NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-5030
HARRY MICHAEL SCHMITT,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
Harry Michael Schmitt, of Sarasota, Florida, pro se.
L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Robert H. Hodges, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-5030
HARRY MICHAEL SCHMITT,
Plaintiff-Appellant,
v.
UNITED STATES
Defendant-Appellee,
Appeal from the United States Court of Federal Claims in Case No.
08-CV-917, Senior Judge Robert H. Hodges, Jr.
____________________________
DECIDED: April 7, 2010
____________________________
Before LOURIE, RADER, and GAJARSA, Circuit Judges.
PER CURIAM.
This is Harry M. Schmitt’s fourth appeal to this court, from three different
tribunals, from the dismissal of his claims against the Navy for alleged retaliatory actions
during his employment with the Naval Ordinance Test Unit (“NOTU”). Mr. Schmitt
appeals this time from a dismissal by the United States Court of Federal Claims for lack
of jurisdiction. We affirm.
BACKGROUND
Schmitt worked as an electronics engineer at NOTU from 1999 to 2003. In 2002,
Schmitt filed two Equal Employment Opportunity (“EEO”) complaints against NOTU in
which he alleged, inter alia, retaliatory action for reporting his supervisor’s pornographic
e-mail messages. In a settlement agreement executed December 12, 2003, Schmitt
agreed to resign his position and to release the Navy “from any and all liability from all
claims alleged in, arising out of, or related to the above captioned case(s) [the EEO
complaints]” and all matters of dissatisfaction regarding his employment with the
agency, through the date of the agreement. Further, Schmitt agreed that all
“claims/complaints at any stage of processing are hereby withdrawn and complainant’s
right to file complaints for any matter through the date of the agreement is waived.”
Despite the settlement agreement, in 2005 and again in 2007, Schmitt filed at the
Office of Special Counsel an Individual Right of Action (“IRA”) against the Navy under
the Whistleblower Protection Act. In both complaints Schmitt alleged retaliatory action
during his employment and specifically that NOTU had coerced an employee into
providing false statements against him. Schmitt sought job restoration and
compensatory damages. This court affirmed the Merit System Protection Board’s (“the
Board’s”) dismissal of Schmitt’s first IRA complaint for lack of jurisdiction, finding that
“because Mr. Schmitt’s submissions relate entirely to his earlier EEO complaints, their
use has been waived.” Schmitt v. Merit Sys. Prot. Bd., No. 06-3287, 2006 WL 3513776,
at *2 (Fed. Cir. Dec. 6, 2006) (“Schmitt I”). We also affirmed the Board’s dismissal of
Schmitt’s second IRA complaint, holding that the Board lacked jurisdiction because the
terms of the settlement agreement waived any claims Schmitt had against the Navy for
actions that occurred during his employment, and he had failed to provide evidence that
the settlement agreement was involuntary. Schmitt v. Merit Sys. Prot. Bd., No. 08-2246,
2009 WL 586435, at *2 (Fed. Cir. Mar. 9, 2009) (“Schmitt II”).
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In 2007, Schmitt also filed a complaint at the United States District Court for the
Middle District of Florida. In that action, Schmitt alleged that NOTU retaliated against
him by coercing NOTU’s Ethics Officer, Ms. Ann B. Jones, into violating his privacy
rights by providing false statements to a Navy investigator. On February 12, 2008, the
district court dismissed the complaint for lack of jurisdiction. Schmitt v. Dept. of the
Navy, No. 07-cv-1650, 2008 WL 410103 (M.D. Fla. Feb. 12, 2008). This court
dismissed as untimely Schmitt’s appeal on December 22, 2008.
On December 24, 2008, while Schmitt’s appeal in Schmitt II was pending before
this court, Schmitt filed a complaint in the Court of Federal Claims. In his complaint,
Schmitt again alleged retaliatory action by NOTU and again sought job restoration, back
pay, and other compensatory damages. The Court of Federal Claims dismissed the
claim for lack of subject matter jurisdiction under 28 U.S.C. § 1500 and as barred by the
doctrine of res judicata. Schmitt appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
This court reviews the Court of Federal Claim’s dismissal of a claim for lack of
jurisdiction de novo. Bank of Guam v. U.S., 578 F.3d 1318, 1325 (Fed. Cir. 2009).
Schmitt appears to argue that the court below applied the wrong law. Specifically
he alleges that “[r]eprisal for whistleblowing, fraudulent and unfair labor practice laws
should be applied to my case” based on the Navy’s coercion of NOTU’s Ethics Officer,
Ms. Jones, into giving false sworn statements to government investigators. He also
alleges a variety of factual and procedural mistakes by the Board and the trial court, all
of which appear to be unrelated to the case at the Court of Federal Claims.
2010-5030
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The government responds that 28 U.S.C. § 1500’s restriction on duplicative suits
against the United States precludes the Court of Federal Claims from exercising
jurisdiction because Schmitt filed his complaint while Schmitt II was still pending in this
court. The government also argues that this action is barred by res judicata because
this court decided an identical claim brought by Schmitt against the Navy in Schmitt I
and Schmitt II. Regardless, according to the government, the Court of Federal Claims
does not have jurisdiction over personnel claims seeking monetary damages, including
claims under the Whistleblower Protection Act, over which the Board has jurisdiction.
We agree that the Court of Federal Claims lacks jurisdiction to adjudicate
Schmitt’s claim for at least two reasons. First, under 28 U.S.C. § 1500, the Court of
Federal Claims cannot exercise jurisdiction over “any claim for or in respect to which the
plaintiff . . . has pending in any other court any suit or process against the United States
or any person . . . acting or professing to act, directly or indirectly under the authority of
the United States.” Schmitt filed suit at the Court of Federal Claims on December 24,
2008, when his appeal in Schmitt II, a case involving the same operative facts and
seeking the same relief, was pending in this court. As such, the Court of Federal
Claims correctly held that it lacks jurisdiction. See Keene Corp. v. United States, 508
U.S. 200 (1993). Also, Schmitt advanced before the Court of Federal Claims the
identical allegations that this court held were waived by his settlement agreement with
the Navy in Schmitt II. Schmitt is thus barred from bringing any claim against the United
States for actions that occurred during his employment with the Navy. See Foster v.
Hallco Mfg. Co., 947 F.2d 469, 476 (“[R]es judicata precludes the relitigation of a claim,
2010-5030
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or cause of action, or any possible defense to the cause of action which is ended by a
judgment of the court.”). Accordingly, we affirm.
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