                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                             )
ROXANN J. FRANKLIN-MASON,    )
                             )
           Plaintiff,        )
                             )
           v.                ) Civil Action No. 96-2505 (RWR)(JMF)
                             )
B.J. PENN,                   )
Secretary of the Navy,       )
                             )
           Defendant.        )
_____________________________)

                        MEMORANDUM OPINION

     Plaintiff Roxann J. Franklin-Mason filed a motion to enforce

a settlement agreement reached in her 1996 Title VII

discrimination suit against the Secretary of the Navy,1 her

former employer, seeking damages for the Secretary’s breach of

the agreement.   A magistrate judge issued a report and

recommendation finding that subject matter jurisdiction existed,

that the defendant was liable for only nominal damages for

failing to place Franklin-Mason in the specific job position

called for in the settlement agreement, and that the defendant

did not otherwise violate the settlement agreement.    Franklin-

Mason filed objections to findings made on the merits.2   Because



     1
       B.J. Penn is substituted as the defendant under Fed. R.
Civ. P. 25(d).
     2
       She did not object to a finding against her claim that the
defendant inadequately funded a restored Thrift Savings Account
that the settlement agreement called for.
                                 -2-

this court lacks jurisdiction over Franklin-Mason’s claim for

damages exceeding $10,000, the case will be transferred to the

United States Court of Federal Claims.

                             BACKGROUND

     The history and background of this case and the underlying

motions at issue are discussed in Franklin-Mason v. Johnson,

Civil Action No. 96-2505 (RWR)(JMF), 2006 WL 825416 (D.D.C.

Mar. 21, 2006).   Briefly, Franklin-Mason, an African American

woman, brought the original Title VII action against her then

former employer, the United States Navy, alleging that the

defendant had discriminated against her on the basis of race and

gender by failing to promote her to a position that she had

applied for.    The parties ultimately filed a settlement agreement

and stipulation of dismissal which required the Navy to appoint

Franklin-Mason as a Senior Financial Analyst/Advisor, and not

assign her to be supervised or evaluated by certain named

individuals and others in the Comptroller’s Office.      The

agreement also stated that a party could seek from the court

enforcement of the agreement and monetary damages should a breach

of the agreement occur.

     Franklin-Mason was re-employed but resigned from her GS-13

position in June 2004 because, she says, the defendant was not

abiding by the settlement agreement.      Franklin-Mason, 2006 WL

825418 at *7.   (See Pl.’s Proposed Findings of Fact and
                                    -3-

Conclusions of Law, at 58-59.)      In her motion to enforce the

settlement agreement, Franklin-Mason argues that the defendant

violated the agreement by 1) failing to appoint her to the

promised Senior Financial Analyst/Advisor position; 2) failing to

assign her duties and responsibilities commensurate with that

position; and 3) failing to ensure that she would not be required

to work directly for or be supervised by allegedly discriminatory

officials, or that she would not be involved in any way with

people employed by the Office of the Comptroller.      (See Pl.’s

Objections to Report and Recommendation (“Pl.’s Objections”) at

1-2.)       Franklin-Mason does not seek specific performance of the

settlement agreement; instead, she seeks over $900,000 in damages

and attorney’s fees.       (See Feb. 3, 2005 Hr’g Tr. 86:8-89:6, 91:5-

91:18, 101:9-101:16; Pl.’s Proposed Findings of Fact and

Conclusions of Law, at 48, 57, 58 n.1, 59-61.)      See also

Franklin-Mason, 2006 WL 825418 at *14.

     A magistrate judge issued a report recommending awarding

Franklin-Mason at best nominal damages for the Navy’s failure to

appoint her to the promised position, in breach of the settlement

agreement.3      As an initial matter, the report concluded the


        3
       Regarding Franklin-Mason’s first two bases for claiming a
breach of the settlement agreement, the report determined that
the defendant violated the settlement agreement by not giving
Franklin-Mason the position described in the settlement
agreement, and that her assignments were not “perfectly
consistent” with the position that was described in the
agreement. Franklin-Mason, 2006 WL 825418 at *13-14. However,
                                 -4-

parties intended and did expressly stipulate that this court

would retain jurisdiction to hear any motion to enforce the

settlement agreement and award damages for a breach of it.     It

reasoned that

       [a] claim for breach of a Title VII settlement
       agreement is a contract claim within the Tucker Act and
       belongs in the Court of Federal Claims unless this
       court, pursuant to the parties’ agreement, retains
       jurisdiction to enforce the settlement agreement that
       resolved the Title VII action. Kokkonen v. Guardian
       Life Ins. Co., 511 U.S. 375, 381-82 (1994); Rochon v.
       Gonzales, 438 F.3d 1211, 1214 (D.C. Cir. 2006) (citing
       Hansson v. Norton, 411 F.3d 231, 232 (D.C. Cir. 2005)
       and Brown v. United States, 389 F.3d 1296, 1297 (D.C.
       Cir. 2004)).

Franklin-Mason, 2006 WL 825418 at *1-2.

       Franklin-Mason objects to the report’s failure to find a

material breach of the settlement agreement and to recommend the

damages she sought and attorney fees.     (Pl.’s Objections at 3,

12.)

                             DISCUSSION

       The magistrate judge’s report and recommendation is reviewed

de novo.    LCvR 72.3(c); see also Fed. R. Civ. P. 72; Ames v.

Yellow Cab of D.C., Inc., Civil Action No. 00-3116 (RWR), 2006 WL

2711546, at *4 (D.D.C. September 21, 2006).


the report and recommendation concluded that Franklin-Mason was
entitled “at best, to nominal damages.” Id. at *15. Regarding
Franklin-Mason’s third basis, the report found no breach,
explaining that the plain language of the settlement agreement
did not require a “complete separation between the staff of
[Franklin-Mason’s] office and the staff of the Office of the
Comptroller.” Id. at *11-12.
                                 -5-

     Jurisdiction is an independent, preliminary issue that is

resolved before analyzing the merits of the plaintiff’s claims.

Greenhill v. Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007)

(citing Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 94-95 (1998), and Kidwell v. Department of the Army, Board

for Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir.

1995)).    The Tucker Act states 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 contract4 with the United States, or for

liquidated or unliquidated damages in cases not sounding in

tort.”    28 U.S.C. § 1491(a)(1); see also Greenhill, 482 F.3d

at 572.    The Court of Federal Claims’ jurisdiction is exclusive

when such a claim “explicitly or in essence seeks money damages

in excess of $10,000[.]”    Greenhill, 482 F.3d at 572 (citing

28 U.S.C. § 1346(a); Sharp v. Weinberger, 798 F.2d 1521, 1523

(D.C. Cir. 1986)) (determining that because plaintiff sought

$210,000 in damages from the federal government in her attempt to

enforce an agreement that settled complaints of age and race

discrimination, the Court of Federal Claims had exclusive

jurisdiction); see also Brown, 389 F.3d at 1297 (remanding matter



     4
       “Settlement agreements are in the nature of contracts[,]”
and “[t]he District of Columbia Court of Appeals treats
settlement agreements as contracts.” Makins v. Dist. of
Columbia, 277 F.3d 544, 546, 548 (D.C. Cir. 2002).
                                -6-

to the district court to dismiss without prejudice action against

United States to enforce a Title VII settlement agreement because

claim for damages exceeding $10,000 for breach of agreement fell

within the exclusive jurisdiction of the Court of Federal

Claims); Murthy v. Schafer, 579 F. Supp. 2d 110, 113-114 (D.D.C.

2008) (dismissing plaintiff’s claims seeking over $10,000 against

the USDA for breach of a Title VII settlement agreement as

belonging in the Court of Federal Claims); Baccus v. U.S. Dept.

of Agriculture, Civil Action No. 08-0012 (ESH), 2007 WL 4616291

at *1 (D.D.C. November 27, 2007) (dismissing plaintiff’s

complaint against the USDA without prejudice where exclusive

subject matter jurisdiction rested with the Court of Federal

Claims because the plaintiff sought enforcement of a settlement

agreement and an award upwards of $50,000); Holmes v. Dep’t of

Navy, 583 F. Supp. 2d 431, 433-434 (W.D.N.Y. 2008) (dismissing

for lack of subject matter jurisdiction the plaintiff’s claim

against the Navy for $70 million in damages caused by a purported

breach of a settlement agreement since any such claim would lie

with the Court of Federal Claims).

     The report and recommendation based its conclusion that this

court has jurisdiction to hear this claim on the opinions in

Kokkonen and Rochon.   In Kokkonen, none of the parties was the

United States or a federal government entity.   They agreed on a

settlement and filed a joint motion to dismiss the complaint.
                                 -7-

When the petitioner supposedly breached the agreement, the

respondent life insurance company sought enforcement of the

agreement in district court.   Kokkonen, 511 U.S. at 376-77.      The

Supreme Court held that the district court lacked authority to

enforce the agreement because, in part, the dismissal order did

not include any provision retaining jurisdiction over the

agreement.   Id. at 381.   Unlike in Kokkonen, the Court of Federal

Claims is granted exclusive jurisdiction over Franklin-Mason’s

attempt to enforce the settlement agreement against the

government, and nothing in the language of Kokkonen indicates

that parties can create jurisdiction over a claim for which

jurisdiction is expressly reserved for a different body.     Parties

cannot by settlement agreement confer jurisdiction on a court

over a claim that is exclusively the province of another court.

See Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir.

2003) (stating that “no action of the parties can confer subject-

matter jurisdiction upon a federal court”).

     Nor did Rochon hold otherwise.     In Rochon, the district

court had dismissed the plaintiff’s claims of retaliation and

discrimination brought as violations of both Title VII and a

1990 settlement agreement.   Rochon, 438 F.3d at 1213.    The court

of appeals reversed and reinstated the Title VII claim because

the district court applied an improperly stringent pleading

standard in dismissing that claim.     The court of appeals also
                                 -8-

directed the district court to determine whether the primary

thrust of Rochon’s claim of breach was a contract or tort claim

for Tucker Act purposes, and whether the court had ancillary

jurisdiction over that claim if it did lie in contract.     Id.

at 1215.

     Franklin-Mason argues that this court should exercise

ancillary jurisdiction over her claim to enforce the settlement

agreement.   Rochon, though, did not purport to recognize district

court jurisdiction over free-standing breach claims that

otherwise fall within the Court of Federal Claims’ exclusive

jurisdiction.   Ancillary jurisdiction should be exercised only

“to permit disposition by a single court of claims that are, in

varying respects and degrees, factually interdependent,” or “to

enable a court to function successfully, that is, to manage its

proceedings, vindicate its authority, and effectuate its

decrees.”    Dailey v. Park, 468 F. Supp. 2d 209, 212 (D.D.C. 2007)

(quoting Kokkonen, 511 U.S. at 379-380; and Foretich v. Am.

Broad. Co., Inc., 198 F.3d 270 (D.C. Cir. 1999)).   Here,

Franklin-Mason has filed a complaint in a separate action

alleging discrimination and retaliation in violation of Title VII

based on her attempt to enforce the settlement agreement,

Franklin-Mason v. Johnson, Civil Action No. 03-945 (RWR), which

encompasses actions that occurred after she attempted to enforce

the settlement agreement in this case.   This court has no need to
                                -9-

exercise ancillary jurisdiction over her breach claim to

vindicate its authority or effectuate its decrees.

                            CONCLUSION

     Because this court lacks jurisdiction over Franklin-Mason’s

claim to enforce the settlement agreement, her motion to enforce

the settlement agreement will be transferred to the United States

Court of Federal Claims.   An appropriate order accompanies this

Memorandum Opinion.

     SIGNED this 22nd day of May, 2009.



                                        /s/
                               RICHARD W. ROBERTS
                               United States District Judge
