# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2013 Decided February 14, 2014

No. 12

- 5057

R OXANN J. F RANKLIN

- M ASON
, A PPELLANT

v.

R AYMOND E DWIN M ABUS
, J R
., S ECRETARY
, D EPARTMENT OF

THE N AVY
, A PPELLEE

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 b rief were Ronald C. Machen

, Jr

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

Before: B ROWN and K AVANAUGH
, Circuit Judges , and
W ILLIAMS
, Senior Circuit Judge

.

B ROWN
, Circuit Judge : This case has so many chapters it
makes War and Peace look like a short story. And the saga2

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 no tes 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 agreeme nt 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 tortu ous 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. I n 1996, the Administrative Judge (AJ) found Franklin

- Mason had
established

, by a preponderance of t he 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
R ights Act of 1964, 42 U.S.C. § 2000e

. T he Navy, eager to avoid substantial potential liability, offered a settlement. T he
matter was referred to a magistrate for settlement discussions,
and u ltimately, 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 a nd monetary damages for a breach

. Franklin

- Mason filed three motion s to enforce the terms of the Settlement Agreement. Those efforts proved fruitless, however, and o n November 19, 2001, she moved, for a fourth time, to enforce the terms of the Agreement. T he present dispute arises from this fourth attempt.

The moti on 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 a n evidentiary hearing

, but in the interim,
Franklin

- Mason resigned from her position with the4

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 c ould no longer pursue specific performance, but would instead seek to

recover approximately $900,000 in expectation damages and attorney’s fees. Th is 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 co ntract under the Tucker Act, pursuant to Kokkonen v. Guardian Life Insurance Co.

, 511 U.S. 375 (1994), the district court could exercise ancillary jurisdic tion over the motion to enforce. The magistrate decided the district court should retain jurisdictio n, but concluded that, although there may have been a substantial
breach of the S ettlement A greement, 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 C omplaint, 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 d istrict courts have exclusive jurisdiction over employment discrimination claims. And relying on
Kokkonen

, the c ourt held the retention of jurisdiction provision5

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 jurisd ictional 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 s ettlement a greement 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 id entical 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 embodi ed
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, 144 8 (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. Gonzale s , 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 i d. 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 .); se e 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 Cla ims 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 c ourt’ 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. F D IC

, 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 clarifi ed 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 th e 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 sta tutory 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, 37 2

– 74 (D.C. Cir. 2003) , which suggested a willingness to exercise ancillary jurisdiction over9

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

cour t 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 s ettlement a greement 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. F ranklin

- 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 conces sion 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 o nce the motion was transferred to the Court of Federal Claims, the Navy reversed

course, claiming the Settlement Agreement should be10

Nevertheless, we must, “ if it is i n 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 th e 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 1 3

– 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 j urisdiction. ”). 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
di scharge 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 c onstituted a substantial breach
tantamount to fraud in the inducement. But u nder 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 impressi on in this circuit, it is, thankfully, not without close analog ue s 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
wh ich 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 set tlement in VanDesande “took the form of an administrative judge’s proposed

the breach would permit rescission of the Settlement Agreement, and she would have t o return all settlement proceeds and continue to trial on the Title VII actio n 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 t he 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 “ settleme nt 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.” Appe llee’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

, s ee Kokkonen , 511 U.S. at 381

– 82, not a
determination whether consent de crees are contracts under the
Tucker Act. S econd, the Navy’s appeal to Federal Rules of Civil Procedure 41(a)(2) 6 and 65(d)(1) 7 is tautological . W e 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 2 4 , 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.” F ED

. R. C IV

. 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. F ED

. R. C IV

. P. 65(d)(1).13

contract. On this query, the Rules are silent. Lastly, the Navy seeks refuge in a host of distinguishable Supreme C ourt precedent. Most notably, the Navy cites Rufo v. Inmates of Suffolk C ou nty Jail , 502 U.S. 367 (1992) and United S tates 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

, a nd the
Court’s determination in Swift that consent decrees should not
be treated as a contract was dic ta. See 286 U.S. at 115. Moreover, in relying on these decisions the Navy misses the point

. T he 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 contract s ”). The Navy thus fails to
establis h 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 extend14

its shelf life and retransfer with out 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 o rdered.

8 Wh ile the Court of Federal Claims is not bound by a section
1631 transfer it deems to be “clearly erroneous,” s ee 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.