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May 25, 2004.

JOHN ASHCROFT, in his capacity as Attorney General of the United States Department of Justice Defendant

The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge


This matter comes before the Court on defendant's motion to dismiss. Defendant moves to dismiss this action pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on grounds that the Court lacks subject matter jurisdiction and that the plaintiff has failed to state a claim upon which relief can be granted. Plaintiff submitted a memorandum in opposition, and the defendant subsequently filed a reply to plaintiff's opposition. Upon consideration of the parties' filings, the applicable law and the facts of this case, this Court finds that the defendant's motion to dismiss should be GRANTED in accordance with this memorandum opinion.


  Plaintiff Donald Rochon,*fn1 an African-American male, alleges that he and his wife have been victims of discriminatory retaliation by the Federal Bureau of Investigation ("FBI"). Comp. ¶ 1 (Apr. 30, 2003). Throughout his assignments as a special agent through the Omaha, Chicago and Philadelphia Offices of the FBI, plaintiff complained of racial discrimination and retaliation. Id. He argued that the hostile work environment interfered with his official duties. Id. After several attempts to reconcile matters with supervisors, plaintiff filed complaints. Id. His racial discrimination, harassment and retaliation claims were settled in a 1990 settlement agreement. Subsequent to this agreement, he ceased to be actively employed at the FBI. Id. at ¶ 9(b).

  In 1994, plaintiff raised a second retaliation claim. He alleged that FBI officials had made false statements about his employment in "The FBI," which was authored independently by Ronald Kessler. PL's Mem. Opp'n 7 (Feb. 24, 2004). Kessler's book quoted FBI agents characterizing the plaintiff as a "less than satisfactory agent." Id. In a 1994 settlement agreement, the FBI agreed to issue a retraction of these statements and to pay plaintiff $40,000 in damages. Id.

  Now before this Court, plaintiff contends that the Philadelphia office of the FBI acted in retaliatory discrimination. In 1993 and 1994, plaintiff assisted the FBI in gaining the cooperation of the ex-wife of a recently convicted organized crime figure, Ronald Tabas.*fn2 Pl's Comp. ¶¶ 5. When Tabas learned that his ex-wife was cooperating with the FBI to seize his assets, Tabas issued verbal and written death threats against plaintiff and plaintiff's wife. Id. The plaintiff, who was aware of these threats, alerted the FBI. PL's Comp. ¶¶ 3, 7. In 2002 after the plaintiff learned that the FBI had not taken any measures to respond to these death threats, which he perceived as a "new betrayal," plaintiff suffered emotional distress. PL Mem. Opp'n at 9. The plaintiff alleges that the FBI's failure to "investigate, monitor or take protective action" in response to the death threats indicate that he and his wife were victims of "an ongoing conspiracy and campaign of racial discrimination, harassment, and retaliation." Comp. ¶¶ 3, 7. Moreover in the FBI's failure to abide by these "duties," the plaintiff contends that the FBI engaged in a "substantial and material breach and violation of the settlement agreement of 1990." Comp. ¶¶ 2, 14. Plaintiff further alleges that this additional emotional distress has caused his employment status to change from temporarily to permanently disabled. Pl. Mem. Opp'n at 9.


 A. Subject Matter Jurisdiction

 1. Jurisdictional Dilemma

  Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss if it lacks subject matter jurisdiction to hear and decide a dispute. Fed.R.Civ.Pro. 12(b)(1). The Tucker Act grants jurisdiction to the Court of Federal Claims for damages regarding settlement agreements for $10,000 or more. 28 U.S.C. § 1491. Upon first blush, the plaintiff's complaint appears to raise a breach of settlement agreement issue which would fall under the auspices Tucker Act. However, the Court of Federal Claims cannot exercise jurisdiction over settlement agreements which rely on a substantive interpretation of Title VII terms. See Fausto v. United States, 16 Fed. Cl. 750, 753 (Fed.Cl. 1989); Lee v. United States, 33 Fed. Cl. 374, 378 (Fed.Cl. 1995).

  In addressing this "unfortunate Jurisdictional dilemma, the Court of Federal Claims has "strictly adhere[d] to the statutory limitations" imposed by the Tucker Act. 28 U.S.C. § 1491(a)(1); Mitchell v. U.S., 44 Fed. Cl. 438, 438-39. (Fed.C1.1999). "The presence of a comprehensive, precisely-drawn statutory scheme providing for judicial review in another forum will pre-empt Tucker Act jurisdiction in this Court." Lee, 33 Fed. Cl. at 378. Since Congress established "a system of procedural mechanisms by which employees may pursue discrimination claims as pursuant to 42 U.S.C. § 2000e-2000e-17," the jurisdiction properly belongs to the District Courts. United States v. Fausto, 484 U.S. 439, 454-55 (1988).

  The Court of Federal Claims has refused to even entertain a basic Title VII race discrimination issue. See Mitchell, 44 Fed. Cl. At 438-39; Lee, 33 Fed. Cl. at 378. Since Title VII settlement agreements would not exist but for the existence of the Title VII statutory scheme, "an action to enforce a Title VII settlement is [essentially] an action brought under Title VII itself." Robles v. United States, No. 84-3635, 1990 WL 155545, at *7 (D.D.C. July 20, 1990) (emphases added) (since the settlement claim issue was founded upon a Title VII claim, District Court concluded that jurisdiction lies properly within the District Courts); See also Fausto, 484 U.S. at 454-55.

  Title VII issues are properly within the subject matter jurisdiction of District Courts. Since plaintiffs alleged breach of his 1990 and 1994 settlement agreements cannot be addressed without examining that which defines a retaliatory claim under 42 U.S.C. § 2000e-3, jurisdiction lies properly within this Court. See Fausto, 484 U.S. at 454-55; Bd. of Trustees of ...

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