Roxann Franklin Mason v. Raymond Mabus, Jr.

Filing

OPINION filed [1480025] (Pages: 14) for the Court by Judge Brown [12-5057]

USCA Case #12-5057

Document #1480025

Filed: 02/14/2014

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

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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.

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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

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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

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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.

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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.

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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.

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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

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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

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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,

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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.

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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).

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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

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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.

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