                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-3346

                                HARRY M. SCHMITT,

                                                        Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.


      Harry M. Schmitt, of Sarasota, Florida, pro se.

      Michael A. Carney, General Attorney, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Joyce G. Friedman, Acting Associate
General Counsel for Litigation.

Appealed from: Merit Systems Protection Board
                         NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                        2008-3346

                                   HARRY M. SCHMITT,

                                                     Petitioner,

                                             v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent.


Petition for review of the Merit Systems Protection Board in AT1221080467-W-1.


                              _________________________

                                DECIDED: March 9, 2009
                              _________________________


Before GAJARSA, DYK, and MOORE, Circuit Judges.


PER CURIAM.

          This is a second appeal by Harry M. Schmitt from actions occurring from 1999 to

2003. See Schmitt v. Merit Sys. Prot. Bd., No. 06-3287, 2006 WL 3513776 (Fed. Cir.

Dec. 6, 2006). He now appeals from a final decision of the Merit Systems Protection

Board (“the Board”), dismissing his Individual Right of Action appeal for lack of

jurisdiction.   Because the Board correctly determined that it lacked jurisdiction, we

affirm.
                                    BACKGROUND

      Mr. Schmitt was employed by the Naval Ordinance Test Unit (“NOTU”) as an

Electronics Engineer from 1999 to 2003.         In 2002, he filed two Equal Employment

Opportunity (“EEO”) complaints against the NOTU, alleging sexual harassment and

retaliatory action by the NOTU after he reported his supervisor’s allegedly pornographic

email messages.

      In a settlement agreement executed on December 12, 2003, Mr. Schmitt agreed

to withdraw the two EEO complaints and to release the NOTU from liability for “all

claims alleged in, arising out of, or related to the two EEO complaints, through the date

of the settlement agreement.” Mr. Schmitt further released the NOTU from liability for

“all dissatisfactions arising from his employment with the agency, through the date of

[the] agreement.” Finally, Mr. Schmitt agreed to resign from his position, effective on

the date the agreement was executed.

      Mr. Schmitt submitted a complaint to the Office of Special Counsel (“the OSC”) in

2007, claiming reprisal for whistleblowing.        He asserted that after reporting his

supervisor’s pornographic email messages on “August 16, 2006,” retaliatory action was

taken against him on “June 25, 2001.” After the OSC notified Mr. Schmitt that it could

not pursue his complaint because it lacked jurisdiction, Mr. Schmitt appealed to the

Board. In an initial decision, the Administrative Judge (“the AJ”) found that it would

have been impossible for the disclosure to be a contributing factor to any retaliatory

action Mr. Schmitt alleges occurred on June 25, 2001, because the disclosure occurred

five years after the alleged retaliation.   The AJ further noted that Mr. Schmitt had

already waived his rights to pursue any employment matters against the Navy under the




2008-3346                                   2
settlement agreement.       Thus, the AJ dismissed the appeal for lack of jurisdiction.

Schmitt v. Dep’t of Navy, No. AT-1221-08-0467-W-1, at 3 (MSPB July 3, 2008).

         Mr. Schmitt appealed the AJ’s decision to the Board, asserting that the AJ relied

on incorrect dates of whistleblowing disclosure and retaliatory action.        Mr. Schmitt

contended that the date he actually disclosed the email messages was January 22,

2001, and the date of the action was December 12, 2003. On September 23, 2008, the

Board issued a final order denying the petition for review, making the AJ’s decision final.

Schmitt v. Dep’t of Navy, No. AT-1221-08-0467-W-1, at 2 (MSPB September 23, 2008).

         Mr. Schmitt prematurely appealed to this court following the AJ’s initial decision.

After the Board denied Mr. Schmitt’s petition for review, the AJ’s decision became final

and Mr. Schmitt’s prematurely filed appeal ripened. See SafeTCare Mfg., Inc. v. Tele-

Made, Inc., 497 F.3d 1262, 1267 (Fed. Cir. 2007) (holding that a premature notice of

appeal from a tribunal decision ripens when that tribunal’s decision becomes final). We

have jurisdiction over Mr. Schmitt’s appeal pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

         Whether the Board has jurisdiction to adjudicate an appeal is a question of law,

which we review de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.

1995).     We are bound by the Board’s factual findings on which a jurisdictional

determination is based “unless those findings are not supported by substantial

evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The

Board has jurisdiction over an appeal when an individual has exhausted his remedies

before the OSC. Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.

2001). When the complainant alleges retaliation after whistleblowing, the Board has




2008-3346                                     3
jurisdiction only if the complainant sets forth a non-frivolous allegation that he engaged

in a whistleblowing disclosure, and the whistleblowing disclosure was “a contributing

factor in an agency’s decision to take or fail to take a covered personnel action.” Id.

The appellant has the burden to establish the Board’s jurisdiction by a preponderance of

the evidence. 5 C.F.R. § 1201.56(a)(2) (2008).

       We agree that the Board lacks jurisdiction to adjudicate the appeal for two

reasons. First, Mr. Schmitt’s settlement agreement waived any action he had against

the Navy arising from reporting his supervisor’s emails. This court previously

determined that the terms of this exact settlement agreement waived any claims against

the Navy for actions that occurred during Mr. Schmitt’s employment. Schmitt v. Merit

Sys. Prot. Bd., No. 06-3287, 2006 WL 3513776, at *1 (Fed. Cir. Dec. 6, 2006). Thus,

Mr. Schmitt is now precluded from attempting to bring any claims for actions that

occurred during his employment. Banner v. United States, 238 F.3d 1348, 1354 (Fed.

Cir. 2001) (holding that a party is precluded from revisiting “issues that have already

been litigated by the same parties”); Foster v. Hallco Mfg. Co., 947 F.2d 469, 476

(“[R]es judicata precludes the relitigation of a claim, or cause of action, or any possible

defense to the cause of action which is ended by a judgment of the court.”).

       Second, Mr. Schmitt failed to provide evidence to the Board that the settlement

agreement was involuntary.      The Board lacks jurisdiction over an appeal when an

employee “believes that an agency’s adverse action is improper and voluntarily settles

that grievance.” Mays v. U.S. Postal Serv., 995 F.2d 1056, 1058 (Fed. Cir. 1993).

        In the settlement agreement, Mr. Schmitt released the NOTU from liability for

“all matters of dissatisfaction regarding his employment with the agency, through the




2008-3346                                   4
date of this agreement.”     Mr. Schmitt contends that the Deputy Defense Secretary

“threw out” the “coerced EEOC settlement agreement.” However, Mr. Schmitt provided

no evidence to the Board that the agreement was thrown out, or that it was coerced.

Further, Mr. Schmitt presented no evidence to the Board that the Navy acted improperly

in executing the agreement, or gave Mr. Schmitt no other realistic alternative but to sign

the agreement. Accordingly, we agree with the Board’s decision that it lacks jurisdiction

to consider this appeal because the alleged retaliatory action by the Navy has been

settled by the agreement, and Mr. Schmitt has failed to show that the settlement

agreement was involuntary.

      For the foregoing reasons, the final decision of the Board is affirmed.

      No costs.




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