Roxann Franklin Mason v. Raymond Mabus, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2013 Decided February 14, 2014

No. 12-5057

ROXANN J. FRANKLIN-MASON,

APPELLANT

v.

RAYMOND EDWIN MABUS, JR., SECRETARY, DEPARTMENT OF

THE NAVY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:96-cv-02505)

Lisa Alexis Jones argued the cause and filed the briefs for

appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Ronald C. Machen, Jr.,

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

Attorney.

Before: BROWN and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

BROWN, Circuit Judge: This case has so many chapters it

makes War and Peace look like a short story. And the saga

2

continues. Fifteen years ago, after Franklin-Mason prevailed

in the initial stages of this employment discrimination

litigation, the Navy offered a stipulation of Settlement

(Settlement Agreement or the Agreement). The Agreement

proposed not only reinstatement, restoration of seniority, and

retirement credits, but potential for promotion. A key

provision anticipated the creation of a Naval Fleet Auxiliary

Force (NFAF) Program (PM1), headed by a high level

Financial Manager, and proposed to appoint Franklin-Mason

as a Senior Financial Analyst, reporting to the Manager of this

independent unit. The Agreement also purported to insulate

Franklin-Mason from working directly for, or being supervised

by, certain employees in the Comptroller’s Office who had

tormented her in the past. The new unit was never approved.

Things fell apart.

Franklin-Mason, convinced she had been deliberately

hoodwinked, repeatedly sought to have the terms of the

Agreement—terms incorporated into the district court’s order

of dismissal—enforced. Now, having concluded specific

performance is no longer practicable, Franklin-Mason seeks

nearly a million dollars in damages and attorney’s fees. The

Navy pounces on this shift. First, the Navy notes a federal

court cannot provide a damages remedy for the government’s

breach of a settlement agreement absent a waiver of sovereign

immunity. Check. Second, a judicial consent decree—like

the Settlement Agreement here—is not a contract for purposes

of the Tucker Act and falls outside the jurisdiction of the Court

of Federal Claims. And mate. Thus, the Navy reasons the

government’s breach of a court-supervised settlement is a

wrong without a remedy. We are not convinced. We hold a

settlement agreement embodied in a consent decree is a

contract under the Tucker Act and transfer the case to the Court

of Federal Claims.

3

I

The tortuous history of this decades-long dispute could fill

library shelves, but in the interest of brevity, we commence

with a bare-bones procedural précis. From 1987 to 1996,

Franklin-Mason litigated her Title VII claim before the Equal

Employment Opportunity Commission. In 1996, the

Administrative Judge (AJ) found Franklin-Mason had

established, by a preponderance of the evidence, that the Navy

had unlawfully discriminated against her on the basis of race

and sex. The Navy disagreed, rejecting the AJ’s findings.

Undeterred, Franklin-Mason filed suit against the Navy on

October 31, 1996, alleging violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e. The Navy, eager to

avoid substantial potential liability, offered a settlement. The

matter was referred to a magistrate for settlement discussions,

and ultimately, the parties settled and the district court

approved the Agreement and entered an order of dismissal.

Of particular relevance, the Agreement explicitly permitted a

party to seek judicial enforcement and monetary damages for a

breach. Franklin-Mason filed three motions to enforce the

terms of the Settlement Agreement. Those efforts proved

fruitless, however, and on November 19, 2001, she moved, for

a fourth time, to enforce the terms of the Agreement. The

present dispute arises from this fourth attempt.

The motion was again transferred to the magistrate for a

Report and Recommendation. After concluding there were

genuine issues of material fact as to two of Franklin-Mason’s

claims, Franklin-Mason v. England, No. Civ.A. 96-2505JMF,

2005 WL 1804426, at *1 (D.D.C. Aug. 1, 2005), the magistrate

scheduled an evidentiary hearing, but in the interim,

Franklin-Mason resigned from her position with the

4

Navy—allegedly constructively discharged because of the

Navy’s failure to abide by the terms of the Agreement.

During the hearing, Franklin-Mason asserted that, given the

passage of time and her separation from the Navy, she could no

longer pursue specific performance, but would instead seek to

recover approximately $900,000 in expectation damages and

attorney’s fees. This prompted the magistrate to request

supplemental briefing on whether jurisdiction properly lay in

the district court or the Court of Federal Claims. In a rare

moment of concord, both parties agreed that, although the

Agreement ought be construed as a contract under the Tucker

Act, pursuant to Kokkonen v. Guardian Life Insurance Co.,

511 U.S. 375 (1994), the district court could exercise ancillary

jurisdiction over the motion to enforce. The magistrate

decided the district court should retain jurisdiction, but

concluded that, although there may have been a substantial

breach of the Settlement Agreement, Franklin-Mason was

entitled only to nominal damages.

Three years after the magistrate issued his order, Judge

Roberts rejected the recommendation to retain jurisdiction and

transferred the case to the Court of Federal Claims. Upon

transfer, Franklin-Mason lodged with the Court of Federal

Claims an Amended Complaint, alleging breach of the

Settlement Agreement and attempting to revive the

employment discrimination claims the Agreement had

extinguished. The Court of Federal Claims concluded it

lacked jurisdiction over the newly filed Amended Complaint

since district courts have exclusive jurisdiction over

employment discrimination claims. And relying on

Kokkonen, the court held the retention of jurisdiction provision

5

in the Agreement divested the Court of Federal Claims of

jurisdiction and compelled transfer back to the district court. 1

Considering this motion for the fourth time, Judge Roberts

dismissed the employment discrimination claims, noting they

were resolved by the Agreement. 2 Recognizing, too, the

conflicting opinions issued by the courts, he denied

Franklin-Mason’s motion to enforce, positioning the case for

our consideration. On February 23, 2012, Franklin-Mason

filed a timely appeal. Today, following decades of litigation,

a veritable decathlon of delay, and the ensuing rounds of

jurisdictional ping-pong, we regretfully lob the ball back to the

Court of Federal Claims.

II

We are presented with two questions. First, has the

United States waived its sovereign immunity in the district

court for breach of a Title VII settlement agreement seeking

1

But because the Court of Federal Claims relied on Kokkonen,

it never reached the merits of the Navy’s newfangled theory

that a court supervised consent decree is not a contract.

2

We summarily affirm the district court’s dismissal of the

employment discrimination claims. “[A] suit that has been

dismissed with prejudice cannot be refiled; the refiling is

blocked by the doctrine of res judicata.” Ciralsky v. C.I.A.,

355 F.3d 661, 672 n.11 (D.C. Cir. 2004). Here, “[e]xecution

of th[e] [Settlement Agreement] . . . constitute[d] a dismissal

with prejudice.” J.A. 63. Franklin-Mason is thus foreclosed

from filing an identical employment discrimination claim.

6

damages in excess of $10,000? 3 And, if not, does Kokkonen

allow us to ignore this lack of waiver? Second, if the district

court lacks jurisdiction, does a settlement agreement embodied

in a judicial consent decree foreclose jurisdiction by the Court

of Federal Claims? We review de novo a district court’s order

dismissing a motion to enforce for lack of subject matter

jurisdiction. See Gen. Elec. Co. v. EPA, 360 F.3d 188, 190–91

(D.C. Cir. 2004).

A

To bring a claim against the United States, a plaintiff must

identify an unequivocal waiver of sovereign immunity. FAA

v. Cooper, 132 S. Ct. 1441, 1448 (2012). Courts are required

to read waivers of sovereign immunity narrowly and construe

any ambiguities in the statutory language in favor of immunity.

Id. But “[e]ven when suits are authorized[,] they must be

brought only in designated courts.” United States v. Shaw,

309 U.S. 495, 501 (1940). This is because “it rests with

Congress to determine not only whether the United States may

be sued, but in what courts the suit may be brought.”

Minnesota v. United States, 305 U.S. 382, 388 (1939).

Both sides agree Title VII does not provide a waiver of

sovereign immunity for suits alleging breach of a settlement

3

Franklin-Mason’s previous motions to enforce were met with

the Navy’s implicit agreement as to the waiver of sovereign

immunity. Nevertheless, because sovereign immunity is

jurisdictional, Rochon v. Gonzales, 438 F.3d 1211, 1215–16

(D.C. Cir. 2006), we must determine, even at this penultimate

hour, whether Congress has, in the district court, unequivocally

exposed the United States to damages in excess of $10,000 for

breach of a Title VII settlement agreement. See id. at 1216.

7

agreement. And invoking the Tucker Act is a non sequitur

because where, as here, a suit involves a claim for money

damages over $10,000, the Act waives the government’s

sovereign immunity only in the Court of Federal Claims. See

Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007)

(“[T]he jurisdiction of the Court of Federal Claims is exclusive

when a plaintiff seeks more than $10,000 in damages.); see

also 28 U.S.C. § 1346(a)(2).

We have construed the Tucker Act and Little Tucker

Act—so called for its grant of concurrent jurisdiction to the

district courts and the Court of Federal Claims in any civil

action against the United States not exceeding $10,000—to

provide for exclusive jurisdiction in the Court of Federal

Claims for contract disputes seeking more than $10,000 in

damages. But, admittedly, “nothing in the language of the

Tucker Act makes its grant of jurisdiction to the Court of

Federal Claims exclusive for all contract claims over $10,000.”

Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1137 (9th Cir. 2013);

see also Waters v. Rumsfeld, 320 F.3d 265, 270 n.6 (D.C. Cir.

2003). “Rather, that court’s jurisdiction is ‘exclusive’ only to

the extent that Congress has not granted any other court

authority to hear the claims that may be decided by the Claims

Court.” Bowen v. Massachusetts, 487 U.S. 879, 910 n.48

(1988). Said differently, while the Tucker Act and Little

Tucker Act “create a presumption of exclusive jurisdiction in

the Court of Federal Claims, . . . that presumption can be

overcome by an independent statutory grant to another court.”

Tritz, 721 F.3d at 1137; see also Auction Co. of Am. v. FDIC,

132 F.3d 746, 753 n.4 (D.C. Cir. 1997) (“If a separate waiver

of sovereign immunity and grant of jurisdiction exist, district

courts may hear cases over which, under the Tucker Act alone,

the Court of Federal Claims would have exclusive

jurisdiction.”). In any event, Franklin-Mason identifies no

such independent statutory grant of authority.

8

Franklin-Mason insists, however, the Supreme Court in

Kokkonen carved out an exception to the Tucker Act’s

exclusive jurisdiction. She is mistaken. In Kokkonen, the

Supreme Court clarified the power of district courts to exercise

jurisdiction over settlement agreements. The Court indicated

in dicta, Kokkonen, 511 U.S. at 381, that a federal district court

retains jurisdiction to enforce a settlement agreement if it either

incorporates the settlement agreement into the dismissal order

or specifically includes a clause in the dismissal order retaining

jurisdiction. Id. Here, both steps were taken, but this is not

enough.

Kokkonen is easily distinguishable because, unlike here,

no governmental entity was involved. To permit the logic of

Kokkonen to reduce the scope of the Court of Federal Claims’

jurisdiction would be to violate the time-honored rule that

neither a court nor the parties has the power to alter a federal

court’s statutory grant of subject matter jurisdiction. See, e.g.,

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

818 (1988) (“[A] court may not in any case, even in the interest

of justice, extend its jurisdiction where none exists . . . .”); Ins.

Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982) (“[N]o action of the parties can confer

subject-matter jurisdiction upon a federal court. Thus, the

consent of the parties is irrelevant . . . .”); accord Akinseye v.

Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (same).

Notwithstanding the clear import of these cases,

Franklin-Mason argues that the specific reservation of

enforcement jurisdiction by another court can divest the Court

of Federal Claims of jurisdiction. She is wrong. Similarly

misplaced is her reliance on this Court’s dicta in Shaffer v.

Veneman, 325 F.3d 370, 372–74 (D.C. Cir. 2003), which

suggested a willingness to exercise ancillary jurisdiction over

9

contract disputes within the exclusive jurisdiction of the Court

of Federal Claims. But there, we identified only a necessary

condition for a district court’s retention of ancillary

jurisdiction, not a sufficient one. See Shaffer, 325 F.3d at

373–74 (noting Shaffer’s failure to request that the district

court retain jurisdiction in its order of dismissal).

For the foregoing reasons, we hold that the Tucker Act

does not contain a waiver of sovereign immunity in the district

court for breach of a Title VII settlement agreement seeking

damages in excess of $10,000. Nor does the holding in

Kokkonen compel a different conclusion.

B

Franklin-Mason has not asked that we consider, in the

alternative, a transfer to the Court of Federal Claims. 4

4

Vying for purchase on the jurisdictional slopes, the parties

have at times adopted unfavorable and, in the Navy’s case,

downright duplicitous arguments. Franklin-Mason, for

example, has steadfastly maintained jurisdiction properly lies

in the district court, and even went so far as to argue, perhaps

unwittingly so, that the Settlement Agreement should be

construed as a consent decree, not a contract. While she

continues to argue in favor of the district court’s jurisdiction,

she has, since the Federal Circuit’s decision in VanDesande v.

United States, 673 F.3d 1342 (Fed. Cir. 2012) (discussed

infra), abandoned the latter position. The Navy, on the other

hand, has made no such concession and has been disturbingly

vertiginous in its positions. At first, the Navy conceded that,

although the Settlement Agreement was a contract, jurisdiction

properly lay in the district court. But once the motion was

transferred to the Court of Federal Claims, the Navy reversed

course, claiming the Settlement Agreement should be

10

Nevertheless, we must, “if it is in the interest of justice, transfer

[an] action or appeal to any other such court in which the action

or appeal could have been brought at the time it was filed.” 28

U.S.C § 1631. 5 The threshold question, therefore, is whether

construed as a consent decree, not a contract. Then, in a

curious act of charity, the Navy argued that transfer back to the

district court would be appropriate. But once back in the

district court, the Navy reversed positions, yet again, this time

arguing the district court lacked jurisdiction because the

government had not waived its sovereign immunity.

Appellee’s Br. at 13–20.

5

The looming prospect of what may eventually amount to a

Pyrrhic victory for Franklin-Mason suggests the “interest of

justice” inquiry is perhaps satisfied by only a hair’s breadth.

See Kline v. Cisneros, 76 F.3d 1236, 1240 (D.C. Cir. 1996)

(“[T]o judge transfer to the Federal Circuit as preferable, we

would presumably have to make some estimate of likely

judicial economy, and thus involve ourselves, at least

tangentially, in the merits of this appeal—over which we have

no jurisdiction.”). Like the magistrate judge, we find

Franklin-Mason’s damages claim difficult to decipher. See

Franklin-Mason v. Dalton, No. CIVA962505(RWR/JFM),

2006 WL 825418, at *14 (D.D.C. Mar. 21, 2006). On the one

hand, Franklin-Mason argues she is due monetary damages for

the difference between the job she was promised in the

Settlement Agreement, and the one she received upon

reinstatement. In that instance, she claims the measure of

damages would be front pay from the date of her constructive

discharge in 2004 to her self-determined retirement at age 61 in

2014. On the other hand, Franklin-Mason seems to argue that

the Navy’s failure to create the positions outlined in the

Settlement Agreement constituted a substantial breach

tantamount to fraud in the inducement. But under this theory,

11

the present suit might have been brought in the Court of

Federal Claims. The Navy argues not only is jurisdiction

preempted in district court, but the nature of the suit forecloses

jurisdiction in the Court of Federal Claims, too. The second

prong of its heads-I-win-tails-you-lose strategy contends that a

judicial consent decree is not a contract for purposes of the

Tucker Act and, therefore, outside the subject matter

jurisdiction of the Court of Federal Claims. We disagree.

Though the matter appears to be one of first impression in

this circuit, it is, thankfully, not without close analogues in

other courts. In VanDesande v. United States, 673 F.3d 1342

(Fed. Cir. 2012), the Federal Circuit held that “consent decrees

and settlement agreements are not necessarily mutually

exclusive, id. at 1350, and, therefore, “a settlement agreement,

even one embodied in a decree, ‘is a contract within meaning

of the Tucker Act.’” Id. at 1351 (quoting Angle v. United

States, 709 F.2d 570, 573 (9th Cir. 1983)). Accordingly, it

stands to reason that the Court of Federal Claims is a court in

which the motion to enforce “could have been brought.” 28

U.S.C. § 1631. With scarcely a perfunctory nod to

VanDesande, the Navy, in a lone footnote, attempts to

distinguish the case by noting the settlement in VanDesande

“took the form of an administrative judge’s proposed

the breach would permit rescission of the Settlement

Agreement, and she would have to return all settlement

proceeds and continue to trial on the Title VII action she

dismissed in consideration of the Agreement.

Franklin-Mason expresses no interest in this proposition; she

wants to keep all settlement proceeds and recoup the

$900,000-plus she anticipates she would have received in

litigation. Unconvinced about the legal propriety of either

damages theory, the magistrate judge concluded

Franklin-Mason would be entitled only to nominal damages.

12

order—not a court order.” Appellee’s Br. at 23. But this is a

distinction without a difference and is made all the more

irrelevant given the Federal Circuit’s dicta that “settlement

agreements, even if they are incorporated into judicial or

administrative consent decrees, should be viewed for

enforcement purposes as having the attributes of a contract.”

VanDesande, 673 F.3d at 1350 (emphasis added).

The Navy’s other arguments, hardly a model of clarity, are

similarly inapposite. First, the Navy argues “Kokkonen

illustrates the Supreme Court’s distinction between an

out-of-court settlement—which is equivalent to a

contract—and a consent decree.” Appellee’s Br. at 23. This

is correct, so far as it goes. But this distinction is relevant only

to a court’s ability to retain ancillary jurisdiction over a

settlement agreement, see Kokkonen, 511 U.S. at 381–82, not a

determination whether consent decrees are contracts under the

Tucker Act. Second, the Navy’s appeal to Federal Rules of

Civil Procedure 41(a)(2) 6 and 65(d)(1) 7 is tautological. We

are interested not in discerning the dividing line between “a

court order that merely approves a settlement and one that

expressly incorporates its terms into a contract,” Appellee’s Br.

at 24, but, rather, whether the latter can ever be treated as a

6

In relevant part, the rule provides that “an action may be

dismissed at the plaintiff's request only by court order, on terms

that the court considers proper.” FED. R. CIV. P. 41(a)(2).

7

Rule 65(d)(1) requires: “Every order granting an injunction

and every restraining order must: (A) state the reasons why it

issued; (B) state its terms specifically; and (C) describe in

reasonable detail—and not by referring to the complaint or

other document—the act or acts restrained or required. FED.

R. CIV. P. 65(d)(1).

13

contract. On this query, the Rules are silent. Lastly, the

Navy seeks refuge in a host of distinguishable Supreme Court

precedent. Most notably, the Navy cites Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367 (1992) and United States v.

Swift & Co., 286 U.S. 106 (1932) for the proposition that

consent decrees are viewed as judicial acts for purpose of

modification and enforcement. But the Rufo court expressly

limited its holding to “consent decrees stemming from

institutional reform litigation,” 502 U.S. at 393, and the

Court’s determination in Swift that consent decrees should not

be treated as a contract was dicta. See 286 U.S. at 115.

Moreover, in relying on these decisions the Navy misses the

point. The Supreme Court, in a long line of cases, has since

clarified that consent decrees and settlement agreements are

not, as a matter of law, mutually exclusive. See Local No. 93,

Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501,

519 (1986) (“The question is not whether we can label a

consent decree as a ‘contract’ or a ‘judgment,’ for we can do

both.”); see also United States v. ITT Cont’l Banking Co., 420

U.S. 223, 236–237 n.10 (1975) (“Consent decrees and orders

have attributes both of contracts and of judicial decrees . . . .”);

see id. at 236–37 (citing Hughes v. United States, 342 U.S. 353

(1952), United States v. Atl. Ref. Co., 360 U.S. 19 (1959), and

United States v. Armour & Co., 402 U.S. 673 (1971) for the

proposition that “since consent decrees and orders have many

of the same attributes of ordinary contracts, they should be

construed basically as contracts”). The Navy thus fails to

establish the motion to enforce could not have been brought in

the Court of Federal Claims.

III

We conclude the Court of Federal Claims has jurisdiction

over Franklin-Mason’s motion to enforce, though, given the

wearied and stale nature of this dispute, we are loath to extend

14

its shelf life and retransfer without a sense of finality. But

while messy realities often threaten to confound the boundaries

of received legal doctrine, within the boundaries we shall

remain. The district court’s order dismissing the motion to

enforce is vacated, and we remand the case with instructions to

transfer to the Court of Federal Claims. 8 As previously noted,

we affirm the district court’s dismissal of the employment

discrimination claims.

So ordered.

8

While the Court of Federal Claims is not bound by a section

1631 transfer it deems to be “clearly erroneous,” see

Christianson, 486 U.S. at 819, the Supreme Court has made

clear that any such “reversal” should be exceptional, and that

“if the transferee court can find the transfer decision plausible,

its jurisdictional inquiry is at an end.” Id. We think the

record evinces such plausibility.