BEBERMAN v. USA

Filing 4

REPORTED OPINION: Ms. Beberman's complaint is DISMISSED sua sponte for lack of jurisdiction. The Clerk is directed to enter judgment. Signed by Judge Patricia E. Campbell-Smith. (ew) Copy to parties. Tracking #7014 1200 0000 9093 6965.

O
RIGINAL
3Jn tbe Thlniteb ~tate.s QCourt of jfeberal QClaim.s
No. 17-01 79C
(Filed: April 4, 2017)

JULIE A. BEBERMAN,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

FILED
APR - 4 2017
U.S. COURT OF
FEDERAL CLAIMS

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Pro Se; Equal Pay Act; 29 U.S.C.
§ 206(d) (2012); Lack of Subject
Matter Jurisdiction; 28 U.S.C. §1500
(2012); RCFC 12(h)(3).

~~~~~~~~~)
ORDER

Prose plaintiff, Julie Beberman, an employee of the United States Department of
State (State Depaitment), 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) (20 12)),
alleging gender-based discrimination in pay and benefits. See Comp!. (2017 CFC
Comp!.) ilil 1, 25, 29, ECF No. 1. Ms. Beberman alleges that the government
discriminated against her by paying her less and providing her with fewer benefits than a
similarly situated male employee within the State Department. Id. ilil 19-26. Ms.
Beberman seeks " back pay, liquidated damages, benefits, interest, and injunctive relief."
~

il 1.

As outlined below, 28 U.S .C. § 1500 bars jurisdiction in this court because (1) Ms.
Beberman has an earlier-filed pending action against the State Department in the United
States District Court for the District of the Virgin Islands (district court), and (2) the claims
in the district court arise from the same operative facts as the claims asse1ted in this court.
See 28 U.S.C. §1500 (20 12). In accordance with rule 12(h)(3) of the Rules of the United
States Court of Federal Claims (RCFC), Ms. Beberman's complaint is DISMISSED sua
sponte for lack of jurisdiction.

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7014 1200 ODDO 9093 6965

I.

Background 1

Ms. Beberman is employed by the State Department as a non-tenured member of
the Foreign Service. 2017 CFC Comp!.'\['\[ 3, 5. Upon entry to the Foreign Service,
employees serve under a limited appointment for a trial period not to exceed five years,
22 U.S.C. §§ 3946(a), 3949(a) (2012), during which a commissioning and tenure board
recommends whether an employee should receive tenure and a career appointment. See
22 U.S.C. § 3946(b); 3 Foreign Affairs Manual§ 2245 (available at
https://fam.state.gov). In March 2016, Ms. Beberman was serving at Embassy Malabo in
Equatorial Guinea, where she allegedly "received overseas comparability pay, hardship
pay, service needs differential, a cost of living allowance, housing, substantial overtime
compensation, and was eligible to patiicipate in ... the student loan repayment program."
2017 CFC Comp!. ii 9.
On March 27, 2016, Ms. Beberman's limited career appointment expired without
an offer of tenure. Id. '\[ 6. Thereafter, the State Department placed Ms. Beberman on a
"Separation Order" and directed her to return to Washington, D.C. before the scheduled
completion of her assignment at Embassy Malabo. Id. '\['\[10-11. Ms. Beberman alleges
that she did not receive an overnight stop, home leave, a temporary quarters service
allowance, or the opportunity to retrieve her household effects. Id.'\['\[ 11-14, 34. Ms.
Beberman further alleges that she did not initially receive "Washington locality pay or a
transit subsidy" upon returning to Washington, D.C. and "was not initially given a formal
Washington assignment." l!L '\[ 15-16.
A.

CFC Litigation

On August IS, 2016, Ms. Beberman brought her first action in this court under the
Equal Pay Act. See Beberman v. United States, No. 16-1006 (Fed. Cl. Aug. 15, 2016)
(2016 CFC Comp!.). Therein, she made a claim that is virtually identical to her instant
complaint, as outlined below.
Ms. Beberman alleged that the government 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 a similarly situated male employee. 2016 CFC Comp!. 'If'\[ 21-23; 2017 CFC
Comp!. '\['\[ 25-28. Specifically, Ms. Beberman alleged that a male Foreign Service
employee's limited appointment also terminated on March 27, 2016 without a
recommendation of tenure, but the State Depatiment 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
1

The facts recited here are taken from the complaint. The court makes no finding
of fact in this opinion.
2

responsibilities. 2016 CFC Compl. iiii 12-17, 22-23; 2017 CFC Compl. iiii1, 17-20, 2728. Ms. Beberman further alleged that after completing his assignment and returning to
the United States, the male employee was immediately granted Washington locality pay
and was eligible for a transit subsidy. 2016 CFC Comp!. ii 20; 2017 CFC Compl. ii 23.
As in the instant complaint, Ms. Beberman requested that the court reinstate her to
service at the embassy in Equatorial Guinea until the scheduled completion of her
assignment there. 2016 CFC Compl. ii 26; 2017 CFC Compl. ii 38. Ms. Beberman
further requested back pay for the benefits she lost when reassigned, repayment for transit
subsidies she did not immediately receive upon her return 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. 2016 CFC Compl. ii 27; 2017 CFC
Compl. ii 40.
On December 8, 2016, the Court of Federal Claims determined that Ms.
Beberman's 2016 complaint was barred under 28 U.S.C. § 1500 by a prior suit filed in
May 2014 against the State Department in the district court, based on a finding that the
two suits arose from the same operative facts. Beberman v. United States, 129 Fed. Cl.
539, 54 7 (2016).
B.

District Court Litigation and Appeal

On May 9, 2014, Ms. Beberman initiated an action in the district court against the
State Department, alleging, among other things, gender discrimination2 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. 92-261, 86 Stat. 103, 111, and
age discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. § 633a (2012). See Comp!., Beberman v. U.S. Dep't of State, et al.,
No. 14-0020 (D.V.I. May 22, 2014) (Beberman D.V.I. or D.V.I.).
On May 22, 2014, Ms. Beberman filed her first amended complaint, alleging that
she began her career at the State Department in January 2010, and was assigned to work
at the United States Embassy in Caracas, Venezuela in October 2011. D.V.I. First
Compl. iiii 13, 62. On July 26, 2012, Visa Chief Eric Cohan became Ms. Beberman's
immediate supervisor, id. ii 70, and Ms. Beberman alleges that Mr. Cohan repeatedly
engaged in discriminatory behavior against her on the basis of her "age and gender"
while she was serving in Caracas, Venezuela. See id. iiii 70-93.
On March 18, 2016, after moving to Equatorial Guinea, and while her 2014
complaint was still pending, Ms. Beberman learned that the board had denied her tenure.
2

Ms. Beberman later withdrew the gender discrimination claim in her first amended
complaint.
3

See Beberman D.V.I., ECF No. 56. Ms. Beberman then filed a motion for a temporary
restraining order or preliminary injunction, in which she requested that the district court
direct the State Department to retain her "in her current assignment at the U.S. Embassy
in Malabo, Equatorial Guinea until she fulfills her assignment in December 2017." Id. at
1. In her motion, Ms. Beberman argued that Mr. Cohan's "discriminatory animus"
"based on her age and gender" was reflected in an annual employee evaluation report
drafted during the time that he supervised Ms. Beberman, id. at 2, and that the board
subsequently denied her tenure because of that negative review. Id. ("the facts would
show that the negative EER was motivated by Cohan's discriminatory intent [] and that
the discriminatory animus ... proximately caused the [Commissioning and Tenure
Board] to deny Beberman tenure."). In further support of the motion, Ms. Beberman
argued that a departure from Equatorial Guinea would result in "irreparable harm"
because she would be required to "pack up her belongings," "leave her residence,"
"return to Washington, D.C.," and because she would "lose substantial benefits,
including, but not limited to, the hardship pay ... service[-]needs differential, and access
to the Student Loan Repayment Program." Id. at 5.
On March 24, 2016, the district court denied Ms. Beberman's motion for a
temporary restraining order, see Beberman D.V.I., ECF No. 74, and Ms. Beberman
moved for reconsideration. See Beberman D.V.I., ECF No. 76. On April 4, 2016, the
district court denied Ms. Beberman's motion for reconsideration. See Beberman D.V.I.,
ECF No. 85.
In response, Ms. Beberman filed an immediate notice of appeal and an urgent
motion for an injunction with the United States Court of Appeals for the Third Circuit.
See Beberman D.V.I. ECF No. 87; Beberman v. U.S. Dep't of State, No. 16-1788 (3d.
Cir. Apr. 4, 2016). On April 5, 2016, the Third Circuit denied Ms. Beberman's urgent
motion because she failed to demonstrate that irreparable harm would be caused by her
reassignment. Beberman v. U.S. Dep't of State. No. 16-1788 (3d Cir. Apr. 5, 2016)
("[f]or substantially the reasons set for by the District Court, [Ms. Beberman] failed to
demonstrate irreparable harm."). Following that decision, the government filed a motion
to dismiss Ms. Beberman's complaint in the district court. See Beberman D.V.I., ECF
No. 92. On July 19, 2016, the district court stayed the proceedings to allow for resolution
of the appeal before the Third Circuit. See Beberman D.V.I., ECF No. 97.
On September 7, 2016, Ms. Beberman filed a fourth motion to amend her
complaint with the district court, followed by a motion to lift the stay for the limited
purpose of the court ruling on her motion to amend. See Beberman D.V.I., ECF Nos. 98,
100. On November 8, 2016, the district court granted Ms. Beberman's motions and

4

accepted her fourth amended complaint. See Order, Beberman D.V.I., ECF No. 102. 3
On March 6, 2017, the Third Circuit affirmed the district court's orders denying Ms.
Beberman's motion for preliminary injunction and subsequent motion for
reconsideration. Beberman v. U.S. Dep't of State, No. 16-1788 (3d Cir. Mar. 6, 2017).
At present, Ms. Beberman' s 2014 case remains pending in the district court. This
court must therefore determine whether that suit still bars jurisdiction over the present
action under§ 1500. See Beberman, 129 Fed. Cl. at 547.
II.

Legal Standards

The Court of Federal Claims is a court of limited jurisdiction. Jentoft v. United
States, 450 F.3d 1342, 1349 (Fed. Cir. 2006) (citing United States v. King, 395 U.S. 1, 3
( 1969)). The Tucker Act confers upon the Court of Federal Claims jurisdiction to
"render judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an 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. § 149l(a)(l) (2012). The
Court of Federal Claims "may not entertain claims outside this specific jurisdictional
authority." Adams v. United States, 20 Cl. Ct. 132, 135 (1990) (citation omitted).
Congress has carved out an additional exception within the court's grant of
subject-matter jurisdiction in 28 U.S.C. § 1500. Section 1500 provides:
The United States Court of Federal Claims shall not have jurisdiction of any
claim for or in respect to which the plaintiff or 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
arose, was, in respect thereto, acting or professing to act, directly or indirectly
under the authority of the United States.
28 U.S.C. § 1500. When§ 1500 applies, this court lacks jurisdiction and must dismiss
the complaint. See id.; United States v. Tohono O'Odham Nation, 563 U.S. 307, 314, 318
(2011); see also RCFC 12(h)(3).
To determine whether § 1500 applies, a court must answer two questions in the
affirmative: "( 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 ease are 'for or in
3

On November 8, 2016, Ms. Beberman filed a fifth motion to amend her complaint
that remains pending. See Beberman v. U.S. Dep't of State, No. 14-0020 (D.V.I. Nov. 8,
2016), ECF No. 102. As of the date of this filing, plaintiffs fourth amended complaint is
operative.
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respect to' the same claim or claims asserted in the later-filed action in [this court]."
Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013) (citing Trusted Integration,
Inc. v. United States, 659 F.3d 1159, 1163-64 (Fed. Cir. 2011)). As to the first question,
a claim is "pending" from the time that it is filed until a final judgment is entered, and
begins pending once again when a motion for reconsideration or a notice of appeal is
filed. Id. at 13 79-80. As to the second question, courts must distinguish between
operative facts and background facts; only those facts that "are critical to plaintiffs'
claims in both actions" are relevant. See Central Pines Land Co. v. United States, 697
F.3d 1360, 1364-65 (Fed. Cir. 2012). The Supreme Court has held that, "[t]wo suits are
for or in respect to the same claim, precluding jurisdiction in [this court], if they are based
on substantially the same operative facts, regardless of the relief sought in each suit,"
Tohono, 563 U.S. at 317, or the legal theories asserted, Keene Corp. v. United States, 508
U.S. 200, 210 (1993).
III.

Discussion
A.

An Earlier-Filed Suit Is Pending In The District Court

In this case, the first prong of the test under § 1500 is clearly satisfied. Ms.
Beberman has pending a suit against the State Department in the district court that was
filed more than two years before she initiated her complaint with this court. There can be
no reasonable dispute that there is "an earlier-filed 'suit or process' pending in another
court." Brandt, 710 F.3d at 1374.
B.

The District Court Suit Is For Or In Respect To The Same Claims At Issue
In This Action

The second prong of this test is also satisfied for the same reasons painstakingly
detailed in the court's December 2016 opinion, namely that the two suits are based on the
same operative facts: Ms. Beberman's departure from Equatorial Guinea, the loss of
overseas benefits, the lack of local benefits upon her return to Washington, D.C., and the
State Department's alleged discriminatory basis. See Beberman, 129 Fed. Cl. at 546-47.
Ms. Beberman's allegations and arguments in the district court action clearly demonstrate
that her two suits are based substantially on the same allegations of government conduct
repackaged into different legal theories in each case.
Throughout the course of her district court litigation, Ms. Beberman has
repeatedly argued that Mr. Cohan's "discriminatory animus" reflected his bias against
Ms. Beberman based on her "age and gender." Beberman D.V.I., Fourth Am. Comp!. iii!
95, 103-08, 110, 113, ECF No. 98. Ms. Beberman asserts that this discriminatory
treatment led directly to the board's decisions to deny her tenure and place her on
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separation orders, D.V.I. Fourth Am. Comp!. iii! 95, 111-13, in retaliation for bringing her
claims of discrimination in district court. D.V.I. Fourth Am. Comp!. iii! 49, 50, 92, 94.
Finally, she alleges that, the State Department retaliated against her by treating her
differently than another foreign service employee who: (1) was denied tenure on March
27, 2016; (2) was permitted to remain in his overseas assignment; and (3) received
permanent change of station orders to his new assignment in Washington, D.C. D.V.I.
Fourth Am. Comp!. iii! 149-52.
In the instant litigation, Ms. Beberman challenges the same government conduct
that she challenged in her district court action: the receipt of separation orders and the
transfer from the Embassy Malabo to Washington, D.C. following her tenure denial. In
the district court, Ms. Beberman alleges that her separation orders and return to
Washington, D.C. were part of the State Department's retaliation against her for turning
down an offer of settlement in mediation and bringing an ADEA claim alleging age
discrimination. D.V.I. Fourth Am. Comp!. iii! 49, 152. Here, Ms. Beberman characterizes
the separation orders and the subsequent return to Washington, D.C. as a violation of the
Equal Pay Act alleging gender discrimination. 2017 CFC Comp!. iii! 25, 29.
Similarly, she points to the difference in treatment of another Foreign Service
employee as evidence of retaliation for her ADEA claim in the district court action,
D.V.I. Fourth Am. Comp!. ~1152, and as a violation of the Equal Pay Act in this Court,
2017 CFC Comp!. iii! 31-32. In both suits, she has alleged that she will establish the
following facts, in patticular that the other foreign service employee: (1) had his limited
career appointment expire on the same day as Ms. Beberman, 2017 CFC Comp!. ii 7;
D.V.I. Fourth Am. Comp!. iJ149; (2) was permitted to remain in his overseas assignment
while she was not allowed to complete her assignment, 2017 CFC Comp!. iii! 19-20;
D.V.I. Fourth Am. Comp!. iii! 150-51; and (3) received permanent change of station
orders to his new assignment in Washington, D.C. while Ms. Beberman was placed on
separation orders, 2017 CFC Comp!. iii! 21-24; D.V.I. Fourth Arn. Comp!. iJiJ150-51.
It is readily apparent when comparing both of Ms. Beberman's complaints that the
same facts "are critical to plaintiff[']s claims in both actions." See Central Pines Land Co.
v. United States. 697 F.3d 1360, 1364-65 (Fed. Cir. 2012). Thus, the operative facts are
the same; specifically, "Ms. Beberman's claims center on Ms. Beberman's depa1ture
from her post in Equatorial Guinea before the completion of her assignment, and whether
such departure was the result of wrongful conduct by the State Department." Beberman,
129 Fed. Cl. at 547. "Further, Ms. Beberman supports both suits by alleging that she has
suffered harm as a result of her departure, specifically through the loss of hardship pay,
service-needs differential, and student loan repayments, as well as the lack of local
benefits in Washington, D.C." Id. Finally, the relief sought by Ms. Beberman in both
cou1ts is the same in that she seeks immediate reinstatement at Embassy Malabo with
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reinstatement of the benefits associated with that post, back pay, repayment of transit
subsidies, and liquidated damages. 2017 CFC Comp!. iii! 38, 40; D.V.I. Fourth Am.
Comp!. at 22-23.
At best, Ms. Beberman has" repackaged the same conduct into two different
theories," which is insufficient to avoid the application of§ 1500's jurisdictional bar. See
id. at 1364; see also Trusted Integration, 659 F.3d at 1168 ("the legal theories underlying
the asse1ied claims are not relevant to this inquiry.").
IV. Conclusion
For the foregoing reasons, the court finds that it lacks jurisdiction over plaintiffs
claims under§ 1500. Therefore, the court has no alternative but to sua sponte dismiss
plaintiffs case for lack of subject-matter jurisdiction. The Clerk of Court shall enter
judgment DISMISSING plaintiffs complaint without prejudice. Once judgment is
entered this matter is considered closed. The Clerk's Office is directed to return any
future filings not in compliance with this court's rules to plaintiff, unfiled, without further
order.
IT IS SO ORDERED.

y----,

~~,o:
Judge

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