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.