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
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
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
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
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.
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
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).
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 ...