25 F. Supp. 3d 835
E.D. Va.2014Background
- Kaplan, an Air Force employee, settled discrimination claims on Dec. 16, 2010, incorporating 29 C.F.R. § 1614.504 and limiting administrative relief to specific performance.
- The Deputy Director of Physics and Electronics position was eliminated in Oct. 2012; Kaplan was reassigned in Feb. 2013 to a different unit.
- Kaplan alleged breach of the settlement in three ways: misassignment, bad-faith settlement due to pre-existing elimination plans, and improper duties vs permanent position definitions under AFI 38-308.
- Final Agency Decision (2012) found no breach; EEOC OFO also found no breach, with a 90-day window to seek civil action stated in the OFO decision.
- Kaplan, proceeding pro se, filed suit in Jan. 2014 seeking reinstatement of claims, damages, and fees, arguing jurisdiction under Title VII and related statutes; defendant moved to dismiss for lack of subject matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to hear a breach-of-settlement claim. | Kaplan asserts federal question/jurisdiction. | Sovereign immunity not waived for breach of settlement. | No subject-matter jurisdiction; sovereign immunity not expressly waived. |
| Whether EEOC Regulation 29 C.F.R. § 1614.504 provides a waiver of sovereign immunity. | Regulation permits appeal/relief from breach. | Regulation is silent on court access; does not waive immunity. | Regulation does not waive sovereign immunity. |
| Whether Frahm v. United States governs the breadth of waiver for settlement-breach claims. | Frahm supports broader relief beyond monetary damages. | Berry controls, limiting Frahm's reach; no waiver for breach. | Berry controls; sovereign immunity not waived for breach of settlement. |
| Whether any remaining grounds could cure jurisdiction or defeat dismissal. | Multiple grounds challenge immunity and pursue relief. | Arguments are insufficient to establish jurisdiction or waiver. | None persuasive; dismissal without prejudice affirmed. |
Key Cases Cited
- Frahm v. United States, 492 F.3d 258 (4th Cir. 2007) (sovereign immunity not waived for breach of settlement)
- Berry v. Gutierrez, 587 F. Supp. 2d 717 (E.D. Va. 2008) (broad interpretation of Frahm—sovereign immunity covers breach of settlement)
- United States v. Nordic Village, Inc., 503 U.S. 30 (U.S. 1992) (sovereign immunity waivers must be unequivocally expressed)
- Heller v. United States, 776 F.2d 92 (3d Cir. 1985) (regulations alone cannot waive sovereign immunity)
- Taylor v. Geithner, 703 F.3d 328 (6th Cir. 2013) (no waiver for non-discrimination breach claims; §2000e-16(c) not broad)
- Munoz v. Mabus, 630 F.3d 856 (9th Cir. 2010) (silence in waiver provisions counsels against jurisdiction)
- Thompson v. McHugh, 388 Fed. Appx. 870 (11th Cir. 2010) (EEOC remedy discussion does not create jurisdiction)