The opinion of the court was delivered by: Robertson, District Judge.
Plaintiff Lorraine Wise brought this Title VII action against the
Department of Education in April 1998, alleging race discrimination and
retaliation. Certain of her claims were jury triable; others were not. On
November 16, 1999, at the conclusion of a two-day bench trial of one
count, and on the eve of the jury trial then set for the other two
counts, counsel asked for a conference in chambers. In chambers, they
represented that the case had settled. In reliance upon that
representation, I took the jury trial off the calendar.
On November 24th, DOE counsel sent a draft settlement agreement to Ms.
Wise's counsel. The agreement provided for DOE to pay $10,000 to Ms. Wise
and $10,000 to her lawyers; remove all references to the AWOL and the
14-day suspension from Ms. Wise's personnel file; and convert the AWOL
and 14-day suspension to leave without pay. Ex. 1 to Def.'s Mot. to
Enforce (Def.'s Mot.). Ms. Wise was to dismiss her complaint and release
Ms. Wise's counsel responded by letter that DOE's proposed release
language was overly broad and that alternative language would make it
clear that Ms. Wise was not relinquishing her rights to participate in an
administrative class action against DOE. The letter also stated that the
agreement should provide a timetable for DOE to issue the settlement
checks, and it stated that counsel would "discuss with [Ms. Wise] whether
she will insist on reinstatement of annual leave that would have accrued
during the 14-day period that she was previously suspended." Ex. 2 to
DOE counsel sent a second draft settlement agreement to Ms. Wise's
counsel on December 3, 1999. This one stated explicitly that Ms. Wise's
rights to participate in an administrative class action would not be
abridged by settling this case. The draft agreement also provided that
DOE would "submit to the [Treasury Department] within five (5) days of
the date of the Settlement Agreement becomes effective the necessary
governmental forms to ensure prompt payment." Ex. 3 to Def.'s Mot.
On January 10, 2000, Ms. Wise's counsel notified government counsel
that "Ms. Wise demands that [certain] changes be made." The proposed
changes included further narrowing of release language throughout the
agreement; a requirement that payment be made within ten days of the
effective date of the settlement; a statement that DOE, not plaintiff,
would be responsible for any monetary penalty stemming from converting
the days of Ms. Wise's suspension to leave without pay; a statement that
"[n]o copies of the AWOL or 14-day suspension will be forwarded or shared
with any individual, group, organization or entity;" and a recitation
that Ms. Wise's counsel waived any and all claims for attorneys fees.
Ex. 4 to Def.'s Mot.
DOE's counsel replied to these new demands in a letter dated February
3, 2000, stating that he was "confused . . . in light of the fact that
you and I had reached agreement on the contents of the Settlement
Agreement." Nevertheless, he responded to Ms. Wise's demands seriatim.
DOE agreed to change the "release" type language in certain parts of the
agreement; to give assurances that Ms. Wise would not be held responsible
for any "monies due" as a result of the conversion of suspension days to
leave without pay; and to include a provision that Ms. Wise's law firm
waived any and all claims for attorneys
fees. DOE refused to modify the agreement so that it would bar only
future claims actually made in the complaint. DOE asserted that Ms. Wise
had agreed to settle "any and all claims, with the exception of the
putative administrative class action already carved out of the agreement."
DOE also refused to guarantee payment on a date certain, explaining that
the Treasury Department would be responsible for making the payment, and
it refused to state categorically that information about this litigation
would not be shared with any "individual, group, organization, or
entity," explaining that the Freedom of Information Act prevented it from
doing so. The letter stated that "the demands Ms. Wise is now making
exceed the relief requested in her complaint," but expressed hope that
DOE's "concessions" would lead to the prompt execution of the settlement
agreement. Ex. 5 to Def.'s Mot.
On February 16, 2000, when no stipulation of dismissal had been filed
three months after the parties declared that they had settled. I entered
an order dismissing the case. Ten days later, Ms. Wise moved to vacate
the dismissal. In her motion, Ms. Wise stated that the "trial of this
matter was suspended on November 16, 1999, as a result of an agreement in
principal [sic] reached by the parties," but she went on to state that
"[c]ounsel have not yet been able to reach agreement . . . concerning a
finalized, written settlement agreement." Pl.'s Mot. to Vacate Dismissal
On April 11, 2000, Ms. Wise's counsel filed a notice to withdraw from
the case, citing "irreconcilable differences" with the client. I convened
a status conference on April 18, 2000, to discuss the motion to vacate
and the motion, of counsel to withdraw. During the status conference,
which was conducted in chambers and unrecorded, Ms. Wise announced that
she had another problem with the settlement agreement: she did not
believe that her $10,000 payment should be taxed. In response, her
counsel indicated a willingness to divide the $20,000 in a manner that
would make up for any taxes Ms. Wise would have to pay on her share of
the settlement. I indicated that the motion to withdraw would be granted
and sent the parties off to continue their negotiations, stating that, if
negotiation were unsuccessful, the case would be reinstated on the trail
calendar — if the government did not move to enforce the settlement
agreement.*fn2 See Pl.'s Notice to Withdraw at 1-2.
The next day, DOE counsel forwarded a signed settlement agreement to
Ms. Wise that purported to address the demands set forth in the January
10th letter of Ms. Wise's (former) counsel. This agreement provided for
one payment of $20,000 directly to Ms. Wise but included, unchanged, the
provision that she waive salary and benefits that she may have forfeited
as a result of the AWOL designation and the 14-day suspension. See Ex.
6, Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Enforce (Def.'s Reply).
Ms. Wise replied on April 20th with another draft. This one simply
incorporated the demands that DOE had refused: payment, on a date
certain, narrower release language, making the settlement amount tax
free, and purging all references to the AWOL charge and the 14-day
suspension from DOE's files. DOE counsel replied on April 26 that DOE
could not sign Ms. Wise's draft, again explaining its reasons. Ms. Wise
answered the next day, stating that "[t]he contents of your draft
settlement is [sic] not in my best interest and does not reflect that to
which I agreed the evening of the first day of trial in November, 1999."
On May 8, DOE responded that its third — and final — version
of the proposed settlement "reflects the agreement of the parties and
addresses the issues the parties discussed with Judge Robertson during
our conference on April
18, 2000." It urged Ms. Wise to review the settlement. Exs. 7-11, Def.'s
Reply; Exs. D & E, Pl.'s Opp'n to Def.'s Mot. (Pl.'s Opp'n).
The record does not disclose whether Ms. Wise responded, but DOE's
motion to enforce the settlement agreement ...