Rochon v. Gonzales

• Citation: 438 F.3d 1211
• Decision Date: 28 February 2006
• Docket Number: No. 04-5278.,04-5278.
• Parties: Donald ROCHON, Appellant v. Alberto GONZALES, Attorney General of the United States of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

438 F.3d 1211

Donald ROCHON, Appellant v. Alberto GONZALES, Attorney General of the United States of America, Appellee.

No. 04-5278.

United States Court of Appeals, District of Columbia Circuit.

Argued September 13, 2005.

Decided February 28, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cv00958).

Michael A. Rubin argued the cause for appellant. With him on the briefs were Steven G. Reade and Emily N. Glatfelter.

Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and EDWARDS,^* Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

Donald Rochon sued the Attorney General of the United States in his official capacity, claiming the Federal Bureau of Investigation had discriminated and retaliated against him, in violation both of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and of a 1990 agreement settling his earlier Title VII suit against the Bureau. The alleged discrimination and retaliation took the form of the FBI's refusal, contrary to policy, to investigate death threats a federal prisoner made against Rochon and his wife. The district court dismissed Rochon's complaint on the grounds that Rochon had neither pled facts demonstrating the FBI had taken an adverse employment action against him nor shown a causal link between his protected activity and the FBI's alleged retaliation.

The district court should not have dismissed Rochon's Title VII claim because Rochon was not required to demonstrate his employer's retaliatory act was related to his employment. Further, it is unclear whether the district court had direct jurisdiction over the claim arising out of the settlement agreement. See Brown v. United States, 389 F.3d 1296, 1297 (D.C.Cir.2004) (per curiam). Therefore, we reverse the judgment of the district court and remand the case for further proceedings.

I. Background

In 1981 Donald Rochon began working as a Special Agent in the Omaha office of the FBI, where he became the target of a campaign of racial harassment. Rochon filed a formal complaint with his Equal Employment Opportunity Counselor in 1984. In 1987 the Department of Justice concluded the Bureau had discriminated against Rochon and then retaliated against him for complaining about the discrimination. Rochon sued the FBI and in 1990 the parties entered into a settlement agreement as part of which the Bureau agreed "not to take any retaliatory action" against Rochon in the future.

Soon thereafter, however, Ronald Kessler authored a book entitled The FBI, in which he attributed to FBI agents certain statements describing Rochon's performance at the Bureau as substandard. Rochon brought a second Title VII suit and in 1994 the parties entered into a second settlement agreement. This time the FBI agreed to issue a corrective statement, to refrain from interfering "with Mr. Rochon's future employment opportunities," and to pay him $40,000 in damages. The 1994 agreement expressly provided that it did not "in any way replace, diminish, or modify the terms or relief," such as the bar against retaliation, in the 1990 agreement.

In his complaint in the present case, Rochon alleges that in 1993 and 1994 the Philadelphia field office of the FBI received "credible notice and evidence of death threats directed at [him] and his wife" by an inmate in a federal prison. Rochon maintains that, contrary to "its policies, duties, and usual practices in such circumstances," the FBI neither investigated the threats nor took any steps to protect the Rochons, even after the Bureau had indicated it would do so. In 2002, when Rochon learned the FBI had failed to investigate the threats, he filed an administrative complaint.

In 2003 Rochon brought this suit in the district court, alleging the FBI's failure to investigate was discriminatory and retaliatory, in violation both of the 1990 settlement agreement and of Title VII. The district court granted the Government's motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint, and Rochon appealed.

II. Analysis

Rochon challenges the district court's analyses both of Title VII and of Rule 12(b)(6). The Government maintains the district court properly dismissed Rochon's claims on the merits or, alternatively, did not have subject matter jurisdiction over the claim arising out of the settlement agreement. We begin, as we must, with the issue of jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

A. Jurisdiction

The Government argues that pursuant to the Tucker Act, the district court lacked jurisdiction over Rochon's claim that the Bureau breached their 1990 settlement agreement. The Tucker Act provides that the "United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States." 28 U.S.C. § 1491(a)(1) (2000). When the contract claim is for damages in excess of $10,000, as it is in this case, the jurisdiction of the Court of Federal Claims is exclusive. Id. § 1346(a)(2) (2000). In two decisions of this court, issued after the district court's ruling in this case, we have made clear that "a claim for breach of a Title VII settlement agreement is a contract claim within the meaning of the Tucker Act" and, therefore, for claims exceeding $10,000 jurisdiction belongs with the Court of Federal Claims. Hansson v. Norton, 411 F.3d 231, 232 (D.C.Cir.2005) (citing Brown, 389 F.3d at 1297).

Rochon maintains the district court had jurisdiction over his contract claim pursuant to this court's decision in Hansson, 411 F.3d 231. In Hansson, we held the district court lacked jurisdiction after noting the plaintiff did not seek, along with her claim for damages within the jurisdiction of the Court of Federal Claims, equitable relief, which ordinarily only the district court could grant. Id. at 232, 236. Because Rochon has requested, in addition to damages, declaratory and injunctive relief, he argues the Court of Federal Claims lacks jurisdiction to hear his claims. On the contrary, the combination of a claim for equitable relief brought under Title VII and a related claim for breach of contract does not give the district court jurisdiction over the contract claim that, if brought separately, would be exclusively in the Court of Federal Claims under 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). Brown, 389 F.3d at 1297; see also Brown v. United States, 271 F.Supp.2d 225, 227-28 (D.D.C.2003) (describing claims).

In the present case, however, it is not immediately clear whether Rochon's claim, if brought separately, would fall within the jurisdiction of the Court of Federal Claims. That court does not have jurisdiction over claims for damages in cases "sounding in tort." 28 U.S.C. § 1491(a). Rochon has requested compensatory damages of up to $300,000 "for the emotional distress and other harms" alleged in the complaint. Although his claim for "emotional distress" may sound in tort, that does not end the analysis. The Federal Circuit has held that where "the primary thrust of [a] complaint is breach of contract, even if a [claim sounding in tort] would lie, the Claims Court would retain jurisdiction over the suit." Wood v. United States, 961 F.2d 195, 198 (Fed.Cir.1992); see also Awad v. United States, 301 F.3d 1367 (Fed.Cir.2002) (it is "well established that where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the ... jurisdiction of the Court of Federal Claims").

This case was decided on Rochon's complaint and the Government's motion to dismiss under Rules 12(b)(1) and 12(b)(6). Because the Government has not yet filed an answer, Rochon may amend his complaint as of right, see Fed.R.Civ.P. 15(a) ("A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served"), and take the opportunity to clarify whether the "primary thrust" of his claim is, in fact, breach of contract and thus within the jurisdiction of the Court of Federal Claims.

Even if the district court concludes the gravamen of Rochon's claim lies in contract, however, it does not necessarily follow that the district court is barred from exercising jurisdiction over that claim. As explained in Part II.C below, we are reinstating Rochon's statutory claim. On remand, therefore, the district court may determine it has ancillary jurisdiction over his contract claim. See Shaffer v. Veneman, 325 F.3d 370, 373 (D.C.Cir.2003) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)) (court may exercise ancillary jurisdiction "to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent").

B. Sovereign Immunity

Under 42 U.S.C. § 2000e-3(a), a private employer may not "discriminate against any [employee] ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Several circuits have held this ban on retaliation applies to the Government through § 2000e-16, which prohibits the Executive Branch from engaging in "any discrimination based on race, color, religion, sex, or national origin" in any "personnel action[]." See Bd. of County Comm'rs, Fremont County, Colo. v. EEOC, 405 F.3d 840, 845 (10th Cir.2005) (describing the issue as "well-settled" and collecting cases from the Fifth, Seventh, and Ninth Circuits). Although we have not directly confronted the issue,...