Circuit has held that “the Court of Federal Claims has exclusive jurisdiction to
adjudicate” all “FLSA claims in excess of $10,000.” Waters, 320 F.3d at 272. Unless plaintiffs
waive their claims in excess of $10,000, “the district court [is] without jurisdiction to rule on
their merits.” Id. This view has long prevailed in other circuits as well. See, e.g., Parker v.
King, 935 F.2d 1174, 1177 (11th Cir. 1991); Graham v. Henegar, 640 F.2d 732, 734 (5th Cir.
1981). The government contends, however, that a recent Supreme Court case (analyzing a
different statute) necessarily dooms the “30-year-old, multi-circuit, apparently unbroken
precedent” that exclusive jurisdiction over FLSA claims exceeding $10,000 lies in the Court of
Federal Claims. Abbey, 745 F.3d at 1369 (citing, e.g., Waters, 320 F.3d at 270–72).
The case is United States v. Bormes, which considered whether the Little Tucker Act
waives the United States’ sovereign immunity against claims brought under the Fair Credit
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Reporting Act (“FCRA”). Finding that it does not, the Court reasoned that “[t]he Tucker Act is
displaced . . . when a law assertedly imposing monetary liability on the United States contains its
own judicial remedies. In that event, the [law’s] specific remedial scheme establishes the
exclusive framework for the liability Congress created under the statute.” Bormes, 133 S. Ct. at
18. The Supreme Court thus concluded that since the FCRA included “a detailed remedial
scheme, only [that statute’s] own text can determine whether the damages liability Congress
crafted extends to the Federal Government.” Id. at 19. As the government sees it, because the
FLSA likewise provides a detailed remedial scheme, the Tucker Act does not apply here and
jurisdiction is proper in this Court.
The government raises a colorable argument, but the Court is ultimately unpersuaded. As
an initial matter, Bormes is not primarily on point—it does not directly overrule any precedent in
this or any other circuit specifying which court(s) may properly exercise jurisdiction over FLSA
claims against the government. Indeed, the Supreme Court analyzed the FCRA, not the FLSA,
and it only decided the Tucker Act’s role in the sovereign-immunity inquiry, not in the
jurisdictional inquiry. The government’s argument consequently would require this Court to
conclude that the general principles articulated in Bormes override controlling D.C. Circuit
precedent on the precise question at hand.
Moreover, the only circuit court to have considered the government’s argument since
Bormes—and the one most familiar with the Tucker Act—disagreed that Bormes “makes so
great a change in analyzing Tucker Act jurisdiction that it requires overturning the longstanding
. . . interpretation that the Tucker Act applies to FLSA damages cases against the United States,
even though Bormes did not involve the FLSA.” Abbey, 745 F.3d at 1369. In Abbey, the
Federal Circuit considered the very same arguments the government advances here, found
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significant distinctions between the FCRA and the FLSA, and held that Bormes did not disturb
the settled precedent that exclusive jurisdiction over FLSA claims exceeding $10,000 lies in the
Court of Federal Claims. See generally id.; see also ElHelbawy v. Pritzker, No. 14-CV-01707-
CBS, 2015 WL 5535246, at *13 (D. Colo. Sept. 21, 2015) (describing Abbey as holding that the
Tucker Act gives the “Court of Federal Claims exclusive jurisdiction over FLSA claims seeking
more than ten thousand dollars in damages”); Janoski v. United States, No. 13-272C, 2014 WL
1267010, at *1 (Fed. Cl. Mar. 26, 2014) (unpublished) (“[T]he Federal Circuit confirmed [in
Abbey] the correctness of this Court’s view, holding that the Tucker Act gives our court
exclusive jurisdiction over FLSA claims seeking more than ten thousand dollars in damages.”).
Therefore, accepting the government’s argument would not only require rejecting longstanding
D.C. Circuit precedent; it would also require rejecting the view of the only circuit to have
considered the matter post-Bormes. 2
Finally, the Supreme Court’s opinion in Bormes appears to this Court to be quite
compatible with the rule that the Court of Federal Claims possesses exclusive jurisdiction over
FLSA claims against the government exceeding $10,000. In Bormes, the Supreme Court found
that the Tucker Act plays no role when a plaintiff sues the United States for a violation of the
FCRA, because the FCRA’s remedial scheme was sufficiently complete to “supersede” the
2
While no judge on this Court has yet directly addressed the impact of Bormes on
FLSA/Tucker Act jurisprudence, a post-Bormes opinion by Judge Collyer implied that the
Tucker Act applies to FLSA claims against the United States. See Gonda v. Donahoe, 79 F.
Supp. 3d 284, 305 (D.D.C. 2015). A post-Bormes opinion from another Court explicitly reached
the same conclusion. See ElHelbawy, 2015 WL 5535246, at *13 (“Jurisdiction lies in the Court
of Federal Claims for any FLSA claim exceeding $10,000, unless [the plaintiff] waives her right
to recover anything in excess of that amount.”).
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Tucker Act as a basis for suing the United States. The Court reached this determination, in part,
because it found that the FCRA “gives jurisdiction to identified courts—including ‘any
appropriate United States district court,’—and hence ‘precisely define[s] the appropriate
forum.’” Abbey, 745 F.3d at 1369 (alteration in original) (quoting 15 U.S.C. § 1681p; Bormes,
133 S. Ct. at 19). That is, the FCRA “itself ‘enables claimants to pursue in court the monetary
relief contemplated by the statute’ without any resort to the Tucker Act.” Id. at 1369–70. As the
Abbey court explained, however,
[Bormes] and its rationale do not extend to . . . FLSA suit[s]. In sharp contrast to
the statute at issue in Bormes, the FLSA contains no congressional specification of
a non-Tucker Act forum for damages suits, or any other basis, from which one can
infer that application of the Tucker Act would override choices about suing the
government embodied in the remedial scheme of the statute providing the basis for
liability. That statute-specific conclusion takes this FLSA case outside the reach of
the Bormes principle.
Id. at 1370.
The FLSA provides that “[a]n action . . . 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,” 29 U.S.C. § 216, but it provides no guidance as to which court is competent to exercise
jurisdiction over those claims brought against the United States. Its language “does not specify a
forum that is contrary to that specified by the Tucker Act,” which “differs critically from the Fair
Credit Reporting Act.” Abbey, 745 F.3d at 1370. Again, the Federal Circuit’s analysis is
persuasive:
[G]iven that, in the FLSA, Congress plainly meant to subject the United States to
damages suits for violations (a disputed point for the statute at issue in Bormes),
the fairest reading of section 216(b) is that it affirmatively invokes the forum
specification for those damages suits found outside the four corners of the FLSA.
The Tucker Act is the only available specification that has been identified. Thus,
not only does the FLSA embody no choices about remedy that might be impaired
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by Tucker Act coverage; it is best read as affirmatively, if implicitly, invoking such
coverage.
Id. at 1370. In other words, the best reading of the FLSA is one that treats that statute as
effectively incorporating the Tucker Act for purposes of determining what constitutes the “court
of competent jurisdiction” in this situation.
This conclusion is only bolstered by the fact that Congress has acted repeatedly to amend
the FLSA since 1981, yet has not seen fit to disturb the “consistent body” of FLSA-jurisdiction
precedent that multiple circuits began to follow “soon after Congress extended the FLSA to
authorize money suits against the United States for its violation.” Id. at 1371. The Court thus
finds that, although the government’s argument is not without merit, Waters v. Rumsfeld is still
good law in light of Bormes. Because “the Court of Federal Claims has exclusive jurisdiction to
adjudicate” all “FLSA claims in excess of $10,000,” Waters, 320 F.3d at 272—and because these
plaintiffs do not waive their claims in excess of $10,000, see Pls.’ Mot. Transfer 1; Pls.’ Suppl.
Br. 1—this Court lacks jurisdiction to resolve the matter. As a result, the Court will transfer this
action to the Court of Federal Claims in the interest of justice pursuant to 28 U.S.C. § 1631.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendants’ [50] Motion for Summary Judgment be DENIED without
prejudice. It is further
ORDERED that [52] Plaintiffs’ Sealed Motion for Partial Summary Judgment and [54]
Cross-Motion for Summary Judgment be DENIED without prejudice. It is further
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ORDERED that this action be TRANSFERRED to the United States Court of Federal
Claims.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: June 13, 2016
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