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MESSICK v. UNITED STATES

November 21, 1997

MICHAEL J. YAMIN and SCOTT M. MESSICK, Plaintiffs,
v.
THE UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: STANTON

 Plaintiffs Yamin and Messick, field agents of the U.S. Department of State, Bureau of Diplomatic Security, New York Field Office, bring this action to obtain overtime compensation at the rate of time-and-a-half under section 7(a) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a), which provides:

 
(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

 Defendant United States of America moves to dismiss the complaint, under Fed. R. Civ. P. 12(b)(1), for lack of subject-matter jurisdiction. It argues that it has waived sovereign immunity only to the extent that Foreign Service employees may obtain district court review after they have exhausted the grievance procedures set forth in the Foreign Service Act ("FSA"), 22 U.S.C. §§ 4131-4140, which plaintiffs have not done.

 Thus, the only issue on this motion is whether the plaintiffs may press their suit under the FLSA or must defer court review until after they have followed the FSA's grievance procedures, as has traditionally been done. *fn1"

 1.

 "Absent a waiver, sovereign immunity bars the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994). Courts do not have jurisdiction over suits against the government unless it has consented to be sued. Id. "Indeed, the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Id. (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 770, 85 L. Ed. 1058 (1941) (alteration in original)).

 2.

 Title 28 U.S.C. § 1346(a)(2) provides that

 
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
 
. . .
 
(2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount *fn2" , founded either upon ...

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