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September 2, 1981


The opinion of the court was delivered by: Shadur, District Judge.


Teri S. Huddleston ("Huddleston") sues her former employer, the Secretary of the United States Department of Labor (the "Secretary"), claiming the Secretary violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d),*fn1 by compensating her at a level lower than that of a male counterpart allegedly doing "substantially equal work." Though Huddleston does not pray for a specific amount of damages, both parties agree the amount sought — to be determined by an accounting and to include attorney's fees and costs — exceeds $10,000.

In his answer the Secretary asserts this Court's lack of subject matter jurisdiction as a first affirmative defense. His position is that the Tucker Act, 28 U.S.C. § 1346(a)(2),*fn2 vests in the Court of Claims exclusive jurisdiction of non-tort claims against the United States in excess of $10,000. Huddleston has moved to strike that defense, asserting that FLSA Section 216(b) ("Section 216(b)") as amended in 1974 makes Equal Pay Act claims an exception to the Tucker Act.*fn3 For the reasons stated in this memorandum opinion and order Huddleston's motion to strike is denied and this action is transferred to the United States Court of Claims.

Huddleston maintains that Section 216(b) both (1) constitutes a waiver of the United States' sovereign immunity in Equal Pay Act cases*fn4 and (2) confers jurisdiction upon the district courts over such cases regardless of amount. Department concedes the first but contests the second of those contentions. In that respect Huddleston argues that the language of Section 216(b) plainly confers jurisdiction — stressing the underscored language:

  An action . . . may be maintained against
  any employer (including a public agency) in any
  Federal or State Court of competent jurisdiction.

Department responds that under the Tucker Act only the Court of Claims is of "competent jurisdiction" over any non-tort action seeking over $10,000 against the United States.

Only one Court has addressed the issue directly.*fn5 In Graham v. Henegar, 640 F.2d 732 (5th Cir. 1981), plaintiff firefighters employed by the United States at Ft. Bliss, Texas filed an FLSA action to recover unpaid overtime compensation and liquidated damages. Their complaint cited Section 216(b) and 28 U.S.C. § 1337 (actions under the commerce clause) as the jurisdictional bases for bringing the action in the District Court. After concluding that the claims exceeded $10,000 the Court of Appeals held sua sponte that the District Court lacked jurisdiction due to Tucker Act limitations (640 F.2d at 734):

  Because adjudication in a federal district court
  of a lawsuit that falls within the exclusive
  [over $10,000] jurisdiction of the Court of
  Claims would seriously undermine the purposes of
  the Tucker Act, courts confronting the issue have
  consistently held that the Court of Claims is the
  sole forum for the adjudication of such a claim,
  even though the claim would otherwise fall within
  the coverage of some other statute conferring
  jurisdiction on the district court.

Huddleston asserts Graham is simply wrong. She relies instead on Trans-Bay Engineers and Builders, Inc. v. Hills, 551 F.2d 370 (D.C. Cir. 1976) and Bor-Son Building Corp. v. Heller, 572 F.2d 174 (8th Cir. 1978). Those cases held district courts had jurisdiction over suits against the Department of Housing and Urban Development for housing construction subsidies, even though the subsidies sought exceeded $10,000. Huddleston also urges that the legislative history of the 1974 amendments to the Equal Pay Act (in which the language on which Huddleston seeks to rely was added to the statute) undermines Graham.

Trans-Bay and Bor-Son do support Huddleston's position analytically (despite differences in the legislation involved):*fn6

  1.  Both those Courts held that the
      jurisdictional scheme of the Tucker Act applies
      only when that Act also provides

      the sole basis for the asserted waiver of
      sovereign immunity.
  2.  Both also held that Section 1702 of the
      National Housing Act, 12 U.S.C. § 1702,*fn7
      constituted a waiver of sovereign immunity
      independent of the Tucker Act.
  3.  Finally in each action the Court found a
      basis for federal subject matter jurisdiction
      outside the Tucker Act — in Trans-Bay,
      28 U.S.C. § 1332 and 1331, and in Bor-Son,
      28 U.S.C. § 1442(a)(1).

Accordingly, those courts reasoned, the Tucker Act limitation did not apply. Huddleston urges an analogous basis for Tucker Act inapplicability, asserting a waiver of sovereign immunity under Section 216(b) and district court ...

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