Case: 23-1265 Document: 13 Page: 1 Filed: 06/09/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHLYN M. STEIN,
Plaintiff-Appellant
v.
DUANE B. GILL, DIRECTOR, VA CENTRAL
WESTERN MA HEALTH CARE SYSTEM, IN HIS
OFFICIAL CAPACITY,
Defendant-Appellee
______________________
2023-1265
______________________
Appeal from the United States District Court for the
District of Massachusetts in No. 3:18-cv-30201-MGM,
Judge Mark G. Mastroianni.
______________________
Decided: June 9, 2023
______________________
KATHLYN M. STEIN, Shutesbury, MA, pro se.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by REGINALD THOMAS BLADES, JR., BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY.
______________________
Case: 23-1265 Document: 13 Page: 2 Filed: 06/09/2023
2 STEIN v. GILL
Before PROST, SCHALL, and HUGHES, Circuit Judges.
PER CURIAM.
Kathlyn M. Stein appeals from an order of the U.S. Dis-
trict Court for the District of Massachusetts transferring
her Equal Pay Act (“EPA”) claim to the U.S. Court of Fed-
eral Claims under
28 U.S.C. § 1631. We affirm.
BACKGROUND
I
In December 2018, Ms. Stein filed an EPA claim
against her employer, the Department of Veterans Affairs
(“VA”), 1 in the U.S. District Court for the District of Mas-
sachusetts. She alleged that the government violated the
EPA,
29 U.S.C. § 206(d), by paying her less than male em-
ployees doing equal work, and she sought over $10,000 in
damages.
The government moved to dismiss Ms. Stein’s EPA
claim under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction. 2 It argued that, per the
Tucker Act,
28 U.S.C. § 1491(a)(1), the Court of Federal
Claims has exclusive jurisdiction over EPA money-dam-
ages claims against the government for over $10,000. 3 The
1 Although Ms. Stein’s complaint named (as relevant
here) the then Director of the VA Central Western Massa-
chusetts Health Care System in his official capacity as the
“Defendant Employer,” because any distinction is immate-
rial to our discussion, we refer to the defendant-employer
simply as the VA.
2 Subsequent references to jurisdiction should be un-
derstood as referring to subject-matter jurisdiction.
3 The Tucker Act,
28 U.S.C. § 1491(a)(1), is some-
times called the Big Tucker Act. It has a companion, the
Little Tucker Act, which (as relevant here) gives district
Case: 23-1265 Document: 13 Page: 3 Filed: 06/09/2023
STEIN v. GILL 3
government relied on Abbey v. United States,
745 F.3d 1363
(Fed. Cir. 2014), to support this argument.
In Abbey, government employees sued the government
in the Court of Federal Claims seeking money damages for
an alleged violation of the Fair Labor Standards Act of
1938 (“FLSA”), of which the EPA is a part. On appeal to
this court, the government argued that the Court of Fed-
eral Claims lacked jurisdiction. Despite our having long
held that the Tucker Act gives the Court of Federal Claims
jurisdiction over FLSA money-damages claims against the
government (and exclusive jurisdiction when the claim ex-
ceeds $10,000), it argued that an intervening Supreme
Court case, United States v. Bormes,
568 U.S. 6 (2012), re-
quired concluding that the Tucker Act no longer supplies
such jurisdiction. See Abbey,
745 F.3d at 1368–69. The
Abbey court disagreed; it held that, Bormes notwithstand-
ing, jurisdiction in the Court of Federal Claims remains
proper under the Tucker Act. Abbey,
745 F.3d at 1368–72.
The government did not seek rehearing in Abbey.
In Ms. Stein’s case, the Massachusetts district court re-
lied on Abbey to conclude that it lacked jurisdiction over
her EPA claim. Stein v. McMahon, No. 18-30201,
2020 WL
6074157, at *1–2 (D. Mass. Aug. 24, 2020). Instead of dis-
missing the claim, the district court gave Ms. Stein the op-
portunity to request that it be transferred to the Court of
Federal Claims under
28 U.S.C. § 1631, which allows a
court that lacks jurisdiction to transfer a claim to one that
has it. 4 When Ms. Stein failed to request a transfer, the
courts the same jurisdiction that the Tucker Act gives the
Court of Federal Claims, but only over claims not exceeding
$10,000.
28 U.S.C. § 1346(a)(2). Unless otherwise speci-
fied, subsequent references to the Tucker Act contemplate
both the Big and Little versions.
4 Although § 1631 references transfer of a “civil ac-
tion,” we have held that it authorizes transfer of individual
Case: 23-1265 Document: 13 Page: 4 Filed: 06/09/2023
4 STEIN v. GILL
court dismissed the EPA claim for lack of jurisdiction.
Ms. Stein then appealed to the First Circuit, maintaining
that the district court had jurisdiction all along.
II
While Ms. Stein’s appeal was pending before the First
Circuit, an unrelated appeal brought by Dr. Rebecca Metz-
inger was pending before this court. Her case had much in
common with Ms. Stein’s.
Like Ms. Stein, Dr. Metzinger had filed an EPA claim
for over $10,000 against the VA in district court. And, as
in Ms. Stein’s case, the government moved—successfully,
and relying on Abbey—to have the district court declare it-
self without jurisdiction. See Metzinger v. U.S. Dep’t of Vet-
erans Affs., No. 19-10614,
2020 WL 13562907, at *2–3 (E.D.
La. May 4, 2020). The district court transferred the claim
to the Court of Federal Claims under § 1631, id. at *4, and
Dr. Metzinger appealed to this court, maintaining that the
district court shouldn’t have transferred because it had ju-
risdiction all along.
Unlike in Ms. Stein’s appeal, however, the government
in Dr. Metzinger’s appeal changed its position before its
brief came due. It now agreed that the district court had
jurisdiction all along, making the § 1631 transfer to the
Court of Federal Claims improper. Resp. Br. for Def.-Ap-
pellees at 4–5, Metzinger v. Dep’t of Veterans Affs.,
No. 20-1906 (Fed. Cir. Dec. 7, 2020). It also said that Abbey
was wrongly decided—that, in light of Bormes, the Court of
Federal Claims lacks jurisdiction over FLSA or EPA claims
against the government. Id. at 7, 10–13. Yet, in its brief
filed just two months later in Ms. Stein’s appeal to the First
Circuit, the government stuck to its original position and
urged the First Circuit to “follow the reasoning of Abbey,
claims as well. United States v. County of Cook,
170 F.3d
1084, 1087–89 (Fed. Cir. 1999).
Case: 23-1265 Document: 13 Page: 5 Filed: 06/09/2023
STEIN v. GILL 5
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).
In June 2021, during oral argument in Dr. Metzinger’s
appeal, we notified government counsel that the govern-
ment was taking inconsistent positions as between
Dr. Metzinger’s and Ms. Stein’s appeals. 5 After that reve-
lation, the government changed its position in Ms. Stein’s
appeal to align with the one taken in Dr. Metzinger’s ap-
peal, and it notified the First Circuit accordingly. Appel-
lees’ 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). The
First Circuit then vacated the Massachusetts district
court’s dismissal and remanded, observing that the district
court “may determine in the first instance whether there is
subject-matter jurisdiction to hear [Ms.] Stein’s official-ca-
pacity EPA claim and may consider the [g]overnment’s up-
dated position on the issue when doing so.” Judgment at 2,
Stein v. Collins, No. 20-1906 (1st Cir. Oct. 12, 2021).
In December 2021, we affirmed the district court’s
§ 1631 transfer of Dr. Metzinger’s EPA claim to the Court
of Federal Claims. Metzinger v. Dep’t of Veterans Affs.,
20 F.4th 778 (Fed. Cir. 2021). We noted that a § 1631
transfer requires two relevant things: the transferor court
(district court) must lack jurisdiction, and the transferee
court (Court of Federal Claims) must have it. As to
whether the Court of Federal Claims had jurisdiction, we
noted that Abbey unquestionably held that it did. We
acknowledged the government’s argument that Abbey was
wrongly decided, but we explained that the argument was
5 Oral Arg. at 15:51–17:00, No. 20-1906,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
-1906_06102021.mp3.
Case: 23-1265 Document: 13 Page: 6 Filed: 06/09/2023
6 STEIN v. GILL
misplaced: panels are bound by prior panel decisions of this
court unless and until overturned en banc. Id. at 781. As
to whether the district court lacked jurisdiction, that issue
was not squarely presented in Abbey. The plaintiffs there
had filed their complaint in the Court of Federal Claims, so
the issue was simply whether that court had jurisdiction.
Nevertheless, we concluded in Metzinger that, under Ab-
bey’s reasoning, the Tucker Act provides the only basis for
jurisdiction over EPA money-damages claims against the
government—meaning that district courts lack jurisdiction
over such claims exceeding $10,000. Id. at 784; see also
supra note 3. We therefore affirmed the transfer. The gov-
ernment did not seek rehearing in Metzinger.
III
After the First Circuit’s remand to the Massachusetts
district court in Ms. Stein’s case, the government again
moved to dismiss her EPA claim—not for jurisdictional rea-
sons this time, but for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Ms. Stein opposed.
In July 2022, the district court again concluded that it
lacked jurisdiction over Ms. Stein’s EPA claim. Although
neither party’s brief discussed the jurisdictional issue, the
district court correctly observed that it had an independent
duty to confirm for itself its own jurisdiction. See Stein v.
Gill, No. 18-30201,
2022 WL 2980680, at *1–2 (D. Mass.
July 1, 2022). In discharging that duty, the district court
again relied on Abbey (and now Metzinger as well) to sup-
port its conclusion that it lacked jurisdiction.
Id. The dis-
trict court stated in the alternative that, even if it had
jurisdiction, it would dismiss the claim as inadequately
pleaded under Rule 12(b)(6).
Id. at *2.
The district court initially dismissed the claim for lack
of jurisdiction. But, after receiving and construing a re-
quest from Ms. Stein, it ordered the claim transferred in-
stead to the Court of Federal Claims under § 1631.
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STEIN v. GILL 7
Ms. Stein initially appealed the district court’s transfer
order to the First Circuit. See Appx. 63. 6 The First Circuit,
however, noted that this court has exclusive jurisdiction
over this appeal from an interlocutory § 1631 transfer or-
der to the Court of Federal Claims. Appx. 63 (citing
28 U.S.C. § 1292(d)(4)(A)); see also Appx. 65–66. It there-
fore transferred Ms. Stein’s appeal to this court under
§ 1631. Appx. 65–66.
We have exclusive jurisdiction over this appeal from
the district court’s transfer order.
28 U.S.C.
§ 1292(d)(4)(A).
DISCUSSION
Both parties challenge the jurisdictional conclusions
underpinning the district court’s transfer order. E.g., Ap-
pellant’s Informal Br. 2; Appellee’s Br. 8–9. We review
these conclusions de novo. Metzinger, 20 F.4th at 780–81.
The parties argue that, in light of the Supreme Court’s
decision in Bormes, the district court has jurisdiction over
Ms. Stein’s EPA claim and the Court of Federal Claims
does not. But our precedent in Abbey and Metzinger plainly
forecloses these arguments. The parties do not suggest
otherwise. Instead, they (particularly the government)
dedicate many pages of briefing to explaining why they
think Abbey and Metzinger were wrongly decided. E.g., Ap-
pellee’s Br. 15–27. Nowhere among the parties’ briefing,
however, do they acknowledge that we, as a panel, “are
bound by prior panel decisions of this court unless and un-
til overturned en banc.” Metzinger, 20 F.4th at 781 (citing
Newell Cos. v. Kenney Mfg. Co.,
864 F.2d 757, 765 (Fed. Cir.
1988)). Because these decisions bind us, we must reject the
parties’ challenges to the jurisdictional conclusions under-
pinning the district court’s transfer order. And, having
6 “Appx.” refers to the appendix included with the
government’s brief.
Case: 23-1265 Document: 13 Page: 8 Filed: 06/09/2023
8 STEIN v. GILL
been presented no other valid reason to disturb that order,
we affirm it.
The parties also address the implications of the district
court’s alternative conclusion that, if it had jurisdiction, it
would dismiss the EPA claim under Rule 12(b)(6) as being
inadequately pleaded. Ms. Stein asks us to vacate this as-
pect of the district court’s decision if we conclude that the
district court lacked jurisdiction. See Appellant’s Informal
Br. 3. Setting aside our authority to do so, we deem such
action unnecessary. As the government notes, this aspect
of the district court’s decision “would have no legal effect
and could not bind the Court of Federal Claims in any
transferred matter” if we conclude—as we have—that the
district court lacked jurisdiction. Appellee’s Br. 29 (cleaned
up).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
