FARZAM v. USA

Filing 26

ORDER denying 15 Motion to Dismiss - Rule 12(b)(1) and (6) Signed by Judge Victor J. Wolski. (jg) Copy to parties.

In the United States Court of Federal Claims
No. 13-075C
(Filed October 29, 2013)
NOT FOR PUBLICATION

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PARICHEHR FARZAM,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
As stated on the record during today’s oral argument, the defendant’s motion
for a partial transfer or dismissal of this case is DENIED. The Tucker Act, 28
U.S.C. § 1491(a)(1), provides our court with subject-matter jurisdiction over money
damages claims against the federal government, under non-tort-based, moneymandating statutes. The Equal Pay Act amendment to the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 206(d), is such a statute. The Tucker Act is not displaced as
a jurisdictional source by the remedial scheme of the FLSA, 29 U.S.C. § 216(b), for
that scheme is not “self-executing,” as it lacks “its own judicial remedies.” United
States v. Bormes, 133 S. Ct. 12, 18 (2012). Rather than “precisely define the
appropriate forum,” id. at 19 (quoting Hinck v. United States, 550 U.S. 501, 507
(2007)), the FLSA allows claims for damages to be brought “in any Federal . . . court
of competent jurisdiction.” 29 U.S.C. § 216(b) (2006). This failure to assign
jurisdiction is exactly the gap the Tucker Act was designed to address, “the missing
ingredient for an action against the United States for the breach of monetary
obligations not otherwise judicially enforceable.” Bormes, 133 S. Ct. at 18. Unlike
statutes which authorize the jurisdiction of particular federal courts, cf. Bormes,
133 S. Ct. at 19 (Fair Credit Reporting Act enforceable in U.S. district courts);
Hinck, 550 U.S. at 504, 506 (Taxpayer Bill of Rights 2 provision enforceable in U.S.
Tax Court), FLSA requires resort to other statutes to determine the jurisdictional
competence of federal courts. There is no basis for concluding that Congress
intended to exclude the Tucker Act from among these possible sources, and the

Court finds that our traditional jurisdiction over FLSA claims, long-recognized by
the Federal Circuit, is undisturbed. See Saraco v. United States, 61 F.3d 863, 86566 (Fed. Cir. 1995); Zumerling v. Devine, 769 F.2d 745, 748-49 (Fed. Cir. 1985); King
v. United States, 112 Fed. Cl. 396, 400-01 (2013).
Concerning the motion to dismiss for failure to state a claim upon which
relief can be granted, under Rule 12(b)(6) of the Rules of the United States Court of
Federal Claims (RCFC), the Court finds that the Second Amended Complaint
(Compl.) contains sufficiently-detailed factual allegations to plausibly support an
entitlement to damages under the Equal Pay Act. The statute requires equal wages
to be paid to members of both sexes “for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions,” unless an exception applies. 29 U.S.C. § 206(d)
(2006). The plaintiff identifies two male comparators by name and positions,
Compl. ¶ 20, and alleges they are each paid more than she is, id. ¶¶ 19, 21. All
three work for the same agency (Voice of America), are assigned as White House
correspondents, and prepare reports of White House events they decide to cover. Id.
¶¶ 20, 22, 24-26. These reports contain “commentary on and description of the
events and . . . analysis based on . . . research and experience” for broadcasts and
website postings. Id. ¶¶ 24, 26. All three employees are alleged to have similar
working conditions, as they report from the White House. Id. ¶ 27. The Second
Amended Complaint thus contains far more than “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), and instead contains a description of work and
working conditions sufficient to make out a plausible Equal Pay Act claim. The
Court rejects the government’s argument that a pleading must contain all of the
details necessary to make the ultimate, “factor by factor comparison” by which a
case is proven. Santiago v. United States, 107 Fed. Cl. 154, 158 (2012) (internal
quotation marks omitted). At this stage, the plaintiff need only allege, not prove,
her case.
For the foregoing reasons, the government’s motion to transfer the claim in
Count II under RCFC 12(b)(1), or in the alternative to dismiss that claim under
RCFC 12(b)(6), is DENIED.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge