United States Court of Appeals
for the Federal Circuit
__________________________
GLADYS S. VANDESANDE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5012
__________________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-258, Judge Edward J. Damich.
__________________________
Decided: March 23, 2012
__________________________
RODERICK V. HANNAH, of Davie, Florida, argued for
plaintiff-appellant.
HILLARY A. STERN, Senior Trial Attorney, Commercial
Litigation Branch, Civil Division, of United States De-
partment of Justice, of Washington, DC, argued for de-
fendant-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and TODD M. HUGHES, Deputy Director, and DAWN E.
GOODMAN, Trial Attorney.
__________________________
VANDESANDE v. US 2
Before NEWMAN, PLAGER, and LINN, Circuit Judges.
PLAGER, Circuit Judge.
This is a dispute between the Government and a
federal employee over whether a “Stipulation Agreement
Regarding Damages,” resulting from a settlement of an
earlier personnel case, is a contract, a consent decree, or
perhaps both. The label we put on it dictates the court
that will have jurisdiction to hear the case on its merits, a
necessary predicate to a judicial determination of whether
the Stipulation Agreement (hereafter “Stipulation
Agreement” or “Agreement”) was breached by the
Government as the employee alleges. This dispute is yet
another example of the wastefulness of litigation over
where to litigate.
Plaintiff-Appellant, Ms. Gladys S. VanDesande,
entered into the Stipulation Agreement with the approval
of the Equal Employment Opportunity Commission
(“EEOC”) to resolve Ms. VanDesande’s Title VII
pregnancy discrimination claim against her employer, the
United States Postal Service (“USPS”). She later filed
suit in the Court of Federal Claims alleging that the
Government breached that Agreement.
The Court of Federal Claims, at the Government’s
behest, held that it did not possess jurisdiction to hear
Ms. VanDesande’s claim because the Stipulation
Agreement was a consent decree, not a contract. On
appeal, Ms. VanDesande argues that, whatever else it
may be, the Agreement is a contract for purposes of
enforcement. Thus we must determine the legal status of
the Stipulation Agreement.
Though there is precedent on both sides of this
argument, we conclude that the trial court erred by
holding the Stipulation Agreement not enforceable as a
3 VANDESANDE v. US
contract within the jurisdiction of the Court of Federal
Claims; accordingly, we reverse and remand for further
proceedings consistent with this opinion.
BACKGROUND
We begin by briefly summarizing the lengthy and
tortured history of this case. To fully detail its course
through the several federal agencies and courts during
the numerous years it has been in dispute (nearly a
decade and a half) would unduly extend the opinion, and
it might be confused with Jarndyce v. Jarndyce. 1
Ms. VanDesande in 1998 and 1999 filed a series of
complaints with the USPS, her employer, and
subsequently with the EEOC, alleging that the USPS had
violated the Pregnancy Discrimination Act, 42 U.S.C.
§ 2000e(k) (amending Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-16). Before the EEOC, the complaints
were consolidated into a bifurcated proceeding, in which
the question of liability was first addressed. On the
question of liability, the EEOC issued an Order finding
that the USPS had discriminated and retaliated against
Ms. VanDesande.
On the question of damages, the parties entered into
the Stipulation Agreement, at issue here, which settled
that phase of the proceeding substantially in her favor.
On June 23, 2003, the EEOC issued a Final Order, closing
the case, which incorporated the Stipulation Agreement
by reference. The USPS then issued a Notice of Final
Action adopting the EEOC’s order.
Later in 2003, Ms. VanDesande notified the USPS
that she believed the agency had breached the Stipulation
Agreement. The USPS, in a Final Decision dated
1 Jarndyce v. Jarndyce is the Chancery suit around
which the plot of Dickens's Bleak House (1853) revolves.
VANDESANDE v. US 4
November 4, 2003, denied Ms. VanDesande’s claim. She
appealed the denial to the EEOC. Several years went by
before the EEOC issued its decision, in which it found
that Ms. VanDesande had not met her burden of showing
that the USPS failed to comply with the Stipulation
Agreement. Ms. VanDesande requested reconsideration,
and on May 17, 2006, the EEOC denied the request and
informed Ms. VanDesande of her right to file a civil action
in an appropriate United States District Court.
Ms. VanDesande then filed an action for breach of the
Stipulation Agreement in the District Court for the
Southern District of Florida. In response to that lawsuit,
the Government filed a Motion for Summary Judgment in
which it argued that the District Court lacked subject
matter jurisdiction over Ms. VanDesande’s complaint
because it was “a contract claim within the meaning of
the Tucker Act.” Defendant’s Motion for Summary
Judgment and Memorandum of Law at 6, VanDesande v.
Potter, No. 06-61263 (S.D. Fla. Mar. 28, 2007). According
to the Government, because Ms. VanDesande’s claim for
monetary damages exceeded $10,000, “[t]he United States
Court of Federal Claims has exclusive jurisdiction over
Plaintiff’s monetary claims for breach of the Stipulation
Agreement . . . against the Postal Service.” Id. Following
an unsuccessful attempt at a mediated settlement, the
parties stipulated to a voluntary dismissal of the case,
which was entered on May 31, 2007.
In July of 2007, the USPS unilaterally terminated Ms.
VanDesande’s employment (the Stipulation Agreement
had included a lump sum payment to her in exchange for
her resignation). Believing her termination was wrongful
because the USPS had not yet complied with part of the
Stipulation Agreement, Ms. VanDesande submitted
another breach notice to the USPS. After the USPS failed
to timely respond, Ms. VanDesande again appealed to the
5 VANDESANDE v. US
EEOC. On February 5, 2008, the EEOC issued its
decision in which it found that Ms. VanDesande had not
shown that the USPS failed to comply with the
Stipulation Agreement, and again informed Ms.
VanDesande of her right to file a civil action in an
appropriate District Court.
On May 8, 2008, Ms. VanDesande once again filed
suit in the District Court for the Southern District of
Florida, this time seeking de novo adjudication of her
Title VII pregnancy discrimination claim under 42 U.S.C.
§ 2000e-16(c). In an order issued February 18, 2009, the
District Court granted the Government’s motion to
dismiss the case as untimely. The court determined that
Ms. VanDesande was required to file her civil action for a
de novo trial of the underlying discrimination complaint
within 90 days of receiving the USPS’s Notice of Final
Action on those charges, presumptively the 2003 USPS
Notice of Final Action adopting the EEOC’s order. Thus
the court concluded that Ms. VanDesande’s action was
time-barred.
Ms. VanDesande, adopting the Government’s position
in her first District Court suit that the agreement is a
contract and can be enforced only in the Court of Federal
Claims, then filed on April 24, 2009, a complaint for
breach of contract in the Court of Federal Claims; this is
the suit that brought the case here. As indicated above,
the Government in this suit again moved to dismiss the
case for lack of subject matter jurisdiction. Now, however,
in sharp contrast to its original stance before the District
Court, the Government argued before the Court of
Federal Claims that the Stipulation Agreement is not a
contract but a consent decree, enforcement of which is not
within the jurisdiction of the Court of Federal Claims
under the Tucker Act. VanDesande v. United States, 94
Fed. Cl. 624, 629 (Fed. Cl. 2011). The Court of Federal
VANDESANDE v. US 6
Claims, after a review of the conflicting precedents on the
issue, agreed with the Government and granted the
motion. Ms. VanDesande timely appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
The issue on appeal is the determination by the Court
of Federal Claims that it lacks subject matter jurisdiction
over Ms. VanDesande’s claim for breach of contract by the
Government. We review determinations of the Court of
Federal Claims regarding its jurisdiction without
deference. Wheeler v. United States, 11 F.3d 156, 158
(Fed. Cir. 1993).
I.
When parties to a dispute arrive at an agreement that
settles the dispute, the resulting agreement will generally
have the characteristics of a contract: “a promise or a set
of promises for the breach of which the law gives a
remedy, or the performance of which the law in some way
recognizes a duty.” Restatement (Second) of Contracts § 1
(1981). A party alleging a breach of the contract may
bring an action in a court of competent jurisdiction for
legal or equitable remedies. Id. at § 345. In some cases,
however, a dispute settles only after it becomes a matter
of court proceedings. If the parties later negotiate a
settlement agreement and that agreement is incorporated
into a court decree that terminates the judicial
proceeding, determining where to bring an action for
enforcement can become a point of dispute. The question
that arises in such cases is whether the parties must
enforce their agreement through the trial forum that
issued the decree, or whether they may pursue a separate
action for breach of contract in any suitable court.
7 VANDESANDE v. US
Typically, the court that issues a consent decree will
retain jurisdiction to enforce it, see, e.g., Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994),
and often the settlement agreement that led to the decree
will so specify. Even if the matter is not clearly addressed
in advance, in many cases the same court will have
jurisdiction regardless of whether the theory for
enforcement is a breach of contract or breach of a judicial
decree.
In the federal system, however, when the United
States is the defendant the difference between
enforcement of a court decree by the issuing forum and
enforcement of a settlement agreement through a
separate suit for breach of contract becomes a matter of
critical importance. It can determine which court in the
system is empowered to decide the dispute.
For example, if the United States is a party to a
contract that the Government is alleged to have breached,
and the claim is for more than $10,000, the exclusive
forum for the suit is in the Court of Federal Claims for the
damages claimed to have resulted from the breach.
Compare 28 U.S.C. §§ 1346(a)(2) with id. 1491(a)(1).
Thus, when viewed simply as a contract, a breach of a
settlement agreement involving damages of more than
$10,000 is within the Tucker Act jurisdiction of the Court
of Federal Claims. See Holmes v. United States, 657 F.3d
1303, 1317 (Fed. Cir. 2011).
But what if the claim against the Government is
based not on a settlement agreement per se, but on a
settlement agreement that has been incorporated into a
judicial or administrative order, in the form, for example,
of a consent decree? Does the non-breaching party have
the option to pursue a remedy in the Court of Federal
Claims under the Tucker Act, or does jurisdiction for
VANDESANDE v. US 8
enforcing such an agreement rest solely in the hands of
the tribunal that issued the order?
This is a matter of first impression in this court, and,
as this case exemplifies, parties wishing to enforce such
agreements with the Government require answers to
these questions in order to know which forums are
available. For nearly nine years Ms. VanDesande has
been seeking enforcement of her Stipulation Agreement
with the Government. As we have explained, she first
brought an enforcement suit against the Government in
the District Court for the Southern District of Florida.
Then when that failed, and her subsequent attempt to get
de novo review was blocked, she took her complaint to the
Court of Federal Claims as the Government had
instructed. Here the Government reversed field and
argued that her suit was actually one for enforcement of a
decree, and not after all a contract claim within the
jurisdiction of the Court of Federal Claims. That court
agreed with the Government and dismissed the case. The
result of all this, if the Government gets its way, is to
leave Ms. VanDesande with no judicial forum able to hear
her complaint. 2
2 In the Southern District of Florida, the Govern-
ment took the position that EEOC regulations contem-
plate just such an outcome. See Defendant’s Motion for
Summary Judgment and Memorandum of Law, supra, at
10. According to the Government, “[t]here is no provision
[under EEOC regulations] that allows a federal employee
to bring an enforcement action in district court if the
EEOC has determined that the agency is in compliance
with the EEOC’s Final Order.” Id. While there may not
be an EEOC regulation that expressly authorizes judicial
enforcement actions, the absence of an agency regulation
does not per se determine the jurisdiction of a federal
court to hear an appeal from the agency. Indeed, the
regulations provide that “[a] complainant may petition
9 VANDESANDE v. US
We put aside for later consideration the possible
consequences of the Government’s attempt to win this
case by taking inconsistent positions in two different
federal courts. This fast footwork by the Government not
only imposed further delay and litigation costs on a
citizen trying to obtain relief in the nation’s courts, but
caused a case of ping-pong among the courts themselves,
with a resulting waste of judicial resources.
We turn then first to the substance of this appeal. To
resolve it, we must review the Court of Federal Claims’s
twin holdings: that consent decrees and settlement
agreements are mutually exclusive, and that the
Stipulation Agreement in this case is a consent decree
over which jurisdiction is lacking.
A.
In Holmes v. United States, we held that “Tucker Act
jurisdiction may be exercised in a suit alleging breach of a
Title VII settlement agreement,” and thus jurisdiction
properly lay in the Court of Federal Claims. 657 F.3d at
1317. The question Holmes left unanswered, however,
since it was not before the court, was whether the Court
of Federal Claims also has jurisdiction over Title VII
consent decrees. Id. at 1316. The trial court, recognizing
that “inquiry into consent decree vel non would be
academic if the Stipulation Agreement, despite its
incorporation into the Final Order of the [EEOC],
nevertheless obtained or retained the status of an
the Commission for enforcement of a decision issued
under the Commission’s appellate jurisdiction.” 29 C.F.R.
§ 1615.305(a) (emphasis added). Thus, the regulations
clearly do not confine enforcement actions to the EEOC,
as the Government contends. Simply because an em-
ployee chooses to initially pursue enforcement through
the EEOC does not preclude her from later seeking en-
forcement in a court of competent jurisdiction.
VANDESANDE v. US 10
independent legal agreement between the parties,”
VanDesande, 94 Fed. Cl. at 630, requested additional
briefing from the parties on the question of whether
settlement agreements and consent decrees are
inherently mutually exclusive.
After reviewing the submissions and the way courts
have treated similar agreements in other cases, the trial
court concluded that an action for breach of contract no
longer exists “if the contract alleged is a settlement
agreement that has been incorporated in a consent decree
entered by another court or administrative entity.” Id. at
632. After reviewing the same materials, we conclude
otherwise.
In Local No. 93, Int’l Ass’n of Firefighters v. City of
Cleveland, 478 U.S. 501 (1986), the Supreme Court was
asked to determine the legal status of a Title VII consent
decree. The Court applied a flexible approach in which it
declined to be cabined by labels. See id. at 519 (“The
question is not whether we can label a consent decree as a
‘contract’ or a ‘judgment,’ for we can do both.”). Instead,
the Court noted that the legal status of a consent decree
depends on the purpose of the litigation. Id. (“this Court’s
cases do not treat consent decrees as judicial decrees in all
respects and for all purposes”).
The issue in Local No. 93 was whether a district
court’s consent decree settling a Title VII race
discrimination case was an “order” for purposes of section
706(g), which prohibits any “order of the court” from
providing relief to individuals who were not victims of
discrimination. The Court concluded that for such
purposes, the contractual nature of Title VII consent
decrees trump their nature as judicial acts. Specifically,
the Court emphasized Congress’ intention that “voluntary
compliance . . . be the preferred means of achieving the
11 VANDESANDE v. US
objectives of Title VII” and that the “voluntary nature of a
consent decree is its most fundamental characteristic.” Id.
at 515 and 521. Indeed, the Court noted that “it is the
parties’ agreement that serves as the source of the court’s
authority to enter any judgment at all.” Id. at 522. Thus,
the Court concluded that consent decrees are not judicial
orders for the purposes of section 706(g) of Title VII. Id.
at 521.
The trial court in its opinion noted that despite
highlighting the “contractual resemblance” of Title VII
consent decrees, “nothing in the [Local No. 93] decision
established that violation of the terms of a consent decree
could be litigated separately and solely as a breach of
contract.” VanDesande, 94 Fed. Cl. at 631. That
statement is correct as far as it goes, since that issue was
not before the Court. What Local No. 93 establishes,
however, is that consent decrees and settlement
agreements are not, as a matter of law, mutually
exclusive, and “[t]he fact that a consent decree looks like a
judgment entered after a trial” does not control whether
the consent decree is treated as a court order. Local No.
93, 478 U.S. at 523 (emphasis in original). Instead, the
legal status of a Title VII consent decree will depend upon
the nature of the case.
The Government cites to the analysis employed by our
sister circuits of consent decrees under the Prison
Litigation Reform Act (“PLRA”). See Rowe v. Jones, 483
F.3d 791 (11th Cir. 2007); Benjamin v. Jacobson, 172 F.3d
144 (2d Cir. 1999) (en banc). Even assuming they had the
power to undercut the position of the Supreme Court
taken in Local No. 93, we are not persuaded that these
cases are so inconsistent. Benjamin and Rowe both
involved actions under the PLRA’s “termination
provision,” 18 U.S.C. § 3623(b). The terms “consent
decree” and “private settlement agreement” are
VANDESANDE v. US 12
specifically defined in the PLRA, and termination
proceedings are limited to the former. Based on the
PLRA’s specific treatment of consent decrees and
settlement agreements, both courts concluded “that
Congress sought to make the Act’s concepts of consent
decrees and private settlement agreements mutually
exclusive.” Benjamin, 172 F.3d at 157 (emphasis added);
see also Rowe, 483 F.3d at 796 (citing Benjamin). But
neither court suggested that the PLRA’s bright-line
distinction between consent decrees and settlement
agreements reflects the “plain definitions” of those terms
that are broadly applicable to other areas of law, and
Congress provided no indication that the statutorily-
derived mutual exclusivity would extend beyond the
PLRA. Thus, we do not view these cases as detracting
from the Supreme Court’s flexible approach for
determining the legal status of Title VII consent decrees
found in Local No. 93.
We also are unpersuaded that the other cases
discussed in the trial court’s opinion establish that
consent decrees and settlement agreements are mutually
exclusive for all purposes, especially enforcement. The
trial court’s conclusion that they are mutually exclusive
was based in large part on an opinion from this court,
Blodgett v. United States, No. 96-5067, 1996 WL 640238
(Fed. Cir. 1996), which cited a Supreme Court decision,
United States v. Swift & Co., 286 U.S. 106 (1932), for the
premise that “a decree entered upon consent is a judicial
act and is not a contract.” Blodgett, 1996 WL 640238 at
*1. As the trial court correctly observed, however,
Blodgett was a nonprecedential opinion of this court, and
therefore is not binding on subsequent decisions.
Furthermore, because the portion of Swift cited in
Blodgett was not essential to the Court’s decision in that
case, it is also nonbinding dictum. Swift involved a
13 VANDESANDE v. US
consent decree between the Government and certain meat
packers that enjoined the meat packers from conducting
certain activities that the Government alleged violated
the Sherman Antitrust Act, 15 U.S.C. § 4. Swift, 286 U.S.
at 111. When a district court modified the consent decree
11 years later, a group of wholesale grocers intervened,
arguing that the modifications constituted a breach of the
parties’ underlying contractual obligations. Id. at 114.
The Supreme Court rejected the interveners’ argument
“that a decree entered upon consent is to be treated as a
contract and not as a judicial act” but also noted that “[a]
different view would not help them, for they were not
parties to the contract, if any there was.” Id. at 115.
Thus in Swift, determining that the consent decree
should not be treated as a contract was not essential to
the Court’s disposition of the interveners’ claim. Beyond
that, the Swift opinion can be seen as less than wholly
consistent regarding the judicial act and contract
paradigms of a consent decree. Despite the Court’s
insistence that a consent decree is a judicial act, it
nonetheless recognized that consent judgments have
certain elements of a bargain. Id. at 116-17. In fact, the
test the Court adopted in Swift for modifying a consent
decree was essentially a contractual one: “Nothing less
than a clear showing of grievous wrong evoked by new
and unforeseen conditions should lead us to change what
was decreed after years of litigation with the consent of all
concerned.” Id. at 119 (emphasis added). In view of
Swift’s internal inconsistencies, and because it was not
essential for the Court to find that the consent decree
“was not a contract as to any one,” we decline to give stare
decisis effect to statements taken from Swift suggesting
that consent decrees are not to be treated as contracts.
More importantly, our view of Swift is consistent with
several later opinions from the Supreme Court acknowl-
VANDESANDE v. US 14
edging the hybrid nature of consent decrees as both
contracts and judicial acts. For example, in United States
v. ITT Cont’l Baking Co., 420 U.S. 223 (1975), the Gov-
ernment brought an action against a manufacturer of
baked goods seeking imposition of civil penalties for the
manufacturer’s alleged violation of a Federal Trade
Commission consent order prohibiting certain activities
that allegedly violated the Sherman Antitrust Act. In a
footnote, the Court acknowledged that “[c]onsent decrees
and orders have attributes both of contracts and of judi-
cial decrees or, in this case, administrative orders. . . .
Because of this dual character, consent decrees are
treated as contracts for some purposes but not for others.”
Id. at 237. After reviewing its treatment of similar con-
sent decrees in other cases, the Court concluded that
“since consent decrees and orders have many of the at-
tributes of ordinary contracts, they should be construed
basically as contracts . . . .” Id. at 236 (citing Hughes v.
United States, 342 U.S. 353 (1952), United States v. Atl.
Ref. Co., 360 U.S. 19 (1959), and United States v. Armour
& Co., 402 U.S. 673 (1971)). We are not the first to ob-
serve that these post-Swift decisions cast further doubt on
the statements in Swift that consent decrees are to be
treated as judicial acts, not contracts. 3
3 Scholars have reconciled the apparent conflict be-
tween the Court’s initial view of consent decrees in Swift
and its later view in Hughes, Atlantic Refining, Armour,
and ITT by noting that the Swift Court treated consent
decrees as judicial acts for the purposes of modification,
consistent with the “time-honored principle that an in-
junction is always subject to adaptation on a showing of
changed circumstances,” Milton Handler, Twenty-Fourth
Annual Antitrust Review, 72 Colum. L. Rev. 1, 28 (1972),
while Hughes, Atlantic Refining, Armour, and ITT treated
consent decrees as contracts for purposes of construction.
15 VANDESANDE v. US
The trial court took a somewhat narrower view of the
ITT line of cases, seeing them as “merely establish[ing]
that in certain contexts consent decrees are to be analyzed
or interpreted according to contract principles, but not
necessarily that they are also contracts separate from
their existence as judicial orders.” VanDesande, 94 Fed.
Cl. at 631. What the trial court failed to give sufficient
weight to, however, is that a fundamental issue in any
contract enforcement proceeding is whether, absent
enforcement, the non-breaching party will have received
the benefit of her bargain. As a result, the application of
contract concepts lies at the heart of any claim for
enforcement in such a case. Indeed, the ITT Court noted
that “a consent decree or order is to be construed for
enforcement purposes basically as a contract . . . .” ITT,
420 U.S. at 238 (emphasis added). Thus, the ITT line of
cases supports a conclusion that settlement agreements,
even if they are incorporated into judicial or
administrative consent decrees, should be viewed for
enforcement purposes as having the attributes of a
contract.
Indeed, to hold otherwise is inconsistent with the
well-established rule that neither a court nor the parties
has the power to alter a federal court’s statutory grant of
subject matter jurisdiction. See, e.g., Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 818 (1988); Ins.
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982). The Tucker Act provides that
the 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). In
See also Thomas M. Mengler, Consent Decree Paradigms:
Models Without Meaning, 29 B.C. L. Rev. 291, 331 (1988).
VANDESANDE v. US 16
Holmes, we held that a Title VII settlement agreement is
a contract for purposes of Tucker Act jurisdiction. See
Holmes, 657 F.3d at 1312. If, however, a settlement
agreement was no longer enforceable as a contract once
incorporated into a consent decree, the effect would be to
divest the Court of Federal Claims of its Tucker Act
jurisdiction by the simple act of a court or agency
adopting the agreement. We are unaware of any act of
Congress that would allow for such an outcome.
For all of these reasons, and contrary to the first of
the trial court’s conclusions in this case, we hold that
consent decrees and settlement agreements are not
necessarily mutually exclusive.
B.
This leads to the second of the trial court’s
conclusions, that the Stipulation Agreement in this case is
not a contract within the jurisdiction of the Court of
Federal Claims. The Government takes the position that
the Agreement is nothing other than an EEOC order, and
thus a consent decree over which the Court of Federal
Claims lacks jurisdiction. However, having determined
that the relationship between these two labels is not a
mutually exclusive one, we have no difficulty in
concluding that the Stipulation Agreement in this case is
a contract for enforcement purposes.
Even if the name, “Agreement,” was not enough, the
record establishes that the Agreement has all the indicia
of a contract: “a bargain in which there is a manifestation
of mutual assent to the exchange and a consideration.”
Restatement (Second) of Contracts § 17 (1981).
Furthermore, the circumstances under which the
Agreement was entered into by the parties to it, and its
extensively detailed terms, leave little doubt about its
17 VANDESANDE v. US
legal character. 4 Thus, we agree with the opinion of
another of our sister circuits that a settlement agreement,
even one embodied in a decree, “is a contract within the
meaning of the Tucker Act.” Angle v. United States, 709
F.2d 570, 573 (9th Cir. 1983) (“The trial court then held
that the Settlement Agreement, which is embodied in the
decree of the Claims Commission, is a ‘contract’ within
the meaning of the Tucker Act. Again, we agree.”).
II.
Finally, we take note of the Government’s attempt to
win this case by taking entirely irreconcilable positions
regarding the jurisdiction of the federal courts to hear Ms.
VanDesande’s case. We recognize that the position
initially taken in the District Court was under the United
States Attorney for that district, whereas the position
later taken in this court was determined by the
Department of Justice’s civil division attorneys here in
Washington, D.C. Nevertheless, both groups are part of
the United States Justice Department, and it was the
latter office that did the flip-flop.
The Justice Department, regardless of which of its
offices is last to speak, is responsible to ensure that
justice is more than what is in a name. As noted during
oral argument, this court considers the Government’s
conduct in this case unacceptable and should not be how
our Government handles itself. “It is as much the duty of
the Government to render prompt justice against itself, in
favor of citizens, as it is to administer the same, between
4 The Stipulation Agreement included compensa-
tion for back pay and lost overtime; lost sick and annual
leave; interest payments; tax consequence payments;
payments for pain and suffering; medical and other
expenses; and, as earlier noted, a lump sum payment in
exchange for Ms. VanDesande’s resignation.
VANDESANDE v. US 18
private individuals.” President Abraham Lincoln, Annual
Message to Congress 1861 (quoted in Cong. Globe, 37th
Cong., 2d Sess., Pt. IV, App. at 2 (1962), and engraved in
the façade of this court’s building). The Government’s
shifting positions have led to an unnecessary waste of
money and judicial resources, and are manifestly unfair to
the litigant.
Regrettably, this is not the first case in which the
Government urged a district court to dismiss a case on the
ground that jurisdiction belonged in the Court of Federal
Claims and then, after suit was brought in the Court of
Federal Claims, again urged dismissal on the ground that
the Court of Federal Claims lacked jurisdiction. 5 We hope
our decision today will reduce the prevalence of these
“jurisdictional ping-pong” games, see Christianson, 486
U.S. at 818. The Government would be well advised to
avoid taking positions in future litigations that open it up
to the criticism that it has used its overwhelming
resources to whipsaw a citizen into submission. At a
minimum, the Government should consider an
authoritative position on jurisdiction in cases such as this
binding on the Government, just as appellate courts are
encouraged by the Supreme Court to avoid wasteful
jurisdictional litigation by accepting the jurisdictional
determination of the first circuit that decides the
jurisdictional issue. Id. at 819 (“Under law-of-the-case
principles, if the transferee court can find the transfer
decision plausible, its jurisdictional inquiry is at an end.”)
5 See, e.g., Phillips v. United States, 77 Fed. Cl. 513
(Fed. Cl. 2007), Drury v. United States, 52 Fed. Cl. 402
(Fed. Cl. 2002), and Clark v. United States, 229 Ct. Cl.
570 (Ct. Cl. 1981).
19 VANDESANDE v. US
CONCLUSION
For all these reasons, we reverse the Court of Federal
Claim’s judgment of no jurisdiction, and we remand for
further proceedings on Ms. VanDesande’s breach of
contract claim. 6
REVERSED AND REMANDED
6 Since that claim has yet to have its day in court,
we take no position on its merits.