* District Judge of the Eastern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 95-10353.

Ray N. JACKSON, Plaintiff-Appellant Cross-Appellee,

v.

Sheila E. WIDNALL, Secretary of the United States Department of the Air Force, DefendantAppellee Cross-Appellant.

Nov. 14, 1996.

Appeals from the United States District Court for the Northern District of Texas.

Before SMITH and PARKER, Circuit Judges, and JUSTICE, District Judge. *

JERRY E. SMITH, Circuit Judge:

Ray Jackson appeals a summary judgment dismissing his various claims of employment

discrimination arising under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(1994), and the Constitution. The Secretary of the United States Department of the Air Force ("Air

Forc e"), cross-appeals a summary judgment ordering the Air Force to pay interest on back pay

awarded to Jackson pursuant to a settlement agreement. We affirm the summary judgment dismissing

Jackson's claims but, concluding that Jackson abandoned his claim for back pay interest by voluntarily

entering into a settlement agreement, we reverse the award of back pay interest and render judgment

in favor of the Air Force.

I.

Jackson commenced his employment with the Air Force in April 1984, accepting a civilian

position as an Electronic Measurement Equipment Mechanic at Sheppard Air Force Base. Soon

therea ft er, he filed an informal complaint with the Equal Employment Opportunity Commission

("EEOC"), alleging that the Air Force had discriminated against him on the basis of race by failing

to hire him when he first applied for the position in 1982. This o riginal EEOC complaint was

resolved in September 1984 by an informal agreement.

In March 1985, the Air Force discharged Jackson, who filed administrative charges allegingthat his termination constituted both racial discrimination in employment and retaliatory discharge.

This second comp laint was referred to the Air Force Equal Employment Opportunity Complaint

Investigator (the "Investigator").

While his charges of racial discrimination and retaliation were pending, Jackson filed a third

complaint in December 1986, alleging that the Air Force had failed to comply with the terms of the

1984 settlement and seeking to reinstate his original charge that the Air Force had engaged in racial

discrimination by failing to hire him in 1982. The Air Force rejected this renewed claim in January

1987, finding that it had fully complied with the terms of the 1984 settlement. Jackson appealed this

adverse decision to the Equal Employment Opportunity Commission Office of Review and Appeals

(EEOC/ORA), which, by action dated July 14, 1987, refused to reinstate the claim. Jackson filed suit

in federal court on August 17, 1987, seeking review of this claim. The district court dismissed,

however, because Jackson had failed to file suit within thirty days of the final administrative order as

required by title VII.

Meanwhile, the investigation of Jackson's 19 86 EEOC complaint, alleging discriminatory

termination

and retaliatory discharge, continued apace. In March 1988, the Investigator

recommended a finding that the Air Force had discharged Jackson in retaliation for his original EEOC

complaint and in violation of the prohibition against racial discrimination in employment. Pursuant

to this rec o mmendation, the Air Force offered to reinstate Jackson as an Electronic Mechanic,

including, inter alia, full compensation of back pay and benefits. Jackson accepted this settlement

by letter on July 6, 1989, and the Air Force issued a Notice of Final Air Force Decision three days

later.

Pursuant to the settlement agreement, the Air Force awarded Jackson $48,629.38 in back pay

on November 30, 1989. Nevertheless, Jackson filed a new appeal with the EEOC/ORA on December

6, 1989, alleging that his new position was not the substantial equivalent of his former position, that

he was entitled to receive interest on his award of back pay, and that the Air Force had failed to hire

him prior to 1984 in violation of the prohibition against racial discrimination—the same claim that

he had first raised in 1984, that the EEOC had refused to reinstate in 1987, and that the district court1 A third amended complaint, which named several individual employees of the Air Force as

defendants, was never served on the named defendants. Therefore, the district court correctly

concluded that Secretary Widnall is the only proper party defendant in this case. See

F ED .R.C IV .P. 4(m). had dismissed as untimely in 1988.

The EEOC/ORA determined that Jackson was not entitled to recover back pay interest, and

it dismissed the claim of discriminatory hiring prac t ices because it was not raised in the pending

EEOC complaint (which derived exclusively from Jackson's second co mplaint regarding the

circumstances surrounding his termination—not his employment). Finally, although the EEOC/ORA

vacated the decision of July 12, 1989, and remanded to the Air Force for a supplemental investigation

into the position Jackson would have occupied had he not been discharged, the Air Force reaffirmed

its fi nding t hat Jackson had been reinstated to the position he would have held had he not been

terminated. The EEOC thereupon closed its file.

Once again, Jackson filed suit in federal court, seeking to reco ver interest on the back pay

awarded to him pursuant to the 1989 settlement agreement and renewing his original claim that the

Air Force had failed to hire him, in violation of the prohibition against racial discrimination. After the

conclusion of the Air Force's supplemental investigation, and the subsequent decision of the EEOC

to terminate its compliance file in this case, Jackson amended his complaint to add a cause of action

fo r failure to reinstate him to a substantially equivalent position following the 1989 settlement

agreement. Finally, Jackson alleged that the Air Force had violated his constitutional rights. 1 The

district court granted summary judgment for the Air Force on all claims except the issue of Jackson's

entitlement to recover back pay interest, concluding that the Back Pay Act, 5 U.S.C. § 5596(b)(2),

constitutes an express waiver of sovereign immunity authorizing the recovery of back pay interest.

II.

A.

We review a summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line Corp.,

953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, showthat there is no genuine issue as to any material fact and that the movi ng party i s enti tl ed to a

judgment as a matter of law." F E D .R.C IV .P. 56(c). The party seeking summary judgment bears the

burden of showing that there is an absence of evidence to support the non-movant's case. Celotex

Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). After a

proper motion for summary judgment is made, the non-movant must set forth specific facts showing

that there is a genuine issue for trial. A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505, 2511, 91 L.Ed.2d 202 (1986).

We view facts in the light most favorable to the non-movant and draw all reasonable

inferences in its favor. B rothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.), cert. denied,

--- U.S.

----, 115 S.Ct. 639, 130 L.Ed.2d 545 (1994). If the non-movant sets forth specific facts in support

o f allegations essential to his claim, a genuine issue of material fact is presented, and summary

judgment is inappropriate. Id.

B.

First, Jackson argues that the district court erred by permitting the Air Force to file a second

summary judgment motion that merely renewed its original motion for summary judgment. We need

not consider whether the seco nd motion merely restated the first, however, as "a trial court may

reconsider a previously denied motion for summary judgment even in the absence of new evidentiary

material." C

onkling v. Turner, 18 F.3d 1285, 1296 (5th Cir.1994); a ccord Enlow v. Tishomingo

County, 962 F.2d 501, 507 n. 16 (5th Cir.1992).

Second, Jackson

claims t hat t he district court failed to afford him adequate notice of the

summary judgment proceedings under F ED .R.C IV .P. 56(c), which requires that a motion for judgment

as a matter of law "shall be served at least 10 days before the time fixed for the heari ng."

F ED .R.C IV .P. 56(c). Because the district court granted judgment as a matter of law without affording

the parties a hearing in open court or giving advance notice that the motion would be considered on

a date certain, Jackson contends that this procedure violated rule 56(c).

Rul e 56(c) merely requires the court to give the non-movant an adequate opportunity to

respond prior to a ruling. We have previo usly rejected Jackson's very argument, noting that rule2 See also Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1293 n. 11 (5th Cir.) (noting that the court

may rule on a motion for summary judgment based solely on the pleadings, provided the

non-movant receives sufficient notice of the pending summary judgment motion), cert. denied,

--- U.S. ----, 115 S.Ct. 312, 130 L.Ed.2d 275 (1994).

3 The Air Force filed its motion for summary judgment on December 15, 1994; Jackson filed

his response on January 11, 1995; and the court granted summary judgment on January 24, 1995.

The Air Force had also previously filed a motion for partial summary judgment, challenging

Jackson's untimely claims of discriminatory hiring practices, on February 5, 1991. Jackson filed

his response on March 11, 1991, and the court granted partial summary judgment on August 19,

1991. 56(c) requires neither an oral hearing nor advance notice of a "date certain" on which a motion for

summary judgment is to be decided; instead, "if there is not a hearing, the adverse party must have

at least ten days to respond to the motion for summary judgment." D aniels v. Morris, 746 F.2d 271,

274-75 (5th Cir. 1984). 2 Jackson had more than ten days to respond to the motion for summary

judgment, and did so. 3

Finally, Jackson argues that the district court erroneously applied the standards governing

s ummary judgment, claiming that the court improperly faulted him for failing to come forth with

competing evidence to survive the mo t io n. The dispositive question in reviewing a motion for

summary jud gment , however, is not the nature of the evidence adduced by the parties, but merely

whether the evidence before the district court—whatever its nature—shows the absence of a genuine

issue of material fact. S ee Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. This standard may be

satisfied by establishing dispositiv e legal defenses. The district court properly held that the Air

Force's legal defenses were dispositive, making factual disputes irrelevant.

III.

A.

Appellant first contends that the 1989 settlement agreement did not provide him full relief

for his claims of discrimination and retaliatory discharge, because the Air Force failed to return him

to a "substantially equivalent" position after the settlement. S ee 29 C.F.R. § 1613.271(a)(3) (1995).

We need not determine whether Jackson's new position is the substantial equivalent of his former one,

however, because he voluntarily accepted the position in settlement of his claims and may not now

complain that he made a bad bargain.4 The terms of the offer were quite specific, promising to place Jackson in the position of "WG2604-10, Electronics Mechanic, Maintenance Division, Trainer Development Branch, Fabrication

Section, Sheppard Air Force Base, Texas." Jackson cannot credibly claim, therefore, that he was

not fully apprised of the position described in the settlement offer.

5 Jackson does not claim that the Air Force has failed to honor its obligations under the

settlement agreement, but merely that the terms of the settlement agreement do not provide him

full relief.

6 See Ho v. Martin Marietta Corp., 845 F.2d 545, 548 & n. 3 (5th Cir.1988); see also Carson

v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981)

(noting that title VII incorporates a strong preference for the voluntary settlement of employment

discrimination claims); Rogers v. General Elec. Corp., 781 F.2d 452, 454 (5th Cir.1986) (same). The Air Force tendered a formal settlement offer to Jac kson on June 26, 1989, whi ch

promised, inter alia, to place him as an Electronics Mechanic at Sheppard Air Force Base. 4

Alternatively, the offer notified Jackson of his right to reject the proposed disposition and pursue his

complaint before the EEOC and the federal courts. Nevertheless, Jackson tendered a written

acceptance on July 6, 1989, expressly acknowledging that the proposed disposition constituted full

relief for his claims of employment discrimination and retaliation. Jackson now seeks to renege on

the deal, however, claiming that his new job is not the substantial equivalent of his former position. 5

Voluntary settlement agreements resolving claims of employment discrimination are binding

on both parties. S ee 29 C.F.R. § 1613.217(b) (1995). Allowing one party to renounce an agreement

and sue for additional relief would undermine our longstanding policy of encouraging settlement,

thereby creating a disincentive to the amicable resolution of legal disputes and defeating the purposes

of title VII. 6 Therefore, we agree with the conclusion of the district court:

A deal is a deal, and Plaint iff's settlement is binding on him as much as it is binding on the Air

Force. Whether Plaintiff's new position was "substantially equivalent" to his former position

under § 1613.271 ceased to be relevant as soon as Plaint iff accepted the reinstated position.

In an attempt to escape the bonds of his settlement agreement, appellant urges us to conclude

that the settl em

ent was voi

d a b initio because the Air Force had failed to adopt its propo sed

disposition of his complaint within thirty days after receiving the recommen dations of the

Investigator. S ee 29 C.F.R. § 1613.216(c). This objection is unavailing, however, as t he parties

entered into a voluntary settlement, thereby superseding the provisions of 29 C.F.R. § 1613.216(c).

"Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage7 Although the Civil Rights Act of 1991, Pub.L. No. 102-166, § 114(1), 105 Stat. 1071, 1079

(codified as amended at 42 U.S.C. § 2000e-16 (1994)), relaxed this strict statute of limitations to

90 days, the amendment did not retroactively resurrect claims dismissed as time-barred under the

prior statute of limitations. Chenault v. U.S. Postal Serv., 37 F.3d 535, 539 (9th Cir.1994); see

also Row e v. Sullivan, 967 F.2d 186, 192-94 (5th Cir.1992) (declining to apply § 114(1)

retroactively to resurrect an otherwise time-barred claim); F.D.I.C. v. Belli, 981 F.2d 838, 842-

43 (5th Cir.1993) (holding that subsequent extensions of a statutory limitation period will not

revive claims previously barred, in the absence of express legislative intent to the contrary). of the complaint process, shall be binding on both parties." 29 C.F.R. § 1613.217(b) (emphasis

added). We will not undermine this express policy encouraging voluntary set t lement in order to

release Jackson from his deal.

B.

Jackson next argues that the district court erroneously dismissed his original allegation that

the Air Force had engaged in discriminatory hiring practices by faili ng t o hire him when he first

applied for the position of Electronics Mechanic in 1982. Jackson's repeated efforts to resuscitate

his claim are meritless, however, as it is barred by the principle of res judicata.

To recount briefly the tortuous history of this claim, we must look back to Jackson's first

EEOC complaint, filed in August 1984, which alleged that the Air Force had discriminated against

him by refusing to hire him in 1982. That initial complaint was settled by informal agreement in

September 1984. Jackson revived the issue in December 1986, however, alleging that the Air Force

had failed fully to comply with the 1984 settlement agreement, and seeking to reinstate the original

charge of discrimination.

On July 14, 1987, the EEOC/ORA issued its final decision, finding that the Air Force had fully

complied with the 1984 settlement agreement and refusing to reinstate the complaint. Thirty-four

days later, Jackson filed suit. The district court dismissed for failure to file suit within thirty days of

the final administrative order. See 42 U.S.C. § 2000e-16(c) (1982); see also Irw in v. Department

of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990) (holding that

the thirty-day statute of limitations is a condition to the waiver of sovereign immunity and must be

strictly construed). 7

Therefore, Jackson's claim is res judicata, and has been so for almost a decade. His claim of8 Jackson attempts to distinguish the prior lawsuit from the instant litigation by claiming that

the 1988 judgment merely declined to reinstate the original 1984 EEOC complaint but did not

adjudicate the merits. This distinction is artificial and inadequate to surmount the res judicata bar.

First, the underlying cause of action is identical: In both lawsuits, Jackson alleged

that the Air Force had discriminated against him on the basis of race by failing to hire him

in 1982. By declining to reinstate the original complaint, the EEOC, in the prior litigation,

determined that the Air Force had fully complied with the 1984 settlement agreement,

thereby ruling on the merits of the claim. Jackson missed his opportunity to challenge this

determination in federal court when he failed to comply with the statute of limitations

prescribed by title VII; he cannot escape the consequences of his default by relitigating

the same claim in a subsequent lawsuit. Therefore, the discriminatory hiring practices

claim, dismissed as time-barred in 1988, is res judicata.

Moreover, even assuming, arguendo, that the prior decision was formally distinct

from the instant complaint, the two lawsuits are functionally identical for purposes of the

modern transactional test of res judicata. Not only is there perfect identity among the

parties, but the present claim arises out of the same nucleus of operative facts as the prior

complaint. See Nilsen, 701 F.2d at 560.

9 Although Jackson attempts to cure this ambiguity by raising colorable constitutional claims

before this court, it is too late. Constitutional claims not raised in the district court are deemed

waived and may not be asserted for the first time on appeal. Cathey v. Guenther, 47 F.3d 162,

163 n. 2 (5th Cir.1995). discriminatory hiring practices died in 1987 with his failure t imely to file suit. See Nilsen v. City of

Moss Point, 701 F.2d 556, 562 (5th Cir.1983) (en banc). 8

C.

Finally, Jackson asserts that the Air Force has violated his constitutional rights by acting with

malice toward him and with conscious disregard for his rights under the Constitution. This allegation

is too vague and conclusionary to state a claim upon which relief can be granted, and the district court

properly entered summary judgment. S ee F ED

. R.C IV .P. 8(a)(2). Allegations of constitutional

violations must be pleaded with "factual detail and particularity," not mere conclusionary allegations.

Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir.1995) (en banc). Jackson has failed to satisfy this

standard and is not entitled to relief. 9

Moreover, title VII provides the exclusive remedy for employment disc rimination claims

raised by federal employees. Brow n v. General Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961,

1969, 48 L.Ed.2d 402 (1976); R owe v. Sullivan, 967 F.2d 186, 189 (5t h Cir.1992). Insof ar as

Jackson's allega t ions of constitutional violations arise out of the same facts as his employment10 Likewise, insofar as Jackson purports to raise non-constitutional tort claims, the district court

correctly concluded that he has failed to exhaust his administrative remedies as required by the

Federal Tort Claims Act and is therefore barred from filing suit. See 28 U.S.C. § 2675(a).

11 See Brow

n v. Secretary of the Army, 78 F.3d 645, 647 (D.C.Cir.1996) (holding that the

interest provisions of § 114(2) are not retroactive), petition for cert. filed, 65 U.S.L.W. 3186

(U.S. Sept. 12, 1996) (No. 96-395); Woolf v. Bow les, 57 F.3d 407, 409-10 (4th Cir.1995)

(same). discrimination claims, therefore, they are preem p ted by title VII and cannot afford an independent

ground for relief. Rowe, 967 F.2d at 189. 10

IV.

In its cross-appeal, the Air Force argues that the district court erred by ordering it to pay

Jackson interest accrued on his back pay during the period between his disch arge in 1985 and hi s

reinstatement in 1989. Because we conclude that the 1989 settlement agreement constituted

complete satisfaction of Jackson's claims, we agree.

As a general rule, awards of prejudgment interest may not be recovered against the United

States. L ibrary of Congress v. Shaw, 478 U.S. 310, 314, 106 S.Ct. 2957, 2961, 92 L.Ed.2d 250

(1986) . In t he absence of an express waiver of sovereign immunity, manifested by explicit

cong ressio nal co nsent to an award of interest, the United States remains immune to liability for

prejudgment interest. Id. at 314-17, 106 S.Ct. at 2961-63. As originally enacted, title VII did not

provide an express waiver of sovereign immunit y, a nd t he Supreme Court therefore held that the

United States was immune from awards of interest under title VII. S ee id. at 317-23, 106 S.Ct. at

2962-66. Indeed, Congress did not expressly authorize awards of prejudgment interest against the

United States in cases arising under title VII until the enactment of the Civil Rights Act of 1991—two

years after

the conclusion of the events relevant to the present case. See Civil Rights Act of 1991,

§ 114(2), Pub.L. No. 102-166, 105 St at. 1071, 1071, 1079 (codi fi ed as am ended at 42 U.S.C. §

2000e-16(d) (1994). 11

Nevertheless, the district court concluded that Jackson was entitled to recover prejudgment

interest accrued on his back pay under the Back Pay Act, construing that Act as the requisite waiver

of sovereign immunit

y from interest awards. As interpreted by the district court, therefore, title VIIand the Back Pay Act are in apparent conflict co ncerning the entitlement of a plaintiff to recover

interest accrued prior to 1991 on an award of back pay for claims of employmen t discrimination

against the United States.

We need not resolve this tension, however, because Jackson entered into a voluntary

settlement agreement with the Air Force in 1989, abandoning his statutory cause of action in return

for rein st atement and accrued back pay. The terms of the settlement agreement did not include

interest accru ed o n back pay, but merely the principal amount of back pay and benefits accrued

between the date of termination and the date of reinstatement. Jackson now asks this court to rewrite

the terms of his settlement, awarding benefits for which he did not bargain. This we cannot do.

As we have noted, the 1989 settlement agreement is binding on both parties. S ee 29 C.F.R.

§ 1613.217(b) (1995). The terms of the settlement agreement, not the statute, govern the respective

rights of the parties. Consequently, we reverse the summary judgment on the question of back pay

interest and render judgment for the Air Force.

V.

The summary judgment for the Air For ce o n all claims except back pay interest is

AFFIRMED. The summary judgment for Jackson on his claim for accrued back pay interest is

REVERSED, and judgment is RENDERED for the Air Force.