Greenhill, Frances v. Spellings, Margaret

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 2007 Decided April 6, 2007

No. 06-5030

FRANCES L. GREENHILL,

APPELLANT

V.

MARGARET SPELLINGS,

SECRETARY, U.S. DEPARTMENT OF EDUCATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01100)

Daniel Moar, Student Counsel, argued the cause for

amicus curiae in support of appellant. With him on the briefs

were Stephen H. Goldblatt, Director, and Michael Huang,

Student Counsel.

Frances L. Greenhill, pro se, was on the briefs for

appellant.

Megan L. Rose, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

2

Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered

an appearance.

Before: GARLAND and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: In 2002 Frances

Greenhill received a letter from the Department of Justice

rescinding an offer of employment. This rescission was the

result of a negative reference, which Greenhill claims came

from her former supervisor at the Department of Education in

contravention of a settlement agreement. Plaintiff brought

suit in district court, seeking $210,000 in damages and some

equitable remedies. The district court concluded that the

cause of action was within the exclusive jurisdiction of the

Court of Federal Claims. We agree. We remand the case to

the district court with instructions to transfer the case to that

court.

* * *

Greenhill, an employee of the Department of Education

(“DOE”), executed a settlement agreement with the

Department in 1999 to resolve complaints of age and race

discrimination that she had filed with the Equal Employment

Opportunity Commission (“EEOC”). According to the

agreement, DOE was to remove certain documents from

Greenhill’s record and to direct to a specified person all

requests for employment references on Greenhill. In February

2002, Greenhill received an offer of employment from the

Department of Justice (“DOJ”), pending a background

investigation. But on June 21, 2002 DOJ wrote to Greenhill

rescinding the offer, citing a negative reference from DOE.

3

Because Greenhill believed that DOE had breached the

1999 settlement, she consulted with Equal Employment

Specialist Cathy Hawkins during the summer of 2002. The

1999 agreement required that any complaint alleging breach

must be filed “in writing within thirty (30) calendar days of

the date [Greenhill] knew or should have known of the alleged

noncompliance.” Joint Appendix (“J.A.”) 41. Plaintiff in fact

didn’t submit a written complaint until July 30, 2003, more

than a year after she learned of the bad reference. The Equal

Employment Opportunity office at DOE initially accepted

Greenhill’s complaint for formal processing but on August 17,

2004 dismissed it for lack of timeliness. The EEOC affirmed

the dismissal and sent Greenhill a right-to-sue letter. Plaintiff

then filed a timely pro se complaint in district court seeking

$210,000 in damages and various forms of equitable relief,

including reinstatement to her position at DOE, restoration of

leave, and reinstatement into retirement and savings plans.

Noting that the Court of Federal Claims has exclusive

jurisdiction over all contract claims against the federal

government in excess of $10,000, the court dismissed the

cause of action without prejudice for want of jurisdiction.

* * *

The Tucker Act provides that “[t]he United States Court

of Federal Claims shall have jurisdiction to render judgment

upon any claim against the United States founded . . . 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. § 1491(a)(1). Although the Little Tucker Act

gives district courts jurisdiction over certain similar claims

against the federal government, the jurisdiction of the Court of

Federal Claims is exclusive when a plaintiff seeks more than

$10,000 in damages. See 28 U.S.C. § 1346(a); Sharp v.

Weinberger, 798 F.2d 1521, 1523 (D.C. Cir. 1986).

4

As we said, Greenhill’s complaint requested $210,000 as

well as equitable relief. Although the complaint did not

explicitly denominate the $210,000 claim as one for contract

damages (as opposed, for example, to back pay under Title

VII, see Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir.

2006)), neither Greenhill nor amicus argues that the amount

sought is anything other than contract damages. Thus the

complaint on its face appears to be one over which the Court

of Federal Claims has exclusive jurisdiction.

On appeal, Greenhill has benefited from the able

advocacy of amicus, who offers several theories to avoid the

jurisdictional limitation. Close inspection, though, reveals

none of them to be availing. First, amicus argues that the

district court failed to recognize a Title VII retaliation claim in

Greenhill’s complaint or, alternatively, in her motion for the

court to reconsider its dismissal of the complaint. The district

court would have had jurisdiction over a retaliation claim and,

according to amicus’s theory, could then have exercised

supplemental jurisdiction over the contract claim. See

Rochon, 438 F.3d at 1215.

The Supreme Court has stated that pro se complaints,

“however inartfully pleaded,” are to be held “to less stringent

standards than formal pleadings drafted by lawyers.” Haines

v. Kerner, 404 U.S. 519, 520 (1972). We have also permitted

courts to consider supplemental material filed by a pro se

litigant in order to clarify the precise claims being urged. See

Anyanwutaku v. Moore, 151 F.3d 1053, 1054 (D.C. Cir.

1998). But even under these liberal pleading standards

Greenhill has not shown that a Title VII retaliation claim was

before the district court.

Essentially, Greenhill argues that the negative evaluation

supplied to DOJ by her former supervisor, Mary Brayboy, is

indicative of animus toward Greenhill and thus “supports an

5

inference of retaliation.” Amicus’s Br. at 28. Although

providing a negative employment reference may be consistent

with retaliatory behavior, the district court here could not

reasonably be expected to discern a separate retaliation claim.

The complaint makes no reference to retaliation, and the

negative statements by Greenhill’s former supervisor, without

more, are not self-evidently retaliatory.

Amicus also points to two statements in the record that

supposedly should have placed the district court on notice that

Greenhill sought to pursue a retaliation claim. In an August

24, 2004 letter to the EEOC, Greenhill wrote that “Ms.

Brayboy retaliated as well as discriminated as stated in the

first complaint claimed.” J.A. 77. Also, in a declaration

before the EEOC, Greenhill asserted, “I am a victim of race

and disability discrimination.” J.A. 11. These are, at best,

two isolated statements in over 100 pages of documents—a

potpourri of letters, declarations, e-mail exchanges, and the

like—that plaintiff attached to the complaint. Although

accompanying documents might clarify an otherwise

ambiguous complaint, see Stewart v. National Education

Association, 471 F.3d 169, 173 (D.C. Cir. 2006), nothing in

our case law requires a district court to go on a fishing

expedition for new claims.

Alternatively, amicus asserts that Greenhill’s motion for

reconsideration of the district court’s dismissal of her

complaint effectively amended the original complaint. In that

motion, amidst numerous charges of malice, recklessness, and

evil intent on the part of Ms. Brayboy, Greenhill asserted that

she was the victim of “intentional discrimination.” J.A. 212–

14. Although Greenhill included numerous allegations and

declarations in her pro se motion, the essence of the motion

was: “Ms. Mary Brayboy in fact did breach our 1999 . . .

settlement . . . .” J.A. 212. The other statements did nothing

to clarify or amend the original complaint; rather, by all

6

appearances, they simply sought to bolster the argument that

there was a breach.

Consequently, we reject amicus’s suggestion that

Greenhill brought a Title VII claim within the district court’s

jurisdiction. We thus have no occasion to consider the

possible application of Rochon, i.e., whether, or under what

circumstances, a district court might exercise supplemental

jurisdiction over contract claims that otherwise fall within the

exclusive jurisdiction of the Court of Federal Claims.

Amicus’s second theory for avoiding the exclusive

jurisdiction of the Court of Federal Claims relies on the fact

that the settlement agreement explicitly precludes Greenhill

from recovering damages. Because of this bar, amicus says,

Greenhill can in fact obtain only equitable relief; and because

the Court of Federal Claims can award only money damages

(a much oversimplified proposition, as we note below), that

court lacks jurisdiction to award Greenhill any relief. Amicus

anticipates that if the present case were brought in the Court

of Federal Claims, the government would argue that the court

lacks jurisdiction on precisely these grounds. To be sure, it

would be unseemly for a party to engage in a “paper charade,”

arguing to a district court that the Court of Federal Claims has

exclusive jurisdiction over a case, only to make a

contradictory jurisdictional argument once the case is

transferred. See Stovall v. United States, 71 Fed. Cl. 696,

697–98 (2006). But there is no reason to believe that the

government has behaved or will behave with such duplicity

here. More to the point, the possibility of shenanigans by a

party doesn’t permit a court to ignore jurisdictional defects.

Jurisdiction is determined by looking to the complaint.

See Tootle v. Secretary of the Navy, 446 F.3d 167, 174 (D.C.

Cir. 2006). If Greenhill explicitly or in essence seeks money

damages in excess of $10,000, jurisdiction rests exclusively

7

with the Court of Federal Claims. See Kidwell v. Department

of the Army, Board for Correction of Military Records, 56

F.3d 279, 284 (D.C. Cir. 1995). Amicus’s proposed approach

would invert the usual order of operations—it would basically

resolve the merits question of whether Greenhill is entitled to

money damages and then use that result to answer the

jurisdictional question. Jurisdiction, however, is an

independent, preliminary issue. See Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83, 94–95 (1998). Here,

Greenhill explicitly requested $210,000 in damages. This is

enough for the Court of Federal Claims to exercise exclusive

jurisdiction over the case. The disposition on the merits is a

separate question and one that only the Court of Federal

Claims can resolve.

Amicus’s third theory is a more sophisticated variation of

the second. Here amicus argues that in defending against the

contract damages claim the government will point to the

settlement’s provision against damages; whereupon the

plaintiff will respond that any such ban is invalid under Title

VII. Pointing to cases of the Court of Federal Claims

suggesting that it has jurisdiction only over straightforward

contract issues, but not over claims requiring an interpretation

of federal statutes such as Title VII, amicus says that in reality

there is no claim within the jurisdiction of the Court of

Federal Claims. While the question before us is the district

court’s jurisdiction, it is counterintuitive that the jurisdictional

statutes would be so ill-coordinated as to leave perfectly

sound claims orphaned. Accordingly, as we have in prior

decisions, we consider the alleged deficit in the jurisdiction of

the Court of Federal Claims.

It is quite true that the Court of Federal Claims has no

jurisdiction over Title VII claims. According to its

predecessor, the U.S. Claims Court, “Title VII . . . is the

comprehensive, exclusive, and preemptive remedy for federal

8

employees alleging discrimination.” Fausto v. United States,

16 Cl. Ct. 750, 752–53 (1989). The point is not in dispute—

regarding actual Title VII claims. See, e.g., Kizas v. Webster,

707 F.2d 524, 541 (D.C. Cir. 1983) (“Title VII constitutes the

exclusive remedy for claims of employment discrimination by

federal employees subject to its protection . . . .” (internal

quotation marks omitted)).

And there have been decisions of the Court of Federal

Claims and its predecessor treating a claim based on a

settlement agreement that extinguished a Title VII complaint

as itself an action under Title VII rather than a contract

dispute covered by the Tucker Act. See Griswold v. United

States, 61 Fed. Cl. 458, 464–65 (2004); Mitchell v. United

States, 44 Fed. Cl. 437, 439 (1999); Lee v. United States, 33

Fed. Cl. 374, 378–80 (1995); Fausto, 16 Cl. Ct. at 753. Last

year, however, the Court of Federal Claims repudiated the

logic of these opinions and drew a critical distinction between

actual discrimination claims for which Title VII provides the

exclusive remedy and breach-of-settlement claims that “fall[]

outside the comprehensive scheme” of Title VII. Westover v.

United States, 71 Fed. Cl. 635, 639 (2006). There the court

relied on the Supreme Court and Federal Circuit precedents

discussed below to conclude that settlement agreements are

indeed straightforward contract claims within the purview of

the Tucker Act and the jurisdiction of the Court of Federal

Claims.

In Kokkonen v. Guardian Life Insurance Co. of America,

511 U.S. 375 (1994), the Supreme Court drew a sharp line

between an action on a settlement agreement and one under a

law whose alleged violation gave rise to the settlement. “The

[instant] suit involves a claim for breach of a contract, part of

the consideration for which was dismissal of an earlier federal

suit. No federal statute makes that connection . . . the basis

9

for federal-court jurisdiction over the contract dispute.” Id. at

381.

Recent Federal Circuit cases have applied the distinction,

making clear that a contract dispute with the government,

arising out of a matrix of statutes, does not become a suit to

enforce the statutes themselves merely because its resolution

may require their construction. In Del-Rio Drilling Programs,

Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998), the

Court of Federal Claims had dismissed for want of jurisdiction

a claim against the government for breach of a lease from the

Bureau of Land Management to plaintiff. The government

claimed the case was one for enforcement of several statutes,

pointing to various issues the court would have to resolve to

dispose of the lease claim. Given the confusion over this

issue, the Federal Circuit’s rejection of this idea deserves

extensive quotation:

[T]he fact that the court may have to interpret the Tribal

Consent Act or make other determinations regarding

principles of state and federal law in order to resolve the

contract claim does not deprive the court of jurisdiction to

decide that claim. It is often necessary to interpret or

apply statutory or common law principles in order to

resolve contract claims, but the fact that the resolution of

a contract claim may turn on the interpretation of a statute

does not deprive the Court of Federal Claims of

jurisdiction over that claim.

The Tucker Act gives the Court of Federal Claims

“jurisdiction to render judgment upon any claim against

the United States founded . . . upon any express or

implied contract with the United States.” 28 U.S.C.

§ 1491(a)(1). That broad jurisdictional grant does not

exempt contract claims that turn on the construction of

statutes.

10

....

. . . It is true, of course, that the respective rights of

the parties conferred by the leases must be analyzed in

light of the statutes and regulations governing the subject

matter of mining on trust lands. Nonetheless, the leases

are contractual undertakings by the government upon

which citizens are entitled to sue in the Court of Federal

Claims.

Id. at 1367. See also Massie v. United States, 166 F.3d 1184,

1189 (Fed. Cir. 1999), in which the court found that a claim to

enforce a contract resolving a dispute between the plaintiff

and an agency fell within the Court of Federal Claims’

jurisdiction even though the agency decision, out of which the

contract arose, was not subject to any kind of judicial review.

Del Rio’s holding that the anticipation of statutory issues

cannot strip a contract case of its character of course fits the

standard approach to jurisdiction over claims founded on a

specified legal basis, such as that stated in 28 U.S.C.

§ 1491(a)(1). Under the “well-pleaded complaint” rule, for

example, jurisdiction of “actions arising under” federal law,

28 U.S.C. § 1331, is resolved by looking to the legal basis of

plaintiff’s claim and emphatically not to anticipations of

issues that might arise by way of defense. Louisville &

Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152–53

(1908). Amicus’s theory of course goes further, trying to

defeat jurisdiction not on the basis of a hypothesized defense

but on a hypothesized response to a hypothesized defense.

Our own recent cases have been equally clear on the

distinction between contract claims and their statutory

context. We have held that even though Title VII might have

been the basis of a settlement agreement, a breach claim is a

straightforward contract dispute. Hansson v. Norton, 411

11

F.3d 231, 232 (D.C. Cir. 2005) (“This court generally treats

settlement agreements as contracts subject to the exclusive

jurisdiction of the Court of Federal Claims . . . .”); Brown v.

United States, 389 F.3d 1296, 1297 (D.C. Cir. 2004) (holding

that a breach of settlement claim should have been brought in

the Court of Federal Claims pursuant to the Tucker Act).

Consequently, we find that Greenhill’s claim is a

straightforward contract dispute under the Tucker Act and that

jurisdiction in the Court of Federal Claims is proper.

Finally, amicus argues that we should remand the case to

the district court to give Greenhill an opportunity to amend

her complaint and seek damages below the Little Tucker Act’s

$10,000 ceiling; see 28 U.S.C. § 1346(a)(2). But in support of

the proposal amicus cites only a case where the plaintiff had,

in district court, made an effort (albeit a defective one) to

waive the excess over $10,000, Goble v. Marsh, 684 F.2d 12,

17 (D.C. Cir. 1982), and another case in which we found that

plaintiff’s trial-court waiver was adequate, Stone v. United

States, 683 F.2d 449, 454 (D.C. Cir. 1982). Greenhill made

no trial-court effort to waive. We note in this connection that

when asked at oral argument whether Greenhill was ready to

drop her damages claim, amicus answered unequivocally no.

Oral Arg. at 2:21 (“Q: Does this mean that Ms. Greenhill is

withdrawing her claim for money damages? A: No, Your

Honor, it does not mean that she is withdrawing her claim for

money damages . . . .”).

Insofar as Greenhill believes that jurisdiction in district

court would open up to her a broader array of non-monetary

remedies than would be available in the Court of Federal

Claims, we observe only that the validity of that belief is not

so clear. The Tucker Act explicitly provides for equitable

relief:

12

To provide an entire remedy and to complete the relief

afforded by the judgment, the court may, as an incident of

and collateral to any such judgment, issue orders

directing restoration to office or position, placement in

appropriate duty or retirement status, and correction of

applicable records, and such orders may be issued to any

appropriate official of the United States.

28 U.S.C. § 1491(a)(2).

This has, to be sure, been somewhat narrowly construed.

See, e.g., Miller v. United States, 67 Fed. Cl. 195, 201 (2005)

(noting the court’s power to grant “incidental” reinstatement

to service); French v. United States, 42 Fed. Cl. 49, 52 (1998)

(noting the court’s power to correct official records if plaintiff

would be entitled to damages “if the record is corrected”).

Similarly, our own cases have found very sharp constraints on

district court jurisdiction to grant equitable relief on contract

claims against the government. See Transohio Savings Bank

v. Director, Office of Thrift Supervision, 967 F.2d 598, 607–

13 (D.C. Cir. 1992); Sharp v. Weinberger, 798 F.2d 1521,

1523 (D.C. Cir. 1986). But compare Land v. Dollar, 330 U.S.

731 (1947) (finding, where plaintiffs sued agents of the

United States, who had allegedly acted in excess of their

public authority, to recover property that was allegedly due

them under their contract with the United States, the claim

sounded in tort and was within the jurisdiction of the district

court). We take no position on which system is in practice

less forthcoming.

* * *

Because we conclude that Greenhill has sought over

$10,000 in damages and that the cause of action constitutes a

“claim against the United States founded . . . upon an[]

13

express or implied contract with the United States,” 28 U.S.C.

§ 1491(a)(1), the Court of Federal Claims has exclusive

jurisdiction. We remand the case to the district court with

instructions to transfer the case to the Court of Federal Claims

pursuant to 28 U.S.C. § 1631.

So ordered.