[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 21, 2010
No. 09-16479 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00989-CV-KOB
JACQUELINE E. THOMPSON,
Plaintiff-Appellant,
versus
JOHN M. MCHUGH,
Secretary of the Army,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 21, 2010)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jacqueline Thompson appeals a district court order dismissing her complaint
for lack of subject-matter jurisdiction. Thompson initiated the present action to
rescind an agreement settling her Title VII claims against the U.S. Army. The
district court granted the Army’s motion to dismiss, finding that the government
had not waived sovereign immunity with respect to Thompson’s claim and that the
court therefore lacked subject-matter jurisdiction. After reviewing the parties’
briefs, we affirm.
I.
This case arises out of Thompson’s allegations that she was sexually
harassed while employed by the Army. On March 13, 2008, with the assistance of
counsel, Thompson entered into a negotiated settlement agreement with the Army.
The settlement agreement provided for monetary damages, attorney’s fees, and
occupational reassignment. In signing the agreement, Thompson certified that she
understood the agreement, freely and voluntarily agreed to its conditions, and
accepted its terms.
Four days later Thompson’s attorney contacted the Army, requesting
rescission of the settlement agreement on the grounds that Thompson was coerced
and under duress when she signed the settlement agreement. The Army issued a
final decision determining that the settlement agreement was valid. On appeal, the
Equal Employment Opportunity Commission (“EEOC”) likewise concluded that
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the agreement was valid and binding. The EEOC also denied Thompson’s
subsequent motion for reconsideration. Both the EEOC’s initial decision and its
later denial of the motion for reconsideration informed Thompson that she had “the
right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision.”
On May 19, 2009, Thompson initiated this action in the U.S. District Court
for the Northern District of Alabama. Her complaint alleged that she entered the
settlement agreement while “under duress and mental incapacity”—primarily
because her mental state, uncontrolled by medication at the time of settlement,
interfered with her decision-making ability. She sought to void the agreement, to
have her cases referred for further administrative processing, and to obtain
attorney’s fees. The district court found that it lacked subject-matter jurisdiction
and dismissed the case.
II.
We review de novo a district court’s dismissal for lack of subject-matter
jurisdiction. Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (11th Cir. 1998).
“The burden for establishing federal subject matter jurisdiction rests with the party
bringing the claim.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242,
1247 (11th Cir. 2005).
3
Federal courts have jurisdiction over suits against the United States and its
agencies only to the extent that sovereign immunity has been waived. See United
States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965 (1983) (“It is
axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.”); see also FDIC v. Meyer,
510 U.S. 471, 475, 114 S. Ct. 996, 1000 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit.”). Because
Thompson is suing the Army, she bears the burden of establishing that the federal
government has waived its sovereign immunity with respect to her claim.
Thompson contends that there are three grounds for asserting jurisdiction:
(1) Title VII, particularly 42 U.S.C. §§ 2000e-16 and 2000e-5(f)(3); (2) various
regulations promulgated by the EEOC, specifically 29 C.F.R. §§ 1614.504,
1614.401, and 1614.407; and (3) public policy. For the reasons discussed below,
none of these is sufficient to establish federal subject-matter jurisdiction.
First, Title VII does not authorize Thompson’s suit. Title VII waives
sovereign immunity when a federal employee seeks relief for unlawful
employment practices—that is, for “any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a), (c). However,
Thompson’s complaint does not seek relief for employment discrimination. Her
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claim is for contract rescission, a claim that is founded on general principles of
contract law. She acknowledged as much before the district court: when
responding to the defendant’s motion to dismiss, she argued that the law applicable
to her complaint was “general contract law, which controls all contractual
agreements.” (Doc. 6, at 2.) That the contract in question resolved Title VII
complaints is incidental to Thompson’s rescission claim, which is based on
allegations of coercion and duress during the contracting process. See Schmidt v.
Shah, --- F. Supp. 2d ----, 2010 WL 937920, at *13 (D.D.C. Mar. 17, 2010)
(finding that federal employee’s claims challenging validity of settlement
agreement due to alleged threats, deception, coercion, duress, and poor health were
“contractual in nature”); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 379, 114 S. Ct. 1673, 1676 (1994) (rejecting the idea that “breach of an
agreement that produced the dismissal of an earlier federal suit” can serve as the
basis for “asserting otherwise nonexistent federal jurisdiction”).
Thompson specifically relies on 42 U.S.C. § 2000e-16(c), which authorizes
federal employees to bring civil actions for redress of grievances. However, the
statute applies only to civil suits initiated after final agency action or an EEOC
determination “on a complaint of discrimination based on race, color, religion, sex
or national origin.” 42 U.S.C. § 2000e-16(c). As discussed above, Thompson’s
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present claim is for contract rescission, not unlawful employment discrimination.
The statute says nothing about challenges to the validity of settlement agreements
between federal departments and their employees. “Jurisdiction over any suit
against the Government requires a clear statement from the United States waiving
sovereign immunity, together with a claim falling within the terms of the waiver.”
United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S. Ct.
1126, 1131–32 (2003) (citations omitted). Because Thompson’s contract
rescission claim is not a claim falling with the scope of Title VII’s waiver of
sovereign immunity, Title VII does not provide a basis for exercising jurisdiction.
Second, we are not persuaded by Thompson’s argument that certain
regulations promulgated by the EEOC provide subject-matter jurisdiction. The
fact that the EEOC has been given broad power to promulgate regulations does not
waive sovereign immunity. “A waiver of the Federal Government’s sovereign
immunity must be unequivocally expressed in statutory text and will not be
implied.” Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 2096 (1996) (citations
omitted). The scope of any waiver must be strictly construed in favor of the
government. Id.
In addition, the specific regulations cited by Thompson do not indicate that
Congress intended to waive sovereign immunity for claims to rescind Title VII
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settlement agreements. See Heller v. United States, 776 F.2d 92, 98 n.7 (3d Cir.
1985) (“[G]overnment regulations alone, without the express intent of Congress,
cannot waive sovereign immunity.”). Section 1614.504 provides a complainant
with certain internal and administrative remedies if she “believes that the agency
has failed to comply with the terms of a settlement agreement.” 29 C.F.R.
§ 1614.504. Section 1614.401 authorizes appeals to the EEOC from “an agency’s
final action” or “an agency’s alleged noncompliance with a settlement agreement
or final decision in accordance with § 1614.504.” Id. § 1614.401(a), (e). Neither
of these regulations mentions the possibility of filing a civil action in federal
district court. The only regulation that does so, section 1614.407, sets forth filing
deadlines for a complainant who “is authorized under title VII, the ADEA and the
Rehabilitation Act to file a civil action.” Id. § 1614.407. Section 1614.407 does
not purport to authorize civil actions other than those already authorized by the
various statutes. In short, the regulations cited by Thompson do not establish that
the government has specifically consented to be sued for claims to rescind Title
VII settlement agreements.1 See United States v. Transocean Air Lines, Inc., 386
1
Although Thompson argues that she merely followed the procedure outlined in Jones v.
Wynne, 266 F. App’x 903, 905 (11th Cir. 2008), her reliance on Jones is unavailing.
Unpublished opinions such as Jones “are not controlling authority and are persuasive only
insofar as their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340,
1345 n.7 (11th Cir. 2007). Also, Jones is “not persuasive because its facts are materially
different from this case.” Id. When a federal employee alleges breach of a Title VII settlement
agreement, as did the plaintiff in Jones, federal regulations provide certain internal and
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F.2d 79, 81 (5th Cir. 1967) (“The right [to sue the United States] can be acquired
only by the specific consent of Congress, which is not present here.”).2
Finally, we disagree with Thompson’s argument that public policy justifies
the exercise of subject-matter jurisdiction. Thompson’s general invocation of
public policy does not allow us to contravene the well-settled principle that “[a]
waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in statutory text.” Lane, 518 U.S. at 192, 116 S. Ct. at 2096. Although
we recognize that the EEOC twice informed her that she had a right to file a civil
action appealing the EEOC’s determination that the settlement agreement was
valid and binding, an agency’s actions cannot waive sovereign immunity. See
United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 660, 67 S. Ct. 601, 604
(1947) (“It has long been settled that officers of the United States possess no power
through their actions to waive an immunity of the United States or to confer
jurisdiction on a court in the absence of some express provision by Congress.”).
administrative remedies. See 29 C.F.R. §§ 1614.504, 1614.401(e). However, the regulations are
silent with respect to claims for rescission of Title VII settlement agreements. The Jones Court
had no need or occasion to consider the proper procedure for claims like the one Thompson
brought in this case.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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III.
For the reasons discussed above, neither Title VII, its implementing
regulations, nor public policy waive sovereign immunity so as to allow
Thompson’s contract rescission claim. Because Thompson does not present any
other arguments that sovereign immunity has been waived, we conclude that the
district court did not err in dismissing Thompson’s claim for lack of subject-matter
jurisdiction. The judgment of the district court is AFFIRMED.
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