F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 17 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JEAN HINDERMAN,

                Plaintiff-Appellant,

    v.                                                   No. 00-6380
                                                   (D.C. No. 99-CV-1356-R)
    F. WHITTEN PETERS, Secretary,                        (W.D. Okla.)
    U.S. Department of the Air Force,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jean Hinderman appeals from the district court’s order dismissing her

Title VII complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1). We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291.

We review the court’s dismissal de novo.     See U S West, Inc. v. Tristani , 

, 1206 (10th Cir. 1999).

      Ms. Hinderman was originally employed by defendant as a civilian clerk at

Tinker Air Force Base, but was laid off in 1997 during a reduction in force.

She filed suit under Title VII, 42 U.S.C. § 2000e-5(f)(3), alleging racial

discrimination. That suit was terminated following a written settlement

agreement pursuant to which defendant reinstated appellant to a specified

position. Ms. Hinderman’s employ was again terminated some nine months later.

As provided for in the settlement agreement, she notified the Director of the Air

Force Civilian Appellate Review Organization, alleging that defendant had

violated the terms of the settlement agreement. The Director issued a written

final agency decision denying Ms. Hinderman’s claim that the settlement

agreement had been breached. In that decision, the Director notified her that her

latest termination was a “new issue,” and that she should file a new complaint

with defendant’s Chief EEO Counselor. Aplt. App. at 14.

      Ms. Hinderman did not contact the EEO counselor, but instead filed suit in

federal court, ultimately asserting two claims: that defendant had breached


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the settlement agreement and that it had terminated her employment “in a racially

discriminatory manner.”   

Defendant moved to dismiss the complaint

for lack of subject matter jurisdiction because Ms. Hinderman had failed to bring

her complaints to an agency EEO counselor and file a formal discrimination

complaint with the agency, as required by Equal Employment Opportunity

Commission (EEOC) regulations.      See 

The district court agreed with

defendant that Ms. Hinderman had not exhausted her administrative remedies and

that such exhaustion is a “jurisdictional prerequisite to a lawsuit alleging

employment discrimination under Title VII.”     

The court also noted that

Ms. Hinderman’s letter to the Director of the Air Force Civilian Appellate Review

Organization could not satisfy her duty to exhaust administrative remedies

because it did not allege racial discrimination, but claimed only that defendant

had violated the terms of the parties’ settlement agreement. The district court

dismissed Ms. Hinderman’s complaint and this appeal followed.

      This circuit has held that Title VII’s exhaustion requirements do not apply

to “purely contractual” claims seeking to enforce Title VII settlement agreements.

See Cisneros v. ABC Rail Corp. , 

, 1305 (10th Cir. 2000).    2




2
       Although Cisneros was decided five months before the district court’s
ruling, neither the parties nor the court apparently contemplated its applicability
to this case. We asked the parties to file simultaneous supplemental appellate
briefs on this point.

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Because Cisneros may operate in this case to excuse Ms. Hinderman from

exhaustion, we reverse the district court’s dismissal of her complaint for failure to

exhaust her administrative remedies.

      On remand, the district court should first determine the nature of Ms.

Hinderman’s claims. In       Cisneros , we distinguished situations where a plaintiff

sought to bring new claims of discrimination in connection with an alleged breach

of a settlement agreement.      See 

v. Donovan , 

, 809-10 (9th Cir. 1986)). Here, although Ms. Hinderman’s complaint facially

includes allegations of both a breach of the settlement agreement and

discriminatory termination under Title VII, her letter to the Director of the Air

Force Civilian Appellate Review Organization alleged only breach of the

settlement agreement. At this stage of the proceedings, it is unclear whether she

is alleging new claims of discrimination to which, arguably, the Title VII

exhaustion requirements apply, or whether she is simply attempting to reinstate

her previous discrimination claims.

      Further, should the district court determine that Ms. Hinderman’s claims

are not solely contractual in nature and therefore not excused from the Title VII

exhaustion requirements by the application of      Cisneros , the court should address

her argument that she is entitled to bring suit pursuant to Title VII because

defendant issued a final agency action letter on her claim that the settlement


                                             -4-
agreement was violated. Finally, if    Cisneros applies to excuse Ms. Hinderman

from exhausting her Title VII administrative remedies, the district court should

consider whether federal jurisdiction exists. This court has not decided whether

Title VII provides a jurisdictional basis in cases alleging only breach of

a Title VII settlement agreement.     See Cisneros , 217 F.3d at 1302; cf. Morris v.

City of Hobart , 

, 1110-12 (10th Cir. 1994) (rejecting notion that

Title VII provides independent jurisdictional ground for breach of contract claims

arising from private settlement agreements);      Snider v. Circle K Corp. , 

, 1407 (10th Cir. 1991) (holding federal common law applies to Title VII

settlement agreements, and noting that such agreements are “inextricably linked to

Title VII”).

      We REVERSE the judgment of the United States District Court for the

Western District of Oklahoma and       REMAND this case for further proceedings

consistent with this order.

                                                        Entered for the Court


                                                        Stephanie K. Seymour
                                                        Circuit Judge




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