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February 9, 2004.

CLIFFORD J. HERRON, et. al, Plaintiffs,
ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant; CLIFFORD J. HERRON, Plaintiff, v. ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant

The opinion of the court was delivered by: HENRY KENNEDY, District Judge


Plaintiffs Clifford J. Herron, Starendel S. Bryant, and O. Jim Lawson, on behalf of themselves and a class of similarly-situated plaintiffs, bring this action against defendant, Ann M. Veneman, Secretary of the United States Department of Agriculture ("USDA"), in her official capacity only, in order to enforce a class settlement agreement allegedly reached in the course of litigation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. In addition, plaintiff Herron, individually, requests that the court review, in a trial de novo, the damages award in a decision rendered by an administrative judge in his own case. Before this Page 2 court are the defendant's motions to dismiss and the parties' cross-motions for summary judgment. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that defendant's motions to dismiss must be granted and that plaintiffs' motion for summary judgment must be denied.


  In 1995, Dr. Herron, an African-American male, applied for a newly created GS-15 position as Director of the Emergency and Noninsured Assistance Programs Division of USDA's Farm Service Agency ("FSA"). He did not receive the promotion and brought a claim for discrimination in an administrative proceeding before an Equal Employment and Opportunity Commission Administrative Judge ("EEOC Judge"). Pls.' Ex. 1 at 9-12 (Clifford J. Herron, et al., EEOC No. 100-98-7120x, et al. (Dec. 14, 1999) (findings and conclusions)). Two years later, on February 27, 1997, Herron, along with plaintiffs Bryant, Lawson, and other class members, filed an administrative class complaint with EEOC. The class included all African-American FSA employees alleging race discrimination in the denial of a promotion or opportunity for promotion to the GS-13, GS-14 and GS-15 levels since February 27, 1995. See id. at 3. EEOC Judge Adria S. Zeldin found that the agency's promotion practices did not have a disparate impact on African-Americans as a class, but that the agency did discriminate individually against Dr. Herron and Harold Connor, another class member who passed away shortly after the decision. See id. at 4. The EEOC Judge found no other instances of individual discrimination. Id. Later, after a separate hearing on damages and relief, EEOC Judge Zeldin ordered USDA to offer Dr. Herron a GS-15 position and provide accompanying back pay, $10,000 in non-pecuniary compensatory damages, and $94,795.13 in attorney's fees. Pls.' Ex. 2 Page 3 at 10-11 (Clifford J. Herron, et. al, EEOC No. 100-98-7120x, et al. (Apr. 14, 2000) (recommended corrective actions)). Dr. Herron's request for $300,000 in compensatory damages was denied. Id. at 3-6.

  USDA entered its final agency action, fully implementing the EEOC Judge's Recommended Corrective Actions. Pls.' Ex. 3 at 3 (Clifford J. Herron, et al., EEOC No. 100-98-7120x, et al. (USDA May 30, 2000) (final agency action). Plaintiffs — Dr. Herron, other individuals, and the administrative class — timely appealed the Final Agency Action. The EEOC's Office of Federal Operations ("OFO") vacated the EEOC Judge's findings of no class-wide discrimination. Pls.' Ex. 4 at 8-9 (Clifford J. Herron, et al., EEOC No. 100-98-7120x, et al. (EEOC Office of Fed. Operations Sept. 27, 2002) (decision)). The EEOC OFO also disposed of individual complaints, like Dr. Herron's, this way:
We also remand each individual appeal decided by the [EEOC Judge] as well as those not specifically decided by the [EEOC Judge] but presently before us on appeal, pending a decision on the class claims. Individual complaints filed before or after the class complaint is filed and that come within the definition of the class claim(s) will be subsumed within the class complaint.
Individual Complaints alleging reprisal must be addressed on an individual basis regardless of the [EEOC Judge]'s decision on the class complaint. As there is no decision in the record addressing Mr. Herron's claim of reprisal or any other individual claim of reprisal properly raised, we remand the issue for a decision on the merits.
Id. at 8 (internal citations omitted).

  In response to the EEOC OFO's decision, Dr. Herron brought a timely claim in Civil Action 02-02525 ("Herron I"), an individual suit requesting that this court review the $10,000 compensatory damages award of the EEOC Judge, adopted by USDA in its final agency action. Plaintiff's complaint indicated that the amount was "ludicrously small" compared to the damage Page 4 Herron suffered. Herron I Am. Compl. ¶ 17. As a result, Dr. Herron requested a trial de novo on the compensatory damages award. Id. ¶¶ 18, 36.

  Shortly after Herron I was filed, USDA and the administrative class of plaintiffs began to negotiate a class settlement agreement. On February 14, 2003, plaintiffs accepted what they claimed to be a final settlement offer made by USDA on January 31, 2003. The deal included a $1,000,000 payment and other non-monetary relief in exchange for the termination of class-wide discrimination claims, and related individual claims, from February 27, 1995 to April 10, 1999. Pls.' Ex. 7 at 1-2 (Gebhardt Ltr. to Hardin, Feb. 14, 2003). Plaintiffs, however, understood the alleged settlement agreement to apply to "the above-referenced case only, and no other pending case"; specifically, it did not apply, inter alia, to "any claims currently filed in a court of law, or at the EEOC's Office of Federal Operations." Id. at 2. In response, USDA claimed that plaintiffs' statement, purporting to limit the scope of the claims extinguished, constituted "conditions to [plaintiffs'] acceptance of the Department's offer" and a rejection of USDA's final offer, which expired on February 14, 2003. See Pls.' Ex. 8 at 1 (Hardin Ltr. to Gebhardt, Feb. 19, 2003). USDA effectively gave plaintiffs until February 20, 2003 to accept the offer. Id. at 2 ("If you did not intend to make a counter-offer, or to place conditions on your acceptance of our unconditional final global offer, please contact me in writing by the close of business (5 pm) tomorrow."). Plaintiffs, in turn, answered that they had accepted USDA's January 31 offer, that they did not believe the parties had agreed to a "global settlement" but merely agreed to extinguish the claims of the administrative class, and that they believed that USDA had engaged in various harassing tactics aimed at "provok[ing] the class into rejecting USDA's settlement offer." See Pls.' Ex. 9 at 1-3 (Gebhardt Ltr. to Hardin, Feb. 20, 2003). Plaintiffs settled on Page 5 February 20, 2003 as the date on which they accepted USDA's offer and the settlement agreement became binding. See Pls.' Mot. for Summ. J. at 12. Plaintiffs do not indicate how, if at all, USDA responded to allegations of its negotiating shenanigans. On March 7 and 27, 2003, USDA sent plaintiffs draft settlement agreements, Pls.' Exs. 10 and 12, that plaintiffs argue added new, unfavorable conditions to the agreement without any additional consideration. See Pls.' Mot. for Summ J. at 12-16. After receiving these drafts, on April 4, 2003, plaintiffs as an administrative class filed suit in this court in Civil Action 03-0841 ("Herron II"), claiming that USDA had breached a binding settlement agreement reached on February 20, 2003, Herron II Compl. ¶ 18, and seeking specific performance of the agreement. Id. On the same day, plaintiff Herron amended his complaint to include, in addition to his individual action, a claim requesting enforcement of the class settlement agreement. Herron I Am. Compl. ¶ 35. The court granted plaintiffs' motion to consolidate Herron I and Herron II.


 A. Legal Standards

  1. Motion to Dismiss for Lack of Jurisdiction

  In general, a motion to under Federal Rule of Civil Procedure 12(b) should not prevail "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp.2d 7, 11 (D.D.C. 1999). At the stage of litigation when dismissal is sought, the plaintiffs' complaint must be construed liberally, and the plaintiffs should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A court may consider such Page 6 materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case. Artis v. Greenspan, 223 F. Supp.2d 149, 152 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-matter jurisdiction."). In spite of the favorable inferences the plaintiffs receive on a motion to dismiss, it is still the plaintiffs' burden to prove jurisdiction. See Am. Farm Bureau v. EPA, 121 F. Supp.2d 84, 90 (D.D.C. 2000).

  2. Motion to Dismiss for Failure to State a Claim

  In evaluating a Rule 12(b)(b) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Ben. Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (stating that the court must give the plaintiff "the benefit of all inferences that can be derived from the facts alleged"). The court is limited to considering facts alleged in the complaint, any documents either attached to or incorporated in the complaint, matters of which the court may take judicial notice, St. Francis Xavier Parochial Sch., 117 F.3d at 624, and matters of public record, Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994). Page 7

  Often the introduction of factual materials by the parties — including depositions, answers to interrogatories, admissions on file and affidavits — will convert a Rule 12(b)(6) motion to dismiss to a Rule 56(b) motion for summary judgment. Fed.R.Civ.P. 12(b) ("If, on a [12(b)(b) motion], matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ."). However, a "motion to dismiss is not automatically transformed into a motion for summary judgment simply because matters outside the pleadings are filed." Garita Hotel Ltd. v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 18 (1st Cir. 1992). The issue is, rather, "whether the court actually took cognizance of them." Id. at 19; see also Grzelak v. Calumet ...

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