           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 10, 2007

                                     No. 07-10273                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


TRESLYN C. PATTERSON,

                                                  Plaintiff-Appellant,
v.

MARGARET SPELLINGS, Secretary, Department of Education,

                                                  Defendant-Appellee.


           Appeal from the United States United States District Court
                       for the Northern District of Texas
                                 3:06-CV-1600


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Treslyn C. Patterson (“Patterson”) appeals the district
court’s grant of the Department of Education’s (“DOE”) motion to dismiss. The
district court found that it lacked jurisdiction over Patterson’s                complaint
because the United States Court of Claims has exclusive jurisdiction over
Patterson’s claim for breach of contract. We agree, and for the reasons stated
below, we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-10273

       Patterson is an employee of the DOE. In April, 2002, Patterson filed a an
administrative complaint against the DOE alleging that she had suffered
discrimination in the workplace. Before an administrative hearing on the
matter, the parties entered into a settlement agreement to resolve the complaint.
The agreement provided for money damages and that “[a]ll standard operating
procedures will apply to when and how [Patterson] will be eligible and
considered for advancement to her next career ladder promotion to grade 12.”
       Patterson became eligible for promotion on January 26, 2004. As of
January 2005, she had not been promoted,1 and as a result, filed two separate
administrative complaints.            On January 24, 2005, Patterson filed an
administrative complaint (“Complaint I”) alleging that she was denied the
promotion to grade 12 as reprisal for her former complaints about
discrimination. On February 3, 2005, Patterson filed a second administrative
complaint (“Complaint II”), alleging that DOE’s failure to promote her
constituted a breach of the parties’ 2002 settlement agreement.
       On August 31, 2006, after exhausting her administrative remedies relating
to Complaint II,2 Patterson filed suit in the Northern District of Texas (“Federal
Complaint”). Patterson’s Federal Complaint asserted jurisdiction under the
Rehabilitation Act, 29 U.S.C. § 791; Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq.; and 29 C.F.R. § 1614.407(a). The Federal Complaint
alleged that the DOE had breached the parties’ settlement agreement because
it failed to promote her in accordance with standard operating procedures.
Patterson requested the court award her: (1) money damages for “failure to be


       1
           Subsequently, on March 6, 2005, Patterson was promoted to grade 12.
       2
        Patterson’s brief recounts the lengthy administrative proceedings. She states that the
DOE’s EEO office found in her favor as to Complaint II and awarded money damages, but
reversed the decision after she refused to settle for less than the damages awarded by the
decision. She then appealed the reversal. The EEOC dismissed her appeal and denied a
motion for reconsideration.

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promoted pursuant to the terms of the Settlement Agreement;” (2) immediate
promotion to GS-13; (3) relocation of Patterson to another office in the DOE; and
(4) exemplary damages and attorney’s fees.
       On November 15, 2006, the DOE’s EEO office dismissed Complaint I,
relating to Patterson’s allegations of retaliation. The dismissal was based on 29
C.F.R. § 1614.107(a)(3), which requires the agency to dismiss an administrative
complaint if it is the basis of a pending civil action in federal district court.
Patterson did not appeal this decision to the EEOC, nor did she amend her
complaint pending in the Northern District of Texas.
       On November 6, 2006, the DOE filed a motion in the district court to
dismiss Patterson’s Federal Complaint for lack of subject matter jurisdiction.
Patterson’s opposition, filed after the November 15, 2006 dismissal of Complaint
I, argued that the district court had jurisdiction over the Federal Complaint
because: (1) Patterson’s suit asserted a Title VII retaliation claim, as well as the
breach of contract claim; and (2) Patterson had requested both monetary
damages and equitable relief for the breach of contract claim. The district court
dismissed the case, noting that under the Tucker Act and Little Tucker Act, the
United States Court of Claims has exclusive jurisdiction over breach of contract
claims against the federal government when a plaintiff seeks monetary damages
in excess of $10,000. Patterson filed a timely appeal of the dismissal.3
           The Tucker Act provides that “[t]he United States Court of Federal
Claims shall have jurisdiction to render judgment upon any claim against the
United States founded . . . upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.”


       3
          After filing her notice of appeal, Patterson filed a motion for reconsideration and to
transfer the case to the Court of Claims. The district court denied this motion in an order
dated March 15th, 2007. Patterson did not appeal this order, so it is unclear whether the
district court’s decision not to transfer the case is properly before the court. In any event, as
explained below, the district court’s decision not to transfer the case was proper.

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28 U.S.C. § 1491(a)(1); see also Greenhill v. Spellings, 482 F.3d 569, 572 (D.C.
Cir. 2007). The Little Tucker Act gives district courts jurisdiction over certain
claims against the federal government, but when a plaintiff seeks more than
$10,000 in damages the Court of Federal Claims has exclusive jurisdiction. See
28 U.S.C. § 1346(a); Sharp v. Weinberger, 798 F.2d 1521, 1523 (D.C. Cir. 1986).
       Patterson appears to concede that her damages claim for breach of the
settlement agreement is a breach of contract claim against the United States
seeking damages greater than $10,000, and as such should have been brought
in the Court of Claims under the Tucker Act. See Hansson v. Norton, 411 F.3d
231, 232 (D.C. Cir. 2005) (holding that a claim for breach of a Title VII
settlement agreement is a contract claim within the meaning of the Tucker Act
and, therefore, for claims exceeding $ 10,000 jurisdiction belongs with the Court
of Federal Claims); Guidry v. Halliburton Geophysical Servs., 976 F.2d 938, 940
(5th Cir. 1992) (stating that “[a] settlement agreement is a contract”).
       However, Patterson advances the following theory in an attempt to avoid
this jurisdictional limitation. Patterson argues that the district court erred in
failing to recognize a Title VII retaliation claim in her Federal Complaint. The
district court would have had jurisdiction over a retaliation claim, and therefore,
according to Patterson, could have exercised supplemental jurisdiction over the
breach of contract claim.4          In support of her argument that her Federal
Complaint includes a retaliation claim, Patterson cites to the EEO’s dismissal



       4
         As discussed below, we reject Patterson’s contention that she has adequately pled a
Title VII retaliation claim. As such, we have no occasion to consider Patterson’s argument that
a district court properly having jurisdiction over a Title VII claim could exercise ancillary
jurisdiction over a breach of settlement claim. See Greenhill, 482 F.3d at 573 (noting that it
is open question under what circumstances a district court might exercise supplemental
jurisdiction over a contract claim that otherwise falls within the exclusive jurisdiction of the
Court of Federal Claims); Rochon v. Gonzales, 438 F.3d 1211, 1215 (D.C. Cir. 2006)(suggesting
that district court may have ancillary jurisdiction over contract claim if district court has
jurisdiction over plaintiff’s Title VII claim).

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of Complaint I, which set forth a retaliation claim, on the basis that Complaint
I was the basis of a pending civil action in federal court.5
       Federal procedure requires only notice pleading — “a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2); see also EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase
Bank NA, 467 F.3d 466, 470 (5th Cir. 2006). However, even under this lenient
standard, Patterson’s Federal Complaint fails to set forth a Title VII retaliation
claim.
       At no point does Patterson’s Federal Complaint explicitly set out that she
is asserting a Title VII Retaliation claim, nor does it set out the elements of such
a claim. Instead, the Federal Complaint sets out a single cause of action–
“breach of settlement agreement.” The only mention of retaliation or reprisal is
the following sentence: “Indeed, the Department breached the Settlement
Agreement in retaliation for the settlement which Patterson had obtained.”
However, this sentence relates only to the breach of contract claim– not to
Patterson’s claim that she was denied the promotion in retaliation for past
complaints about discrimination.             Further, Patterson was still pursuing
administrative remedies relating to the retaliation claim set forth in Complaint
I at the time she filed her Federal Complaint, thus making it unlikely that
Patterson would have included the retaliation claim in the complaint.
       Nonetheless, Patterson argues that the fact of her lack of promotion, when
coupled with her past complaints about discrimination, supports an inference of
retaliation. However, these facts were set out in the context of bolstering her
claim for breach of the settlement agreement. Although the facts alleged by

       5
         In her opposition to the motion to dismiss in the district court, Patterson also argued
that jurisdiction would not be proper in the Court of Claims because she was seeking monetary
relief and equitable relief. However, Patterson did not brief this issue on appeal, and as such,
has abandoned this argument. See FED. R. APP. P. 28(a)(9)(A); United States v. Beaumont, 972
F.2d 553, 563 (5th Cir. 1992) (“Failure of an appellant to properly argue or present issues in
an appellate brief renders those issues abandoned.”).

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Patterson may be consistent with retaliatory behavior, the district court here
could not reasonably be expected to discern a separate, independent retaliation
claim. See Greenhill v. Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007) (addressing
Title VII breach of contract claim under the Tucker Act and finding that district
court is not required “to go on a fishing expedition for new claims”).
       Patterson also argues that the EEO’s dismissal of her retaliation
complaint, Complaint I, under 29 C.F.R. § 1614.107(a)(3) supports her argument
that the Federal Complaint included a retaliation claim. Section 1614.107(a)(3)
provides that “the agency shall dismiss an entire complaint... [t]hat is the basis
of a pending civil action in a United States District Court in which the
complainant is a party provided that at least 180 days have passed since the
filing of the administrative complaint.” 29 C.F.R. § 1614.107 (a)(3). It is true
that the EEO dismissed her claim under this section. Patterson appears to
argue that this decision included an explicit finding by the EEO that she had
adequately pled a retaliation claim, and further, that this court should defer to
that finding. Patterson misconstrues both the EEO’s decision, as well as the
pertinent regulation. The EEO’s decision merely recognized that her retaliation
claim, and the facts supporting such a claim, were the “basis of” a pending action
in district court.6 It did not make any explicit findings that she had adequately


       6
         We express no opinion as to the propriety of the EEO’s dismissal of Complaint I under
C.F.R. § 1614.107(a)(3). Arguably, the regulation could require dismissal of a second EEO
complaint only where the precise claim (i.e., retaliation) is before the district court. See Mays
v. Principi, No. 01 C 1418, 2001 U.S. Dist. LEXIS 12736, at *9 (N.D. Ill. August 17, 2001)
(agency dismissed claims under 29 C.F.R. § 1614.107(a)(3) because “the cause of action
contained in the complainant’s civil action encompass all the claims accepted for investigation
in this complaint”). Under that standard, the EEO’s dismissal in this case would have been
in error, as Patterson’s Federal Complaint did not, on its face, plead a retaliation claim.
However, an alternative reading of the regulation could require dismissal whenever the second
EEO complaint arises out of the same facts that are already before the district court. See More
v. Snow, 480 F. Supp 2d 257, 266 (D.D.C. 2007) (agency dismissed complaint “due to pendency
of litigation concerning the same subject”). Under that reading, the EEO’s dismissal was
proper, as Patterson’s two claims do arise out of a common nucleus of fact. We need not decide
which reading is correct though, because by failing to appeal the EEO’s dismissal of Complaint

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pled a retaliation claim in that pending action. After receiving the EEO’s
dismissal of Complaint I, Patterson could have taken a number of actions to
ensure adjudication of her retaliation claim. See, e.g., Padro v. Chao, 452 F.3d
31, (1st Cir. 2006) (noting that after dismissal of plaintiff’s second EEO claim
under C.F.R. § 1614.107(a)(3), plaintiff could either file the second EEO claim
as a separate civil action or amend his complaint to add the second EEO claim).
First, Patterson could have amended her Federal Complaint to state a cause of
action for retaliation under Title VII. In the alternative, Patterson could have
appealed the EEO’s dismissal of Complaint I to the EEOC, and argued that her
retaliation claim was not the basis of a pending federal civil action. Third, as the
EEO’s dismissal advised her, she could have filed a new action in federal court
alleging her retaliation claim. Patterson took none of these actions, and the
EEO’s dismissal of Complaint I cannot create a cause of action where none has
been pled.
       Therefore, we find that Patterson’s Federal Complaint states a single
cause of action for breach of the settlement agreement. Because the Federal
Complaint seeks damages in excess of $10,000, the Court of Claims has exclusive
jurisdiction over Patterson’s Federal Complaint, and the district court’s
dismissal was proper.
       Patterson argues that this court should order that the matter be
transferred to the Court of Claims, rather than affirming the district court’s
dismissal with prejudice. Where a district court finds it lacks jurisdiction, “the
court shall, if it is in the interest of justice, transfer such action” to a court in
which the action could have been brought. 28 U.S.C. § 1631. A transfer may be
in the “interest of justice” where the transferor court determines that it lacks
jurisdiction, but dismissal of the action might cause the plaintiff’s action to be



I, Patterson did not preserve this point of error.

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barred by the statute of limitations when refiled in the proper forum. See, e.g.,
Scherbatskoy v. Halliburton Co., 125 F.3d 288, 291-92 (5th Cir. 1997) (finding
that a balancing of the equities weighs in favor of transfer because a new appeal
would be barred as untimely). The district court denied Patterson’s motion to
transfer without any examination of whether such a transfer would be in the
interest of justice. However, Patterson fails to provide any arguments that the
district court’s denial was in error. Further, given the six year statute of
limitations, Patterson would not face a statute of limitations problem refiling in
the proper forum. We therefore find that the district court’s denial of the motion
to transfer was not in error.
      For the foregoing reasons, we AFFIRM the district court’s dismissal for
lack of jurisdiction and AFFIRM the district court’s denial of the motion to
transfer.




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