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BROOKS v. WEINBERGER

January 27, 1986

John W. BROOKS, et al., Plaintiffs,
v.
Caspar W. WEINBERGER, Secretary, Department of Defense, et al., Defendants



The opinion of the court was delivered by: FLANNERY

 FLANNERY, District Judge.

 This matter is before the court on defendant's motion to transfer this case to the United States Claims Court on the ground that venue is not proper, or alternatively on the ground that subject matter jurisdiction is lacking. For reasons set forth below, defendant's motion to transfer is granted with respect to the non-District of Columbia plaintiffs in this case.

 I. Background

 This action has been brought by a number of federal law enforcement employees claiming that they have been denied their overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. for overtime duty whenever they are absent from work under certain circumstances, such as when they are on leave for jury duty. Plaintiffs claim that refusal to pay these workers violated the FLSA. The plaintiffs seek damages, along with a declaratory judgment, injunctive relief, and mandamus. This suit is being brought under 29 U.S.C. § 216(b) which permits similarly situated employees to "opt-in" to this suit by filing a consent form. There are currently 286 plaintiffs in the case.

 Defendants claim that this is essentially an action for damages against the United States government and that therefore it falls under the Tucker Act -- including the Tucker Act's venue provision which permits venue only in the district where the plaintiff resides. Thus, defendants argue, venue in this court is not proper since not all of the plaintiffs reside in the District of Columbia. The defendants also contend that this court lacks subject matter jurisdiction of the plaintiffs' claims since some opt-in plaintiffs have not expressly waived recoveries in excess of $10,000, as the Tucker Act requires in order to vest the district court with concurrent jurisdiction over claims against the federal government.

 II. Discussion

 A. Does the Tucker Act Apply to Plaintiff's Claims ?

 The Tucker Act at 28 U.S.C. § 1346(a) provides:

 
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: . . .
 
Any . . . civil action or claim against the United States, not exceeding $10,000 in amount, 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.

 The Fair Labor Standards Act at 29 U.S.C. § 216(b) provides:

 
(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

 The plaintiffs argue that their claims against the United States are not subject to the Tucker Act, but rather may be brought directly under the Fair Labor Standards Act. The basis for their argument is that the FLSA provides that an action under that Act may be maintained in any federal or state court of competent jurisdiction, and that that language provides a ...


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