Dacosta v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN DACOSTA,
Plaintiff-Appellant,
and
N.B. SALTY MILLER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
__________________________
2011-5010
__________________________
Appeal from the United States Court of Federal
Claims in case No. 10-CV-115, Judge George W. Miller.
___________________________
Decided: February 9, 2011
___________________________
JOHN DACOSTA, of Miami, Florida, pro se.
N.B. SALTY MILLER, of Wake Forest, North Carolina,
pro se.
DACOSTA v. US 2
KENNETH W. ROSENBERG, Attorney, Tax Division,
United States Department of Justice, of Washington, DC,
for defendant-appellee. With him on the brief were JOHN
A. DICICCO, Acting Assistant Attorney General, and
BRIDGET M. ROWAN, Attorney.
__________________________
Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
This case is an appeal from a Court of Federal Claims
judgment dismissing John DaCosta and N.B. Salty
Miller’s claim for breach of an implied-in-fact contract
with the United States for lack of jurisdiction. Because
relitigation of the issue of jurisdiction is barred by issue
preclusion, we affirm.
BACKGROUND
This is the third suit filed by John DaCosta and N.B.
Salty Miller (collectively, Plaintiffs) seeking increased
payouts from IRS’s whistleblower program, 26 U.S.C.
§ 7623(b). In the first suit, the Court of Federal Claims
held that it lacked jurisdiction over the Plaintiffs’ claims
because they failed to allege the elements of an implied-
in-fact contract. DaCosta v. United States, 82 Fed. Cl.
549, 557-58 (2008) (DaCosta I). The Plaintiffs did not
amend their complaint or appeal that decision.
Instead, the Plaintiffs filed a second suit (DaCosta II),
again based on the perceived insufficiency of the whistle-
blower award. The Court of Federal Claims again dis-
missed the suit, determining that the complaint presented
the same jurisdictional issue decided in DaCosta I,
namely whether it had jurisdiction over Plaintiffs’ alleged
implied-in-fact contract. DaCosta v. United States, No.
3 DACOSTA v. US
09-CV-558, 2010 WL 537572, at *4 (Fed. Cl. Feb. 16,
2010). Plaintiffs appealed the judgment in DaCosta II.
With the appeal in DaCosta II pending, Plaintiffs filed
the present litigation, claiming once again that IRS owed
them money for information provided through the whis-
tleblower program. Unlike DaCosta I and DaCosta II,
which both related to the same taxpayer (Taxpayer A),
this case involves a different taxpayer (Taxpayer B). The
alleged contract in this case, however, arises from the
same series of events and conversations with IRS as in
DaCosta I and DaCosta II. DaCosta v. United States, No.
1:10-cv-115-GWM, 2010 WL 3260168, at *3 (Fed. Cl. Aug.
13, 2010).
The government moved to dismiss for lack of jurisdic-
tion. The Court of Federal Claims granted the motion,
holding that the contractual relationship alleged by
Plaintiffs was identical to the contract alleged in DaCosta
I and DaCosta II, and therefore presented identical (and
already decided) jurisdictional issues. Id. at *6. The
court also dismissed the case on the alternative ground
that Plaintiffs failed to sufficiently allege an implied-in-
fact contract with the government. The court then dis-
missed the remainder of Plaintiffs’ tort-based claims for
lack of jurisdiction. After the Court of Federal Claims
issued its decision in this case, we affirmed its ruling in
DaCosta II on the ground that Plaintiffs could not reliti-
gate the jurisdictional issue previously decided in
DaCosta I. DaCosta v. United States, 393 Fed. Appx. 712(Fed. Cir. 2010) (nonprecedential).
Plaintiffs appeal the dismissal of their complaint. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DACOSTA v. US 4
DISCUSSION
We review a trial court's application of issue preclu-
sion de novo. Shell Petroleum, Inc. v. United States, 319
F.3d 1334, 1338 (Fed. Cir. 2003). “Under the doctrine of
issue preclusion, a judgment on the merits in a first suit
precludes relitigation in a second suit of issues actually
litigated and determined in the first suit.” Id. at 1338(internal quotations omitted). Issue preclusion applies if:
“(1) an issue is identical to one decided in the first action;
(2) the issue was actually litigated in the first action; (3)
the resolution of the issue was essential to a final judg-
ment in the first action; and (4) the party defending
against issue preclusion had a full and fair opportunity to
litigate the issue in the first action.” Id.In DaCosta II we held that Plaintiffs’ claims were
barred because they presented the same jurisdictional
issue that was fully litigated in DaCosta I. DaCosta, 393
Fed. Appx. at 715. We further explained that the addi-
tional allegations in Plaintiffs’ DaCosta II complaint did
not allow them to relitigate the jurisdictional issue since
there were no new, previously unavailable facts that
cured the original jurisdictional defects. See id. (citing
Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 378
F.3d 1132, 1137 (10th Cir. 2004); Magnus Elecs., Inc. v.
La Republica Arg., 830 F.2d 1396, 1401 (7th Cir. 1987);
Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir
1983)).
Plaintiffs argue that the current suit is not barred be-
cause DaCosta I allegedly involved a contract implied-in-
law while this case involves an alleged contract implied-
in-fact. We rejected this argument in DaCosta II, and
determined that DaCosta I involved a contract implied-in-
fact which created a jurisdictional bar to subsequent suits
for a breach of the same contract implied-in-fact.
5 DACOSTA v. US
DaCosta, 393 Fed. Appx. at 714-15. The contract alleged
here, while purportedly targeting money collected from
Taxpayer B, is nevertheless the same contract that was
the subject of DaCosta I and DaCosta II. DaCosta, 2010
WL 3260168, at *6. Although we construe Plaintiffs’ pro
se pleadings liberally, Plaintiffs plead no new facts,
unavailable at the time of the prior cases, which justify
revisiting our prior decision. As such, the jurisdictional
issue presented here is identical to the ones decided in
DaCosta I and DaCosta II, and Plaintiffs’ claims are
barred for the same reasons as in DaCosta II.
We have considered Plaintiffs’ additional arguments
on appeal and find them to be without merit. We need
not reach the Court of Federal Claims’ alternative rulings.
AFFIRMED