[00:00:00] Speaker 04:
1906, Metzinger versus Department of Veterans Affairs.

[00:00:05] Speaker 04:
Ms.

[00:00:05] Speaker 04:
Riccio, whenever you're ready.

[00:00:08] Speaker 05:
Good morning.

[00:00:08] Speaker 05:
I am Marie Riccio, and may it please the court, I am appearing on behalf of the appellant and plaintiff, Dr. Rebecca Metzinger.

[00:00:17] Speaker 05:
This appeal is with respect to the transfer of a claim alleging violations of the Equal Pay Act that was filed in the Eastern District of Louisiana.

[00:00:31] Speaker 05:
The Equal Pay Act, as amended, was enacted by Congress as an amendment to the Fair Labor Standards Act.

[00:00:38] Speaker 05:
In short, and this is all I'll say about the act, in terms of its merits.

[00:00:44] Speaker 04:
We're very, I appreciate your walking us through this, but I think we're very familiar with all of that.

[00:00:51] Speaker 04:
Our court has a long history with these issues.

[00:00:54] Speaker 04:
And I must kind of say,

[00:00:57] Speaker 04:
You've been ping-ponged around on this, and that is recognized a little.

[00:01:05] Speaker 04:
I assume maybe at bottom you just want a home for your case to be heard?

[00:01:08] Speaker 05:
That is true, except I believe that the correct home is the Eastern District of Louisiana.

[00:01:16] Speaker 05:
And if I might just present the court with a case that I'm looking at that is not in the brief, and I would like to alert you to how I got to this.

[00:01:27] Speaker 05:
I went back and started to think that maybe we had all gone down a rabbit hole with respect to the Tucker Act, because the FSLA simply says that suit may be filed in any court of competent jurisdiction.

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And there is Supreme Court precedent on what constitutes a court of competent jurisdiction and defines it.

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And that was in Lightfoot versus Sendent mortgage.

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And it's a 137th Supreme Court 553.

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But I also saw that the Supreme Court in a Breuer case, now this is Breuer versus Jim's Concrete of Brevard, had a situation in which an FSLA claim was filed in a state court of Florida.

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And the defendant tried to remove it to a district court in the Middle District of Florida under 28 USC section 1441A.

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And the Supreme Court said there was no bar to the removal

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because under 1441A, any civil action brought in a state court of which the district courts of the United States have original jurisdiction may be removed.

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So when I read that, I think about the fact that if there's original jurisdiction in the district court with respect to the removal statute, I don't see that the Judge Vance's

[00:02:51] Speaker 05:
conclusion in the eastern district that only the court of federal claims had exclusive jurisdiction over this case was correct and that's really the essence of my argument.

[00:03:03] Speaker 04:
This is Judge Prost.

[00:03:05] Speaker 04:
I appreciate what you're saying.

[00:03:07] Speaker 04:
And just for future reference, the challenge we have with this presentation is we have a procedure 28J, where if you discover sort of new cases that are relevant, if you present them to the court before argument, it gives us an opportunity to think about it.

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And it also gives the other side an opportunity to be prepared to respond.

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which is a little bit more challenging in this context.

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So I would just point that out to you for future reference.

[00:03:39] Speaker 05:
And I appreciate that, Your Honor.

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What I do believe is that it isn't a new concept in the brief.

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I argued and wrote that the error here was the conclusion that either the Tucker Act or the Little Tucker Act

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required the court to conclude that the jurisdiction of the Court of Claims was exclusive.

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And really, that's where I'm coming from.

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The jurisdiction rests in the jurisdiction.

[00:04:09] Speaker 04:
I understand that certainly Supreme Court precedent would overrule, it comes above anything we say, but we do have our own precedent in the Abbey case, correct?

[00:04:20] Speaker 05:
That's correct.

[00:04:21] Speaker 05:
But Abby found that the Court of Claims has jurisdiction.

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It did not find that it was exclusive.

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And I think that's the essence of what's happening here.

[00:04:35] Speaker 02:
No one... I appreciate the point you're making, and I don't want to interrupt you, but I'd love to have a site to that Breuer case that you mentioned.

[00:04:44] Speaker 02:
Is that right?

[00:04:45] Speaker 02:
You said Breuer?

[00:04:46] Speaker 05:
Yes.

[00:04:46] Speaker 05:
It's B-R-E-U...

[00:04:49] Speaker 05:
And the citation is 538 US 691.

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It's a 2003 decision.

[00:04:57] Speaker 05:
And the reason why I believe that the court was wrong, and I'm talking about Judge Vance, in connection with the conclusion that she reached, was that she relied on a decision that came out of the Fifth Circuit many years ago that actually dealt with the Title VII

[00:05:18] Speaker 05:
exhaustion issues, and that was the Barnes v. Leavitt.

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My vague, vague recollection is that the government was not a defendant in that case, correct?

[00:05:28] Speaker 04:
No, and what happened in that case was... I'm sorry, did you say the government was not the defendant in that case, right?

[00:05:36] Speaker 05:
No, it was not a defendant.

[00:05:39] Speaker 05:
The government was not a defendant.

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It was a civil action brought under both Title VII and Equal Pay Act.

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But what the court had concluded in the Fifth Circuit in 1997 was that they hadn't exhausted remedies under the Title VII claim, and actually decided that there was no jurisdiction for the court because of the failure to exhaust remedies.

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And I think since then, the Supreme Court has actually come in and cast some doubt on the validity of even that part of Barnes v. Levitt, which was the majority of Barnes v. Levitt, and I believe that's in the

[00:06:15] Speaker 05:
the bend decision.

[00:06:19] Speaker 05:
I'll pull that in a second.

[00:06:21] Speaker 04:
Let me ask you about the... But on that case that you just cited to us, the Brewer case?

[00:06:26] Speaker 04:
Yes.

[00:06:27] Speaker 04:
If the government was not a defendant or a party in that case, why would it have any relevance to Tucker Act jurisdiction and the court of federal claims?

[00:06:39] Speaker 05:
I mean, I'm at a disadvantage because I don't have the case in front of me, but... Because the court said that the FLSA, because it allows for filing of a suit in any court of competent jurisdiction, and that means that you have to have an independent jurisdiction other than the act itself, is a...allows for a district court to have original jurisdiction.

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And I don't see anything in...

[00:07:07] Speaker 05:
the equal pay act that distinguishes a claim against the government from a claim against a private corporation if what we're talking about is the meaning of the words court of independent court of competent jurisdiction

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That's why I believe it's significant.

[00:07:26] Speaker 02:
Counsel, did you say, I think I understand your point to be that when referring to any court of competent jurisdiction, you're saying that what you've got here is you've got a Supreme Court saying that under federal question jurisdiction, the District Court in Florida was a court of competent jurisdiction.

[00:07:44] Speaker 05:
Correct.

[00:07:45] Speaker 05:
And we filed this action, this EPA action, under federal question jurisdiction.

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To me, what we have is a situation where the Tucker Act is being misinterpreted to include a result that I don't think Congress would have intended.

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And I say that because there is nothing that I have seen other than that Fifth Circuit decision.

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And it was really almost dicta in which the Fifth Circuit said, well,

[00:08:22] Speaker 05:
equal pay act claims come under Tucker Act and therefore we don't have jurisdiction of them if they're worth more than ten thousand dollars.

[00:08:30] Speaker 05:
I don't see anything in the federal circuit that has concluded that the jurisdiction of the Court of Claims is exclusive.

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So, and when I look at the implications here, they're very significant.

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You have a plaintiff who is in Louisiana and any one of the people who might bring one of these

[00:08:52] Speaker 05:
discrimination claims based on sex and wage discrimination is going to be operating where they have to go hire a lawyer in the federal court of claims or in that district, that region.

[00:09:09] Speaker 05:
They will have to try to

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subpoena witnesses outside of the jurisdiction where those witnesses reside?

[00:09:17] Speaker 02:
This is Judge Stoll.

[00:09:20] Speaker 02:
You know, one of the concerns I have about what you're saying, you're saying Abby doesn't say that the Court of Federal Claims is the only jurisdiction, but there's been quite a few courts who have interpreted Abby otherwise.

[00:09:35] Speaker 02:
How do you respond to that?

[00:09:37] Speaker 05:
Well, when I looked at what Abby was relying on, Abby also went back to an earlier Fifth Circuit case.

[00:09:45] Speaker 05:
It seems like everything started back with a case that, years ago, just reached the wrong conclusion.

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And in both situations, I think it's the Graham v. Hennigan case, I believe is what it was.

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In both situations, the court said that it was reaching that decision sui sponte, and it hadn't been briefed.

[00:10:07] Speaker 05:
I thought that was interesting.

[00:10:10] Speaker 05:
That was true for both the case that Judge Vance relied upon and this Hennigan decision, Graham v. Hennigar, that's what it was, Graham v. Hennigar, which was at 640F2nd, 732, the 1981 case that was mentioned in Abby.

[00:10:26] Speaker 05:
I don't believe that those decisions carefully considered what the ultimate results of

[00:10:37] Speaker 05:
their conclusion that there was a de facto exclusivity would cause in terms of the consequences.

[00:10:44] Speaker 04:
And I think that seems to be an argument that Abby was wrong, not that Abby didn't say what other courts think it said.

[00:10:54] Speaker 05:
I don't believe Abby was wrong.

[00:10:56] Speaker 05:
Under its facts, Abby concluded that the Court of Federal Claims has jurisdiction under the Tucker Act, and it does.

[00:11:04] Speaker 05:
It's just that so does the district court.

[00:11:07] Speaker 04:
Well, look at 1371 of Abbey.

[00:11:09] Speaker 04:
I mean, there are a number of quotes from Abbey.

[00:11:13] Speaker 04:
But that one says, and where the federal government is sued for damages or back pay, the Court of Confident Jurisdiction can only be one exercising Tucker Act jurisdiction.

[00:11:27] Speaker 05:
Well, in the end, what it concluded was that the Court of Claims has jurisdiction.

[00:11:33] Speaker 05:
That's the holding.

[00:11:34] Speaker 05:
The language may be something else, but the holding finds jurisdiction in the Court of Claims.

[00:11:39] Speaker 05:
And we don't disagree with that.

[00:11:41] Speaker 05:
There is jurisdiction in the Court of Claims.

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It's just that in this case, in Dr. Messinger's case, there was also jurisdiction, we believe, in the district court.

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And that's based on the language of the statute.

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There's nothing to suggest that a court of competent jurisdiction is going to exclude the district court when you have

[00:12:03] Speaker 05:
a Section 1331 arising under jurisdiction.

[00:12:15] Speaker 02:
You referred me to a Fifth Circuit 1981 case.

[00:12:21] Speaker 02:
when I asked you my question about courts interpreting Abby after Abby to give the Court of Federal Claims exclusive jurisdiction.

[00:12:31] Speaker 02:
But there are a number of courts that have.

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They're, in fact, cited by the government in a different brief and a different case.

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For example, the 10th Circuit cited

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Abby and said jurisdiction lies in the Court of Federal Claims and the DC Circuit did.

[00:12:52] Speaker 02:
What am I supposed to do with things like that?

[00:12:54] Speaker 02:
I mean, not only is there the language of Abby that Judge Proce was pointing out and there's the other language as well, but also other courts are interpreting Abby that way and agreeing and looking at the issue and agreeing with the Federal Circuit on that Abby is saying that the Court of Federal Claims has exclusive jurisdiction.

[00:13:16] Speaker 05:
Yes, well you have the court of the Federal Circuit has jurisdiction of this case under the Transfer Act.

[00:13:26] Speaker 05:
I think the Federal Circuit is really going to be the circuit that should interpret what the Court of Claims jurisdiction is.

[00:13:32] Speaker 05:
The question is whether or not the district courts around the nation also have jurisdiction and if they conclude

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as Judge Vance did, that there is a de facto exclusivity, and that's what she says, that's what's troubling, then I don't think it's correct.

[00:13:50] Speaker 05:
She didn't have a case that she could rely upon to suggest that there was no jurisdiction in the district court other than a case that she cited, which was the earlier Fifth Circuit opinion that I talked about, and that case

[00:14:10] Speaker 05:
was since disavowed in many ways because it concluded it had no jurisdiction under Title VII because it did exhausted remedies, had not exhausted remedies, and I don't think that was true.

[00:14:21] Speaker 05:
And it's almost a one small sentence, one short sentence of dicta in the end of that case in which the Fifth Circuit talks about the fact that the jurisdiction doesn't exist under the Equal Pay Act because of Tucker.

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And I don't think that any of these other courts in any of the decisions that I read explored what it means to be a court of competent jurisdiction the way the Supreme Court has identified that.

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And I looked at that in the Lightfoot case, which was the one I cited, 137 Supreme Court, 553.

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And of course, we do have the Bornez situation that I know that counsel for the government is going to address at length, which I didn't want to try to duplicate the argument that I know they're going to be making.

[00:15:08] Speaker 05:
To me, Breuer is on point to the extent that if a district court has original jurisdiction by virtue of 28 USC 1331, I don't see how that is in conflict with the jurisdiction that we asserted with respect to the FLSA, especially since that case addresses an FLSA claim.

[00:15:32] Speaker 04:
Okay.

[00:15:33] Speaker 04:
I think your time is exhausted unless any panel member has further questions.

[00:15:38] Speaker 04:
No.

[00:15:39] Speaker 04:
Okay.

[00:15:40] Speaker 04:
Why don't we hear from the government then?

[00:15:41] Speaker 04:
Thank you.

[00:15:43] Speaker 00:
Thank you, Judge Prost and may it please the court.

[00:15:46] Speaker 00:
The district court possessed federal question jurisdiction to entertain Dr. Metzinger's equal pay acclaim under 28 USC 1331 and therefore erred

[00:15:59] Speaker 00:
in transferring the claim for want of jurisdiction.

[00:16:03] Speaker 04:
I'm sure you're going to address this in your argument, so just let me make sure.

[00:16:07] Speaker 04:
I feel like at some point I'm getting whiplash.

[00:16:12] Speaker 04:
in these cases.

[00:16:14] Speaker 04:
I mean, initially, you argued that the case should be transferred to the Court of Federal Claims.

[00:16:21] Speaker 04:
And now you're taking a different view.

[00:16:23] Speaker 04:
As Judge Stowell alluded to, there's a case called Stein recently, the same time this case has been briefed.

[00:16:31] Speaker 04:
I think you submitted your red brief in December of 2020.

[00:16:35] Speaker 04:
And I think in February of 2021, the government, before the First Circuit,

[00:16:41] Speaker 04:
said that the court was right, the district court there, for transferring the case, another FLSA case, to the court of federal claims.

[00:16:51] Speaker 04:
And the government made a fulsome argument that Abby supported or compelled that.

[00:16:56] Speaker 04:
So am I missing something?

[00:16:58] Speaker 04:
Are there inconsistent positions being taken in these situations by the government or changing positions?

[00:17:07] Speaker 00:
Well, Your Honor, there shouldn't be.

[00:17:09] Speaker 00:
I confess I'm not familiar with Stein, but I can tell you that there is supposed to be coordination between the U.S.

[00:17:16] Speaker 00:
Attorney's Offices and our office.

[00:17:19] Speaker 04:
You don't even know about the Stein case?

[00:17:21] Speaker 00:
I'm sorry, Your Honor.

[00:17:22] Speaker 04:
You're not even familiar with that case that took place in the First Circuit?

[00:17:29] Speaker 00:
No, Your Honor.

[00:17:30] Speaker 00:
I'm not aware of that case.

[00:17:32] Speaker 04:
Well, what about the fact that the government initially took that same position here in this case, and then she just changed it in the midst of this case?

[00:17:43] Speaker 00:
I can speak to that, Your Honor.

[00:17:45] Speaker 00:
OK.

[00:17:45] Speaker 00:
It has been the consistent position of our office for some time now that the district courts possess jurisdiction in FILSA and equal payout cases.

[00:18:00] Speaker 00:
There's some question before Abby as to whether the Court of Federal Claims also possessed jurisdiction or not.

[00:18:12] Speaker 00:
Abby resolved at least part of that question with respect to whether the Court of Federal Claims has jurisdiction.

[00:18:20] Speaker 00:
But the exclusivity question is one that

[00:18:26] Speaker 00:
There should not be jurisdictional ping pong.

[00:18:29] Speaker 00:
We regret that there was a lack of coordination on the front end in this particular case.

[00:18:35] Speaker 00:
Once the case came to our office, we corrected the error in the position that was taken.

[00:18:44] Speaker 00:
So we respectfully apologize that there

[00:18:54] Speaker 02:
uh... has been inconsistent positions but for me this is Judge Stowell I didn't hear you say maybe why why why did the government change its mind in this particular case and decide you know at first to want to transfer the case and then change its mind is there a reason that you know of?

[00:19:18] Speaker 00:
there is not a principled reason there are some

[00:19:22] Speaker 00:
and close to 5,000 assistant US attorneys across the country, not every one.

[00:19:28] Speaker 00:
There was a lack of communication in this particular instance.

[00:19:35] Speaker 04:
I can't really add to that.

[00:19:38] Speaker 04:
If I'm right about Stein, that seems to be an ongoing issue.

[00:19:42] Speaker 04:
And I haven't looked at it.

[00:19:43] Speaker 04:
There were a number of district courts that have read Abbe as requiring that they transfer these SLSA cases.

[00:19:50] Speaker 04:
back to the Court of Federal Claims, so we're not really sure how widespread.

[00:19:56] Speaker 04:
What are we supposed to do that?

[00:19:58] Speaker 04:
I mean, so you've recognized, so the government is taking inconsistent positions because of lack of coordination with the various U.S.

[00:20:04] Speaker 04:
Attorneys' Offices around the country?

[00:20:06] Speaker 00:
What are we supposed to do?

[00:20:08] Speaker 00:
Well, no, no, no, Ronna, there has been coordination, but there was, unfortunately, there was a failure of communication in this particular case.

[00:20:16] Speaker 00:
There has been great efforts to communicate,

[00:20:19] Speaker 00:
and to try to be consistent, but as you rather noted, it has not been entirely consistent.

[00:20:25] Speaker 02:
Counsel, just so you know, in the Stein case, the first circuit just issued a decision days ago in which it dismissed the case holding that there was no jurisdiction in the district court and it was exclusively in the court of federal claims agreeing with the government's position.

[00:20:48] Speaker 00:
Your Honor, I apologize.

[00:20:50] Speaker 00:
I'm not familiar with Stein.

[00:20:51] Speaker 00:
It was not cited in the briefs.

[00:20:56] Speaker 02:
One of my law firms found it just doing a routine search.

[00:21:00] Speaker 02:
And just so you know, the appeal number is appeal number 20-1906.

[00:21:05] Speaker 02:
And again, it's in the First Circuit.

[00:21:08] Speaker 00:
Well, I would be happy to look at it right now.

[00:21:11] Speaker 02:
I'm just letting you know.

[00:21:14] Speaker 00:
If the court wishes for us to address that in a supplemental brief, we'd be happy to do so.

[00:21:19] Speaker 00:
But this is, to my knowledge, the first time that this court is deciding what is a very important issue on the merits of the question of whether the Court of Federal Claims

[00:21:36] Speaker 00:
has exclusive jurisdiction in FILSA claims or equal pay claims against the United States when the amount of controversy exceeds $10,000.

[00:21:48] Speaker 04:
And you don't think that Abby is best read as saying that?

[00:21:58] Speaker 04:
Or is it your view, as it seems to have been your friend on the other side or on your side now, that it was whatever Abby said was jifta because the only conclusion there was it's in the fourth quarter.

[00:22:12] Speaker 04:
federal claims and it doesn't exclude the district court.

[00:22:15] Speaker 00:
I agree with Ms.

[00:22:18] Speaker 00:
Riccio on that.

[00:22:21] Speaker 04:
So you're not arguing that Abby didn't say what it said.

[00:22:24] Speaker 04:
You're arguing that we can dismiss that as dicta because the conclusion in your view didn't necessarily compel that broader finding.

[00:22:33] Speaker 04:
Is that your view?

[00:22:33] Speaker 04:
Is that your position?

[00:22:36] Speaker 00:
Two answers to the question.

[00:22:37] Speaker 00:
Yes, it was dicta.

[00:22:39] Speaker 00:
uh... and and secondly i believe the language that your honor read from page thirteen seventy one of the abbey opinion is actually a citation to a government brief from nineteen ninety five long prior to poor me obviously the questioning has pointed out the government's position on these issues have evolved over time uh... and we think

[00:23:07] Speaker 04:
So the government's position now is that before Bormes, we agreed there was exclusive jurisdiction in the Court of Federal Claims.

[00:23:16] Speaker 04:
But the question then became whether or not Bormes dislodged that.

[00:23:19] Speaker 04:
And you're saying it did.

[00:23:21] Speaker 04:
And Abby was wrong in its analysis of Bormes.

[00:23:27] Speaker 00:
That's right.

[00:23:28] Speaker 00:
Because Bormes, a unanimous Supreme Court, explains that a self

[00:23:37] Speaker 00:
executing remedial schemes supersedes the gap-filling role of the Tucker Act.

[00:23:45] Speaker 04:
And... Okay.

[00:23:45] Speaker 04:
Well, do you understand that we would... We can't overrule our own precedent unless we conclude that... Yeah.

[00:23:54] Speaker 00:
And we are not asking the court to overrule Abby.

[00:23:57] Speaker 00:
The holding of Abby is that the Court of Federal Claims possesses jurisdiction, but Abby did not consider whether

[00:24:07] Speaker 00:
District courts also make your filth acclaimed.

[00:24:10] Speaker 00:
Abby did not squarely hold whether the jurisdiction of the Court of Federal Claims is exclusive.

[00:24:18] Speaker 00:
And to answer that question, we respectfully ask the court to return to the statute, Section 216B, which does not specifically mention the Court of Federal Claims.

[00:24:29] Speaker 00:
And instead, it broadly authorizes a remedy in any federal court of competent jurisdiction.

[00:24:36] Speaker 00:
not just one federal court, not just the Court of Federal Claims, Congress said any federal court.

[00:24:44] Speaker 00:
And so, you know, I would agree with Ms.

[00:24:47] Speaker 00:
Riccio, I believe, touched upon this, that it would be truly incongruous for this court to hold that any federal court does not include the district courts when the claim is asserted against the United States.

[00:25:05] Speaker 00:
When any federal court does include a district court, whenever the Filsa or Equal Pay Act claim is asserted against a private employer, they're all employers under the Act.

[00:25:19] Speaker 00:
They're all... District courts are all courts of competent jurisdiction under the same remedies provision, Section 216B.

[00:25:33] Speaker 00:
And so these are issues that Abby never grappled with.

[00:25:39] Speaker 02:
And... This is Judge Stoll, okay?

[00:25:42] Speaker 02:
I want to ask you something.

[00:25:44] Speaker 02:
There's some language in Abby about how the fairest reading of Section 216B is that it affirmatively invokes the forum specification for those damages suits found outside the four corners of the SLSA.

[00:25:58] Speaker 02:
The Tucker Act is the only available specification

[00:26:02] Speaker 02:
that has been identified.

[00:26:04] Speaker 02:
And then there's some other language later on that says that the best reading is that it's natural to read the provision that is 216b as implicitly specifying a forum, the Tucker Act forum,

[00:26:20] Speaker 02:
in order to complete the waiver of sovereign immunity.

[00:26:23] Speaker 02:
I mean, a lot of the rationale here in ABBE seems to be tied to the idea that the Court of Federal Claims is the only place that it is, by referring to a court of competent jurisdiction, the place that it's referring to there, Congress was referring to, was the Court of Federal Claims.

[00:26:41] Speaker 02:
So I have two questions for you.

[00:26:42] Speaker 02:
One is, what's your response to that?

[00:26:44] Speaker 02:
And the second one is,

[00:26:46] Speaker 02:
If we feel we are bound by Abby, then what option is there?

[00:26:51] Speaker 02:
Because we can't overrule prior panel precedent.

[00:26:55] Speaker 00:
Sure, Your Honor.

[00:26:57] Speaker 00:
I'd be happy to answer that.

[00:26:58] Speaker 00:
So we're not asking the court to overrule Abby.

[00:27:01] Speaker 00:
Abby obviously held what it held and said what it said.

[00:27:05] Speaker 00:
To the extent that Abby said that the court believes Abby said anything about the exclusivity question in the reasoning of that case,

[00:27:15] Speaker 00:
That is dicta and it is not persuasive and not binding upon this court for the reasons that we have articulated, Your Honor.

[00:27:24] Speaker 00:
And Bormese was the game changer, Your Honor.

[00:27:30] Speaker 00:
I mean, there were a lot of old cases before Bormese that looked at this problem from a different perspective.

[00:27:38] Speaker 00:
We certainly did look at it from a different perspective before Bormese.

[00:27:43] Speaker 00:
Bormese was a game changer.

[00:27:45] Speaker 00:
There the Supreme Court said the Tucker Act cannot be superimposed upon an existing remedial scheme.

[00:27:59] Speaker 04:
Besides, I know after the argument, you're certainly going to look up the Stein case that we've called your attention.

[00:28:08] Speaker 04:
You might also look at, since we're talking about the government's position on these matters, at 1370 of Abbey, the court cites

[00:28:19] Speaker 04:
some of the oral arguments by the Solicitor General in the Bormes case that you might want to take a look at as well or listen to that.

[00:28:28] Speaker 00:
Yes, Your Honor.

[00:28:28] Speaker 00:
And I'm familiar with that.

[00:28:29] Speaker 00:
And I would add that, Your Honor, that was, again, a statement made by the government prior to the decision in Bormes.

[00:28:38] Speaker 00:
And so we respectfully submit Bormes was a game changer.

[00:28:42] Speaker 00:
And the court should take a fresh look at this and get it right.

[00:28:46] Speaker 04:
Do you know if the government considered, the government did not petition for rehearing in ABBE.

[00:28:53] Speaker 04:
Do you know if there was any consideration or they just thought as you do know that ABBE is just fine because even though the rationale is different, that's dicta that can be ignored by our panel.

[00:29:08] Speaker 00:
Yet it's the latter, Your Honor, that it was dicta.

[00:29:13] Speaker 00:
We wouldn't normally request reconsideration just with respect to language and an opinion.

[00:29:19] Speaker 00:
But this is the case.

[00:29:22] Speaker 00:
This is the case to consider in the first instance whether district court jurisdiction is, whether the court of federal claims possesses exclusive jurisdiction

[00:29:36] Speaker 00:
or whether this particular district court erred in transferring the case.

[00:29:42] Speaker 00:
And so it's important for the court to reach this issue afresh.

[00:29:48] Speaker 00:
And the Fair Labor Standards Act, section 216B, it is exactly the kind of self-executing remedial scheme that was discussed in Gormees.

[00:30:07] Speaker 00:
In 216B, you have a remedial scheme that details who can sue, for what, and where.

[00:30:15] Speaker 00:
There is absolutely no reason to resort to the gap-filling role of the Little Tucker Act.

[00:30:21] Speaker 04:
But you recognize that at Abbe, our court said that statute-specific conclusion takes the FLSA case, this FLSA case, outside the reach of the Bournemouth principle.

[00:30:36] Speaker 04:
So our court clearly disagreed with your reading of Bormes, but you say it doesn't, it shouldn't restrain us or constrain us because the conclusion was simply that it stays in the court of federal claim?

[00:30:50] Speaker 00:
Your honor, that again, that we respectfully submit that's dicta and it's not persuasive that that reasoning we respectfully submit is inconsistent with Bormes.

[00:31:02] Speaker 00:
It's inconsistent with the

[00:31:05] Speaker 00:
statutory language of 216B, and it's inconsistent with the way that the language in 216B, any federal court of competent jurisdiction, that very same language in the same provision with respect to the same defendant employer is interpreted depending on the nature of the defendant.

[00:31:31] Speaker 00:
There's no indication that Congress ever intended to make such a distinction.

[00:31:37] Speaker 00:
And because Dr. Metzinger properly invoked the district court's federal question jurisdiction under section 1331, she's entitled to a merits determination in that forum.

[00:31:49] Speaker 00:
And we respectfully request that the court reverse the district court's transfer order for violating the transfer statute 1631.

[00:31:58] Speaker 00:
and ask the court to remand for the district court to adjudicate the merits of Dr. Metzinger's Equal Pay Act claim.

[00:32:05] Speaker 04:
Thank you.

[00:32:05] Speaker 04:
Well, Mr. Greenspoon, let me just conclude by saying, speaking obviously just for myself, I hope you appreciate the frustration that may exist.

[00:32:15] Speaker 04:
Resources of the judiciary are being expended here, as they were in the district court in

[00:32:22] Speaker 04:
Massachusetts by the federal, the first circuit.

[00:32:27] Speaker 04:
And now that case is presumably heading here where the government will take precisely the opposite view that forced the case to move forward the other way.

[00:32:37] Speaker 04:
So I hope you can appreciate that there's at minimum a bit of frustration in terms of the role of the judiciary not to speak to people like Ms.

[00:32:48] Speaker 04:
Metzinger who's being ping-ponged around with changing views by the government.

[00:32:54] Speaker 00:
I fully appreciate, Your Honor, your view on that, and we should be more consistent.

[00:33:05] Speaker 00:
We try to get it right.

[00:33:08] Speaker 00:
In this case, before the trial court, the Department of Justice made a motion it shouldn't have made.

[00:33:14] Speaker 00:
We own that mistake, and we're trying to get it right here in this proceeding on appeal.

[00:33:20] Speaker 01:
Yeah, can the court this court get any assurance that DOJ will do an inventory of the existing cases in the system so as to get its positions lined up?

[00:33:34] Speaker 01:
Your honor, like we have two mistakes.

[00:33:39] Speaker 01:
These are going to be inadvertent.

[00:33:40] Speaker 01:
Some a use of goofed.

[00:33:43] Speaker 01:
But I mean, is the position of the current justice department to say,

[00:33:47] Speaker 00:
we deal with the groups after they happen or are we proactive in trying to do an inventory to find out what systems are in what cases are in the system and make certain that there's a consistent policy of the usual level your honor we we have attempted to be consistent we have broadcast communications within the department of justice on this very point uh... and uh... all i can say is your your honor uh...

[00:34:15] Speaker 00:
there was a communication breakdown in this particular case.

[00:34:19] Speaker 01:
Thank you.

[00:34:25] Speaker 04:
Council, you have some reply time ready...available to you.

[00:34:32] Speaker 04:
Ms.

[00:34:32] Speaker 04:
Riccio?

[00:34:39] Speaker 03:
I apologize.

[00:34:39] Speaker 03:
This is Elise.

[00:34:40] Speaker 03:
I apologize.

[00:34:41] Speaker 03:
I do believe Ms.

[00:34:42] Speaker 03:
Riccio used up all of her rebuttal.

[00:34:45] Speaker 04:
Oh, okay.

[00:34:47] Speaker 04:
All right.

[00:34:47] Speaker 04:
Well, why don't we restore two minutes of rebuttal if she needs it.

[00:34:50] Speaker 04:
If she has nothing else to add, we're fine.

[00:34:53] Speaker 04:
Counsel?

[00:34:54] Speaker 04:
Thank you.

[00:34:59] Speaker 04:
She does appear to still be on the line.

[00:35:01] Speaker 04:
I'm not sure.

[00:35:01] Speaker 04:
Okay.

[00:35:01] Speaker 04:
Maybe she's mooted.

[00:35:04] Speaker 04:
Mm-hmm.

[00:35:04] Speaker 05:
Okay.

[00:35:05] Speaker 05:
I just wanted to alert the court that Judge Vance did not dismiss this case or dismiss it with prejudice.

[00:35:11] Speaker 05:
There's a statement in our brief

[00:35:14] Speaker 05:
says that, and that's not what happened.

[00:35:16] Speaker 05:
She transferred the case based on the fact that she believed she did not have jurisdiction, and I did want to correct that.

[00:35:22] Speaker 05:
And to make just one more comment about what's been going on with the... Frankly, it feels like a rabbit hole that we've been taking down.

[00:35:29] Speaker 05:
Your honors have sort of suggested that we're looking for a forum.

[00:35:33] Speaker 05:
That is true because Dr. Metzinger deserves a forum.

[00:35:36] Speaker 05:
But, you know, the government's position was in the Eastern District of Louisiana opposite to the position that they took.

[00:35:44] Speaker 05:
in the Abbey case, and it looks like what, again, I would urge the court to do is to go back to these original jurisdiction statutes and do an analysis that doesn't look to what the argument is by the council or the parties, but simply what the language of the statutes themselves say, because I think that's what I finally tried to do once I also read those opinions that seemed to ping pong back and forth.

[00:36:13] Speaker 04:
Thank you.

[00:36:14] Speaker 04:
We thank both sides and the case is submitted.

[00:36:18] Speaker 04:
Thank you.