BEBERMAN v. USA

Filing 12

REPORTED OPINION and ORDER granting 6 Motion to Dismiss - Rule 12(b)(1); denying, as moot, 6 Motion to Stay; and denying 11 Motion to Strike. The Clerk is directed to enter judgment. No costs. Signed by Judge Charles F. Lettow. (dls) Copy to parties. (Plaintiff served via certified mail; Article No. 7014 1200 0000 9093 9935)

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FILED

No. 16-1006C

(Filed: December 8, 2016)
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U.S. COUBT OF

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FEDERAL CLAIMS

JULIE BEBERMAN,

Claim under the Equal Pay Act of 1963,
alleging gender-based discrimination; 29
U.S.C. $ 206(d); previously-filed pending
suit in Federal District Court and on
appeal; application of 28 U.S.C. $ 1500

Plaintiff,

UNITED STATES,
Defendant,
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Julie Beberman, pro se, Arlington, Virginia.
Agatha Koprowski, Trial Attomey, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the briefs
were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and
Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of
counsel was Jessica Thibodeau, Attomey Adviser, Office ofthe Legal Adviser, United States
Department of State, Washington, D.C.

OPINION AND ORDER
LETTOW, Judge.
Plaintiff, Julie Beberman ("Ms. Beberman"), an employee of the United States
Department of State ("State Department"), brings this action under the Equal Pay Act of 1963
("Equal Pay Act"), Pub. L. No. 88-38, $ 3(d), 77 Stat. 56 (codified at 29 U.S.C. $ 206(d)),
alleging gender-based discrimination in pay and benefits. Compl. tfJf 1, 3,21. Ms. Beberman
alleges that the govemment discriminated against her by paying her less and providing her with
fewer benefits than those received by a similar male employee within the State Department. ,See
Compl. flfl 9-23. The government seeks to dismiss Ms. Beberman's complaint pursuant to 28
U.S.C. $ 1500 on the ground that prior to bringing this suit, Ms. Beberman filed an action against
the United States in the United States District Court for the District of the Virgin Islands and an
appeal in the United States Court ofAppeals for the Third Circuit from the district court's denial
of preliminary injunctive relief, both of which remain pending. See Def.'s Mot. to Dismiss

?ul,q 1200 00BB 1813 3135

Pursuant to 28 U.S.C. $ 1500 or, in the Altemative, Mot. to Stay ("Def.'s Mot.") at 6-9, ECF No.
6. Altematively, the government requests that the court stay Ms. Beberman's suit until her
pending claims in the district court and court ofappeals are resolved. Id. at9-10.

For the reasons stated, the govemment's motion to dismiss pursuant to 28 U.S.C. $ 1500
is granted.

BACKGROUND

s Beberman i

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member of ,he
"
Foreign Service. Compl. flfl 3, 5. Upon entry to the Foreign Service, employees serve under a
limited appointment for a trial period. 22 U.S.C. $ 39a6@). A commissioning and tenure board
recommends whether an employee should receive tenure and a career appointmenl. See 22
U.S.C. $ 3946(b); 3 Foreign Affairs Manual $ 2245 (available at https://fam.state.gov); Def.'s
Mot. at 1-2. In March 2016, Ms. Beberman was serving at Embassy Malabo in Equatorial
Guinea, where she allegedly received various benefits, including "overseas comparability pay,
hardship pay, service-needs differential, a cost of living allowance, housing, substantial overtime
compensation, and . . . the student loan repayment program." Compl. Jlll 6-8. On March27,
2016, Ms. Beberman's limited career appointment expired without a recommendation of tenure.
Compl. fl 6. Ms. Beberman challenged the denial of tenure before the Foreign Service Grievance
Board and received interim relief. See Def.'s Mot. at 2; Pl.'s Opp'n to Mot. to Dismiss or for a
Stay ("P1.'s Opp'n") at 3, ECF No. 7. Pursuant to the State Department's inlemal standard
operating procedure regarding mandatory separations, see Def.'s Mot. App. A2l, A27 -A28,t the
State Department placed Ms. Beberman on "separation orders" and directed her to retum to
Washington, D.C. before the completion of her assignment in Equatorial Guinea. Compl. fl 9.2
Ms. Beberman alleges that she did not receive an ovemight stop, a temporary quarters service
allowance, or the opportunity to retrieve her household effects. Compl. !f 10. Additionally, Ms.
Beberman alleges that she has not received "Washington locality pay or a transit subsidy" since
retuming to Washington, D.C. Compl. r I l.r
M

rThe appendix to the government's motion consists of the State Department's intemal
standard operating procedure and ten documents related to Ms. Beberman's suit in the district
court and appeal in the Third Circuit, tallying 245 sequentially numbered pages. The appendix
will be cited as "Def.'s Mot. App. A_," showing the pertinent page number.
2In addition to alleging violations of the Equal Pay

Act, Ms. Beberman alleges that the
State Department's separation orders violated 22U.5.C, Q 4136,22 C.F.R. $ 904.4(a), and 3
Foreign Affairs Manual g 4453(a), all of which pertain to proceedings before the Foreign Service
Grievance Board. Compl. !l 9.
rOn December 1,2016,the govemment filed a Notice of Related Agency Action, ECF
No. 10, advising that the State Department had changed its policies and procedures regarding
mandatory separations. As a result, the Department has now placed Ms. Beberman on orders for
a permanent change of station to Washington, D.C., retroactive to April 11,2016, the first
working day after Ms. Beberman departed her assignment in Malabo, Equatorial Guinea. See

Ms. Beberman brought this action on August 15, 2016 under the Equal Pay Act, 29
U.S.C. $ 206(dX1). Compl. fl 1.4 Ms. Beberman alleges that the govemment discriminated
against her on the basis of sex by paying her at a lower rate and providing her with fewer
benefits than were provided to an equally-ranked and situated male employee. Compl. flfl 21-23.
Specifically, Ms. Beberman alleges that a male Foreign Service employee's limited appointment
also terminated on March 27,2016 without a recommendation of tenure, but the State
Department allowed that employee to remain overseas and retain overseas benefits until the
completion of his assignment, even though the employee and Ms. Beberman allegedly are of
equal rank and have similar responsibilities. Compl. flfi] 12-17 ,22-23. Af\er completing his
assignment and retuming to the United States, the male employee is now allegedly receiving
"Washington locality pay and a transit subsidy." Compl. u 20.
Ms. Beberman requests that the court reinstate her to service at the embassy in Equatorial
Guinea until the completion ofher assignment there, thus enabling her to obtain the benefits she
previously received, including hardship pay, service-needs differential, housing, overtime
compensation, and pa(icipation in the student loan repayment program. Compl. fl 26. Ms.
Beberman also requests Washington locality pay, temporary quarters service allowance, and
transit subsidy benefits until she departs for Equatorial Guinea. Compl. fl 26. Additionally, Ms.
Beberman seeks back pay for the benefits she lost when she was directed to leave Equatorial
Guinea, repayment for transit subsidies she has not received since retuming to Washington, D.C.,
and back pay for the temporary quarters service allowance she was denied upon being placed on
separation orders and leaving Equatorial Guinea. Compl.ilf 27.

B,

Ms. Beberman's Suil in the District Court

In May 2014, Ms. Beberman filed a complaint in the United States District Court for the
District ofthe Virgin Islands against the State Department and Secretary of State John Kerry in
his official capacity. Beberman v. United States Dep't of State, No.2014-0020,2016 WL
* 1 (D.V.l. Mu. 24,2016) ("Beberman I'), recons. denied,2016 WL 13 12531
1 I 81684, at
(D.V.l. Apr. 4,2016) ("Beberman Il'). In that suit, Ms. Beberman brought a gender
discrimination claim under Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, $ 717,
78 Stat. 241, as amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92261, 86 Stat. 103, 111, an age discrimination claim under the Age Discrimination in Employment
Act of 1967, Pub. L. No. 90-202,515, as amended by the Fair Labor Standards Amendments of
Notice of Related Agency Action, appended Decl. of Brian Wilson (Dec. 1,2016) fl 4. Ms.
Beberman has moved to strike defendant's notice ofrelated agency action, contending that the
agency's action is irrelevant to the court's inquiry into jurisdiction under 28 U.S.C. $ 1500. Pl.'s
Mot. to Strike Dei's Notice of Related Agency Action at 3, ECF No. 1 1.
aCongress enacted the Equal Pay Act in 1963 as an amendment to the Fair Labor
Standards Act, Pub. L. No. 75-718, 52 Stat. 1060 (1938) (codified at 29 U.S.C. $$ 201-19). See
Yantv. UnitedStates,5SS F.3d 1369, 1371 (Fed. Cir.2009). In1974, Congress adopted a
statutory amendment that applies the Equal Pay Act to the federal government. See Pub. L. No.
93-259, $ 6(a)(1), 88 Stat. 55, 58 (codified at 29 U.S.C. $ 203(eX2)); see also Jordan v. United
States,l22 Fed. C1.230,241 n.21 (2015).

1974, Pub. L. No. 93-259, S 28(bX2), 88 Stat. 55, 75, and a claim under the Privacy Act of 1974,
Pub.L.No.93-579,S3,88Stat. 1896, 1901 (codifiedat5U.S.C.$522a(gXlXD)). Bebermanl,
2016 WL 1181684, at *1. However, Ms. Beberman withdrew the gender discrimination claim in
her First Amended Complaint, and the Privacy Act claim was dismissed by agreement of the
parties. Id.

The First Amended Complaint, filed May 22,2014, alleged that Ms. Beberman's
supervisor repeatedly discriminated against Ms. Beberman due to her "age and gender" while she
was serving in Caracas, Venezuela. First Amended Complaint, Bebermon r. United States Dep't
of State, No. 2014-0020, fllT 97-110 (D.V.I. May 22,2014), Def 's Mot. App. A12-A14. Ms.
Beberman's supervisor allegedly treated her differently with respect to Ms. Beberman's work at
Embassy Caracas. See id. After moving to Equatorial Guinea, and while the complaint was still
pending, Ms. Beberman filed a motion for a temporary restraining order or preliminary
injunction on March 20,2016, in which Ms. Beberman requested that the district court direct the
State Department to retain Ms. Beberman "in her current assignrnent at the U.S. Embassy in
Malabo, Equatorial Guinea until she fulfills her assignment in December 2017." Beberman I,
2016 WL 1i81684, at *2. Ms. Beberman claimed that her supervisor's "discriminatory animus"
caused the denial oftenure, which resulted in the expiration ofher limited career appointment.
In support of the motion, Ms. Beberman argued that a
Beberman II,2016WL 1312534, at *
would result in "irreparable harm" because she would be
departure from Equatorial Guinea
required to leave her residence and retum to Washington, D.C., and because she would lose
"hardship pay, service[-]needs differential, [and] access to the Student Loan Repayment
Program." Id. at*3. The district court denied the motion and Ms. Beberman's subsequent
motion for reconsideration. See generally Beberman 1,2016 WL 1181684; Beberman 11,2016
wL 1312534.

l.

Ms. Beberman filed a notice ofappeal and an urgent motion for an injunction, but the
United States Court of Appeals for the Third Circuit denied the motion on April 5, 2016 without
addressing the pending appeal. Order, Beberman v. United States Dep't of State,No. 16-1788

(3dCir,Apr.5,20l6),Def.'sMot.App.4107. OnJune2T,20l6,Ms.Bebermanfiledabriefin
support ofher appeal of the district court's denial ofinjunctive relief. Brief of Appellant,
Beberman v. United States Dep't of State, No. l6- 1788 (3d Cir. June 27,2016) ("Appellant's
Br."), Def.'s Mot. App. A108-4186. In that brief, Ms. Beberman stated that she had sought
injunctive relief in March 2016 "to remain at Embassy Malabo, because [the govemment's]
discriminatory and retaliatory animus proximately caused her to be denied tenure and [the
govemmentl directed her to depart Embassy Malabo for Washington in the middle of her threeyear assignment." Appellant's Br. at 4, Def.'s Mot. App. 4.121. Ms. Beberman asserted that the
district court improperly denied her "request to complete her assignment in Equatorial Guinea'"
Appellant's Br. at 38, Def.'s Mot. App. A155.

In support ofher appeal for injunctive relief, Ms. Beberman argued that she adequately
demonstrated ineparable harm, likelihood of success on the merits, and public interest in favor of
relief. See Appellant's Br. at 36-65, Def.'s Mot. App. A153-4182. Specifically, Ms. Beberman
claimed that without a preliminary injunction or temporary restraining order, she would suffer
ineparable harm by "being forced to give up her position . . . at Embassy Malabo and . . . take up
an unspecified position in Washington." Appellant's Br. at 25, Def.'s Mot. App. A142; see also

Appellant's Br. at 40, 44-45,66-67, Def.'s Mot. App. A157, A161-62, A183-84. Ms. Beberman
noted that her departure would result in the loss ofhardship benefits, service-needs differential,
and student loan repayments. Appellant's Br. at 48, Def.'s Mot. App. .A165; see slso
Appellant's Br. at 42, Def.'s Mot. App. A159 (arguing that Ms. Beberman's position in
Equatorial Guinea was unique due to the hardship and service-needs differential associated with
the position); Appellant's Br. at 44-45, Dei's Mot. App. A161-A162 (claiming that Ms.
Beberman could no longer participate in the student loan repayment program if transfened to
Washington, D.C.). Ms. Beberman also noted she would suffer harm while in Washinglon, D.C.
because "she would not be eligible for Washington locality pay, per diem, or home service
transfer allowance[,] and would not be allowed access to her household effects." Appellant's Br.
at 16, Def.'s Mot. App. A133. In addressing the public interest aspect ofthe district court's
analysis, Ms. Beberman stated that the directive to depart from Equatorial Guinea resulted from
her denial of tenure, "which was tainted by discriminatory animus." Appellant's Br. at 63, Def.'s
Mot. App. A180; see a/so Appellant's Br. at 8, Def.'s Mot. App. ,4'125 (noting that Ms.
Beberman did not want her assignment to end based upon "the long lasting effects ofpast
discrimination"); Appellant's Br. at64, Def.'s Mot. App. A181 (arguing that the goverffnent
failed to stop the discrimination against Ms. Beberman, and instead took further adverse action
by removing her lrom Equatorial Guinea and sending her to Washington, D.C.). Ms.
Beberman's appeal remains pending. Beberman v. United Stdtes Dep't of Slale, No. 2014-0020,
appeal docketed,No. I6-1788 (3d Cir. Apr. 4,2016).s

C.

The Government's Pending Motion to Dismiss or Stay the Case

The government seeks to dismiss Ms. Beberman's complaint pursuant to 28 U.S.C. $
1500. Def.'s Mot. The govemment argues that under 28 U.S.C. $ 1500, this court does not have
jurisdiction over Ms. Beberman's suit because she has an earlier-filed pending suit in the district
court and an earlier-filed pending appeal in the Third Circuit, and those pending suits are "for or
in respect to" the same claims at issue here. Def.'s Mot. at 7-9; Def.'s Reply in Support of Def.'s
Mot. to Dismiss Pursuant to 28 U.S.C. $ 1500 or, in the Altemative, Mot. to Stay ("Def.'s
Reply") at 1-5, ECF No. 8. Ms. Beberman opposes this motion, arguing instead that the claims
in this court are based on different operative facts than those alleged in the earlier-filed claims in
the district court. Pl.'s Opp'n at l-4. Altematively, the govemment requests that the court stay
Ms. Beberman's suit until her claims in the district court are resolved, Def.'s Mot. at 9-10, which

5On

July 19,2016, the district court stayed proceedings before

it.

Order, Beberman

v.

IlnitedStatesDep'tofState,No.2014-0020(D.V.l.July19,2016),Def.'sMot.App.4228. On
September 7, 2016, subsequent to filing suit in this court, Ms. Beberman moved for leave to file
a Fourth Amended Complaint in the district court. Fourth Amended Complaint, Beberman v.
United States Dep't of State, No. 2014-0020 (D.V.l. Sept. 7,2016), Def.'s Mot. App. Al94; .ree
a/so Dcf.'s Mot. App. 4229. On November 8,2016, the district court granted Ms. Beberman's
motion to lift the stay for the limited purpose of filing a motion to amend the complaint to meet
the statute of limitations. Order, Beberman v. v. United States Dep't of Stqte, No.2014-0020
(D.V.l. Nov. 8, 2016). Ms. Beberman filed a fifth amended complaint on the same day. Fifth
Amended Complaint, Beberman v. United States Dep't of State,No.2014-0020 (D.V.l. Nov. 8,
2016).

Ms. Beberman also opposes, Pl.'s Opp'n at 9-13. The motion has been briefed and was
addressed at a hearing on December 2, 2016.

STANDARDS FOR DECISION
As plaintiff, Ms. Beberman has the burden of establishing jurisdiction. See Reynolds v.
Army&Air Force Exch.\erv.,846F.2d746,748 (Fed. Cir. 1988). In determining whether the
court has jurisdiction, the court "must accept as true all undisputed facts asserted in the plaintiff
complaint and draw all reasonable inferences in favor ofthe plaintiff" Trusted Integration, Inc.
v. United States,659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States,60F.3d
795,797 (Fed. Cir. 1995)).

s

Under the Tucker Act, this court has jurisdiction over "any claim against the United
States founded either upon the Constitution, or any Act ofCongress or any regulation ofan
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $ 1a91(a)(1). This
court generally has jurisdiction under the Tucker Act over claims brought in respect ofthe Equal
Pay Act. See, e.g., Harbuckv. IJnited States,378 F.3d 1324,1330 (Fed. Cir.2004);Jordan'122
Fed. Cl. at 238 (citations omitted). Nonetheless, 28 U.S,C. $ 1500 acts as a jurisdictional
limitation. When it applies, this court lacks jurisdiction and must dismiss the complaint. See 28
U.S.C. $ 1500; (lnited States v. Tohono O'Odham Nation,563 U.S. 307, 314, 318 (2011).

ANALYSIS
Section 1500 provides:
The United States Court ofFederal Claims shall not have jurisdiction ofany claim
for or in respect to which the plaintiffor his assignee has pending in any other
court any suit or process against the United States or any person who, at the time
when the cause of action alleged in such suit or process Euose, was' in respect
thereto, acting or professing to act, directly or indirectly under the authority ofthe
United States.
28 U.S.C. $ 1500. Section 1500 originates from a Reconstruction-era statute that was enacted to
prevent duplicative suits by cotton claimants seeking to recover for the value ofcotton taken by
the government during the Civil War. See Keene Corp. v. United States,508 U.S. 200, 206-07
(1993\; Nez Perce Tribe v. United States, S3 Fed. Cl. 186, 189(2008). The Supreme Court has
explained that the purpose ofthe statute is to "save the [g]ovemment from burdens of redundant
titigation." Tohono,563u.S.at3l5. In evaluating whether Section 1500 applies, the court must
determine "(1) whether there is an earlier-filed 'suit or process' pending in another court, and, if
so, (2) whether the claims asserted in the earlier-filed case are 'for or in respect to' the same
claim(s) asserted in the later-filed Court of Federal Claims action." Brandt v. United States,7l0
F.3d 1369, 1374 (Fed. Cir.2013) (citing Trusted Integration,659 F.3d at 1163-64 (intum citing
Tohono,563 U.S. at 309-11))

As to the first prong, a suit is pending from the time it is filed until the entry of final
judgment, and is again pending when a motion for reconsideration or appeal is f:I,ed,. Brandt,
71 0 F.3d at I 379-80. The court assesses whether an earlier-filed suit is pending "at the time the
complaint is filed" in this court. Id. at 1375 (citing Keene,508 U.S. at 207 ("[T]he jurisdiction
ofthe [c]ourt depends upon the state of things at the time of the action brought.")).
Here, Ms. Beberman concedes that she filed suit against the State Department in the
district court prior to bringing claims before this court, and such suit remains pending. Pl.'s
Opp'n at 2. Ms. Beberman also appealed the district court's denial of her motion for preliminary
injunctive relief before she filed suit in this court, and that appeal is pending as well. .See
generally Appellant's Br., Dei's Mot. App. Al08-4186. The claims presented in a pending
appeal before an appellate court are deemed pending claims for purposes ofapplying Section
1500. See, e.g., Williams v. United States, Tl Fed. Cl. 194, 199 (2006) (holding that plaintiffhad
a pending claim in an appeal before the D.C. Circuit at the time plaintiff filed suit in the Court of
Federal Claims); Ifilson v. United States,32 Fed. Cl. 794,795-96 (1995) (same); see also
Hornback v. United States,36 Fed. Cl. 552, 555-56 (1996) (dismissing plaintiff s complaint
pursuant to Section 1500 because the complaint addressed the same claim as plaintiff s earlierfiled pending appeal in the Ninth Circuit). Thus, Ms. Beberman's First Amended Complaint in
the district court and appeal in the Third Circuit constitute earlier-filed pending suits.
The government urges reliance on that context for its motion, but it also attempts to rely
on allegations in Ms. Beberman's Fourth Amended Complaint in the district court, filed
September 7,2016, aftcr Ms. Beberman filed her complaint in this court. ,See Def.'s Mot. at 7-8.
Because the inquiry as to applicability of Section 1500 is made as ofthe date of filing in this
court, the court cannot consider Ms. Beberman's subsequently filed Fourth Amended Complaint
in the district cou(. See, e.g., Low v. United States,90 Fed. Cl. 447 , 451 (2009) (explaining that
unlike plaintiff s original complaint in the district court, plaintiffs amended district court
complaint was "irrelevant" to the Section 1500 analysis because it was filed after plaintiff frled
suit in this court).
Regarding the second prong, the Supreme Court has stated that "[t]wo suits are for or in
respect to the same claim, precluding jurisdiction in [this court], ifthey are based on
substantially the same operative facts, regardless ofthe relief sought in each suit." Tohono, 563
U.S. at 317. Notably, the inquiry focuses on the facts underlying the challenged government
conduct, rather than the plaintiffs legal theories. See, e.g., Central Pines Land Co. v. United
States,69J F.3d 1360, 1365 (Fed. Cir.2012) (finding a "substantial overlap ofoperative facts"
because the two suits, "at best, repackaged the same conduct into two different theories");
Trusted Integration,659 F.3d at 1164 ("Importantly, the legal theories underlying the asserted
claims are not relevant to this inquiry.") (citing Keene,508 U.S. at 210). Courts applying this
test have distinguished "between background facts, which describe the context for the claims
presented in each suit, and operative facts, which provide the essential elements of the
government conduct at issue in the two suits." United States Home Corp. v. United States,l08
Fed. Cl. 191, 195 (2012) (citing Central Pines Land Co.,697 F.3d at 1365; Trusted Integration,
659 F.3d at 1168), aff'd,550 Fed. Appx. 895 (Fed. Cir. 2014). Although the operative facts must
substantially overlap, they need not be identical. Harbuck v. United States,58 Fed. Cl. 266,269
(2003), sff'd,378 F.3d 1324 (Fed. Cir. 2004).

Here, Ms. Beberman argues that the operative facts in the two suits are "completely

different." Pl.'s Opp'n at 2. Specifically, Ms. Beberman focuses on her First Amended
Complaint and motion for preliminary injunction in the district court, which she claims
addressed the State Department's alleged age discrimination in 2012 in Caracas, Venezuela, and
the impact of that discrimination on her employee evaluations and denial of tenure. Id. at 2-3.
Ms. Beberman argues that her complaint in this court focuses on a different time period and
dilferent govemment action by addressing only the State Department's actions after the denial of
tenure occuned. Id. at3-4. In support, Ms. Beberman primarily relies on Cooke v. United
States,77 Fed. Cl. 173 (2007), where the court ruled that Section 1500 did not apply due to
material factual differences between the two claims. In Cooke, plaintiff brought a gender
discrimination claim under the Equal Pay Act in this court, and a retaliation claim under the Fair
Labor Standards Act in the district court. Id. at 175,177-78. The court held that plaintifls
retaliation claim related to "later and different conduct" as compared to the discrimination claim,
explaining that the two claims involved "distinct time periods and distinct [g]ovemment
conduct." Id. at177-'78. Specifically, the gender discrimination pertained to alleged unequal pay
between 1997 and 2005, whereas the retaliation claim related to changes in plaintiff s
employment after February 2005, when plaintiff filed a formal complaint. Id. at 177 .
Ms. Beberman's argument and reliance on Coole might have been persuasive but for her
request to the district court for temporary or preliminary injunctive relief and her subsequent
appeal of the district court's denial of that relief. Although Ms. Beberman's First Amended
Complaint related to alleged discrimination in Venezuela prior to the denial of tenure, Ms.
Beberman's subsequent filings addressed events that occurred post-denial oftenure. In her
cunently pending appeal before the Third Circuit, which was filed before Ms. Beberman filed
suit in this court, Ms. Beberman specifically challenged the State Department's 2016 directive
for Ms. Beberman to leave Equatorial Guinea and retum to Washington, D.C. See, e.9.,
Appellant's Br. at 4, 38, Def.'s Mot. App. A121, A155. Unlike in Coolce, where the two suits
involved distinct time periods and distinct government conduct, the critical facts and time
periods underlying Ms. Beberman's claims are substantially the same in both suits even though
her legal theories are somewhat different, albeit related. Ms. Beberman's pending appeal in the
Third Circuit and complaint filed with this court both address the State Department's conduct
after the denial oftenure in2016, not before. See generally Compl.; Appellant's Br. Further,
Ms. Beberman argues in both suits that the State Department wrongly directed her to leave
Equatorial Guinea before the completion ofher assignment, resulting in an alleged loss of
benefits. Compl. fTl'I 9-23; Appellant's Br. at 4, 16, 48, Def.'s Mot. App. A121, A133, A165.
The State Department directive and loss ofbenefits are not mere background facts, but rather ate
critical to both Ms. Beberman's pending appeal and her complaint in this court. Thus, the two
suits are based on substantially the same operative facts: Ms. Beberman's departure from
Equatorial Guinea, the loss ofoverseas benefits, the lack oflocal benefits upon her return to
Washington, D.C., and the State Department's alleged discriminatory basis.6
oHere, Ms. Beberman claims that the State Department directly discriminated against her
by ordering her to leave Equatorial Guinea, whereas Ms. Beberman claims in her pending appeal
before the Third Circuit that her departure was the consequence ofprevious discrimination.
Compare Compl. (alleging that the government discriminated against Ms. Beberman on the basis
of her sex when she was directed to leave Equatorial Guinea and retum to Washington, D.C.),

The cou('s jurisdictional assessment is confirmed by principles ofresjudicata. See
Trusted Integration,659 F.3d at 1164; United States Home Corp.,l08 Fed. Cl. at 199-200
(citing Trusted Integration,659 F.3d at 1 170 n.5); see also Tohono, 563 U.S. at 31 5
( "Concentrating on operative facts is also consistent with the doctrine of claim preclusion, or res
judicata, which bars repetitious suits involving the same cause ofaction . . . .") (intemal
quotation marks and citations omitted). As the Federal Circuit explained in Trusted Integration,
the two relevant resjudicata tests for purposes ofa Section 1500 analysis are (1) "the act or
contract test" and (2) "the evidence test." 659 F.3d at 1 168-69 (citing Tohono,563 U.S. at 3 1 51 6). "lf two suits are determined to arise from the same claim under either of these res judicata
tests, . . . application of the bar of [Section] 1500 is likely compelled." Id. at 1170 n.5.
Here, Ms. Beberman's pending suits require the Third Circuit and this court to examine
the same evidence. The evidence test asks whelher "the same evidence support[s] and
establish[es] both the present and the former cause of action." Trusted Integration, 659 F .3d at
1169 (quoting Tohono,563 U.S. at 316). In both Ms. Beberman's pending appeal and complaint
before this court, Ms. Beberman's claims center on Ms. Beberman's departure from her post in
Equatorial Guinea before the completion ofher assignment, and whether such departure was the
result ofwrongful conduct by the State Department. Further, Ms. Beberman supports both suits
by alleging that she has suffered harm as a result ofher departure, specifically through the loss of
hardship pay, service-needs differential, and student loan repayments, as well as the lack oflocal
benefits in Washington, D,C. See llinnebago Tribe of Neb. v. United States,101 Fed. Cl. 229,
233-34 (2011) (finding substantial factual overlap between two suits because, inter alia,both
courts would be required to examine the same evidence in evaluating plaintiff s claims).
Although Ms. Beberman's suit in the district court suit also encompasses events prior to the 2016
State Department directive, this alone does not change the court's conclusion. Ms. Beberman's
allegations in this court are merely a "subset ofthe same factual allegations" presented in the
district court and the Third Circuit. See Harbuck,58 Fed. Cl. a|269-70.

wil, Appellant's Br. at 63, Def.'s Mot. App. A180

(stating that the directive to depart from
Equatorial Guinea resulted from Ms. Beberman's denial of tenure, "which was tainted by
discriminatory animus"). This distinction does not affect the outcome ofthe oourt's analysis.
The critical facts regarding Ms. Beberman's departure from Equatorial Guinea and diminution in
benefits remain the same. Additionally, both suits allege that but for the State Department's
alleged discrimination, the harm to Ms. Beberman would not have occurred. The facts thus
substantially overlap.

Conelatively, the fact that Ms. Beberman brought an age discrimination claim in the
district court and a gender discrimination claim here does not alter the analysis. Both suits relate
to alleged discrimination by the State Department, and Ms. Beberman's First Amended
Complaint in the district court repeatedly referred to alleged discrimination based on "age and
gender." See First Amended Complaint, Beberman v. United States Dep't of State,No.20140020, flfl 97-110 (D.V.I. May 22,2014), Def.'s Mot. App. A12-A14 (emphasis added).
Regardless of Ms. Beberman's legal theories, the facts underlying her two claims are intertwined
and thus the claims are based on substantiallv the same oDerative facts.

CONCLUSION
For the reasons stated, the govemment's motion to dismiss pursuant to 28 U.S.C. $ 1500
is GRANTED. This dismissal on jurisdictional gounds is without prejudice. The govemment's
motion to stay is DENIED as moot.? The clerk shall enter judgment in accord with this
disposition.

No costs.

It is so ORDERED.

Charled

'Plaintiff

s

motion to strike defendant's notice of related agency action is DENIED.

l0