                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2064



ANTHONY G. ATKINSON,

                                              Plaintiff - Appellant,

           versus


M. EDWARD SELLERS; BLUE CROSS & BLUE SHIELD
OF SOUTH CAROLINA; WILLIAM R. HORTON,

                                            Defendants - Appellees.



                             No. 05-2184



ANTHONY G. ATKINSON,

                                              Plaintiff - Appellant,

           versus


M. EDWARD SELLERS; BLUE CROSS & BLUE SHIELD
OF SOUTH CAROLINA; WILLIAM R. HORTON,

                                            Defendants - Appellees.



Appeals from the United States District Court for the District of
South Carolina, at Columbia.    Cameron McGowan Currie, District
Judge. (CA-04-604-3)


Argued:   March 14, 2007                      Decided:   May 23, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Vacated and remanded with instructions to dismiss by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Wilkinson
and Judge Duncan joined.


ARGUED: Suzanne M. Caylor, Third-Year Student, WAKE FOREST
UNIVERSITY, School of Law, Winston-Salem, North Carolina, for
Appellant. Shahin Vafai, GIGNILLIAT, SAVITZ & BETTIS, Columbia,
South Carolina, for Appellee. ON BRIEF: John J. Korzen, Jose D.
Vega, Third-Year Student, WAKE FOREST UNIVERSITY, School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina, for
Appellant. Vance J. Bettis, GIGNILLIAT, SAVITZ & BETTIS, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               -2-
GREGORY, Circuit Judge:

       This appeal concerns an allegation that an employer breached

a settlement agreement entered into with a then-employee to settle

Title VII claims. Because the employee’s complaint alleges only a

breach of the settlement agreement and not a violation of Title VII

or any other federal statute, federal subject-matter jurisdiction

does not exist. Accordingly, the case must be dismissed.



                                    I.

       Anthony Atkinson was employed by Blue Cross & Blue Shield of

South Carolina (“Blue Cross”) from June 1997 to February 2000.

During his tenure, Atkinson applied for several internal positions

to advance his career. At the interviews for these positions, Blue

Cross personnel asked inappropriate questions regarding Atkinson’s

race   and   national   origin.    Atkinson   complained           to   Blue   Cross

management, who initiated an internal investigation. Blue Cross’s

internal investigation revealed that Atkinson had been the subject

of inappropriate remarks and interview questions and that his

managers wrongfully disclosed that he filed a grievance.

       Through   mediation,   Atkinson      and   Blue        Cross     reached   a

settlement    agreement,   which    was    reflected     in    a    “Resignation,

Settlement Agreement and Release in Full” document (“Settlement

Agreement”). The Settlement Agreement provided that Blue Cross

would pay Atkinson a lump sum of $115,000, his accrued leave time,


                                     -3-
and   provide   employment   outplacement       services    following     the

execution of the agreement. The outplacement services would cease

after three months regardless of whether Atkinson obtained other

employment. Atkinson agreed to resign his employment at Blue Cross

and to release Blue Cross from any liability in connection with his

employment or separation, including liability under Title VII. In

addition, Atkinson agreed to waive all future rights to employment

at Blue Cross and not to seek employment from Blue Cross or its

subsidiaries or affiliates. Blue Cross paid the agreed-upon sum,

and on February 15, 2000, Atkinson resigned his employment.

      Pursuant to the Settlement Agreement, Blue Cross set up an

appointment     for   Atkinson’s   outplacement         services   with     a

representative of Crutchfield Associates (“Crutchfield”). Atkinson

alleges that on a visit to Crutchfield’s offices, he saw two

individuals who had discriminated against him at Blue Cross, became

fearful of a possible encounter, and drove away. Neither Blue Cross

nor Crutchfield contacted Atkinson to ascertain why he stopped

using Crutchfield’s services.

      On July 18, 2000, Atkinson wrote to Blue Cross authorizing the

release of his employment record to the Governor’s Office of South

Carolina   (“Governor’s   Office”).      Blue   Cross   provided   detailed

information, via telephone, to the Governor’s Office. As confirmed

by the reference report of the Governor’s Office and by Atkinson,

Blue Cross gave Atkinson an extremely favorable review. Atkinson


                                   -4-
was hired by the Governor’s Office, where he worked until March

2001. Following his employment with the Governor’s Office, Atkinson

worked as an insurance agent for ING/Life of Georgia and AIG

American General.

       In August 2003, Atkinson applied for a position with State

Farm   Insurance    Companies   (“State   Farm”).   After   receiving   a

satisfactory score on a career profile, State Farm invited Atkinson

to attend a career seminar on October 1. On November 12, State Farm

informed Atkinson via letter that he was no longer being considered

for a position because of information contained in an investigative

report conducted by ChoicePoint. Atkinson alleges that the negative

ChoicePoint report was a result of the employment verification

information that Blue Cross provided to ChoicePoint.

       After receiving the letter from State Farm, Atkinson called

Blue Cross to verify his employment record. He alleges that he

received inaccurate information about the specific dates of his

employment and that a “rehire eligibility” box was checked on an

earlier Blue Cross employment verification provided to ING/Life of

Georgia, but was not checked on the verification provided to State

Farm. In addition, Atkinson spoke with Amy Stroupe, a white female

employee of Blue Cross, who told Atkinson that her employment

information was treated in a more secure manner than Atkinson’s

employment information. Atkinson believed that Blue Cross’s conduct




                                   -5-
was   a   breach     of     the   Settlement   Agreement    and   exchanged

correspondence with Blue Cross regarding the matter.

      During   the   time    of   his   correspondence   with   Blue   Cross,

Atkinson contacted the Office of Federal Contracts Compliance

Programs (“OFCCP”), the agency responsible for enforcing Executive

Order 11246, which applied to Blue Cross as a federal contractor.1

OFCCP informed Atkinson that his allegations were “moving to the

realm of a private matter . . . governed by the [Settlement

Agreement].” S.J.A. 3. Atkinson alleges that based on this advice

he did not file a complaint with either the OFCCP or the EEOC and

instead filed suit pro se in federal court.

      Atkinson filed his complaint on February 27, 2004, alleging

that Blue Cross violated the Settlement Agreement.2 Blue Cross


      1
      “Executive Order 11246 prohibits discrimination on the basis
of race, color, religion, sex, or national origin by federal
contractors.” Volvo GM Heavy Truck Corp. v. U.S. Dep’t of Labor,
118 F.3d 205, 206 (4th Cir. 1997) (citing Exec. Order No. 11,246,
§ 202, 3 C.F.R. 167, 168 (1965 Supp.), amended by Exec. Order No.
11,375, 3 C.F.R. 320, 321 (1967 Comp.)). The OFCCP is charged with
administering Executive Order 11246. See 41 C.F.R. § 60-1.2 (2006).
      2
       Atkinson’s verified complaint alleged, in full:

           On December 20, 1999 Plaintiff a then employee of
      the Defendants, a Federal Government contractor, executed
      a “RESIGNATION, SEPARATION AGREEMENT AND RELEASE IN FULL”
      as final settlement to charges of egregious civil rights
      violation against Defendants under EXECUTIVE ORDER 11246
      of September 24, 1965 and TITLE VII OF THE CIVIL RIGHTS
      ACT OF 1964 as amended.
           The agreement which was fully executed by William R.
      Horton on behalf of Defendants and Plaintiff and his
      attorney Clifton Newman set forth equitable obligations,
      rights, duties, and relief for Plaintiff and Defendants

                                        -6-
answered on March 25 but did not raise Atkinson’s failure to

exhaust his administrative remedies as an affirmative defense. On

June 24, Atkinson submitted to Blue Cross interrogatory responses

indicating that his claim was based upon Title VII as well as

breach of contract grounds. Based on Atkinson’s responses, Blue

Cross moved for leave to amend its answer. Atkinson consented to

Blue Cross’s motion and on August 11, Blue Cross filed its amended

answer, including an affirmative defense that Atkinson failed to

exhaust his administrative remedies.

     On September 3, Blue Cross moved for summary judgment on

Atkinson’s claims of discrimination under Title VII and breach of

contract. Based on the Report & Recommendation from the magistrate

judge, the district court granted Blue Cross summary judgment on

the Title VII claims due to Atkinson’s failure to exhaust his

administrative remedies. The district court dismissed Atkinson’s

state contract claims without prejudice. This appeal followed.




     as mutually agreed upon between Plaintiff and Defendants
     as parties to a contract.
          Plaintiff is contending that Defendants by acts and
     omissions have violated the agreement of December 20,
     1999 resulting in severe harm and loss to Plaintiff.
          Request made by hand delivered letters by Plaintiff
     upon Defendants to settle claim for damages arising from
     the violation of the agreement of December 20, 1999 as
     set forth in the said agreement have been met with
     calculated intransigence.


                               -7-
                                     II.

     We review a district court grant of summary judgment de novo,

resolving all doubts and inferences in favor of the nonmoving

party. Bacon v. City of Richmond, Va., 475 F.3d 633, 637 (4th Cir.

2007). A moving party is entitled to summary judgment if the

evidence shows that no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. Fed R.

Civ. P. 56(c); Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325,

329 (4th Cir. 2006).

     It is well established that “[f]ederal courts are courts of

limited   jurisdiction   and   are    empowered   to   act    only   in   those

specific situations authorized by Congress.” Bowman v. White, 388

F.3d 756, 760 (4th Cir. 1968). Consequently, “[w]henever it appears

by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the

action.” Fed. R. Civ. P. 12(h)(3). The absence of             subject-matter

jurisdiction may be raised at any time during the case, including

on appeal, and may be based on the court’s review            of the evidence.

See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999); see also

Kontrick v. Ryan, 540 U.S. 443, 355 (2004) (“A litigant generally

may raise a court's lack of subject-matter jurisdiction at any time

in the same civil action, even initially at the highest appellate

instance.”); Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111

U.S. 379, 382 (1884) (noting that on every appeal, “first and


                                      -8-
fundamental question,” even if not suggested by the parties, is

that of subject-matter jurisdiction).



                                   III.

     The district court treated Atkinson’s complaint as raising a

Title VII claim in addition to state-law contract claims. Because

Atkinson did not file a charge with the EEOC, the district court

granted summary judgment to Blue Cross on the Title VII claim.3 On

its face, however, Atkinson’s complaint alleged only a breach of

contract arising from Blue Cross’s violation of the Settlement

Agreement. It did not allege that Blue Cross violated Title VII or

engaged in any discriminatory conduct. Nor did the complaint allege

that Blue Cross took actions that would violate any other federal

statute.   Although   part   of    the    consideration   underlying   the

Settlement Agreement may have been Atkinson’s waiver of Title VII

claims   against   Blue   Cross,   “[n]o   federal   statute   makes   that

connection (if it constitutionally could) the basis for federal-

court jurisdiction over the contract dispute.” Kokkonen v. Guardian

Life Ins. Co. of America, 511 U.S. 375, 381 (1994); see Morris v.

City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).




     3
      On appeal, Atkinson argues that his failure to file an EEOC
charge should be excused by either the doctrine of equitable
tolling or equitable estoppel. Because we find that we lack
jurisdiction over Atkinson’s claim, we do not address Atkinson’s
failure to file with the EEOC.

                                    -9-
     We have also recognized a “small class of ‘cases in which a

well-pleaded complaint establishes . . . that the plaintiff’s right

to relief necessarily depends on resolution of a substantial

question of federal law, in that federal law is a necessary element

of one of the well-pleaded . . . claims.’” Pinney v. Nokia, Inc.,

402 F.3d 430, 442 (4th Cir. 2005) (quoting Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 808 (1988)). “A plaintiff's

right to relief for a given claim necessarily depends on a question

of federal law only when every legal theory supporting the claim

requires the resolution of a federal issue.” Dixon v. Coburg Dairy,

Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc). In this case,

Atkinson could obtain relief on his breach of contract claim

without   reference    to    federal    law   at   all,   if   the   claim   were

litigated   solely    on    the   theory   that    Blue   Cross   breached   the

Settlement Agreement and that breach violated South Carolina law.

Therefore, Atkinson’s complaint does not depend on the resolution

of a substantial question of federal law.

     As the Tenth Circuit stated in Morris: “The jurisdictional

grant embodied in Title VII states only that federal courts have

jurisdiction over actions ‘brought under’ Title VII. This case was

brought under state contract law, not Title VII.” 39 F.3d at 1112

(citation and footnote omitted). Because Atkinson neither alleges

a violation of a federal statute nor raises a substantial question




                                       -10-
of federal law, his complaint does not satisfy the requirements of

subject-matter jurisdiction and must be dismissed.



                                   IV.

     Atkinson’s complaint for breach of contract based on the

Settlement Agreement does not arise under Title VII, or any other

federal   statute,   or   depend   on    a   resolution   of   a   substantial

question of federal law. Thus, the district court lacked subject-

matter jurisdiction to consider Atkinson’s claims. Accordingly, we

remand this case to the district court with instructions to vacate

the judgment and dismiss the case for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1) and 12(h)(3).



                                                      VACATED AND REMANDED
                                                         WITH INSTRUCTIONS
                                                                TO DISMISS




                                   -11-
