Makins, Brenda E. v. DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2001 Decided January 18, 2002

No. 01-7029

Brenda Elaine Makins,
Appellant

v.

District of Columbia and
Francis J. Henderson, Acting Warden,
D.C. Department of Corrections Central Facility,
Appellees

Appeal from the United States District Court
for the District of Columbia
(98cv02693)

Gregory L. Lattimer argued the cause and filed the briefs
for appellant.

Carl J. Schifferle, Assistant Corporation Counsel, argued
the cause for appellees. With him on the brief were Robert

R. Rigsby, Corporation Counsel, and Charles L. Reischel,
Deputy Corporation Counsel.

Before: Henderson, Randolph, and Rogers, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Dissenting opinion filed by Circuit Judge Henderson.

Randolph, Circuit Judge: This appeal from a district court
order enforcing a settlement agreement presents an issue
much litigated in the other circuits but not yet decided by this
court--namely, under what circumstances, if any, may an
attorney without actual authority from his client bind the
client to a settlement agreement. We must also decide
whether to look to state or federal law in answering this
question.

I.

In November 1998, Brenda Makins brought an action
against the District of Columbia claiming sex discrimination
and retaliatory firing, in violation of Title VII (42 U.S.C.
s 2000e et seq.). Makins had been employed in the District's
Department of Corrections from 1995 until her discharge in
1997. Her complaint sought reinstatement, compensatory
damages, and attorney fees.

Makins' attorney, John Harrison, began representing her
in 1996, after she received a notice of termination from the
Department. Harrison and Makins did not have a written
retainer agreement. In the summer of 2000, at a pre-trial
conference, the district judge referred Makins' case to a
magistrate judge "for settlement purposes only" and ordered
the District to "have present at all settlement meetings ...
an individual with full settlement authority." The judge set
the case for trial in December 2000. Makins v. Dist. of
Columbia, No. CV-98-2693, mem. op. at 2 (D.D.C. Dec. 11,
2000). A few days later, the magistrate ordered the "lead
attorney(s) for the parties" to appear before him for a settle-
ment conference; the order required that the "parties shall

either attend the settlement conference or be available by
telephone for the duration of the settlement conference."

The conference, originally scheduled for August 22, took
place on September 12, 2000. Makins did not attend. After
two and a half hours of negotiations, Harrison and the
attorneys for the District reached an agreement to end the
case. Makins would receive $99,000 and have her personnel
records amended from "discharged" to "resigned" (to pre-
serve her retirement benefits if she were able to attain other
federal employment). In return, Makins would dismiss her
claims against the District. The attorneys "shook hands" on
the deal and later reduced it to writing. A few days later,
when Harrison presented Makins with a copy for her signa-
ture, she refused to sign it. The District then filed a Motion
to Enforce Settlement. Makins retained another attorney
and the court held an evidentiary hearing in which Harrison,
Makins, and the lead attorney for the District testified.

The testimony of Makins and Harrison were at odds.
According to Makins, she never agreed to settle her case
under the terms Harrison and the District negotiated because
"getting [her] job back had to be part of any agreement."
She admitted wanting to settle the case and knowing that the
correctional facility in which she had worked was downsizing.
She claimed that Harrison waited until the night before the
conference to alert her to it and specifically told her not to
attend. She talked to Harrison several times during the
settlement negotiations on September 12. But she insisted
that she never agreed to the negotiated terms because, as she
expressed to Harrison in one of their cell phone conversations
that day, getting her job back was a condition to settling the
case. Although Makins swore in an affidavit, filed before the
hearing, that Harrison alerted her during the negotiations
that he was discussing the $99,000 figure, she testified that
she did not recall such a conversation.

Harrison disputed much of Makins' testimony. He said
they had extensively discussed the possibility of settlement
the day before the conference, that he discouraged her from
insisting on getting her job back, that he thought it made

sense strategically for his client to remain at home so that
"the Judge couldn't put pressure on her to settle," that she
gave him a number where he could reach her on September
12, and that she told him to do "what you think is right, I
trust you." At the conference, each side presented its case
separately to the magistrate. The attorneys and the magis-
trate then sat at a table and negotiations began. On several
occasions, the magistrate sent one of the attorneys out of the
room and talked to the other about what he saw as strengths
and weaknesses in the case. By cell phone Harrison called
Makins when he was out of the room. He contends that she
agreed to settle for $99,000. Harrison testified that when the
District agreed to this figure, he called Makins immediately
and "told her that the 99 was done," to which she replied
"good." Harrison also stated that Makins did not express
any dissatisfaction with the settlement until several days later
when she refused to sign the papers in Harrison's office.

The District's attorney generally confirmed Harrison's ac-
count of the conference (although he did not know what
Harrison and his client had discussed by cell phone, or even if
they had discussions). In response to the District's offer of
approximately $80,000, Harrison said his client was still at
$120,000, or thereabouts. The District's attorney replied that
he would not settle the case for more than $100,000. Harri-
son left the room, cell phone in hand, and came back a few
minutes later. He said $99,000 would be fine but his client
wanted her records changed to show that she had resigned.
The District reluctantly agreed. Neither the attorney for the
District nor the magistrate spoke to Makins to confirm her
assent to the terms of the agreement.

The district court, observing the "sharp conflict" in testimo-
ny between Makins and Harrison, declined to resolve it.
Instead, the court assumed arguendo that Harrison did not
have actual authority to settle the case. The court granted
the District's motion to enforce the settlement on the alterna-
tive ground that Harrison had apparent authority to bind
Makins to the agreement. The court saw "no justification for
the District of Columbia not to reasonably believe that Mr.

Harrison had the full confidence and authority of his client."
Mem. op. at 7.

II.

Settlement agreements are in the nature of contracts. See
Gaines v. Cont'l Mortgage & Inv. Corp., 865 F.2d 375, 378
(D.C. Cir. 1989). As in other contract negotiations, one or
both of the parties may insist that the terms be reduced to
writing and that only a signed agreement will be effective.
But not all contracts, and not all settlements, must be written
in order to be enforceable. The parties may orally agree
upon the material terms and intend to be bound. See United
States v. Mahoney, 247 F.3d 279, 285 (D.C. Cir. 2001).
"Lawsuits may, of course, be compromised by oral contract."
Autera v. Robinson, 419 F.2d 1197, 1198 n.1 (D.C. Cir. 1969);
see also Feltman v. Sarbov, 366 A.2d 137, 141 (D.C. 1976).
The attorney for Makins and the District agreed upon essen-
tial terms. That Makins refused to sign the settlement
papers is therefore not conclusive, a point she does not
debate. The question is whether the oral understanding
between the attorneys may be enforced against Makins--
whether, in other words, she was bound by the deal her
attorney negotiated.

The District urges us to adopt local law as the rule of
decision. Makins thinks we should devise federal law: the
case was brought in federal court; the cause of action is
derived from federal legislation; and the actions of attorneys
conducting federal litigation are of particular federal concern.
Apparently for these reasons, some federal courts agree with
Makins. See, e.g., Kinan v. Cohen, 268 F.3d 27, 32 (1st Cir.
2001); Malave v. Carney Hosp., 170 F.3d 217, 221 (1st Cir.
1999); Michaud v. Michaud, 932 F.2d 77, 79 n.3 (1st Cir.
1991); Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir.
1986); Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d
386, 386 (5th Cir. 1984). Makins also cites Alexander v.
Gardner-Denver Co., 415 U.S. 36, 52 & n.15 (1974), for the
proposition that federal law governs settlement agreements in
Title VII cases. The Supreme Court, after saying that an

employee could enter into a voluntary settlement and waive
his cause of action under Title VII, added this: "In determin-
ing the effectiveness of any such waiver, a court would have
to determine at the outset that the employee's consent to the
settlement was voluntary and knowing," 451 U.S. at 52 n.15,
thus invoking the familiar test of Johnson v. Zerbst, 304 U.S.
458, 464 (1938). But this was dictum. The employee in
Alexander had not entered into a settlement. An arbitrator
had rejected his grievance charging racial discrimination.
The Court was not concerned with settlement agreements in
general, or with the authority of attorneys to enter into them.
The issue before the Court was whether the labor-
management arbitration, conducted pursuant to a collective
bargaining agreement, precluded the employee from bringing
a Title VII action alleging the same conduct. The Court's
remarks about settlements, contained in a footnote not citing
any authority, can hardly be taken as representing its consid-
ered judgment that state law should not be adopted in Title
VII cases. And we see no good reason why Title VII cases
should be singled out for different treatment in this respect
than other federal causes of action. Cf. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

In any event, Makins has missed--as has the District--our
opinion in United States v. Mahoney, 247 F.3d at 285. We
there held that whether the parties have reached a settlement
is a matter of local law. For this conclusion we cited and
relied upon the decision in Quijano v. Eagle Maintenance
Service, Inc., 952 F. Supp. 1, 3 (D.D.C. 1998), that the
"enforcement of settlement agreements is governed by state
contract law." There are good reasons behind this.

The power of the federal courts to formulate law in this
area, and the need for national uniformity, are doubtful at
best, as Judge Easterbrook forcefully demonstrated in Mor-
gan v. South Bend Community School Corp., 797 F.2d 471,
474-78 (7th Cir. 1986). In fact, our survey of the law
regarding settlements indicates that rather than national
uniformity in the federal courts, there is national disarray.
See generally Grace M. Giesel, Enforcement of Settlement
Contracts: The Problem of the Attorney Agent, 12 Geo. J.

Legal Ethics 543, 563-80 (1999). We agree that "neutral
state laws that do not undermine federal interests should be
applied unless some statute (or the Constitution) authorizes
the federal court to create a rule of decision." Morgan, 797
F.2d at 475 (citing Miree v. DeKalb County, 433 U.S. 25, 28-
33 (1977)). There is also an advantage for members of the
bar to know that in negotiating settlements, the law govern-
ing the validity of their agreements will be the same in
federal and state court. Other federal courts of appeals
agree. The Seventh, Eighth, Tenth, and Eleventh Circuits,
and perhaps the Third, Fourth, and Ninth, now look to state
law in determining if a valid and enforceable settlement
agreement exists. See Pohl v. United Airlines, Inc., 213 F.3d
336, 338 (7th Cir. 2000); In re Airline Ticket Comm'n Anti-
trust Litig., 268 F.3d 619, 623 (8th Cir. 2001); United States
v. McCall, 235 F.3d 1211, 1213 (10th Cir. 2000); Hayes v.
Nat'l Serv. Indus., 196 F.3d 1252, 1254 & n.2 (11th Cir. 1999);
see also Tiernan v. Devoe, 923 F.2d 1024, 1032-33 (3d Cir.
1991); Auvil v. Grafton Homes, Inc., 92 F.3d 226, 230 (4th
Cir. 1996); Mallott & Peterson v. Director, Office of Workers'
Comp. Programs, 98 F.3d 1170, 1173 (9th Cir. 1996). Aside
from cases in which a settlement agreement is sought to be
enforced against the United States, see United States v.
Beebe, 180 U.S. 343, 352 (1901), or in which there is a statute
conferring lawmaking power on federal courts, see Textile
Workers v. Lincoln Mills, 353 U.S. 448, 451 (1957), we adopt
local law in determining whether a settlement agreement
should be enforced.

The local law on this subject is, unfortunately, not much
developed. The District of Columbia Court of Appeals treats
settlement agreements as contracts. See Goozh v. Capitol
Souvenir Co., 462 A.2d 1140, 1142 (D.C. 1983). In run-of-the-
mill contract cases, the D.C. Court of Appeals relies on s 27
of the Restatement (Second) of Agency to determine whether
an agent has the authority to enter into a binding agreement
on behalf of the principal. See, e.g., Sigal Constr. Corp. v.
Stanbury, 586 A.2d 1204, 1218 (D.C. 1991) (citing Restate-
ment (Second) of Agency s 27 (1958)). The local court distin-
guishes--as did the district court--between an agent's "actual

authority" and his "apparent authority." Actual "authority,"
according to the Restatement's definition, means that the
agent has the power "to affect the legal relations of the
principal by acts done in accordance with the principal's
manifestations of consent to him." Restatement (Second) of
Agency s 7. For settlement purposes, attorney Harrison
possessed actual authority in certain respects. Makins mani-
fested her consent to Harrison's attending the settlement
conference on September 12, to negotiating on her behalf and,
if her testimony is believed, to settling the case, but only on
the condition that she got her job back.

We must assume arguendo--because the district court did
so--that Makins never gave Harrison actual authority to
settle the case without the condition she specified. Still, it
does not necessarily follow that because the settlement agree-
ment lacked that condition it cannot be enforced. As agents
for their clients, attorneys without actual authority may have
"apparent authority" to bind their clients to agreements.
The local court has not, however, addressed the precise
question presented here: may an attorney negotiating in the
client's absence bind the client to a settlement agreement if
the attorney has led opposing counsel to believe he had actual
authority from the client to settle the case?

On the other hand, an opinion of the local court--not cited
by the District and the only one we have found dealing with
an attorney's authority to settle a case--holds that "regard-
less of the good faith of the attorney, absent specific authori-
ty, an attorney cannot accept a settlement offer on behalf of a
client." Bronson v. Borst, 404 A.2d 960, 963 (D.C. 1979). On
the face of it, the statement leaves no room for apparent
authority. If this is the meaning of Bronson, the case is at
odds with the same court's later pronouncement in Goozh that
the enforcement of settlement agreements is governed by the
law applicable to the making of contracts generally, and with
its adoption of the Restatement position that an agent lacking
actual authority may nevertheless bind the principal to an
agreement with a third party if the agent has apparent
authority. Bronson may be explained on the basis that the
suit was brought by the attorney against the client to enforce

the settlement in order to recover his contingent fee, and that
at least as between an attorney and client, the court would
not allow recovery if the attorney entered into the settlement
against the client's wishes. This is consistent with s 383 of
the Restatement (Second) of Agency, although the court did
not mention it. Bronson, unlike this case, did not deal with
the interests of a third party who entered into the settlement
with the attorney. The third party in Bronson, an insurer,
was not named in the lawsuit. There was thus no occasion
for the court to consider whether an opposing party could
enforce a settlement agreement when the other party's attor-
ney possessed only apparent authority.

Given the vintage of Bronson, the fact that the local court
has never again relied upon the portion of the opinion quoted,
the distinctions we have just mentioned, and the absence of
any recent cases on point, the content of local law is so much
in doubt that we are reluctant to take the statement in
Bronson at face value. Makins herself concedes that if
Harrison had apparent authority--as she views it--the agree-
ment he negotiated could be enforced. Brief for Appellant at
14. We have therefore undertaken an analysis of whether
Harrison had apparent authority, which puts us in the posi-
tion of deciding--to borrow from Judge Friendly--what the
local court would think on a question about which it has never
thought. Nolan v. Transocean Air Lines, 276 F.2d 280, 281
(2d Cir. 1960).

Apparent authority may be defined as the "power to affect
the legal relations of another person by transactions with
third persons, professedly as agent for the other, arising
from, and in accordance with the other's manifestations to
such third persons." Restatement (Second) of Agency s 8;
see Am. Soc. of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456
U.S. 556, 566-68 (1982). Apparent authority, according to the
widely-accepted rule in the Restatement, can arise from "writ-
ten or spoken words or any other conduct of the principal
which, reasonably interpreted, causes the third person to
believe that the principal consents to have the act done on
[her] behalf by the person purporting to act for [her]." Id.
s 27. While actual authority depends on communications

between the client and the attorney--the principal and the
agent--apparent authority under the Restatement turns on
the client's communication to the third party, here the Dis-
trict of Columbia. As the D.C. Court of Appeals put it,
"apparent authority is derived from the principal's represen-
tations to the third-party rather than to the agent." Sigal
Constr. Corp., 586 A.2d at 1218.

Given the local court's adoption of the Restatement, and its
willingness to look at treatises to establish the general rules
of law pertaining to agency issues, see Insurance Manage-
ment of Wash., Inc. v. Eno & Howard Plumbing Corp., 348
A.2d 310, 312 (D.C. 1975) (citing 3 G. Couch, Insurance
s 26:75 (2d ed. 1960) to establish the general rule for the
apparent authority of an insurance agent), the local court
faced with this issue might turn to the recently-issued Re-
statement (Third) of the Law Governing Lawyers to aid
analysis. The Restatement of the Law Governing Lawyers
parallels the Restatement of Agency's approach to authority:
"A lawyer's act is considered to be that of the client in
proceedings before a tribunal or in dealings with a third
person if the tribunal or third person reasonably assumes
that the lawyer is authorized to do the act on the basis of the
client's (and not the lawyer's) manifestations of authoriza-
tion." Restatement (Third) of the Law Governing Lawyers
s 27 (1998). To this the Restatement adds: "Apparent au-
thority exists when and to the extent a client causes a third
person to form a reasonable belief that a lawyer is authorized
to act for the client"; and "Generally a client is not bound by
a settlement that the client has not authorized the lawyer to
make by express, implied, or apparent authority...." Id.
cmts. b & d. It then offers the following illustration:

Lawyer represents Client in a civil action in which the
court orders counsel to appear at a pretrial conference
with authority to settle the case or to arrange for the
presence of a person so authorized. Client has not been
informed of the order and has not authorized Lawyer to
approve a settlement. Lawyer, without disclosing that

 lack of authority, attends the conference and agrees to a
settlement. Client is not bound by the settlement.

Id. s 27, cmt. d, illus. 3. The reasoning behind this begins
with the principle that certain decisions in litigation are the
client's, and the client's alone to make. Like the decision to
enter a plea of guilty or to pursue an appeal in a civil or
criminal case, the decision whether to settle a case and on
what terms is reserved to the client. Id. s 22(1); see also
D.C. Rules of Prof'l Conduct R. 1.2(a) ("A lawyer shall
accept a client's decision whether to accept an offer of settle-
ment of a matter."). As to settlements, the client therefore
must manifest to the third party that his lawyer has the
authority to compromise the case. If the matter is in doubt,
third parties can protect themselves by "obtaining clarifica-
tion of the lawyer's authority." Restatement (Third) of the
Law Governing Lawyers s 27 cmt. d. Settlements are there-
by facilitated while the client's prerogatives are preserved.

The key here is that the client, not the lawyer, must
indicate to the third party that the lawyer is authorized to
act. We have applied this rule to attorney-client transactions
in a context other than settlement, see Williams v. WMATA,
721 F.2d 1412, 1416-17 (D.C. Cir. 1983). But not all courts
agree. The Sixth Circuit, interpreting Michigan law, held
that "when a client hires an attorney and holds him out as
counsel representing in a matter, the client clothes the attor-
ney with apparent authority to settle claims connected with
the matter." Capital Dredge & Dock Corp. v. City of Detroit,
800 F.2d 525, 529 (6th Cir. 1986). The Restatement (Third)
of the Law Governing Lawyers treats this as a minority
approach. The general rule, embodied in the decisions of
other federal courts relying on both federal and state law, and
a much-quoted passage from a Supreme Court opinion are
against the notion that merely retaining a lawyer is enough
for this purpose. See, e.g., Michaud, 932 F.2d at 80; Fennell,
865 F.2d at 502; Edwards v. Born, Inc., 792 F.2d 387, 390 (3d
Cir. 1986); Auvil, 92 F.3d at 230-31; see also Autera, 419
F.2d at 1201 n.18; accord Woodson v. UPS, No. 91-C6452,
1993 WL 280759, at *2 (N.D. Ill. July 26, 2001); Evans v.
Skinner, 742 F. Supp. 30, 31 (D.D.C. 1990); Ashley v. Atlas

Mfg. Co., 7 F.R.D. 77, 77 (D.D.C. 1946), aff'd, 166 F.2d 209
(D.C. Cir. 1948). As the Supreme Court put it a century ago:
"the utter want of power of an attorney, by virtue of his
general retainer only, to compromise his client's claim, can-
not, we think, be successfully disputed." United States v.
Beebe, 180 U.S. at 352. The Restatement makes the same
point: although "simply retaining a lawyer confers broad
apparent authority on the lawyer" regarding some matters, it
"does not extend to matters, such as approving a settlement,
reserved for client decision...." Restatement (Third) of the
Law Governing Lawyers s 27 cmt. a; see also id. s 27 cmt. d.

The District thinks Makins did more than just retain
Harrison. It contends that she "participated in the settle-
ment proceeding through her phone conversations with her
attorney." Brief for Appellees at 23. Neither the District
nor the magistrate ever heard from Makins, in person or by
telephone. What the District derives from the telephone calls
between Makins and Harrison amounts to nothing more than
Harrison's representations of--and the District's educated
guesses about--what was said in private between them, a
disputed factual question the district court did not resolve.

The district court found that:

[Harrison] had represented Makins against the District of
Columbia since 1996 when he was retained before the
adverse action. He then represented Ms. Makins at the
time she filed her EEO complaint. Finally, he was
retained to represent her in the present lawsuit which
was filed in 1998.

Mem. op. at 6 (emphasis added). As we have stated, many
courts hold that retaining a lawyer is not enough to confer
apparent authority to settle the case. The district court also
emphasized that Harrison fulfilled his duties as an attorney
by filing pleadings, answering motions, and so forth. Id. at
6-7. But if we followed the majority rule, this would not be
enough. The client's manifestations to the third party must
be with respect to settlement, not the general conduct of the
litigation. See Auvil, 92 F.3d at 230. If it were otherwise, an

attorney would nearly always have apparent authority to end
the case despite the wishes of his client.

It may not be crucial that the settlement conference took
place before the magistrate. The District suggests that it
had more reason for believing Harrison in that setting. But
Harrison had a duty of truthful representation, not only to
the magistrate in court, but also to the District outside the
courtroom. See D.C. Rules of Prof'l Conduct R. 4.1(a). We
have seen nothing in the record to prove that Harrison told
the magistrate he had authority to settle the case on the
terms ultimately agreed upon. Neither Harrison nor counsel
for the District testified to that effect.

The district court thought the opinion of the D.C. Court of
Appeals in Feltman v. Sarbov, 366 A.2d at 138-39, strongly
supported the District's position. The suit was for damages
arising from a lessor's breach of his attorney's oral promise to
the lessee of a parking lot. The parties had entered into a
written lease, with the lessee dealing exclusively with the
attorney. When the lease was about to expire, the attorney
convinced the lessee to renew, promising that the right of
first refusal and the provision regarding the garage conces-
sion contained in the initial lease would remain in effect.
Later, the attorney approached the lessee and asked him to
vacate the premises, this time promising that he would get
the garage concession in a new building about to be con-
structed. The lessor had already entered into an agreement
to develop the property, thereby abrogating the lessee's right
of first refusal; and when the new building was constructed,
the lessee did not receive the garage concession the attorney
promised. See id.

The D.C. Court of Appeals, holding that the attorney had
apparent authority, sustained the award of damages to the
lessee. "Apparent authority arises," the court wrote, "when a
principal places an agent in a position which causes a third
person to reasonably believe the principal had consented to
the exercise of authority the agent purports to hold. This
falls short of an overt, affirmative representation by a princi-
pal," 366 A.2d at 139 (internal quotations omitted). To this

the court added: "The apparent authority of an agent arises
when the principal places the agent in such a position as to
mislead third persons into believing that the agent is clothed
with authority which in fact he does not possess." Id. at 140
(internal quotations omitted). There is nothing particularly
remarkable about these statements of law. They merely
remind that apparent authority can arise from something
other than statements of the principal, a proposition the
Restatement (Second) of Agency embraces (see s 27 cmt. a
and s 49 cmt. c). The "something other" usually consists of
"the ordinary habits of persons in the locality, trade or
profession"--in other words, custom and usage. See Restate-
ment (Second) of Agency s 49 cmt. c; Restatement (Third)
of the Law Governing Lawyers s 21 cmt. e (referring to
matters ordinarily in the discretion of the lawyer). In Felt-
man, the court therefore relied upon the facts that the
"attorney not only had drafted the lease but also handled all
the negotiations with regard to its initial execution, its renew-
al, and its premature termination." 366 A. 2d at 140. This
long course of dealing, in which the lessor held out "the
attorney as the person with whom the lessee should deal," id.,
conferred apparent authority on the attorney.

For several reasons we are reluctant to treat Feltman as
dispositive. For one thing, the case did not deal with a
settlement agreement, which at least under the Restatement
of the Law Governing Lawyers is in the special category of
matters reserved exclusively for the client's decision.
(Whether the local courts would treat settlements in this
manner remains to be seen.) The Feltman court, though,
placed no special emphasis on the attorney-client relationship.
For another thing, Feltman rests on the several transactions
between the attorney and the lessee, in the attorney's negoti-
ating and reaching contractual agreements on behalf of the
lessor. The settlement of a lawsuit, however, is typically the
only contractual agreement the parties reach in litigation and
one would therefore not expect to see a course of dealing of
the sort present in Feltman.

Still, it may be that it is customary for lawyers in the
District to enter into binding, oral settlement agreements

without the opposing side receiving some manifestation of
assent--orally or in writing (as in a signature on an agree-
ment)--from the client. But the District put on no evidence
to this effect and there is nothing to indicate that the District
had reason to believe, from previous interactions with Makins,
that certain conduct on the part of Harrison was authorized.
It may also be that the D.C. Court of Appeals would decide
that a client's authorizing his attorney to attend a settlement
conference and negotiate on the client's behalf is, in itself,
enough to confer apparent authority. See Capital Dredge &
Dock Corp. v. City of Detroit, 800 F.2d at 529. But see Auvil
v. Grafton Homes, Inc., 92 F.3d at 230-31; Giesel, supra, at
573-74 (citing similar cases). This would be an extension of
Feltman and we are unsure whether the court would take the
step.

Because of our uncertainty about whether local law sup-
ports a finding of apparent authority in this case, and because
of the importance of determining when a lawyer has apparent
authority to settle a case, we have decided to ask the D.C.
Court of Appeals for its views. See Tidler v. Eli Lilly & Co.,
851 F.2d 418, 426 (D.C. Cir. 1988); Joy v. Bell Helicopter
Texitron, Inc., 999 F.2d 549, 563-64 (D.C. Cir. 1993). Pursu-
ant to D.C. Code s 11-723, the following question is certified
to the D.C. Court of Appeals:

Under District of Columbia law, is a client bound by a
settlement agreement negotiated by her attorney when
the client has not given the attorney actual authority to
settle the case on those terms but has authorized the
attorney to attend a settlement conference before a
magistrate judge and to negotiate on her behalf and
when the attorney leads the opposing party to believe
that the client has agreed to those terms?

So ordered.

Karen LeCraft Henderson, Circuit Judge, dissenting:

"The little plaintiff or defendant, who was promised a new
rocking-horse when Jarndyce and Jarndyce should be settled,
has grown up, possessed himself of a real horse, and trotted
away into the other world."

--Charles Dickens, Bleak House 52 (Norman Page ed.,
Penguin Books 1971) (1853)

In my view, the majority has misconstrued District of
Columbia (District or D.C.) agency principles and has errone-
ously certified a question whose answer is clear. As a result,
it has further delayed the enforcement of a valid settlement
agreement between the District and the appellant, Brenda E.
Makins. Accordingly, and for the reasons set forth below, I
dissent.

Makins makes two separate challenges to the district
court's order enforcing the September 12, 2000 settlement.
First, citing dicta from Alexander v. Gardner-Denver Co.,
415 U.S. 36, 52 n.15 (1974), she contends that the district
court committed reversible error by failing to determine
whether she had "voluntarily and knowingly" entered into the
agreement. Br. of Appellant at 10-14. Second, she argues
that the district court applied the incorrect legal standard in
deciding that her then-lawyer, John Harrison, had apparent
authority to settle her Title VII action. See id. at 14-18.

The majority correctly rejects the first of Makins's claims.
Her assertion that "settlement agreements resolving Title
VII claims must be entered into 'voluntarily and knowingly'
by the plaintiff before the court will find that [she] has waived
[her] federally protected right to seek redress," id. at 11, is
unsupported by any holding of the United States Supreme
Court or of any court of appeals. Indeed, the only court to
rule on the issue held that the voluntary-and-knowing stan-
dard "is not the applicable standard when reviewing a case in
which the employee [seeking relief under Title VII] was
represented by an attorney who settled the matter on the
employee's behalf." Hayes v. Nat'l Serv. Indus., 196 F.3d
1252, 1254 n.2 (11th Cir. 1999) (emphasis added). In any
case, nothing in the text of Title VII requires that settlement

of a suit thereunder be entered "voluntarily and knowingly."
See generally 42 U.S.C. s 2000e et seq.

In addressing Makins's second claim, the majority properly
adheres to the principle that "neutral state [rules] that do not
undermine federal interests should be applied unless some
statute (or the Constitution) authorizes the federal court to
create a rule of [federal law]." Maj. op. at 7 (quoting Morgan
v. South Bend Cmty. Sch. Corp., 797 F.2d 471, 475 (7th Cir.
1986)). Like the majority, I see no reason to exempt this
case from the general rule that "enforcement of settlement
agreements is [an issue] governed by state contract law."
Maj. op. at 6. Thus, I agree that District of Columbia agency
principles govern the enforceability of the settlement between
the District and Makins. I dissent, however, because the
majority's interpretation of those principles--and its certifica-
tion to the D.C. Court of Appeals for clarification thereof--is,
in a word, unsettling.

The District's certification statute states that its Court of
Appeals

may answer questions of law certified to it by ... a
Court of Appeals of the United States ... if there are
involved in any proceeding before any such certifying
court questions of law of the District of Columbia which
may be determinative of the cause pending in such
certifying court and as to which it appears to the certify-
ing court there is no controlling precedent in the deci-
sions of the District of Columbia Court of Appeals.

D.C. Code s 11-723(a) (emphasis added). Consistent with
the statute, we recently held that "[i]n deciding whether to
certify a case we look to whether local law is 'genuinely
uncertain' with respect to a dispositive question ... and to
whether the 'case is one of extreme public importance[.]' ...
If, however, there is a 'discernible path for the court to
follow,' then we do not stop short of deciding the question."
Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 746 (D.C. Cir.
1998) (citations omitted). I believe the prerequisites men-
tioned in Dial A Car preclude us from certifying the question
posed by the majority. Plainly, the issue of whether Harri-

son had apparent authority to bind Makins under D.C. agency
principles is a "dispositive" one. And I am willing to concede,
at least arguendo, that the scope of a lawyer's settlement
authority is a matter of "extreme public importance." None-
theless, I am not convinced that D.C. law is "genuinely
uncertain" with respect to the question the majority certifies.

The majority believes that the extraordinarily narrow ques-
tion it poses is one "about which [the D.C. Court of Appeals]
has never thought." Maj. op. at 9. Of this there is probably
little doubt. The certification standard under D.C. Code
s 11-723, however, is not whether the Court of Appeals has
ruled precisely on the issue before us but simply whether its
case law gives us a "discernible path ... to follow" in
deciding the broader question: Under what circumstances
does a lawyer have apparent authority to effect a settlement
on behalf of his client?

The majority recognizes that "the D.C. Court of Appeals
relies on s 27 of the Restatement (Second) of Agency to
determine whether an agent has the authority to enter into a
binding agreement on behalf of the principal." Maj. op. at 7
(citing Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204, 1219
(D.C. 1991)). And it acknowledges that, under section 27,
apparent authority arises from "written or spoken words or
any other conduct of the principal which, reasonably inter-
preted, causes the third person to believe that the principal
consents to have the act done on [her] behalf by the person
purporting to act for [her]." Id. at 9 (quoting Restatement
(Second) of Agency s 27 (1958)) (emphasis added). Mistak-
enly, however, the majority then throws in the towel, declin-
ing to decide what D.C. case law makes clear: retaining a
lawyer and holding him out as the individual with whom the
opposing party should negotiate is sufficient to confer appar-
ent authority to settle the client's case.

In Feltman v. Sarbov, 366 A.2d 137 (D.C. 1976)--one of the
cases upon which the district court expressly relied--the D.C.
Court of Appeals declared:

Apparent authority arises when a principal places an
agent "in a position which causes a third person to

 reasonably believe the principal had consented to the
exercise of authority the agent purports to hold. This
falls short of an overt, affirmative representation by a
principal." ... [That is, apparent authority] arises when
the principal places the agent in such a position as to
mislead third persons into believing that the agent is
clothed with authority which in fact he does not possess.

Id. at 139-40 (citations omitted); see also Sigal Constr. Corp.,
586 A.2d at 1218-19 (same standard); Mgmt. P'ship, Inc. v.
Crumlin, 423 A.2d 939, 941 (D.C. 1980) (same standard). As
the majority observes, this "not[ ] particularly remarkable"
pronouncement reminds us that apparent authority can be
created "from something other than statements of the princi-
pal." Maj. op. at 14. Citing the Restatement (Third) of the
Law Governing Lawyers--upon which, it surmises, the D.C.
Court of Appeals would rely in deciding a case like this one,
see id. at 10--the majority limits the "something other" to
what it calls "custom and usage." Id. at 14. While custom
and usage are undoubtedly factors to consider when deter-
mining the existence of apparent authority, see Crumlin, 423
A.2d at 941, the limitation is unwarranted; Feltman contem-
plates apparent authority if the principal merely "places an
agent in a position" that reasonably suggests authority.
Feltman, 366 A.2d at 139 (emphasis added); see also Crum-
lin, 423 A.2d at 941 (for apparent authority to attach, "it is
essential that the principal have put the agent in a position
where the power exercised would normally be within the
reasonable scope of authority").

The majority's reluctance to accept Feltman at face value,
Maj. op. at 14, is baffling. That "the case did not deal with a
settlement agreement," id., does not render it inapplicable
here. As Goozh v. Capitol Souvenir Co., 462 A.2d 1140 (D.C.
1983), makes clear, in the District of Columbia "settlement
agreements are entitled to enforcement under general princi-
ples of contract law." Id. at 1142 (citation omitted) (emphasis
added). Indeed, because D.C. "law favors the settlement of
controversies," a "settlement will be enforced as any other
contract." Id. (citation omitted) (emphasis added).

 Furthermore, Bronson v. Borst, 404 A.2d 960 (D.C. 1979), a
decision the majority cites, is consistent with Feltman and
Goozh. Contrary to the majority's suggestion, Maj. op. at 8,
Bronson's declaration that "regardless of the good faith of the
attorney, absent specific authority, an attorney cannot accept
a settlement offer on behalf of a client," Bronson, 404 A.2d at
963, leaves plenty of room for apparent authority. The
statement in Bronson means nothing more than that a lawyer
cannot end his client's case without either actual or apparent
authority. As the majority itself explains, the Bronson litiga-
tion "was brought by the attorney against the client to
enforce the settlement in order to recover his contingent fee."
Maj. op at 8-9. Because "Bronson, unlike this case, did not
deal with the interests of a third party who entered into the
settlement with the attorney," the court simply had "no
occasion ... to consider whether an opposing party could
enforce a settlement agreement when the other party's attor-
ney possessed only apparent authority." Id. at 9. In other
words, Bronson is inapposite. If governing D.C. precedent
were uncertain, certification and concomitant delay would be
justified. But because the applicable D.C. case law--i.e.,
Feltman--is clear, I would decide the matter before us
without further delay.

Moreover, I believe the local courts follow the Sixth Cir-
cuit's view that "when a client hires an attorney and holds
him out as counsel representing him in a matter, the client
clothes the attorney with apparent authority to settle claims
connected with the matter." Capital Dredge & Dock Corp. v.
City of Detroit, 800 F.2d 525, 530 (6th Cir. 1986) (applying
Michigan law). As the District demonstrates, see Br. of
Appellee at 18, the facts of Feltman bear out this analysis.
In Feltman, the court found that a lawyer had apparent
authority to bind his client to a lease because the lawyer had
drafted the lease and "handled all the negotiations with
regard to its initial execution, its renewal, and its premature
termination." Feltman, 366 A.2d at 140. The lessor (i.e., the
principal) argued that he had not made any express represen-
tations directly to the lessee (i.e., the third party); apparent
authority attached nonetheless because the lessor "held out

this attorney as the person with whom the lessee should
deal." Id. Resisting this conclusion, the majority quotes
from the United States Supreme Court's decision in United
States v. Beebe, 180 U.S. 343, 352 (1901): "[T]he utter want of
power of an attorney, by virtue of his general retainer only, to
compromise his client's claim, cannot, we think, be successful-
ly disputed." Maj. op. at 12. The D.C. court's view, however,
is not inconsistent with the Supreme Court's--that is, both
courts reject the Restatement's proposition that "[t]he man-
ifestation of the principal may be made ... to a third person
... by continuously employing the agent." Restatement
(Second) of Agency s 8 cmt. b (emphasis added).

The majority also expresses concern that, under Feltman,
"an attorney [will] nearly always have apparent authority to
end the case despite the wishes of his client." Maj. op. at 12-
13. But "nearly always" overstates the case; whether the
client has made clear her lawyer's authority by placing him in
a position of authority--e.g., by sending him to a settlement
conference--is only the first half of the inquiry. For appar-
ent authority to attach, the client's manifestation must also
"cause[ ] a third person to reasonably believe the principal
ha[s] consented to the exercise of authority the agent pur-
ports to hold." Feltman, 366 A.2d at 139. In my view, the
D.C. Court of Appeals has wisely declined to adopt a standard
under which a lawyer's representation of his settlement au-
thority is unreliable as a matter of law if the client herself has
made no direct representations to opposing counsel. Such a
standard, it seems to me, "would require litigants to go
behind counsel to the opposing party in order to verify
authorization for every settlement offer." Capital Dredge,
800 F.2d at 531. Indeed, such a standard could render the
settlement process "unworkable." Id. at 532.

Finally, I take issue with the majority's suggestion that the
location of settlement negotiations may not affect the appar-
ent authority analysis under D.C. law. Maj. op. at 13. True,
a lawyer has "a duty of truthful representation, not only to
the magistrate in court, but also to the District outside the
courtroom." Id. (citing D.C. Rules of Prof'l Conduct R.
4.1(a)). Yet the majority ignores the likelihood that a "sol-

emn statement ... made in open [c]ourt ... as to the terms
of the settlement," Ashley v. Atlas Mfg. Co., 7 F.R.D. 77, 77
(D.D.C. 1946), aff'd, 166 F.2d 209 (D.C. Cir. 1948), may well
make more reasonable a third party's belief that the lawyer
has authority to settle than would an out-of-court statement.

For the foregoing reasons, I would hold that the district
court employed the proper apparent authority standard. See
Makins v. Dist. of Columbia, No. CV-98-2693, mem. op. at 6
(D.D.C. Dec. 11, 2000) (quoting Crumlin, 423 A.2d at 941;
Feltman, 366 A.2d at 139). Moreover, because we look only
for clear error when reviewing the district court's factual
findings, see Foretich v. ABC, 198 F.3d 270, 273 (D.C. Cir.
1999), I would affirm its holding that "[o]n the facts presented
here ... Harrison had apparent authority to settle the case
for $99,000 without job reinstatement." Makins, mem. op. at
6. The "facts presented here," as the district court found
them, are as follows:

[Harrison] had represented Makins against the District
of Columbia since 1996 when he was retained before the
adverse action. He then represented Ms. Makins at the
time she filed her EEO complaint. Finally, he was
retained to represent her in the present lawsuit which
was filed in 1998....

[In the present lawsuit, Harrison] carried out all the
duties an attorney ordinarily carries out in terms of filing
pleadings, answering motions, appearing at the pretrial
after filing a complete pretrial statement, and participat-
ing in the [settlement conference] with breaks to place
telephone calls to his client....

Id. at 6-7. Also, as the majority recognizes, Makins autho-
rized Harrison "to attend [the] settlement conference before
[the] magistrate judge and to negotiate on her behalf." Maj.
op. at 15. In other words, under the D.C. approach, Makins
"placed [Harrison] in a position" that led the District to
believe he had authority to settle her case.

 For at least two reasons, I am convinced the district court
correctly held that that belief was reasonable. See Makins,
mem. op. at 6. First, although the magistrate judge ordered
the "lead attorney(s) for the parties" to appear before him at
the settlement conference, he permitted the parties to absent
themselves so long as they were "available by telephone for
the duration of the settlement conference."* Maj. op. at 2-3
(quoting Makins v. Dist. of Columbia, No. CV-98-2693, mag.
order at 2 (D.D.C. July 7, 2000)). By all outward appear-
ances, Makins was available by telephone for the duration of
the conference. Harrison, in fact, left the conference at least
three times to discuss with Makins by telephone the status of
the proceedings. See Makins, mem. op. at 2. The third
time, he returned with telephone in hand to accept the
District's offer with the new condition that Makins's forms be
amended to reflect resignation instead of termination. See
JA 144-45. These circumstances, taken together, reasonably
suggested to the District that Makins was actively involved in
the bargaining and specifically told Harrison to settle only if
the District agreed to alter her forms. Second, although the
majority "see[s] nothing in the record to prove that Harrison
told the magistrate he had authority to settle the case on the
terms ultimately agreed upon," Maj. op. at 13, I do. Before
adjourning the settlement conference, the magistrate judge
asked the lawyers to confirm that the terms of "the parties'
agreement" were the exchange of $99,000 and the aforemen-

__________
* The magistrate judge's order permitting availability by tele-
phone follows the district court's rules of alternative dispute resolu-
tion:

The Court will require, whenever possible, that representatives
of the parties with authority to bind them in settlement discus-
sion be present or available by telephone during settlement
negotiations and ADR proceedings.

LcvR, App. A, Part II, Sec. 11C (cited in Br. of Appellee at 24).
Although the September 12, 2000 settlement conference was not an
ADR proceeding, the magistrate judge's order supports the Dis-
trict's argument that its belief in Harrison's authority was reason-
able because Makins's availability "by telephone rather than in
person was not unusual in any way." Br. of Appellee at 24.

tioned amendment of Makins's records for dismissal of the
suit with prejudice. JA 30 (emphasis added). Both Harrison
and counsel for the District affirmed that those were, indeed,
the terms. See id. Harrison's "solemn" representation in
open court that the parties (including Makins) had that
agreement bolsters the reasonableness of the District's belief
that Harrison had authority to settle on Makins's behalf. Cf.
Ashley, 7 F.R.D. at 77.

I would, therefore, affirm the district court's order enforc-
ing the settlement.