UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BOWDEN, ROY E.

v.

UNITED STATES


98-5146a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: Appealing to this court for a second  time,
appellant challenges the district court's rejection of his  claim that
the government had agreed to pay all federal and  state taxes on back
pay he received in settlement of his Title  VII employment
discrimination complaint. Appellant also  challenges the district
court's denial of his demand for trial by  jury. Because Title VII
does not authorize jury trials on  claims of breach of settlement
agreements, and because the  district court's finding that the
government had no obligation  to pay appellant's remaining tax
liability was not clearly  erroneous, we affirm.


I


Appellant Roy Bowden worked for the Immigration and  Naturalization
Service from 1975 to 1982. After INS de- clined to select him for
several vacancies as a criminal investi- gator, Bowden filed a race
discrimination complaint with the  agency. On January 10, 1990, Bowden
agreed to settle his  claim in exchange for a lump-sum back pay award.
The  precise amount of back pay, however, was not specified in the 
settlement agreement. Following further negotiations, the  government
gave Bowden a check for $190,000. It also paid  over $50,000 in
federal and state taxes on Bowden's behalf,  but that payment fell
approximately $60,000 below the  amount necessary to cover Bowden's
full tax liability on the  back pay. Claiming that it had fulfilled
its obligation under  the settlement, INS refused to pay any
additional taxes on  Bowden's behalf. Bowden sued. The district court,
finding  Bowden had failed to exhaust his administrative remedies, 
dismissed the complaint. Finding that INS had waived its  exhaustion
defense, we reversed. See Bowden v. United  States, 106 F.3d 433 (D.C.


On remand, Bowden moved under Federal Rule of Civil  Procedure 15(a) to
amend his complaint to clarify certain  factual allegations, to add
claims for attorneys' fees and  compensatory damages, and to demand
trial by jury. Stating  that "trial is less than two months away; and
... the motion  is extraordinarily untimely," the district court
denied the 


motion to amend. Bowden v. United States, No. 94-1832  (D.D.C. Oct. 22,
1997).


At the bench trial, Bowden testified that during the back  pay
negotiations that followed the signing of the settlement  agreement,
the government agreed to pay all taxes on the  back pay award so that
he would receive exactly $190,000.  See 12/15/97 Tr. at 33. Finding
that the government had not  agreed to "assume several thousands of
dollars of an indeter- minate tax liability," the district court
entered judgment for  the government. Bowden v. United States, No.
94-1832, at  5-6 (D.D.C. Mar. 27, 1998) ("Bowden II"). Bowden appeals.
 He also challenges the denial of his motion to amend and his  request


II


As we stated in Bowden I, extrinsic evidence of prior or 
contemporaneous oral agreements is inadmissible to vary the  terms of
an integrated written agreement. See Bowden I,  106 F.3d at 439-40.
Here, however, both parties introduced  evidence of a subsequent
agreement that supplied a term  missing from the written agreement,
i.e., the amount of the  settlement.


In ruling for the government, the district court relied on  the
testimony of the agency's payroll accounting chief, who  testified
that prior to the preparation of the settlement check  she expressly
told Bowden that the government was only  paying his tax liability at
the minimum withholding rate. The  witness also testified that she
warned Bowden he would face  additional tax liability and offered to
withhold more, but  Bowden declined. See 12/16/97 Tr. at 60-61
(testimony of  Donna Brock). Later, after Bowden received notices of 
federal and state tax deficiencies, she reminded him of her  previous
advice, to which Bowden responded: "I know, I am  my own worst enemy."
See Memorandum from Donna Brock  to Winona Varnon (July 13, 1992);


Bowden did not contradict the payroll chief's version of  these
conversations. Instead, Bowden testified that he and 


INS had an oral agreement under which the agency would  settle his
claim for a net amount and pay his full federal and  state tax
liability. According to Bowden, he told the payroll  chief that he
needed no further withholding "because the  government had assured me
they paid the taxes." 12/15/97  Tr. at 40; see also id. at 33-34. In
support of this claim,  Bowden introduced a "buck slip" showing the
agency's  "grossing up" calculations starting from the $190,000 net 
amount, as well as its initial back pay and benefits calcula- tions
yielding a gross figure that would result in a net  payment to Bowden
of approximately $190,000 after taxes.


Although the district court never commented on Bowden's  documentary
evidence, it "refuse[d] ... to credit Bowden's  testimony of a
collateral or superseding oral agreement by  INS to assume several
thousands of dollars of an indetermi- nate tax liability for him."
Bowden II, No. 94-1832, at 5-6.  The court also inferred from Bowden's
exchanges with the  payroll official that he "understood at the time
that he was  not getting a tax-free payment in settlement of his
claim."  Id. at 5. We are convinced that these findings are not
clearly  erroneous, particularly in view of the unusual nature of the 
agreement that Bowden claims he had with the government  (the agency's
Deputy Director of Finance testified that in  twenty years of
experience he had never seen a settlement  agreement in which the
government orally agreed to pay all  taxes due on the settlement
amount, see 12/16/97 Tr. at 115),  the fact that Bowden never gave the
agency the personal and  financial information that would have enabled
it to calculate  his exact tax liability, and the additional fact that
Bowden has  switched his position in this litigation (in his first
appeal, he  argued that the tax liability agreement was made prior to 
signing the settlement agreement). See Albright v. United  States, 732
F.2d 181, 183 (D.C. Cir. 1984) (district court's  factual findings


III


Bowden next challenges the district court's denial of his  motion to
amend the complaint to clarify certain factual  allegations and to
demand attorneys' fees, compensatory 


damages, and trial by jury under Title VII. See 42 U.S.C.  ss 1981a,
2000e-5(k) (1994). We generally review a denial of  a motion to amend
for abuse of discretion. See Material  Supply Int'l, Inc. v. Sunmatch
Indus. Co., 146 F.3d 983, 991  (D.C. Cir. 1998). Federal Rule of Civil
Procedure 15(a),  however, permits a plaintiff to amend a complaint
once as a  matter of right "at any time before a responsive pleading
is  served." Fed. R. Civ. P. 15(a); see Confederate Mem'l Ass'n,  Inc.
v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993). At the time  Bowden
sought to amend, the government had filed only a  motion to dismiss or
in the alternative for summary judg- ment, which is not considered a
responsive pleading. See  Confederate Mem'l Ass'n, 995 F.2d at 299.
Although the  district court had entered final judgment dismissing
Bowden's  complaint, this court's reversal and remand effectively re-
turned the case to the prejudgment stage where Bowden  could amend
once as a matter of right before the government  filed a responsive
pleading. See Reuber v. United States, 750  F.2d 1039, 1062 n.35 (D.C.
Cir. 1984). Even if, as the  government argues, Bowden had no right to
amend his  complaint, see Firestone v. Firestone, 76 F.3d 1205, 1208 
(D.C. Cir. 1996) (leave to amend is within the district court's 
discretion after judgment is vacated under Rule 59(e)), we  think
denying the motion would have been an abuse of  discretion: Not only
did Bowden's "extraordinar[y] unti- mel[iness]" in filing the motion
result primarily from the time  consumed by his first appeal, but the
government has alleged  no prejudice that amendment would have caused.
See Harri- son v. Rubin, No. 98-5019, slip op. at 5-6 (D.C. Cir. May


Though erroneous, the district court's denial of Bowden's  motion to
amend does not require a new trial. At the bench  trial, the district
court not only permitted Bowden to pursue  his revised theory of the
case, but also allowed him to  introduce the very facts he had sought
to add to his com- plaint. Moreover, because we have affirmed the
district  court's finding that the government had no obligation to pay
 Bowden's entire tax liability, Bowden is not a prevailing party 
entitled to attorneys' fees or compensatory damages. Final-


ly, as to Bowden's jury demand, the Supreme Court held in  Lehman v.
Nakshian, a case arising under the Age Discrimi- nation in Employment
Act, that "if Congress waives the  Government's immunity from suit,
... the plaintiff has a  right to a trial by jury only where that
right is one of 'the  terms of [the Government's] consent to be sued.'
" 453 U.S.  156, 160 (1981) (quoting United States v. Testan, 424 U.S.
392,  399 (1976)); see also id. at 162 n.9 ("Since there is no 
generally applicable jury trial right that attaches when the  United
States consents to suit, the accepted principles of  sovereign
immunity require that a jury trial right be clearly  provided in the
legislation creating the cause of action.").  Because section 102 of
the Civil Rights Act of 1991 makes  trial by jury available only in
actions alleging "unlawful  intentional discrimination" under Title
VII, see 42 U.S.C.  s 1981a(a)(1) & (c), and because Bowden's claim
under the  settlement agreement does not turn on whether he was a 
victim of "intentional discrimination," Bowden had no right to  trial


IV


We affirm the judgment of the district court.


So ordered.