NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CURTIS W. PHILBERT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1598
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00920-EDK, Judge Elaine Kaplan.
______________________
Decided: July 12, 2019
______________________
CURTIS W. PHILBERT, San Bernardino, CA, pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before NEWMAN, CLEVENGER, and REYNA, Circuit Judges.
2 PHILBERT v. UNITED STATES
PER CURIAM.
Mr. Curtis W. Philbert appeals from a final decision of
the United States Court of Federal Claims dismissing his
complaint for lack of subject matter jurisdiction. Because
we agree with the Court of Federal Claims that 28 U.S.C.
§ 1500 bars it from exercising jurisdiction over the only
claim in Mr. Philbert’s complaint, we affirm.
BACKGROUND 1
I
Mr. Philbert started working for the United States De-
partment of Veterans Affairs at its Loma Linda Medical
Center in October 2005, soon after he was honorably dis-
charged from the United States Army after more than a
decade on active duty. Two years later, in October 2007,
he filed a formal complaint with the Equal Employment
Opportunity Commission (“EEOC”) against the Depart-
ment alleging that it had engaged in unlawful employment
discrimination. The EEOC directed the Department to pay
a fine and conduct training for responsible management of-
ficials to ensure they abide by all federal equal employment
opportunity laws and not retaliate against employees who
file complaints with the EEOC.
Five years later, in October 2012, Mr. Philbert learned
for the first time that the Department allegedly had not
1 The following facts derive from the allegations in
Mr. Philbert’s second amended complaint, which at this
stage we accept as true and take in the light most favorable
to him. See Stephens v. United States, 884 F.3d 1151, 1155
(Fed. Cir. 2018) (“In deciding a motion to dismiss for lack
of subject matter jurisdiction, the court accepts as true all
uncontroverted factual allegations in the complaint, and
construes them in the light most favorable to the plain-
tiff.”).
PHILBERT v. UNITED STATES 3
fully complied with the EEOC’s decision. He alleges that
the Department instead retaliated against him for filing
his EEOC complaint. Mr. Philbert had been working as a
health technician at the GS-6 level since at least October
2007, and he alleges that the Department updated the po-
sition description for all the other health technicians at the
GS-6 level, promoted them to the GS-7 level, and left Mr.
Philbert at the lower level.
II
On May 12, 2017, Mr. Philbert filed a pro se complaint
in the United States District Court for the Central District
of California. In his complaint, he alleged that the Depart-
ment unlawfully discriminated against him based on his
sex and created a hostile work environment in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. §§ 2000e et seq., and that the Depart-
ment subjected him to wage discrimination in violation of
the Equal Pay Act of 1963 (“Equal Pay Act”), 29 U.S.C.
§ 206(d). On September 19, 2017, Mr. Philbert amended
his complaint to assert additional claims under Title VII
for disparate treatment based on his national origin and
retaliation based on his prior EEOC activity, as well as to
assert a claim for age discrimination in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. §§ 621–34.
After the district court dismissed his ADEA, hostile
work environment, and retaliation claims, Mr. Philbert
filed a second amended complaint on November 20, 2017.
In that complaint, he asserted five claims: (1) disparate
treatment based on national origin in violation of Title VII;
(2) creation of a hostile work environment in violation of
Title VII; (3) retaliation for filing an EEOC complaint in
violation of Title VII; (4) disparate treatment based on sex
in violation of Title VII; and (5) wage discrimination in vi-
olation of the Equal Pay Act.
4 PHILBERT v. UNITED STATES
On December 13, 2017, Mr. Philbert moved to transfer
his Equal Pay Act claim to the Court of Federal Claims pur-
suant to 28 U.S.C. § 1631 because, under the Tucker Act,
the Court of Federal Claims has exclusive jurisdiction over
claims for monetary damages against the United States
amounting to more than $10,000. See 28 U.S.C.
§ 1491(a)(1). The district court initially denied his motion
because Mr. Philbert had not shown that his Equal Pay Act
claim exceeded $10,000. But after Mr. Philbert filed a mo-
tion for reconsideration with computations showing his
backpay award would be $11,662.79, the district court
granted his transfer motion. At the time the district court
transferred Mr. Philbert’s Equal Pay Act claim to the Court
of Federal Claims, his Title VII claims remained pending
before the district court.
The government then moved to dismiss the Equal Pay
Act claim pursuant to 28 U.S.C. § 1500, which prevents lit-
igants from suing the United States on the same claim in
more than one court. The Court of Federal Claims agreed
that § 1500 applied. It reasoned that, for purposes of
§ 1500, Mr. Philbert’s Equal Pay Act claim was the same
as his Title VII claim for sex discrimination because those
claims share the same operative facts. The Court of Fed-
eral Claims therefore held that it lacked subject matter ju-
risdiction to entertain Mr. Philbert’s Equal Pay Act claim,
and it dismissed his transferred complaint without preju-
dice.
Mr. Philbert now appeals. We have jurisdiction to de-
cide his appeal under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo a decision of the Court of Federal
Claims dismissing a complaint for lack of subject matter
jurisdiction. LaBatte v. United States, 899 F.3d 1373, 1378
(Fed. Cir. 2018). In assessing the government’s motion to
dismiss, we treat all undisputed factual assertions in Mr.
PHILBERT v. UNITED STATES 5
Philbert’s complaint as true and draw all reasonable infer-
ences in his favor. Id. at 1375.
Mr. Philbert argues that the Court of Federal Claims
should not have dismissed his Equal Pay Act claim because
it is distinct from his claims pending before the Central
District of California. He contends that the operative facts
necessary to support his Equal Pay Act claim are materi-
ally different than those necessary to support his Title VII
claims. The government disagrees. It argues that the
Court of Federal Claims correctly concluded that Mr. Phil-
bert’s Equal Pay Act and Title VII claims are based on the
same operative facts. We agree with the government and
the Court of Federal Claims.
While the Little Tucker Act provides district courts ju-
risdiction to adjudicate claims against the United States
for monetary damages worth $10,000 or less, see 28 U.S.C.
§ 1346, the “Big” Tucker Act affords jurisdiction only in the
Court of Federal Claims for claims against the United
States for monetary damages amounting to more than
$10,000, see 28 U.S.C. § 1491(a)(1). However, the jurisdic-
tion of the Court of Federal Claims to entertain those
claims is limited by 28 U.S.C. § 1500. That statutory pro-
vision strips the Court of Federal Claims of jurisdiction
over:
any claim for or in respect to which the plaintiff or
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 arose, was, in respect
thereto, acting or professing to act, directly or indi-
rectly under the authority of the United States.
28 U.S.C. § 1500. Put simply, the Court of Federal Claims
“has no jurisdiction over a claim if the plaintiff has another
suit for or in respect to that claim pending against the
United States or its agents.” United States v. Tohono
O’Odham Nation, 563 U.S. 307, 311 (2011).
6 PHILBERT v. UNITED STATES
We use a two-step inquiry to determine whether § 1500
applies. Solida v. United States, 778 F.3d 1351, 1353 (Fed.
Cir. 2015). First, there must be “an earlier-filed suit or pro-
cess pending in another court.” Id. (quoting Brandt v.
United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013)). Sec-
ond, “the claims asserted in the earlier-filed case [must be]
for or in respect to the same claim(s) asserted in the later-
filed Court of Federal Claims action.” Id. (quoting Brandt,
710 F.3d at 1374).
The first step is satisfied. We have held that “if a plain-
tiff files multiple related claims in district court, and the
court transfers one of those claims to the Court of Federal
Claims, the original claims are ‘pending’ at the time the
transferred claim is considered filed.” Griffin v. United
States, 590 F.3d 1291, 1293 (Fed. Cir. 2009). Therefore,
Mr. Philbert’s Title VII claims were pending in another
court—the Central District of California—at the time his
Equal Pay Act claim was transferred to the Court of Fed-
eral Claims.
The second step is also satisfied. Two claims are the
same for purposes of § 1500 “if they are based on substan-
tially the same operative facts, regardless of the relief
sought . . . .” Solida, 778 F.3d at 1353. The Equal Pay Act
claim Mr. Philbert brought in the Court of Federal Claims
relies on substantially the same operative facts as his Title
VII claim filed in the Central District of California. With
respect to his Equal Pay Act claim, Mr. Philbert alleges
that he is being paid less than similarly situated female
health technicians despite performing equal work, under
similar working conditions, on tasks that require equal
skill, effort, and responsibility. Similarly, with respect to
at least one of his Title VII claims, Mr. Philbert alleges that
the Department is discriminating against him based on his
sex by paying him less than similarly situated female
health technicians for equal work, under similar working
conditions, on tasks that require equal skill, effort, and re-
sponsibility. Therefore, the operative facts underlying his
PHILBERT v. UNITED STATES 7
Equal Pay Act and Title VII claims are more than substan-
tially the same. They are identical. In fact, Mr. Philbert
recognized as much in his second amended complaint when
he asserted that, “as a result of my Equal Pay Act claim[,]
I may also have a claim under Title VII.” App. 38.
Therefore, § 1500 applies, the Court of Federal Claims
lacks jurisdiction over Mr. Philbert’s Equal Pay Act claim,
and his complaint was correctly dismissed.
None of Mr. Philbert’s additional arguments to the con-
trary is persuasive. He contends that his Equal Pay Act
and Title VII claims are different because the Equal Pay
Act claim is premised on sex discrimination and his Title
VII claim is based on retaliatory misconduct. But that ar-
gument ignores the fact that Mr. Philbert had more than
one Title VII claim pending before the Central District of
California when he transferred his Equal Pay Act claim to
the Court of Federal Claims. Although one of his Title VII
claims is based on alleged retaliatory action for filing an
EEOC complaint, another of his Title VII claims relies on
alleged disparate treatment on the basis of sex. Further-
more, Mr. Philbert argues that his Equal Pay Act and Title
VII claims are not the same because the relief sought for
each is different. But both the Supreme Court and we have
held “it is irrelevant whether the relief sought in the two
co-pending suits is the same or different . . . .” Solida, 778
F.3d at 1353 (citing Tohono, 563 U.S. at 317). The Court of
Federal Claims thus correctly concluded that § 1500 strips
it of jurisdiction to entertain Mr. Philbert’s Equal Pay Act
claim, which is the only cause of action in his transferred
complaint.
CONCLUSION
For the reasons stated above, we affirm the final deci-
sion of the Court of Federal Claims dismissing Mr. Phil-
bert’s complaint for lack of subject matter jurisdiction
pursuant to 28 U.S.C. § 1500.
8 PHILBERT v. UNITED STATES
AFFIRMED
COSTS
No costs.