                     NOTE: This disposition is nonprecedential.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                        NOTE: This disposition is nonprecedential.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”).




2010-5030
                                        -2-
      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
                                        -3-
       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
                                         -4-
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.




2010-5030
                                        -5-
