United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 1999 Decided June 4, 1999
No. 98-5146
Roy E. Bowden,
Appellant
v.
United States of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 94cv01832)
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Daniel F. Rinzel argued the cause and filed the briefs for
appellant.
Doris D. Coles, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-
ney.
Before: Randolph, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Appealing to this court for a second
time, appellant challenges the district court's rejection of his
claim that the government had agreed to pay all federal and
state taxes on back pay he received in settlement of his Title
VII employment discrimination complaint. Appellant also
challenges the district court's denial of his demand for trial by
jury. Because Title VII does not authorize jury trials on
claims of breach of settlement agreements, and because the
district court's finding that the government had no obligation
to pay appellant's remaining tax liability was not clearly
erroneous, we affirm.
I
Appellant Roy Bowden worked for the Immigration and
Naturalization Service from 1975 to 1982. After INS de-
clined to select him for several vacancies as a criminal investi-
gator, Bowden filed a race discrimination complaint with the
agency. On January 10, 1990, Bowden agreed to settle his
claim in exchange for a lump-sum back pay award. The
precise amount of back pay, however, was not specified in the
settlement agreement. Following further negotiations, the
government gave Bowden a check for $190,000. It also paid
over $50,000 in federal and state taxes on Bowden's behalf,
but that payment fell approximately $60,000 below the
amount necessary to cover Bowden's full tax liability on the
back pay. Claiming that it had fulfilled its obligation under
the settlement, INS refused to pay any additional taxes on
Bowden's behalf. Bowden sued. The district court, finding
Bowden had failed to exhaust his administrative remedies,
dismissed the complaint. Finding that INS had waived its
exhaustion defense, we reversed. See Bowden v. United
States, 106 F.3d 433 (D.C. Cir. 1997) (Bowden I).
On remand, Bowden moved under Federal Rule of Civil
Procedure 15(a) to amend his complaint to clarify certain
factual allegations, to add claims for attorneys' fees and
compensatory damages, and to demand trial by jury. Stating
that "trial is less than two months away; and ... the motion
is extraordinarily untimely," the district court denied the
motion to amend. Bowden v. United States, No. 94-1832
(D.D.C. Oct. 22, 1997).
At the bench trial, Bowden testified that during the back
pay negotiations that followed the signing of the settlement
agreement, the government agreed to pay all taxes on the
back pay award so that he would receive exactly $190,000.
See 12/15/97 Tr. at 33. Finding that the government had not
agreed to "assume several thousands of dollars of an indeter-
minate tax liability," the district court entered judgment for
the government. Bowden v. United States, No. 94-1832, at
5-6 (D.D.C. Mar. 27, 1998) ("Bowden II"). Bowden appeals.
He also challenges the denial of his motion to amend and his
request for trial by jury.
II
As we stated in Bowden I, extrinsic evidence of prior or
contemporaneous oral agreements is inadmissible to vary the
terms of an integrated written agreement. See Bowden I,
106 F.3d at 439-40. Here, however, both parties introduced
evidence of a subsequent agreement that supplied a term
missing from the written agreement, i.e., the amount of the
settlement.
In ruling for the government, the district court relied on
the testimony of the agency's payroll accounting chief, who
testified that prior to the preparation of the settlement check
she expressly told Bowden that the government was only
paying his tax liability at the minimum withholding rate. The
witness also testified that she warned Bowden he would face
additional tax liability and offered to withhold more, but
Bowden declined. See 12/16/97 Tr. at 60-61 (testimony of
Donna Brock). Later, after Bowden received notices of
federal and state tax deficiencies, she reminded him of her
previous advice, to which Bowden responded: "I know, I am
my own worst enemy." See Memorandum from Donna Brock
to Winona Varnon (July 13, 1992); 12/16/97 Tr. at 64.
Bowden did not contradict the payroll chief's version of
these conversations. Instead, Bowden testified that he and
INS had an oral agreement under which the agency would
settle his claim for a net amount and pay his full federal and
state tax liability. According to Bowden, he told the payroll
chief that he needed no further withholding "because the
government had assured me they paid the taxes." 12/15/97
Tr. at 40; see also id. at 33-34. In support of this claim,
Bowden introduced a "buck slip" showing the agency's
"grossing up" calculations starting from the $190,000 net
amount, as well as its initial back pay and benefits calcula-
tions yielding a gross figure that would result in a net
payment to Bowden of approximately $190,000 after taxes.
Although the district court never commented on Bowden's
documentary evidence, it "refuse[d] ... to credit Bowden's
testimony of a collateral or superseding oral agreement by
INS to assume several thousands of dollars of an indetermi-
nate tax liability for him." Bowden II, No. 94-1832, at 5-6.
The court also inferred from Bowden's exchanges with the
payroll official that he "understood at the time that he was
not getting a tax-free payment in settlement of his claim."
Id. at 5. We are convinced that these findings are not clearly
erroneous, particularly in view of the unusual nature of the
agreement that Bowden claims he had with the government
(the agency's Deputy Director of Finance testified that in
twenty years of experience he had never seen a settlement
agreement in which the government orally agreed to pay all
taxes due on the settlement amount, see 12/16/97 Tr. at 115),
the fact that Bowden never gave the agency the personal and
financial information that would have enabled it to calculate
his exact tax liability, and the additional fact that Bowden has
switched his position in this litigation (in his first appeal, he
argued that the tax liability agreement was made prior to
signing the settlement agreement). See Albright v. United
States, 732 F.2d 181, 183 (D.C. Cir. 1984) (district court's
factual findings reviewed for clear error).
III
Bowden next challenges the district court's denial of his
motion to amend the complaint to clarify certain factual
allegations and to demand attorneys' fees, compensatory
damages, and trial by jury under Title VII. See 42 U.S.C.
ss 1981a, 2000e-5(k) (1994). We generally review a denial of
a motion to amend for abuse of discretion. See Material
Supply Int'l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 991
(D.C. Cir. 1998). Federal Rule of Civil Procedure 15(a),
however, permits a plaintiff to amend a complaint once as a
matter of right "at any time before a responsive pleading is
served." Fed. R. Civ. P. 15(a); see Confederate Mem'l Ass'n,
Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993). At the time
Bowden sought to amend, the government had filed only a
motion to dismiss or in the alternative for summary judg-
ment, which is not considered a responsive pleading. See
Confederate Mem'l Ass'n, 995 F.2d at 299. Although the
district court had entered final judgment dismissing Bowden's
complaint, this court's reversal and remand effectively re-
turned the case to the prejudgment stage where Bowden
could amend once as a matter of right before the government
filed a responsive pleading. See Reuber v. United States, 750
F.2d 1039, 1062 n.35 (D.C. Cir. 1984). Even if, as the
government argues, Bowden had no right to amend his
complaint, see Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996) (leave to amend is within the district court's
discretion after judgment is vacated under Rule 59(e)), we
think denying the motion would have been an abuse of
discretion: Not only did Bowden's "extraordinar[y] unti-
mel[iness]" in filing the motion result primarily from the time
consumed by his first appeal, but the government has alleged
no prejudice that amendment would have caused. See Harri-
son v. Rubin, No. 98-5019, slip op. at 5-6 (D.C. Cir. May 7,
1999).
Though erroneous, the district court's denial of Bowden's
motion to amend does not require a new trial. At the bench
trial, the district court not only permitted Bowden to pursue
his revised theory of the case, but also allowed him to
introduce the very facts he had sought to add to his com-
plaint. Moreover, because we have affirmed the district
court's finding that the government had no obligation to pay
Bowden's entire tax liability, Bowden is not a prevailing party
entitled to attorneys' fees or compensatory damages. Final-
ly, as to Bowden's jury demand, the Supreme Court held in
Lehman v. Nakshian, a case arising under the Age Discrimi-
nation in Employment Act, that "if Congress waives the
Government's immunity from suit, ... the plaintiff has a
right to a trial by jury only where that right is one of 'the
terms of [the Government's] consent to be sued.' " 453 U.S.
156, 160 (1981) (quoting United States v. Testan, 424 U.S. 392,
399 (1976)); see also id. at 162 n.9 ("Since there is no
generally applicable jury trial right that attaches when the
United States consents to suit, the accepted principles of
sovereign immunity require that a jury trial right be clearly
provided in the legislation creating the cause of action.").
Because section 102 of the Civil Rights Act of 1991 makes
trial by jury available only in actions alleging "unlawful
intentional discrimination" under Title VII, see 42 U.S.C.
s 1981a(a)(1) & (c), and because Bowden's claim under the
settlement agreement does not turn on whether he was a
victim of "intentional discrimination," Bowden had no right to
trial by jury.
IV
We affirm the judgment of the district court.
So ordered.