Metzinger v. Department of Veterans Affairs

Case: 20-1906 Document: 56 Page: 1 Filed: 12/14/2021

United States Court of Appeals
for the Federal Circuit
______________________

REBECCA METZINGER, M.D.,
Plaintiff-Appellant

v.

DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Defendants-Appellees
______________________

2020-1906
______________________

Appeal from the United States District Court for the
Eastern District of Louisiana in Nos. 2:19-cv-10614-SSV-
DPC, 2:20-599-cv-00599-SSV-DPC, Judge Sarah S. Vance.
______________________

Decided: December 14, 2021
______________________

MARIE O. RICCIO, Law Offices of Marie Riccio, New Or-
leans, LA, argued for plaintiff-appellant.

DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendants-appellees.
Also represented by REGINALD THOMAS BLADES, JR.,
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.
______________________
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2 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

Before PROST, CLEVENGER, and STOLL, Circuit Judges.
PROST, Circuit Judge.
Appellant Rebecca Metzinger, M.D., appeals from an
order of the U.S. District Court for the Eastern District of
Louisiana transferring her Equal Pay Act (“EPA”) claim to
the U.S. Court of Federal Claims under 28 U.S.C. § 1631.
We affirm.
BACKGROUND
Dr. Metzinger brought an EPA action against her em-
ployer, the Department of Veterans Affairs, in the U.S. Dis-
trict Court for the Eastern District of Louisiana. She
alleged that the government violated the EPA, 29 U.S.C.
§ 206(d), by paying her less than her male subordinates,
and she sought over $10,000 in damages. 1
The government moved to dismiss Dr. Metzinger’s EPA
claim for lack of subject-matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), arguing that the Court of
Federal Claims had exclusive subject-matter jurisdiction
over EPA claims against the government for over $10,000.
In the alternative to dismissal, the government requested
that the district court transfer Dr. Metzinger’s EPA claim
to the Court of Federal Claims under 28 U.S.C. § 1631.
Dr. Metzinger opposed dismissal but allowed that if the
district court concluded that it lacked jurisdiction, it should
transfer the EPA claim to the Court of Federal Claims.
The district court agreed with the government that it
lacked subject-matter jurisdiction over Dr. Metzinger’s
EPA claim and that the Court of Federal Claims had such
jurisdiction. J.A. 8, 10, 14. So, instead of dismissing the

1 Months later, Dr. Metzinger brought a separate ac-
tion against the government in the same district court al-
leging violations of Title VII of the Civil Rights Act of 1964.
The district court consolidated the two actions.
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METZINGER v. 3
DEPARTMENT OF VETERANS AFFAIRS

claim, the district court transferred it to the Court of Fed-
eral Claims under 28 U.S.C. § 1631, which provides:
Whenever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court . . .
in which the action . . . could have been brought at
the time it was filed . . ., and the action . . . shall
proceed as if it had been filed in . . . the court to
which it is transferred on the date upon which it
was actually filed in . . . the court from which it is
transferred.
Dr. Metzinger appealed, both to this court and to the
Fifth Circuit. After docketing this appeal, we issued an or-
der staying the briefing schedule and directing the parties
to inform us how they believed the appeal should proceed
in light of the docketed Fifth Circuit appeal. See Order
(June 30, 2020), ECF No. 2. Shortly thereafter, the govern-
ment moved to dismiss Dr. Metzinger’s Fifth Circuit appeal
for lack of jurisdiction, and the Fifth Circuit did so sum-
marily. The parties then jointly informed us how they be-
lieved this appeal should proceed. Notably, in this joint
filing, the government reversed course: it now “agree[d]
with Dr. Metzinger that the [district court] possesse[d] ju-
risdiction to hear her case, and that it erred when it con-
cluded that it did not.” Joint Response at 2 (Aug. 26, 2020),
ECF No. 20-1.
We have exclusive jurisdiction over this appeal from
the district court’s transfer order. 28 U.S.C.
§ 1292(d)(4)(A).
DISCUSSION
A proper 28 U.S.C. § 1631 transfer requires both that
the transferor court lack jurisdiction and that the trans-
feree court have it. See Fisherman’s Harvest, Inc. v. PBS
& J, 490 F.3d 1371, 1374 (Fed. Cir. 2007). The district
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4 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

court transferred this EPA claim to the Court of Federal
Claims under § 1631 because it concluded that it lacked
subject-matter jurisdiction over the claim and that the
Court of Federal Claims had it. If the district court’s juris-
dictional conclusions were correct, the parties do not sug-
gest any abuse of discretion in its decision to transfer under
§ 1631 instead of dismissing. See Rick’s Mushroom Serv.,
Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir. 2008)
(reviewing for abuse of discretion trial court’s decision
whether to transfer under § 1631 or dismiss if it lacks ju-
risdiction). The propriety of this transfer therefore de-
pends solely on the district court’s conclusions of subject-
matter jurisdiction, which we review de novo. E.g., Fisher-
man’s Harvest, 490 F.3d at 1374.
There is no question that under our precedent the
Court of Federal Claims has subject-matter jurisdiction
over Dr. Metzinger’s EPA claim. In Abbey v. United States,
this court continued a long line of cases holding that the
Tucker Act, 28 U.S.C. § 1491(a)(1), gives the Court of Fed-
eral Claims subject-matter jurisdiction over a money-dam-
ages claim against the government brought under the Fair
Labor Standards Act of 1938 (“FLSA”). 745 F.3d 1363,
1368–72 (Fed. Cir. 2014). Because the EPA is part of the
FLSA—indeed, the same statutory provision that supplied
the FLSA claim in Abbey, 29 U.S.C. § 216(b), supplies
Dr. Metzinger’s EPA claim here—Abbey dictates that the
Court of Federal Claims has subject-matter jurisdiction
over Dr. Metzinger’s EPA claim. Although the government
maintains that Abbey was incorrectly decided, Appellees’
Br. 7, 10–13, that argument is misplaced; we are bound by
prior panel decisions of this court unless and until over-
turned en banc. Newell Cos. v. Kenney Mfg. Co., 864 F.2d
757, 765 (Fed. Cir. 1988).
The question, then, is whether the district court had
subject-matter jurisdiction over the claim. If it did, this
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METZINGER v. 5
DEPARTMENT OF VETERANS AFFAIRS

transfer was improper. The parties say it did. 2 They argue
that 28 U.S.C. § 1331 gave the district court federal-ques-
tion jurisdiction over the claim. And they insist that Abbey
did not decide that a district court would have lacked juris-
diction over a claim such as this—only that the Court of
Federal Claims has it. Appellant’s Br. 28–29; Appellees’
Br. 7. For the reasons below, we disagree with this
cramped reading of Abbey and conclude that under Abbey’s
reasoning district courts lack subject-matter jurisdiction
over an FLSA or EPA claim such as Dr. Metzinger’s—i.e.,
one against the government for over $10,000. But before
addressing the argument, we briefly review the principal
statutes and caselaw bearing on this issue, up to and in-
cluding Abbey.
I
“Absent a waiver, sovereign immunity shields the Fed-
eral Government and its agencies from suit.” FDIC v.
Meyer, 510 U.S. 471, 475 (1994). The Tucker Act and its
companion the Little Tucker Act, 28 U.S.C. § 1346(a)(2),
provide such a waiver. United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472 (2003) (Tucker Act);
United States v. Bormes, 568 U.S. 6, 9–10 (2012) (Little
Tucker Act). The Tucker Act (sometimes dubbed the “Big”
Tucker Act) gives the Court of Federal Claims jurisdiction
over nontort claims “against the United States” founded
upon “any Act of Congress.” 28 U.S.C. § 1491(a)(1). The
Little Tucker Act (as relevant here) gives that same juris-
diction to district courts, but only for claims not exceeding
$10,000. 28 U.S.C. § 1346(a)(2). These statutory provi-
sions “do not themselves create substantive rights”; they

2 That the parties (now) agree on this issue is imma-
terial, since parties cannot by agreement confer subject-
matter jurisdiction on a court otherwise lacking it. E.g.,
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982).
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6 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

“are simply jurisdictional provisions that operate to waive
sovereign immunity for claims premised on other sources
of law.” 3 Bormes, 568 U.S. at 10 (cleaned up).
The EPA (as part of the FLSA) gives aggrieved employ-
ees a right of action for money damages against their em-
ployers:
Any employer who violates the provisions of section
206 . . . of [the FLSA] shall be liable to the em-
ployee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime
compensation,[4] as the case may be, and in an ad-
ditional equal amount as liquidated damages. . . .
An action to recover the liability prescribed in the
preceding sentence[] 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 him-
self or themselves and other employees similarly
situated.
29 U.S.C. § 216(b) (emphasis added). Two observations are
relevant here. First, the government is expressly identified
as a suable (and thus potentially liable) employer. Id.; see
also id. § 203(d) (“Employer”), (x) (“Public agency”). Sec-
ond, the forum designated for FLSA and EPA money-

3 Unless otherwise specified, subsequent references
to simply the “Tucker Act” contemplate both the “Big” and
“Little” versions.
4 The EPA further provides that “[f]or purposes of
administration and enforcement, any amounts owing to
any employee which have been withheld in violation of [the
EPA] shall be deemed to be unpaid minimum wages or un-
paid overtime compensation” under the FLSA. 29 U.S.C.
§ 206(d)(3).
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METZINGER v. 7
DEPARTMENT OF VETERANS AFFAIRS

damages claims is “any Federal or State court of competent
jurisdiction.” Id. § 216(b).
In Zumerling v. Devine, 769 F.2d 745 (Fed. Cir. 1985),
we addressed the appropriate forum for FLSA money-dam-
ages claims against the government. There, a district court
heard such claims brought by individual federal firefight-
ers. It based its jurisdiction on the Little Tucker Act only
after satisfying itself that the firefighters’ respective claims
did not exceed $10,000. See id. at 746, 748. On appeal, the
firefighters argued that their claims did not need to be so
limited in amount because the district court had jurisdic-
tion independent of the Little Tucker Act. Id. at 749. We
disagreed. After acknowledging that § 216(b) authorizes
FLSA suits “in any Federal or State court of competent ju-
risdiction,” we concluded that “the words ‘of competent ju-
risdiction’ tell us that the words do not stand alone but
require one to look elsewhere to find out what court, if any,
has jurisdiction.” Id. (emphasis added). We then relied on
precedent from our predecessor court holding that the
Court of Federal Claims “was thus designated where the
suit was against the Federal Government.” 5 Id. Accord-
ingly, because when looking “elsewhere” it was the Tucker
Act that supplied the referenced jurisdiction over FLSA
claims against the government, it was the Little Tucker Act
that supplied the district court’s jurisdiction. We therefore
enforced its $10,000 limit. See id.
We reaffirmed Zumerling ten years later in Saraco v.
United States, 61 F.3d 863 (Fed. Cir. 1995). There, federal-
employee plaintiffs brought FLSA money-damages claims
against the government in district court. Because the dis-
trict court concluded that only the Little Tucker Act could

5 Although Zumerling stated that it was the “Court
of Claims” that was “thus designated,” id., the reference
was to the trial division of that court, which is now the
Court of Federal Claims.
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8 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

give it subject-matter jurisdiction, and because at least
some of the claims were for over $10,000, it transferred
them to the Court of Federal Claims under § 1631. Saraco
v. Hallett, 831 F. Supp. 1154, 1158–59 (E.D. Pa. 1993). The
plaintiffs appealed the transfer, arguing that the Tucker
Act was not the only source of jurisdiction for their claims
and that, instead, a district court’s federal-question juris-
diction renders it a court “of competent jurisdiction” for
purposes of § 216(b). Saraco, 61 F.3d at 865 (noting that
the plaintiffs had “invite[d] us to reconsider Zumerling,
suggesting that it was not correctly decided”). We rejected
the argument and reaffirmed Zumerling’s holding that ju-
risdiction over FLSA money-damages claims against the
government is “provided only by the Tucker Act.” Id. at 866
(emphasis added).
Then came the Supreme Court’s decision in Bormes.
That case concerned the Fair Credit Reporting Act
(“FCRA”), which imposes money-damages liability for cer-
tain violations thereof, 15 U.S.C. §§ 1681n–1681o, and
gives jurisdiction over claims to enforce that liability to
“any appropriate United States district court, without re-
gard to the amount in controversy, or . . . any other court of
competent jurisdiction,” id. § 1681p. The question in
Bormes was whether the plaintiffs could rely on the Tucker
Act—with its sovereign-immunity waiver—to supply juris-
diction over FCRA money-damages claims against the gov-
ernment. See 568 U.S. at 7, 10–11. The Court said no. It
observed that the FCRA creates a “detailed remedial
scheme,” with provisions that “set out a carefully circum-
scribed, time-limited, plaintiff-specific cause of action, and
also precisely define the appropriate forum.” Id. at 15
(cleaned up). And “[w]here, as in [the] FCRA, a statute
contains its own self-executing remedial scheme, we look
only to that statute to determine whether Congress in-
tended to subject the [government] to damages liability.”
Id. at 11; see id. at 13 (concluding that the FCRA’s self-ex-
ecuting remedial scheme “supersedes the gap-filling role of
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METZINGER v. 9
DEPARTMENT OF VETERANS AFFAIRS

the Tucker Act”). The plaintiffs therefore could not “mix
and match” the FCRA’s provisions with the Tucker Act’s
sovereign-immunity waiver to create an action against the
government. Id. at 15.
In Abbey, we concluded that Bormes did not upset our
precedent applying the Tucker Act to FLSA money-dam-
ages claims against the government. We explained that, in
Bormes, the Supreme Court determined that the FCRA im-
plemented a remedial scheme sufficient to displace Tucker
Act jurisdiction because (among other things) the FCRA
“precisely define[d] the appropriate forum” by giving juris-
diction to identified courts. 745 F.3d at 1369 (quoting
Bormes, 568 U.S. at 15). In particular, the FCRA gave ju-
risdiction to “any appropriate United States district
court”—which, we noted, was a forum unavailable under
the Tucker Act for claims over $10,000. Id. at 1369–70
(quoting 15 U.S.C. § 1681p). We then reasoned:
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 applica-
tion of the Tucker Act would override choices about
suing the government embodied in the remedial
scheme of the statute providing the basis for liabil-
ity. That statute-specific conclusion takes this
FLSA case outside the reach of the Bormes princi-
ple.
Id. at 1370; see id. (“The crucial language [in the FLSA]—
‘any Federal or State court of competent jurisdiction’—does
not specify a forum that is contrary to that specified by the
Tucker Act. In this respect, it differs critically from the
[FCRA].”).
With Bormes thus distinguished, we examined
§ 216(b)’s provision—“any Federal or State court of compe-
tent jurisdiction”—in light of the fact that, in the FLSA,
Congress clearly meant to subject the government to
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10 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

money-damages suits. And, citing “the background princi-
ple that waivers of sovereign immunity are generally tied
to particular courts,” we concluded that “[w]ith [§] 216(b)
so plainly having authorized damages suits against the
[government], it is natural to read the provision as implic-
itly specifying a forum (the Tucker Act forum) in order to
complete the waiver of sovereign immunity.” Id. (emphasis
added); see id. (“[G]iven that, in the FLSA, Congress
plainly meant to subject the [government] to damages suits
for violations . . . , the fairest reading of [§] 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.” (emphasis added)). Accordingly, we held
that the Tucker Act gave the Court of Federal Claims sub-
ject-matter jurisdiction over plaintiffs’ FLSA money-dam-
ages claims against the government. Id. at 1368–69. This
holding, we noted, was supported by consistent precedent
from this court and others spanning 30 years. Id. at 1369
(collecting cases); see id. at 1371.
II
Abbey dictates that district courts lack subject-matter
jurisdiction over FLSA or EPA claims against the govern-
ment for over $10,000. Although the parties insist that Ab-
bey held only that the Court of Federal Claims has
jurisdiction over such claims—and that, therefore, we may
conclude that district courts also have it through their
28 U.S.C. § 1331 federal-question jurisdiction—such a con-
clusion would be incompatible with Abbey’s reasoning.
In Abbey, we reasoned that the Court of Federal Claims
had Tucker Act jurisdiction over the FLSA claim at issue
because, in light of § 216(b) having clearly authorized dam-
ages suits against the government, its provision for “any
Federal or State court of competent jurisdiction” was “nat-
ural[ly]” read as “implicitly specifying a forum”—“the
Tucker Act forum.” Id. at 1370. This forum specification
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METZINGER v. 11
DEPARTMENT OF VETERANS AFFAIRS

was made “in order to complete the waiver of sovereign im-
munity, given the background principle that waivers of
sovereign immunity are generally tied to particular
courts.” Id. So, although the government had argued in
Abbey (as the parties do here) that § 216(b) works with
§ 1331 to give district courts jurisdiction over FLSA money-
damages claims against the government, 6 we still main-
tained that “[t]he Tucker Act is the only available specifi-
cation that has been identified.” Id. (emphasis added). In
other words, the Abbey court didn’t validate the Court of
Federal Claims’ jurisdiction over FLSA money-damages
claims against the government merely because the Tucker
Act was one source of such jurisdiction; it did so because
the Tucker Act was the only such source.
Other aspects of Abbey confirm this reading. For ex-
ample, the opinion observed that “[w]e long ago adopted”
the interpretation that the Tucker Act provides the forum
for FLSA or EPA money-damages suits against the govern-
ment. See id. at 1371. And, in support of the point, we
quoted with approval a statement the government made in
its brief in the Saraco case: “Where the Federal Govern-
ment is sued for damages or back pay [under § 216(b)], the
court of competent jurisdiction can only be one exercising
Tucker Act jurisdiction, i.e., the [Court of Federal Claims],
or, for claims less than $10,000, a district court.” Id. (sec-
ond alteration in original) (emphasis added) (quoting Br.
for Defs.-Appellees, Saraco, 61 F.3d 863 (Fed. Cir. 1995)
(No. 94-1073), 1994 WL 16181941, at *8). That the Abbey
court specifically endorsed this position reinforces that its
result rested on the understanding that the Tucker Act was

6 See Appellant’s Br. at 31–32, Abbey, 745 F.3d 1363
(Fed. Cir. 2014) (No. 13-5009), ECF No. 32; Reply Br. at 2,
8, Abbey, 745 F.3d 1363 (Fed. Cir. 2014) (No. 13-5009), ECF
No. 40.
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12 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

the only source of jurisdiction for FLSA money-damages
claims against the government.
We are not alone in reading Abbey this way. Every
court to have considered this issue in view of Abbey has
done so. See, e.g., Johnson v. Lightfoot, 273 F. Supp. 3d
278, 287 n.5 (D.D.C. 2017) (discussing Abbey, then noting
“agree[ment] with the Federal Circuit and other courts
that Bormes does not disturb longstanding precedent that
the Court of Federal Claims has exclusive jurisdiction over
FLSA and EPA claims against the [government] for dam-
ages exceeding $10,000”); Adair v. Bureau of Customs &
Border Prot., 191 F. Supp. 3d 129, 133 (D.D.C. 2016) (char-
acterizing Abbey as having “held that Bormes did not dis-
turb the settled precedent that exclusive jurisdiction over
FLSA claims exceeding $10,000 lies in the Court of Federal
Claims”); ElHelbawy v. Pritzker, No. 14-cv-01707-CBS,
2015 WL 5535246, at *13 (D. Colo. Sept. 21, 2015) (citing
Abbey for the proposition that the “Tucker Act gives [the]
Court of Federal Claims exclusive jurisdiction over FLSA
claims seeking more than [$10,000] in damages”); Janoski
v. United States, No. 13-272C, 2014 WL 1267010, at *1
(Fed. Cl. Mar. 26, 2014) (characterizing Abbey as “holding
that the Tucker Act gives [the Court of Federal Claims] ex-
clusive jurisdiction over FLSA claims seeking more than
[$10,000] in damages”).
Nor is this consistent reading of Abbey confined to the
courts. In fact, the government itself recently embraced it.
In a brief filed with the First Circuit—two months after fil-
ing its brief in this case—the government urged that court
to “follow the reasoning of Abbey, and every other court to
consider this question, and hold that the Court of Federal
Claims has exclusive jurisdiction over [EPA] claims against
the federal government in excess of $10,000.” Br. for Defs.-
Appellees at 18, Stein v. Collins, No. 20-1906 (1st Cir.
Feb. 8, 2021) (emphasis added); see id. at 15 (maintaining
that “post-Bormes, every court to consider the interaction
of the FLSA and the Tucker Act has concluded that claims
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METZINGER v. 13
DEPARTMENT OF VETERANS AFFAIRS

against the [government] in excess of $10,000 must be
brought in the Court of Federal Claims” (emphasis
added)). 7
In sum, both parties insist that Abbey didn’t hold that
a district court would lack jurisdiction over the claim here.
But they don’t square their preferred jurisdictional out-
come with Abbey’s reasoning. They also don’t explain how
every other court to have considered this issue in view of
Abbey has misread our opinion. The parties may, of course,
question or disagree with Abbey. But their assertion that
it doesn’t bind us here is unpersuasive.
CONCLUSION
For the foregoing reasons, and because we see no other
impediment to the Court of Federal Claims’ jurisdiction
over Dr. Metzinger’s EPA claim, 8 we affirm the district
court’s transfer to that court.

7 The government recanted that position after this
court informed it that it was maintaining inconsistent po-
sitions as between this appeal and the First Circuit appeal.
See Citation of Suppl. Authority at 1 (Oct. 13, 2021), ECF
No. 55; Appellees’ Resp. to Appellant’s Pet. for Reh’g En
Banc at 1–2, 8, Stein v. Collins, No. 20-1906 (1st Cir.
Aug. 30, 2021); see also Oral Arg. at 16:23–17:32,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
-1906_06102021.mp3.
8 The district court correctly concluded that because
Dr. Metzinger filed her EPA claim before her Title VII ac-
tion, and because a § 1631-transferred claim is deemed
filed in the transferee court on the date it was filed in the
transferor court, 28 U.S.C. § 1500 does not bar the Court of
Federal Claims’ jurisdiction over Dr. Metzinger’s EPA
claim. Tecon Eng’rs, Inc. v. United States, 343 F.2d 943,
949 (Ct. Cl. 1965) (“[W]e conclude that the only reasonable
interpretation of [28 U.S.C. § 1500] is that it serves to
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14 METZINGER v.
DEPARTMENT OF VETERANS AFFAIRS

AFFIRMED

deprive [the Court of Federal Claims] of jurisdiction of any
claim for or in respect to which plaintiff has pending in any
other court any suit against the [government], only when
the suit shall have been commenced in the other court be-
fore the claim was filed in [the Court of Federal Claims].”);
see Brandt v. United States, 710 F.3d 1369, 1379 n.7
(Fed. Cir. 2013) (noting that Tecon’s order-of-filing rule “re-
mains the law of this circuit”).