Curtis W. Philbert v. David I. Shulkin
Filing
52
MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: RE PLAINTIFFS MOTION FORRECONSIDERATION 43 . Court Orders plaintiffs motion to transfer his Equal Pay Act claim to the Court of Federal Claims is GRANTED. Because the amount in controversy with re spect to plaintiffs EPA claim exceeds $10,000 and plaintiff declines to waive excess damages, the Court lacks jurisdiction andaccordingly TRANSFERS THE EPA CLAIMS to the Court of Federal Claims pursuant to 28 U.S.C. 1631. (transferring plaintiffs EPA claims to Court of Federal Claims, the only court in which the claim could have been properly brought). (lc)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.
Title
CIVIL MINUTES – GENERAL
2:17-cv-00929-CAS (KKx)
Date
CURTIS W. PHILBERT V. ROBERT WILKIE
‘O’
April 20, 2018
Present: The Honorable
CHRISTINA A. SNYDER
Attorneys Present for Plaintiffs:
N/A
Tape No.
Attorneys Present for Defendants:
Not Present
Not Present
Catherine Jeang
Deputy Clerk
Proceedings:
Not Present
Court Reporter / Recorder
(IN CHAMBERS) – PLAINTIFF’S MOTION FOR
RECONSIDERATION (Dkt. 43, filed March 22, 2018)
The Court finds this matter appropriate for decision without oral argument. Fed.
R. Civ. P. 78; C.D. Cal. L.R. 7–15. The hearing date of April 23, 2018, is hereby vacated
and the matter is taken under submission.
I.
INTRODUCTION & BACKGROUND
On May 12, 2017, plaintiff Curtis W. Philbert, proceeding pro se, filed this
employment discrimination action against defendant David J. Shulkin, the United States
Secretary of Veterans Affairs (“VA”). Dkt. 1 (“Compl.”).1 On November 20, 2017,
plaintiff filed the operative Second Amended Complaint asserting the following claims:
(1) disparate treatment on the basis of national origin in violation of Title VII of Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), (2) creation of a hostile
work environment in violation of Title VII, (3) retaliation for prior Equal Employment
Opportunity activity in violation of Title VII, (4) disparate treatment on the basis of sex
in violation of Title VII, and (5) wage discrimination in violation of the Equal Pay Act of
1963, 29 U.S.C. §§ 216 et seq. (“EPA”). Dkt. 26.
On December 13, 2017, plaintiff filed a motion to transfer his EPA claim to the
United States Court of Federal Claims pursuant to 28 U.S.C. § 1631. Dkt. 29. On
December 18, 2017, defendant filed a motion to dismiss plaintiff’s second and fifth
claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 31. On January 23,
2018, the Court issued an order (1) denying plaintiff’s motion to transfer, (2) granting
defendant’s motion to dismiss plaintiff’s Title VII hostile work environment claim and
dismissing the claim with prejudice, and (3) granting defendant’s motion to dismiss
1
Acting Secretary of Veterans Affairs Robert Wilkie, who was appointed on
March 28, 2018, is substituted for former Secretary Shulkin. See Fed. R. Civ. P. 25(d).
CV-929 (11/17)
CIVIL MINUTES - GENERAL
Page 1 of 5
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.
Title
CIVIL MINUTES – GENERAL
2:17-cv-00929-CAS (KKx)
Date
CURTIS W. PHILBERT V. ROBERT WILKIE
‘O’
April 20, 2018
plaintiff’s EPA claim to the extent plaintiff seeks to recover unpaid wages prior to May
12, 2014. Dkt. 36 (“Order”).
On March 22, 2018, plaintiff filed the instant motion for reconsideration of the
Court’s order denying his motion to transfer. Dkt. 43 (“Mot.”). On March 29, 2018,
defendant filed an opposition, dkt. 48 (“Opp’n”); and plaintiff filed a reply brief on April
1, 2018, dkt. 49 (“Reply”). Having carefully considered the parties arguments, the Court
finds and concludes as follows.
II.
LEGAL STANDARDS
Local Rule 7–18 sets forth the bases upon which the Court may reconsider the
decision on any motion:
A motion for reconsideration of the decision on any motion may be made
only on the grounds of: (a) a material difference in fact or law from that
presented to the Court before such decision that in the exercise of reasonable
diligence could not have been known to the party moving for reconsideration
at the time of such decision, or (b) the emergence of new material facts or a
change of law occurring after the time of such decision, or (c) a manifest
showing of a failure to consider material facts presented to the Court before
such decision. No motion for reconsideration shall in any manner repeat any
oral or written argument made in support of or in opposition to the original
motion.
C.D. Cal. L.R. 7–18.
Under 28 U.S.C. § 1631, 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 or noticed.” The Ninth Circuit has held that a
district court may transfer individual claims over which it lacks subject matter
jurisdiction to the Court of Federal Claims pursuant to § 1631. See McGuire v. United
States, 550 F3d 903, 912–14 (9th Cir. 2008). The Tucker Act vests exclusive jurisdiction
in the Court of Federal Claims over claims against the United States for “liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The socalled “Little Tucker Act” provides an exception, vesting concurrent jurisdiction in
district courts for civil actions or claims against the United States for $10,000 or less. Id.
§ 1346(a)(2).
CV-929 (11/17)
CIVIL MINUTES - GENERAL
Page 2 of 5
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.
Title
CIVIL MINUTES – GENERAL
2:17-cv-00929-CAS (KKx)
Date
CURTIS W. PHILBERT V. ROBERT WILKIE
‘O’
April 20, 2018
Although the Court finds no controlling Ninth Circuit authority on this issue, the
courts in the District of Columbia Circuit “have consistently held that claims against the
United States brought pursuant to the EPA, or the [Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (“FLSA”)] more generally, must satisfy the jurisdictional requirements of
the Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C. § 1346(a)(2).”
Johnson v. Lightfoot, 273 F. Supp. 3d 278, 287 (D.D.C. 2017) (collecting cases).
Accordingly, “the Court of Federal Claims has exclusive jurisdiction to adjudicate all
[EPA] claims in excess of $10,000 and, unless a plaintiff waives his claims in excess of
$10,000, the district court [is] without jurisdiction to rule on their merits.” Id. (quoting
Waters v. Rumsfeld, 320 F.3d 265, 272 (D.C. Cir. 2003)). The Fifth Circuit has similarly
held that EPA claims against federal agencies are subject to the Tucker Act’s
jurisdictional requirements. See Barnes v. Levitt, 118 F.3d 404, 410 (5th Cir. 1997). In
addition, the Court of Federal Claims has held that the EPA constitutes a “moneymandating statute” providing a basis for the court to exercise jurisdiction pursuant to the
Tucker Act.2 Jordan v. United States, 122 Fed. Cl. 230, 238 (2015).
III.
DISCUSSION
The Court previously denied plaintiff’s motion to transfer his EPA claim because
he had not demonstrated that his total damages would exceed $10,000 and thereby divest
the Court of subject matter jurisdiction. Order at 4. Although plaintiff had not pleaded a
sum certain, he asserted that his damages would exceed $10,000 based on “several years”
of discrimination, but did not provide any supporting evidence to establish the amount in
controversy. Id. In his motion for reconsideration, plaintiff contends that a “[new]
material difference in fact or law” demonstrates that approximate damages for his EPA
claim totals $11,662.79. Mot. at 3. Plaintiff has attached a copy of a “Back Pay
Computation Summary Report” prepared using the back-pay calculator feature on the
website of the United States Office of Personnel Management (“OPM”). Id., Ex. 10.
Plaintiff has also attached OPM’s General Schedule (“GS”) pay tables for the Los
Angeles–Long Beach, California locality pay area for the years 2014 through 2018. Id.,
Ex. 11.
2
Unlike the EPA, Title VII specifically grants jurisdiction to the United States
district courts. See 42 U.S.C. § 2000e–5(f)(3). It is also well established that the Court
of Federal Claims does not have jurisdiction over Title VII claims. See Taylor v. United
States, 113 Fed. Cl. 171, 173 (2013).
CV-929 (11/17)
CIVIL MINUTES - GENERAL
Page 3 of 5
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.
Title
CIVIL MINUTES – GENERAL
2:17-cv-00929-CAS (KKx)
Date
CURTIS W. PHILBERT V. ROBERT WILKIE
‘O’
April 20, 2018
Defendant first asserts that the Court should deny the motion because plaintiff has
again failed to comply with Local Rule 7–3, which requires a party contemplating the
filing of any motion to contact opposing counsel at least seven days prior to filing the
motion in order to thoroughly discuss its substance and a potential resolution. Opp’n at
1–2, Declaration of Karen P. Ruckert ¶ 2. The Court previously admonished plaintiff for
failing to meet and confer with opposing counsel prior to filing his motion to transfer.
See Order at 3. Although the Court will consider the instant motion, the Court (1)
admonishes plaintiff to abide by the Local Rules in future proceedings, and (2) warns
plaintiff that failure to meet and confer prior to filing motions constitutes grounds for
denial of a motion or imposition of other monetary or non-monetary sanctions.
Defendant further contends the motion should be denied on the merits because
plaintiff’s back-pay calculation is not supported by sufficient evidence and does not
constitute a valid basis for reconsideration under Local Rule 7–18. Opp’n at 3–4.
Defendant argues that the purported “new” evidence—a back-pay calculation and OPM
salary tables—is not a material difference of fact which “in the exercise of reasonable
diligence could not have been known” to plaintiff at the time of the Court’s Order. C.D.
Cal. L.R. 7–18(a). Nor do the calculations or pay tables constitute “new material facts . .
. occurring after” the Court’s decision. Id. 7–18(b). As defendant indicates, this Court
has previously noted that “the failure to introduce documents supporting [a motion or] an
opposition to a motion does not transform any future tardy filings into ‘newly discovered
evidence.’ ” United States v. Lavender, No. 2:13-CV-08914-CAS, 2015 WL 1781347, at
*2 (C.D. Cal. Apr. 20, 2015) (quoting School Dist. No. 1J, Multnomah County, Or. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).
Although the Court agrees that plaintiff’s back-pay calculation would not
ordinarily constitute a valid basis for reconsideration, plaintiff has presented evidence
that implicates the Court’s subject matter jurisdiction. “[F]ederal courts have a duty to
raise and decide issues of subject matter jurisdiction sua sponte, if at any time it appears
that subject matter jurisdiction may be lacking.” Bank Julius Baer & Co. Ltd v.
Wikileaks, 535 F. Supp. 2d 980, 984 (N.D. Cal. 2008) (citations omitted). Plaintiff
expressly states that he has no intention of waiving damages in excess of $10,000 with
respect to his EPA claim. Reply at 2. Therefore, if the amount in controversy exceeds
$10,000, the Court lacks concurrent jurisdiction over the claim pursuant to the Little
Tucker Act, 28 U.S.C. § 1346(a)(2). And, in accordance with 28 U.S.C. 1631, the Court
may transfer plaintiff’s EPA claim to the Court of Federal Claims, which would have
exclusive jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1).
CV-929 (11/17)
CIVIL MINUTES - GENERAL
Page 4 of 5
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.
Title
CIVIL MINUTES – GENERAL
2:17-cv-00929-CAS (KKx)
Date
CURTIS W. PHILBERT V. ROBERT WILKIE
‘O’
April 20, 2018
The Court finds that plaintiff’s back-pay calculation is sufficient to demonstrate his
claim is worth more than $10,000. Plaintiff’s claim is based on the allegation that, in
early 2008, all health technicians at the Loma Linda VA Medical Center, with the
exception of plaintiff, were promoted from the GS-6 to the GS-7 salary level. SAC ¶¶
13, 27. The Court previously determined that the SAC alleges a willful violation of the
EPA, and therefore the FLSA’s three-year statute of limitations may apply under 29
U.S.C. § 255(a). Order at 8–9. The Court accordingly granted defendant’s motion to
dismiss the EPA claim on statute-of-limitations grounds, but only to the extent plaintiff
seeks to recover unpaid wages prior to May 12, 2014, which is three years prior the filing
of the initial complaint in this matter. Id. at 9. In his revised submission, plaintiff
calculates his back pay from May 11, 2014 through February 11, 2018. See Mot., Ex. 10.
Plaintiff has inputted his gross pay and corrected gross pay pursuant to OPM’s GS pay
tables, yielding a total of $11,662.79 in back pay inclusive of interest. Id. Plaintiff
indicates that this figure does not include overtime or fringe benefits such as
contributions to his retirement savings plan. Mot. at 3.
Because the amount in controversy with respect to plaintiff’s EPA claim exceeds
$10,000 and plaintiff declines to waive excess damages, the Court lacks jurisdiction and
accordingly transfers the EPA claim to the Court of Federal Claims pursuant to 28 U.S.C.
1631. See De Leon v. England, No. CIV.A. 02-473 (EGS), 2003 WL 21767504, at *2
(D.D.C. Feb. 20, 2003) (transferring plaintiff’s EPA claims to Court of Federal Claims,
“the only court in which the claim could have been properly brought”).
IV.
CONCLUSION
In accordance with the foregoing, plaintiff’s motion to transfer his Equal Pay Act
claim to the Court of Federal Claims is GRANTED.
IT IS SO ORDERED.
Initials of Preparer
CV-929 (11/17)
CIVIL MINUTES - GENERAL
:
00
CMJ
00
Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?