UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BRENT POLL, Plaintiff - Appellant,

v. JACOB J. LEW, Secretary, Department of the Treasury, Defendant - Appellee. No. 15-4117 (D.C. No. 1:14- CV-00090-DBP) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ Thirty years after he was terminated from his job wi th the Internal Revenue Service (IRS), Plaintiff Brent Poll, pro ceeding pro se, filed his third federal complaint related to the termination, notwithstanding a 1987 settlement agreement resolving all such claims (Settlement Agreement) and a 2008 federal court injunction prohibiting him from filing such claims (Injunction). His co mplaint, alleging discriminatory retaliation in violation of Title VII, asserted that his former IRS

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 15, 2016
Elisabeth A. Shumaker Clerk of Court2 supervisor, Mr. Higbee, made negative comments in 1984 that delayed his hiring by another federal agency, which, in turn, caused him to lose federal retirement benefits. The magistrate judge, sitting by consent of the parties under 28 U.S.C. § 636(c), dismissed the complaint. He ruled Mr. Poll’s cause of action was barred by the Injunction. He further ru led the complaint essentially alleged a breach of the Settlement Agreement, a claim over whic h federal courts la ck subject matter jurisdiction. Mr. Poll a ppeals. We have jurisdic tion under 28 U.S. C. § 1291 and affirm.
B ACKGROUND Termination, Settlement, and Retireme nt. Mr. Poll was te rminated from the IRS in 1983 after refusing a reassignment from Ogden, Utah, to Fresno, California. While unemployed, he withdrew his retireme nt contributions with the Civil Service Retirement System (CSRS). He applied fo r a job at another federal agency, the Defense Property Disposal Office (DPDO) in Ogden, but Mr. Higbee made negative comments about Mr. Poll to DPDO during th e application process. DPDO did hire Mr. Poll, but he was no longer eligible for CSRS benefits, as federal employees hired in 1984 were covered by the Federal Employees Retirement System (FERS), which replaced CSRS. Mr. Poll filed claims against the IRS with the Equal Employment Opportunity Commission (EEOC), alleging Mr. Higbee’s negative comments delayed his hiring at DPDO, causing him to lose CSRS benefits , and were discriminatory retaliation for his actions defending an A frican-American fellow employ ee at the IRS. Mr. Poll3 sought reinstatement in CSRS in his EEOC discrimination co mplaints, arguing he could have remained in CSRS had his hiri ng at DPDO not been delayed because of Mr. Higbee’s comments. While his EEOC co mplaints were pending, he learned he was eligible for a retirem ent option known as CSRS Offset, under which a small group of federal employees could receive partial be nefits under both CSRS and FERS. Mr. Poll enrolled in the CSRS-Offset program a nd wrote to the EEOC stating he no longer saw a “substantive reason to pursue [his EEOC complaints] further” because experts informed him there was “ no advantage for CSRS over CSRS-Offset.” R. Vol. 1, at 22. That same day, Mr. Poll and the IRS en tered into the Settle ment Agreement in “full and complete settlement of any and all claims wh ich [Mr. Poll] may have against [the IRS], present and former [IRS ] employees or agents, and/or the United States of America as a result of the incidents or circumst ances raised in the [EEOC] complaints.” R. Vol. 1, at 39-40. Th e IRS conceded there had been “no factual basis” for Mr. Higbee’s commen ts, and agreed to state in response to any inquiries that Mr. Poll had been “performing his duties in a fully satisfactory matter at the time that he was reassigned.” Id. at 39. Both parties agreed the settlement agreement did “not constitute an admission by the [IR S] of discrimina tion and/or other wrongdoing.” Id . The Settlement Ag reement made no mention of any retirementrelated matters.4 Injunction. Notwithstanding the Settleme nt Agreement, Mr. Poll continued to file numerous complaints re lated to his termination. 1 We imposed sanctions on Mr. Poll in his last appeal to this court in 2007 because he rais ed the same claims previously decided against him, and he filed a meritless app eal after the district court explained the numerous reasons his claims lack ed merit. Poll v. Paulson , 251 F. App’x 573, 577 (10th Cir. 2007) (s anctioning Mr. Poll jo intly and severally with his attorney under Rule 11). Mr. Poll filed yet another complaint in fe deral district court, which failed for the same reasons articula ted in this court’s 2007 appellate decision imposing sanctions. As a sanction fo r his continued frivolous litig ation, the district court issued the Injunction barring Mr. Poll “fro m further filings based on his firing from the IRS or any events re lated to that firing.” Poll v. Paulson , No. 1:06-CV-144 TC, 2008 WL 118076, at *1 (D. Utah Jan. 8, 2008) (unpublished). Current Complaint. Mr. Poll now a lleges that Mr. Hi gbee’s retaliatory comments caused him to lose all of his federal retirement benefits. In 1991, Mr. Poll left federal service and withdrew all of hi s CSRS-Offset contribu tions. In 2009, he applied for retirement benefits but was told he was ineligible because he had

1 Mr. Poll filed complaints with the Merits System s Protection Board, the Federal Circuit, and federal district c ourts relating to hi s IRS discrimination allegations. See Poll v. Paulson , 251 F. App’x 573, 575 ( 10th Cir. 2007) (noting the “tortured and convoluted pro cedural history of Mr. Poll’s efforts to obtain redress for what he believes to be a wrongful termination”); Poll v. Snow , No. 1:01-CV-94, 2006 WL 1767112, at *4 (D. Utah June 22 , 2006) (unpublished) (“ Mr. Poll has filed nine complaints or appeals regarding his re moval with four different forums over the past two decades. . . .”).5 withdrawn all of his CSRS and CSRS-Offs et contributions and could no longer redeposit those funds since he was no longer a federal em ployee. Mr. Poll says he received accurate advice at the time that the withdrawals would not affect his retirement, but circumstances cha nged the accuracy of that advice. Mr. Poll alleges that the IRS’s admiss ion in the Settlement Agreement that Mr. Higbee’s comments were not factually co rrect entitles him to “full relief” for all damages caused by Mr. Higbee’s reta liatory-discrimination comments under 29 U.S.C. § 1614.501 (requiring a federal agency to provide “full relief” if the agency or the EEOC makes a finding of di scrimination). Mr. Poll contends “fullrelief” in his case me ans full-retirement benefits, notwithstanding his decision to withdraw his retirement contributions. He first presented this claim to the IRS, asserting it breached the Se ttlement Agreement. The IRS found no breach because the Settlement Agreement wa s silent as to any retire ment matters. The EEOC affirmed, adding that “[t]he fact that [Mr. Poll] reli ed on two-year old advice to withdraw additional funds fro m his retirement ac count after leaving federal service does not give rise to a breach of ag reement.” R. Vol. 1, at 24. Mr. Poll then filed his Title VII compla int. The magistra te judge dismissed this complaint on two grounds. First, he ru led the allegations related to the timing of Mr. Poll’s hiring at DPDO are included with in the “events related” portion of the Injunction, and thus were barred by the Injunction. Second, because Mr. Poll’s complaint could be read to allege a vi olation of the Settlement Agreement, he dismissed the complaint for lack of subject -matter jurisdiction be cause federal courts6 cannot enforce settlement ag reements entered into with a federal agency on an employment discrimination claim.
A NALYSIS We review the magistrate j udge’s dismissal de novo. See Colo. Envtl. Coal. v. Wenker , 353 F.3d 1221, 1227 (10t h Cir. 2004) (stating de novo standard of review applies to dismissals under Fed. R. Civ. P. 12(b)(1) and (6)). Mr. Poll first argues his clai ms are not barred by the Injunction. He argues the Injunction bars only “new or ‘further’ a ppeals,” which do not cover his complaint because he is only seeking the full relief guaranteed to him back in 1987. Opening Br. at 10, 19. This is not a credible argum ent. Again, the Inj unction bars him from filing any claim “based on his firing . . . or any events related to that firing.” Paulson , 2008 WL 118076, at *1. This is a “new” or “fur ther” complaint and it is related to that firing. Mr. Poll base d his EEOC discrimina tion complaints on Mr. Higbee’s comments, the Settlement Ag reement resolved any and all claims related to his termination and Mr. Higbee’ s post-termination co mments, and both his prior federal complaints repeated the alle gations that Mr. Higb ee’s comments delayed his hiring at DPDO. We conc lude the allegations in Mr. Poll’s current complaint are “events related” to his term ination and agree with the ma gistrate judge that Mr. Poll has not asserted any claim that is not barred by the Injunction. More significantly, the magistrate judge correctly concluded it lacked subject matter jurisdiction over Mr. Poll’s claims. A federal district court does not have subject-matter jurisdiction to enforce a se ttlement agreement en tered into with a7 federal agency on an employm ent discrimination claim. See Lindstrom v. United
States , 510 F.3d 1191, 1195 (10th Cir. 2007) (holding that th e relevant regulation, 29 C.F.R. § 1614.504(a), permits only admi nistrative action and appeal to the EEOC for breach of discrimination settlement agre ement claims, not a su it in federal court, thus, Congress has not waiv ed sovereign immunity). Mr. Poll acknowledges this precedent, but argues he is not alleging a breach of the Settlement Agreement. He notes that his complaint does not allege a breach, or cite to any term or condition, of the Settlement Agreement. Mr. Poll claims he is challenging onl y the settlement “process,” not the Settlement Agreement. Opening Br. at 15-16. This is a phantom distinction, as the Settlement Agreement was in full and complete settlement of all of the issues raised during the settlement process, including Mr . Higbee’s comments. Both the legal and factual predicates of his current comp laint—that Mr. Higb ee made retaliatory comments and that those co mments delayed his hiring at DPDO—are precisely the same as in his EEOC complaints and were “full[y] and complete [ly]” resolved by the Settlement Agreement. R. Vol. 1, at 39. Mr. Poll argues that the statement in the Settlement Agreement that the IRS made no admission of discrimination or other wrongdoing was “fraudulent from the beginning ” and that he could not agree to this untruth. Opening Br. at 16. That argumen t is simply and clear ly an attack on the validity of the Settlement Ag reement. Mr. Poll has failed to identify any claims in his complaint for which the Government has waived sovereign immunity that would give the district court s ubject-matter jurisdiction.8 We admonish Mr. Poll that if he pe rsists in ignoring the Injunction and litigating or relitigating issues related to his employment w ith, or termination by, the IRS, including Mr. Higbee’s comments, th e timing of his hiring at DPDO, or any other events related to or resolved by th e Settlement Agreement, his filings may be summarily dismissed. Fu rther, we may impose sanc tions, including damages and filing restrictions, as necessa ry and appropriate to enfo rce the Injunction, and to avoid further repeated litig ation and appeals on issues previously addressed by the district court and this court. The judgment is affirmed.

Entered for the Court
Mary Beck Briscoe Circuit Judge