                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 14 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    WILLIAM C. WHITEHEAD,

                Plaintiff-Appellant,

    v.                                                   No. 04-6070
                                                   (D.C. No. 02-CV-459-W)
    ANN M. VENEMAN, Secretary U.S.                       (W.D. Okla.)
    Department of Agriculture,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , and BALDOCK , Circuit Judges, and         BRIMMER , ** District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff-Appellant William C. Whitehead appeals from orders denying

partial summary judgment in his favor and granting summary judgment in favor of

defendant on his claims for breach of a settlement agreement and from a final

order issued after trial awarding him $1 in nominal damages. Our jurisdiction

arises under 28 U.S.C. 1291, and we affirm.

                      I. Procedural and factual background

      This case arose from defendant’s failure to fully comply with a term in the

parties’ January 1999 agreement totally settling Mr. Whitehead’s discrimination

claims. Specifically, defendant agreed to pay Mr. Whitehead $100,000; to forgive

all six of his outstanding Farm Service Agency farm-loan debts in the amount of

$456,229; to forever release and hold harmless Mr. Whitehead from any liability

under those debts; and to give him various “programmatic” benefits in the future

in exchange for release of all of his discrimination claims. Aplt. Br. Ex. 2,

Settlement Agreement at 1-4. The check for $100,000 was to be issued within

thirty days after the agreement was signed.         Id. at 1. Paragraph 12 of the

agreement provided that, if the agreement was not performed, Mr. Whitehead

could “request specific enforcement of the terms of the agreement” in writing no

later than sixty days after the date he knew that the defendant had failed to


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implement any term of the agreement.       Id. at p. 4. The agreement gave the

defendant an additional thirty days to perform the agreement after written request,

and if performance did not occur, the agreement could be rescinded and

Mr. Whitehead could reinstate his discrimination complaint.       Id.

       On April 9, 1999, three months after the parties signed the agreement,

Mr. Whitehead informed defendant that he still had not received his check or

release of debts. He claimed that the failure to pay and to cancel his debts

constituted a “default [that] constitutes a reprisal against [him] and he register[ed]

a formal reprisal complaint based on the default.”    Id. Ex. 3, at 1. It is

uncontroverted that, as a result of this letter, defendant issued, and Mr. Whitehead

accepted, a check for $100,000 on April 28, 1999, and defendant issued a release

of his $456,229 debts on April 29, 1999. R. Doc. 129, at 8. But no one filed the

release of mortgage in the county clerk’s office, even though the defendant

notified Whitehead that he should do so.     Id. at 6. Releases were finally recorded

in May and June 2001 by defendant.      Id. The district court ruled that

Mr. Whitehead failed to demonstrate that he suffered any harm as a result of the

delayed payment, see R. Doc. 148, at 3, or as a result of the delayed recording,

see id. at 6. Mr. Whitehead does not appeal from these rulings.

       On September 10, 2001, defendant erroneously and mistakenly sent

Mr. Whitehead a letter stating that the six loans that had been cancelled in the


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settlement agreement were delinquent and that he had sixty days to resolve the

debt. Id. Doc. 129, at 11. The district court held that Mr. Whitehead failed to

present evidence of any actual damages as a result of this breach of the settlement

agreement, but awarded him $1.00 in nominal damages on this claim.       Id. Doc.

148, at 7.

                              II. Standards of review

             We review the district court’s grant of summary judgment de
      novo, applying the same legal standard used by the district court.
      Summary judgment is appropriate “if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to a judgment as a
      matter of law.” Fed. R. Civ. P. 56(c). When applying this standard,
      we view the evidence and draw reasonable inferences therefrom in
      the light most favorable to the nonmoving party.

             Although the movant must show the absence of a genuine issue
      of material fact, he or she need not negate the nonmovant’s claim.
      Once the movant carries this burden, the nonmovant cannot rest upon
      his or her pleadings, but must bring forward specific facts showing a
      genuine issue for trial as to those dispositive matters for which he or
      she carries the burden of proof. The mere existence of a scintilla of
      evidence in support of the nonmovant’s position is insufficient to
      create a dispute of fact that is genuine; an issue of material fact is
      genuine only if the nonmovant presents facts such that a reasonable
      jury could find in favor of the nonmovant. If there is no genuine
      issue of material fact in dispute, we determine whether the district
      court correctly applied the substantive law.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.     , 165

F.3d 1321, 1326 (10th Cir. 1999) (brackets and further citations and quotations

omitted).

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       “Summary judgment necessarily implicates the substantive evidentiary

standard of proof that would apply at the trial on the merits.”      Pub. Serv. Co. of

Colo. v. Cont’l Cas. Co. , 26 F.3d 1508, 1517 n.8 (10th Cir. 1994) (quotation

omitted). “[F]ailure of proof of an essential element renders all other facts

immaterial.” Koch v. Koch Indus., Inc. , 203 F.3d 1202, 1212 (10th Cir. 2000).

“[W]here the nonmoving party will bear the burden of proof at trial on a

dispositive issue, that party must go beyond the pleadings and designate specific

facts so as to make a showing sufficient to establish the existence of an element

essential to that party’s case in order to survive summary judgment.”          McKnight v.

Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998) (quotations omitted).

       As to the judgment rendered after the bench trial, “we review the district

court’s factual findings for clear error and its legal conclusions de novo.”       Keys

Youth Servs., Inc. v. City of Olathe,    248 F.3d 1267, 1274 (10th Cir. 2001).

                                        III. Analysis

       On appeal, Mr. Whitehead essentially asserts that the district court erred by

granting summary judgment to defendant on his claim that defendant was required

to reinstate his discrimination suit and remand it to the agency as the consequence

for breaching the agreement not to attempt further collection proceedings on his

forgiven farm loans. Aplt. Br. at 6 (issues one and three). As grounds, he argues

that paragraph 12 of the agreement provides for reinstatement of his complaint.


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See id . at 16-17. He also argues that a May 1999 letter stating that his “reprisal

complaint” would be referred to the agency and “processed” provides a new basis

for reinstating his original discrimination claims.      See id. at 9-10 & n.1, 13-14,

16-18.

         We disagree. The settlement agreement provided for its rescission and for

reinstatement of the discrimination complaints        only if the agency did not perform

and pay Mr. Whitehead according to the terms of the agreement. Mr. Whitehead

accepted the full benefit of the settlement agreement, and he does not request

rescission; therefore, his only remedy for a breach of a specific term that occurred

years after payment was rendered and accepted and releases were issued and

accepted is monetary damages.       See R ESTATEMENT (S ECOND ) C ONTRACTS § 372

(1981) (providing that restitution of thing given in agreement may be “conditional

on return of or compensation for anything that the party claiming restitution has

received”); Cascade Energy & Metals Corp. v. Banks          , 896 F.2d 1557, 1582 (10th

Cir. 1990) (affirming denial of claim for rescission, in part, because plaintiff

failed to tender back to defendants the consideration and benefits it had received

in agreement). The basis of the “reprisal complaint” was the agency’s failure to

perform according to the terms of the settlement agreement.         See Aplt. Br. Ex. 3,

at 1-2. When the agency performed, and Mr. Whitehead accepted the

performance, the settlement agreement terms “preclud[ing] Mr. Whitehead from


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filing any new administrative complaint about the issues arising prior to the date

of this agreement,” and “waiv[ing] and releas[ing] any and all claims of any kind

arising out of Mr. Whitehead’s pending discrimination complaints” became

binding upon him.    Id. Ex. 2 Settlement Agreement at 3.

       Mr. Whitehead next argues that the district court’s finding that he had not

presented evidence of damages arising from the agency’s attempt to collect on his

forgiven debt is contrary to proof that the agency deducted an $1,100 farm

program subsidy allotment due to him by use of a Treasury Offset. Aplt. Br. at

23-24. But the Exhibits that Mr. Whitehead attached to his brief and cites in

support of his claim do not support it. Exhibit 1 is simply a copy of his complaint

alleging that he was threatened in the September 2001 letter with the agency’s

power to offset his debt.   Id. Ex. 1, at 4. Exhibit 2 does not mention any offset.

Exhibit 3 mentions an “accompanying U.S. Treasury offset statement,” but the

alleged statement is not in the exhibit. Ex. 3, at 1. The district court’s finding is

supported by substantial evidence.

       Mr. Whitehead argues that the court erred by failing to apply law relevant

to discrimination claims. Aplt. Br. at 6, 24-25. This argument is also without

merit. Mr. Whitehead expressly exchanged his right to prosecute his

discrimination claims for over half of a million dollars in cash and forgiven debt.




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      Mr. Whitehead asserts in his summary of the argument that the district

court abused its discretion by denying his motion for administrative agent fees

and expenses. Aplt. Br. at 6. He briefly restates his claim in the body of his

brief. Id. at 10. But Mr. Whitehead did not brief that issue and support it with

legal authority or provide this court with specific citations to the record, including

where the issue was raised and ruled on.     See Fed. R. App. P. 28 (a)(9)(A); 10th

Cir. R. 28.2(C)(2); Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc.   , 82 F.3d

1533, 1540 n.3 (10th Cir. 1996);   Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th

Cir. 1992). We therefore dismiss that issue.

      The judgment of the district court is AFFIRMED.


                                                       Entered for the Court



                                                       Clarence A. Brimmer
                                                       District Judge




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