Moore v. United States

Case: 22-1475 Document: 39 Page: 1 Filed: 04/28/2023

United States Court of Appeals
for the Federal Circuit
______________________

TIMOTHY MOORE,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2022-1475
______________________

Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01931-CFL, Senior Judge Charles F. Lettow.
______________________

Decided: April 28, 2023
______________________

PETER BROIDA, Arlington, VA, argued for plaintiff-ap-
pellant.

RAFIQUE OMAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by REGINALD THOMAS BLADES, JR., BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY.
______________________

Before PROST, REYNA, and STARK, Circuit Judges.
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2 MOORE v. US

MOORE, Chief Judge, NEWMAN, LOURIE, DYK, PROST,
REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM,
and STARK, Circuit Judges, have joined Part II.B of this
opinion.
PROST, Circuit Judge.
Timothy Moore appeals the U.S. Court of Federal
Claims’ dismissal of his complaint alleging that his em-
ployer, the government, violated the Equal Pay Act
(“EPA”), 29 U.S.C. § 206(d). We vacate the dismissal and
remand for further proceedings consistent with this opin-
ion.
I
A
The complaint alleges the following facts. Mr. Moore,
a man, is an Examination Manager at the Washington,
D.C. headquarters of the Securities and Exchange Com-
mission (“SEC”). The SEC also employs two women Exam-
ination Managers (“comparators”) in that same office.
Mr. Moore and the comparators perform the same work
and have the same jobs, which require equal skill, effort,
and responsibility and are performed under similar work-
ing conditions.
In 2014, the SEC initiated a Pay Transition Program
(“Program”) to recalibrate its employees’ pay so that they
could receive credit for years of relevant work experience
regardless of their SEC hire date. The Program was open
to all SEC employees. To be considered for the Program,
employees had to apply, which required stating interest
and supplying a résumé that included work history, job ti-
tles and duties, those jobs’ start and end dates, and
whether they were full- or part-time. The open period for
Program applications was approximately September 14,
2014, to October 14, 2014. The comparators applied for the
Program during this open period. Mr. Moore, however, did
not, due to family-related issues then occupying his
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MOORE v. US 3

attention. The SEC permitted about ten other SEC em-
ployees impacted by extenuating circumstances to apply
for the Program in November and December 2014, after the
Program’s open period had closed.
Pay adjustments under the Program began to take ef-
fect around June 2015. At that time, the comparators’ sal-
aries were increased via the Program. In August and
September 2016, Mr. Moore tried to apply for the Program,
but the SEC’s personnel director declined to consider him.
Since June 2015, the comparators have been paid more an-
nually than Mr. Moore.
According to the complaint, the SEC lacks justification
under the EPA for any Program-related pay differential be-
tween him and the comparators because: (1) the Program’s
application process was unnecessary, given that the SEC
has always had in its records the information it needed to
evaluate the proper level of his pay; and (2) the SEC had
no valid basis for creating, or not extending, a deadline for
any employee to apply for and obtain the Program’s bene-
fits. Mr. Moore seeks damages under the EPA greater than
$10,000 to account for the past and present pay differential
between him and the comparators.
B
The government moved to dismiss Mr. Moore’s com-
plaint under Court of Federal Claims Rule 12(b)(6), relying
heavily on our decision in Yant v. United States, 588 F.3d
1369 (Fed. Cir. 2009).
In Yant, a group of nurse practitioners at the Depart-
ment of Veterans Affairs (“VA”) sued the government, al-
leging that it violated the EPA by paying nurse
practitioners (around 80% of whom were women) less than
physician assistants (around 60% of whom were men) de-
spite the jobs’ equivalence. The Court of Federal Claims
granted summary judgment for the government, conclud-
ing that “the EPA does not contemplate” mixed-gender
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4 MOORE v. US

groups with such a substantial portion of the “putatively
preferred” gender in the lower-paid category and the “pu-
tatively disadvantaged” gender in the higher-paid cate-
gory. Yant v. United States, 85 Fed. Cl. 264, 272 (2009).
On appeal in Yant, we affirmed—but for a different
reason. We first articulated the usual standard for an EPA
claimant’s prima facie case: showing “that an employer
pays different wages to employees of opposite sexes for
equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed
under similar working conditions.” Yant, 588 F.3d at 1372
(cleaned up) (quoting Corning Glass Works v. Brennan,
417 U.S. 188, 195 (1974)). But we then added an extra el-
ement to the claimant’s prima facie case—namely, a show-
ing that the pay differential “is either historically or
presently based on sex.” Id. And we affirmed the summary
judgment because the claimants had failed to raise a tria-
ble issue of fact on this element. Id. at 1374 (“Because the
Yant plaintiffs fail to raise a genuine issue of material fact
that the pay differential . . . is based on sex, they have
failed to make a prim[a] facie case.”); see also id. (reasoning
that, because the claimants failed to make such a showing,
“the ratios of males to females are irrelevant”).
The government’s motion in this case argued that Yant
compelled dismissing Mr. Moore’s complaint. It noted the
complaint’s acknowledgement that the Program was open
to all employees and that it created a pay differential be-
tween Mr. Moore and the comparators given Mr. Moore’s
failure to timely apply for the Program. The government
also noted the complaint’s lack of allegations that any dif-
ferential was based on sex. The government therefore ar-
gued that Mr. Moore had not met Yant’s prima facie
element of showing that any differential was based on sex.
See Def.’s Mot. to Dismiss Pl.’s Compl. at 7–10, Moore v.
United States, No. 1:21-cv-01931 (Fed. Cl. Nov. 29, 2021)
(quoting and citing Yant throughout), ECF No. 5. Reiter-
ating Yant in its reply, the government insisted that the
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MOORE v. US 5

Court of Federal Claims was “required to follow Yant, as it
is binding precedent”; that “post Yant, the [c]ourt no longer
has the authority to infer that sex discrimination occurred
simply because there is a difference in pay between men
and women in jobs requiring similar skills, effort, and re-
sponsibility”; and that “Yant applies to all EPA cases in the
[c]ircuit.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dis-
miss at 4, 5, 7, Moore v. United States, No. 1:21-cv-01931
(Fed. Cl. Jan. 14, 2022), ECF No. 10.
The Court of Federal Claims relied on Yant to dismiss
the complaint for failing to state an EPA claim. Moore v.
United States, 157 Fed. Cl. 747 (2022). The court observed
that Mr. Moore had the burden to “show[] that discrimina-
tion based on sex exists or at one time existed,” id. at 750
(alteration in original) (quoting Yant, 588 F.3d at 1373),
and that it could “not ignore binding authority from the
Federal Circuit,” id. at 750 n.3 (referencing Yant). And,
after noting both (1) the complaint’s acknowledgements
that the Program was open to all employees but, unlike the
comparators, Mr. Moore didn’t timely apply for it, and
(2) that the complaint “does not claim that the difference in
pay for equal work is the result of past or present discrim-
ination based on sex,” the court concluded that Mr. Moore
did “not state a prima facie violation of [the EPA], 29 U.S.C.
§ 206(d)(1).” Id. at 750 (cleaned up).
Mr. Moore timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
II
We review de novo the Court of Federal Claims’
Rule 12(b)(6) dismissal of a complaint for failure to state a
claim. E.g., Creative Mgmt. Servs., LLC v. United States,
989 F.3d 955, 961 (Fed. Cir. 2021).
Our discussion has three parts. First, we consider
whether, assuming Yant is good law, its prima facie stand-
ard is applicable in this case (it is). Second, we consider en
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6 MOORE v. US

banc whether Yant’s prima facie standard is good law (it is
not). Third, we consider whether affirming the dismissal
on grounds independent of Yant is appropriate (it is not).
A
Initially, both parties argue on appeal that Yant’s
prima facie standard doesn’t apply here because this case
doesn’t involve the same mixed-gender-group fact pattern
as did Yant. See, e.g., Appellant’s Br. 38 (“Yant does not
dictate application to comparator-to-comparator[] cases of
the analysis for a mixed-gender quasi-class action . . . .”);
Appellee’s Br. 11–12 (arguing that Yant “was highly de-
pendent on its unusual facts” and that, given the factual
differences between Yant and this case, Yant “is of limited
relevance”). 1
We are unpersuaded. The court in Yant spoke broadly
of the prima facie standard governing EPA cases, never
suggesting that its standard applied only in cases present-
ing the same fact pattern. If anything, the Yant court dis-
claimed reliance on that case’s particular facts. See Yant,
588 F.3d at 1374 (reasoning that, because the plaintiffs
failed to “demonstrate[] past or present discrimination
based on sex,” “the ratios of males to females are irrelevant”
(emphasis added)).
And indeed, we have applied Yant’s prima facie stand-
ard in a case involving factual allegations much more sim-
ilar to this case than to Yant. In Gordon v. United States,

1 This differs markedly from what the government
told the Court of Federal Claims. There, the government
maintained not only that Yant was highly relevant, but
also that Yant’s prima facie standard “applies to all EPA
cases in the [c]ircuit.” Def.’s Reply to Pl.’s Resp. to Def.’s
Mot. to Dismiss at 7–8, Moore v. United States,
No. 1:21-cv-01931 (Fed. Cl. Jan. 14, 2022) (emphasis
added), ECF No. 10; see also supra pp. 4–5.
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MOORE v. US 7

903 F.3d 1248 (Fed. Cir. 2018), vacated on other grounds,
754 F. App’x 1007 (Fed. Cir. 2019), two women physicians
with the VA sued the government, alleging that it violated
the EPA by paying certain men physicians more for equal
work. Relying on Yant, we affirmed the Court of Federal
Claims’ summary judgment for the government because
the women physicians had “point[ed] to no evidence that
the pay differential complained of was based on sex, either
historically or presently.” Id. at 1254 (citing Yant, 588 F.3d
at 1372); see also id. at 1252 (“This court’s decision in
Yant . . . further requires that, as part of the prima facie
case, an EPA plaintiff bears the burden of showing that
discrimination based on sex exists or at one time existed.”
(cleaned up)). 2
Accordingly, assuming Yant’s prima facie standard is
good law, that standard applies in this case and would com-
pel affirmance.
B3
We now consider en banc whether Yant’s prima facie
standard is good law. We conclude it is not.
The EPA states in relevant part:

2 Although we vacated our opinion in Gordon due to
the parties’ subsequent settlement and stipulated dismis-
sal, see 754 F. App’x 1007, we are aware of nothing that
would call into question the cited reasoning in that opinion.
See Hadley v. United States, 229 Ct. Cl. 591, 594–95 (1981)
(observing that, despite an opinion’s vacatur, its reasoning
may still “remain[] valid”).
3 Part II.B of this opinion has been considered by an
en banc court formed of MOORE, Chief Judge, NEWMAN,
LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES,
STOLL, CUNNINGHAM, and STARK, Circuit Judges.
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8 MOORE v. US

No employer having employees subject to any pro-
visions of this section shall discriminate, within
any establishment in which such employees are
employed, between employees on the basis of sex by
paying wages to employees in such establishment
at a rate less than the rate at which he pays wages
to employees of the opposite sex in such establish-
ment for equal work on jobs the performance of
which requires equal skill, effort, and responsibil-
ity, and which are performed under similar work-
ing conditions, except where such payment is made
pursuant to (i) a seniority system; (ii) a merit sys-
tem; (iii) a system which measures earnings by
quantity or quality of production; or (iv) a differen-
tial based on any other factor other than sex . . . .
29 U.S.C. § 206(d)(1).
Nearly fifty years ago, the Supreme Court described
the EPA’s basic operation as “straightforward.” Corning
Glass, 417 U.S. at 195. To make out a prima facie EPA
case, a claimant bears the burden to “show that an em-
ployer pays different wages to employees of opposite sexes
‘for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are per-
formed under similar working conditions.’” Id. (quoting
29 U.S.C. § 206(d)(1)).
Every other circuit articulates an EPA claimant’s
prima facie case the same (or materially the same) way as
the Supreme Court. E.g., McMillan v. Mass. Soc’y for the
Prevention of Cruelty to Animals, 140 F.3d 288, 298
(1st Cir. 1998); Belfi v. Prendergast, 191 F.3d 129, 135–36
(2d Cir. 1999), abrogated on other grounds by Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000);
Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000);
EEOC v. Md. Ins. Admin., 879 F.3d 114, 120–21 (4th Cir.
2018); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136–37
(5th Cir. 1983); Buntin v. Breathitt Cnty. Bd. of Educ.,
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MOORE v. US 9

134 F.3d 796, 799–800 (6th Cir. 1998); Fallon v. Illinois,
882 F.2d 1206, 1208, 1211 (7th Cir. 1989); Taylor v. White,
321 F.3d 710, 715–16 (8th Cir. 2003); Rizo v. Yovino,
950 F.3d 1217, 1222 (9th Cir. 2020) (en banc); Mickelson v.
N.Y. Life Ins. Co., 460 F.3d 1304, 1311 & n.5 (10th Cir.
2006); Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995);
Goodrich v. Int’l Brotherhood of Elec. Workers, AFL-CIO,
815 F.2d 1519, 1522–24 (D.C. Cir. 1987).
In Yant, this circuit added an extra element to an EPA
claimant’s prima facie case—namely, a showing that the
pay differential “is either historically or presently based on
sex.” 4 Yant, 588 F.3d at 1372. This extra element is prob-
lematic for a few reasons—all related. First, it’s simply ex-
traneous in view of the Supreme Court’s articulation of an
EPA claimant’s prima facie case. Second, it violates the
principle that “the EPA does not require . . . proof of inten-
tional discrimination.” Ledbetter v. Goodyear Tire & Rub-
ber Co., 550 U.S. 618, 640 (2007), superseded on other
grounds by statute, Lilly Ledbetter Fair Pay Act of 2009,
Pub. L. No. 111-2, 123 Stat. 5. Having to prove—on top of
a pay differential across sexes for equal work—that the dif-
ferential is “based on” sex is tantamount to having to prove
that it’s because of sex, which is tantamount to having to
prove intentional discrimination. Third, it misallocates the
EPA’s burdens. Once an EPA claimant carries the burden
on the (properly understood) prima facie case, it becomes

4 This move was noted at the time. See Yant,
588 F.3d at 1375 (Prost, J., concurring in the result) (not-
ing that “the majority imports a novel requirement into the
plaintiff’s prima facie case”). It has been noted since. See
Gordon, 903 F.3d at 1256–57 (Reyna, J., additional views)
(noting that “Yant decidedly changed th[e] standard by re-
quiring, as part of the prima facie case, evidence that the
pertinent pay differential is based on sex,” and that “[n]o
other circuit imposes such a requirement on the plaintiff”).
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10 MOORE v. US

the employer’s burden to prove—as an affirmative de-
fense—that the pay differential has a permissible non-sex-
based justification. See Corning Glass, 417 U.S. at 195–96,
see also 29 U.S.C. § 206(d)(1) (providing four permissible
non-sex-based justifications for paying different sexes dif-
ferently for equal work—i.e., “where such payment is made
pursuant to (i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor
other than sex” (emphasis added)).
Given these problems with Yant’s extra prima facie el-
ement, it’s perhaps unsurprising that the government—by
far the most frequent (and perhaps the only) employer that
comes before this circuit facing an EPA claim—declines to
defend this aspect of Yant on appeal. Oral Arg. at
42:40–43:07 (“We don’t necessarily agree with Yant all the
way . . . . [S]ome of it has to deal with what the plaintiffs
are required to do at the opening part of their case. In
terms of saying that there has to be a showing of past or
present discrimination, we don’t necessarily agree with
that part.”); 5 see Appellee’s Br. 11–12 (declining to embrace
Yant, instead arguing that the Court of Federal Claims
“did not need to apply Yant” to dismiss the complaint).
We therefore take this opportunity to bring this circuit
in line with our sister circuits and the Supreme Court. To
make out a prima facie EPA case, a claimant bears the bur-
den to “show that an employer pays different wages to em-
ployees of opposite sexes ‘for equal work on jobs the
performance of which requires equal skill, effort, and re-
sponsibility, and which are performed under similar work-
ing conditions.’” Corning Glass, 417 U.S. at 195 (quoting

5 No. 22-1475, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=22-1475_02062023.mp3.
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MOORE v. US 11

29 U.S.C. § 206(d)(1)). Yant is overruled to the extent it is
inconsistent with the foregoing.
C
We lastly consider whether to affirm the complaint’s
dismissal on grounds having nothing to do with Yant. We
decline to do so. Although the government argues that
Yant-independent grounds warrant dismissal, see, e.g.,
Oral Arg. at 17:30–32 (“We don’t have to touch Yant at
all . . . .”); Appellee’s Br. 11–12 (arguing that the Court of
Federal Claims “did not need to apply Yant” to dismiss the
complaint), the government’s arguments in this regard
have not been adequately developed in this appeal (nor,
seemingly, in the Court of Federal Claims). Because the
Court of Federal Claims relied on Yant to dismiss the com-
plaint, and because Yant’s prima facie standard is no
longer good law, we believe the appropriate course is to va-
cate the dismissal and remand for further proceedings con-
sistent with this opinion. If, on remand, the government
again pursues a Rule 12 motion, it will be able to develop
its Yant-independent arguments, and the Court of Federal
Claims will be able to review the complaint free of Yant’s
prima facie standard. Additionally, the Court of Federal
Claims may wish to provide Mr. Moore an opportunity to
amend his complaint, now that he knows he no longer
needs to meet Yant’s requirements.
Before remanding, however, we address a misconcep-
tion that has become evident on appeal—one that may be
relevant to the government’s suggestion that Mr. Moore
“plead[ed] [his] way out of court.” See Oral Arg. at
25:00–18. Both the government and the Court of Federal
Claims seem to believe that the complaint affirmatively
states that the pay differential was not based on sex. See,
e.g., Appellee’s Br. 12 (“[T]he complaint plainly states that
the reason for the wage difference was because of the [Pro-
gram]; and not because of sex/gender.” (emphasis added));
id. at 15 (“[Mr. Moore] alleges that the complained of wage
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12 MOORE v. US

differential was not based on sex . . . .” (emphasis in origi-
nal)); Moore, 157 Fed. Cl. at 750 (stating that “the com-
plaint affirmatively acknowledges that no sex-based
discrimination caused the difference in pay”). The com-
plaint does not do so. To be sure, it alleges that the reason
for the pay differential is one that’s seemingly unrelated to
sex—i.e., Mr. Moore didn’t timely apply for the Program.
But identifying the reason for the pay differential as one
that doesn’t seem based on sex is not the same as conceding
that the differential was not based on sex. Nowhere does
the complaint do the latter. Appellee’s App’x 1–7; accord
Reply Br. 17 (“[Mr.] Moore does not concede or agree that
the salary differentials were not because of, on account of,
or the result of sex under the EPA.”). 6 To be clear, we ex-
press no view on the merits of any “pleaded yourself out of
court” argument that might be developed on remand

6 We further note that the complaint alleges that the
SEC lacked an acceptable business reason for (1) requiring
Program applications at all, and (2) creating, or not extend-
ing, a deadline for any employee to apply for and obtain the
Program’s benefits. Appellee’s App’x 6 ¶ 17. These allega-
tions may be relevant to the EPA’s fourth statutory affirm-
ative defense—a pay differential “based on any other factor
other than sex.” 29 U.S.C. § 206(d)(1). Some circuits have
held that the statutory “any other factor other than sex”
must be job-related or related to a legitimate business rea-
son. See, e.g., Belfi, 191 F.3d at 136; EEOC v. J.C. Penny
Co., 843 F.2d 249, 253 (6th Cir. 1988); Rizo, 950 F.3d
at 1227. Other circuits have been less willing to restrict
what qualifies as “any other factor other than sex.” See,
e.g., Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462
(7th Cir. 1994); Taylor, 321 F.3d at 717–20. Our circuit has
not waded into this debate, and we are in no position to do
so today. We simply note the issue in the event it becomes
relevant.
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MOORE v. US 13

(whether as to this complaint or any amended one). We
simply observe that, as currently written, the complaint it-
self does not affirmatively state or concede that the pay dif-
ferential was not based on sex.
III
We have considered the parties’ remaining arguments
and find them unpersuasive. Because the Court of Federal
Claims’ dismissal relied on Yant, which is now overruled,
and because we decline to affirm on any Yant-independent
grounds, we vacate the dismissal and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to appellant.