Case: 21-1703 Document: 18 Page: 1 Filed: 04/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PHILIP EMIABATA, DBA PHILEMA BROTHERS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1703
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00605-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: April 8, 2022
______________________
PHILIP EMIABATA, Pflugerville, TX, pro se.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before PROST, MAYER, and TARANTO, Circuit Judges.
Case: 21-1703 Document: 18 Page: 2 Filed: 04/08/2022
2 EMIABATA v. US
PER CURIAM.
This appeal involves Philip Emiabata’s second action
against the United States brought to seek damages for the
termination of his mail delivery contract by the U.S. Postal
Service (USPS). He brought the first action in the Court of
Federal Claims (Claims Court), which granted the United
States summary judgment, a judgment we affirmed. Emia-
bata v. United States,
139 Fed. Cl. 418 (2018) (Emiabata I),
aff’d, 792 F. App’x 931 (Fed. Cir. 2019) (Emiabata II). In
the present action, initially brought in district court but
transferred to the Claims Court, Mr. Emiabata repeats his
earlier challenge to the termination of his contract and
adds a new claim that the USPS improperly put him on a
“suspension list” of persons prevented from obtaining
USPS contracts (or subcontracts). The Claims Court con-
cluded that the termination claims were barred by the doc-
trine of res judicata (claim preclusion) and that it lacked
jurisdiction over the suspension claims; it dismissed the
termination claims while transferring the suspension
claims to the United States District Court for the District
of Vermont. Emiabata v. United States,
151 Fed. Cl. 610,
613 (2020) (Emiabata III). We affirm the Claims Court’s
dismissal of the termination claims, and we dismiss Mr.
Emiabata’s appeal of his transferred suspension claims be-
cause we lack jurisdiction to review the transfer.
I
In September 2015, the USPS issued Solicitation No.
150-299-15, requesting proposals to enter into a contract to
transport and deliver mail between Cincinnati and Milford,
Ohio. Emiabata II, 792 F. App’x at 932. Mr. Emiabata
timely submitted a proposal in October 2015 and included
forms that identified Mr. Emiabata and Sylvia Emiabata
as the only two people who would act as drivers under the
contract.
Id. at 932–33. Mr. Emiabata also submitted a
“Contract Personnel Questionnaire” in which he responded
“N/A” to Question 22, which asked: “In the past [five] years,
Case: 21-1703 Document: 18 Page: 3 Filed: 04/08/2022
EMIABATA v. US 3
have you been convicted of any traffic violations (other
than parking) or currently have charges pending?” Id. at
933.
Staff of the USPS contracting officer conducted a pre-
award conference with Mr. Emiabata in December 2015, at
which the participants discussed various requirements, in-
cluding submission of proof of insurance, a five-year motor
vehicle record, and certain forms for all proposed drivers.
Id. Subsequently, Mr. Emiabata provided to USPS an ap-
plication for insurance with Progressive County Mutual In-
surance and a temporary insurance card with the name of
the “Rated driver” redacted. Id. He later submitted a
“Commercial Auto Insurance Coverage Summary” issued
by Progressive listing Philema Brothers as the “insured”
and only a “Roland Hunter” as the “Rated driver.” Id. The
USPS accepted Mr. Emiabata’s proposal at the end of 2015
and awarded him the delivery contract. Id. The contract
was scheduled to commence on February 5, 2016 and run
until June 30, 2019. Id.
In January 2016, the USPS again met with Mr. Emia-
bata, informing him that necessary documents were miss-
ing and instructing him to provide a driving history record
of at least five years and to complete the Contract Person-
nel Questionnaire. Id. On February 5, 2016, Mr. Emiabata
“commenced contract performance,” despite the missing
documents. Id. In March 2016, the USPS contacted Mr.
Emiabata again and urged him to respond “ASAP” with the
still-missing “vital” documents. Id. at 933–34. The USPS
advised him that he had to respond within four calendar
days or he would face termination of the contract. Id. at
934.
“A few days” later, Mr. Emiabata submitted several
forms, including the Questionnaire, in which he disclosed
two traffic violations: first, a charge of “reckless driving”
issued by the Commonwealth of Virginia on April 1, 2014,
which Mr. Emiabata claimed was “still under litigation”;
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4 EMIABATA v. US
and second, a charge of “fail[ure] to obey [a] sign” issued by
the State of Delaware on May 30, 2013. Id. Mr. Emiabata
did not submit a five-year driving record for any driver. Id.
On March 22, 2016, the USPS learned from a newspa-
per article dated February 27, 2015, that in February 2015
Mr. Emiabata had been “tried and convicted” of “reckless
driving (failing to maintain control)” in connection with a
traffic incident that occurred in April 2014 in Wythe
County, Virginia, in which two people were killed and an-
other was “seriously injur[ed].” Id.
The day after reading the article, the contracting of-
ficer notified Mr. Emiabata that his contract would be ter-
minated for default, effective March 25, 2016. The officer
explained that Mr. Emiabata had failed to provide the re-
quired forms, including insurance documents and a five-
year driving record, and that he had provided false infor-
mation with respect to his reckless driving conviction. Id.
In March 2017, Mr. Emiabata filed his first suit against
the USPS in the Claims Court, alleging, among other
things, wrongful termination of the delivery contract by the
USPS. Id. In August 2018, the Claims Court granted sum-
mary judgment in favor of the United States, holding that
USPS’s termination of Mr. Emiabata for default was justi-
fied. Emiabata I, 139 Fed. Cl. at 427. We affirmed, ex-
plaining that because Mr. Emiabata failed to submit proof
of liability insurance and motor vehicle records to the
USPS as required under the Delivery Contract, and made
false and misleading statements concerning his past traffic
violations, he was in default as a matter of law. Emiabata
II, 792 F. App’x at 938–39.
While Mr. Emiabata’s first case was pending at the
Claims Court, he filed a second suit in the United States
District Court for the District of Vermont, which dismissed
his complaint for lack of subject matter jurisdiction and
transferred it to the Claims Court in the interests of justice.
See Emiabata III, 151 Fed. Cl. at 614. Mr. Emiabata’s
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EMIABATA v. US 5
transfer complaint in the Claims Court again challenged
the termination for default, as he had done in his earlier
action, and newly alleged that he had been placed on a sup-
posed “suspension list” (disabling him from securing USPS
contracts) without due process. Id. The Claims Court
stayed the case pending our resolution of the appeal in the
first case. Id. at 613. Once we decided that appeal, the
Claims Court returned to the second suit. It granted the
government’s motion to dismiss the default termination
claims, holding that they “fall squarely within the ambit of
res judicata.” Id. at 616. The Claims Court determined
that it lacked subject-matter jurisdiction over the suspen-
sion claims, because Mr. Emiabata failed to identify any
money-mandating source of law for those claims, but the
court transferred those claims rather than dismiss them.
Id. at 616–18. The Claims Court entered judgment on the
termination claims under Rule 54(b) of the Rules of the
Court of Federal Claims and transferred the suspension
claims to the Vermont district court under
28 U.S.C.
§ 1631.
Mr. Emiabata timely appeals the Claims Court’s dis-
missal of the termination claims and transfer of the sus-
pension claims.
II
We first address whether we have appellate jurisdic-
tion over Mr. Emiabata’s appeal. Under
28 U.S.C.
§ 1295(a)(3), this court has jurisdiction over any “appeal
from a final decision of the United States Court of Federal
Claims.” A final decision is one that “ends the litigation on
the merits and leaves nothing for the court to do but exe-
cute the judgment.” Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 373 (1981) (citations and internal quotation
marks omitted). An authorized kind of final judgment is
one covering less than the entire case if entered in accord-
ance with Rule 54(b). The Claims Court properly entered
partial judgment on the termination claims under that
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6 EMIABATA v. US
provision. We have jurisdiction over the appeal from that
partial judgment.
The suspension claims are another matter. The Claims
Court transferred the suspension claims after determining
that it lacked jurisdiction over them. We lack jurisdiction
to review the Claim Court’s ruling on the suspension
claims.
Under the general finality principles governing ap-
peals from district courts to regional circuit courts, it is well
established that a transfer order “is interlocutory and thus
not immediately appealable, but appealable only incident
to a final judgment in a case (or a partial judgment pursu-
ant to Fed. R. Civ. P. 54(b)) or as a certified question pur-
suant to
28 U.S.C. § 1292(b).” F.D.I.C. v. Maco Bancorp,
Inc.,
125 F.3d 1446, 1447 (Fed. Cir. 1997). As a general
matter, those principles govern appeals to this court, in-
cluding appeals from the Claims Court. Here, the Claims
Court did not enter final judgment, and it did not certify a
question of law, on the suspension claims.
Although this court may review transfer orders in cer-
tain circumstances, notwithstanding their interlocutory
nature, under
28 U.S.C. § 1292(d)(4)(A), that authority is
inapplicable here. This statute provides:
The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction of an ap-
peal from an interlocutory order of a district court
of the United States . . . granting or denying, in
whole or in part, a motion to transfer an action to
the United States Court of Federal Claims under
section 1631 of this title.
Id. (emphases added). The Claims Court’s transfer order
in the present case does not fall within that provision,
which covers only a § 1631 transfer to the Claims Court,
not one from the Claims Court.
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EMIABATA v. US 7
The transfer of the suspension claims also cannot be
appealed under the collateral-order doctrine. Under that
doctrine, an order may be appealable if it (1) conclusively
determines the disputed question, (2) resolves an im-
portant issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
final judgment. See Bd. of Regents of the Univ. of Texas
Sys. v. Boston Scientific Corp.,
936 F.3d 1365, 1371 (Fed.
Cir. 2019). At a minimum, the last requirement is not met.
Whether the Claims Court or the district court has juris-
diction over Mr. Emiabata’s suspension claims can be ef-
fectively reviewed upon any appeal from a final judgment
eventually entered by the Vermont district court. 1
Because the Claims Court’s transfer order is interlocu-
tory in nature and does not fall within any jurisdictional
exceptions to the basic finality requirement for appeal, we
lack jurisdiction to review Mr. Emiabata’s appeal of the
Claims Court’s ruling on the suspension claims. We there-
fore review only the Claims Court’s ruling on the termina-
tion claims.
III
We review de novo the Claims Court’s dismissal for
lack of jurisdiction, taking as true all undisputed facts as-
serted in the complaint and drawing all reasonable infer-
ences in favor of the plaintiff. Trusted Integration, Inc. v.
United States,
659 F.3d 1159, 1163 (Fed. Cir. 2011). As
plaintiff, Mr. Emiabata bears the burden of establishing
subject-matter jurisdiction by a preponderance of the
1 Mr. Emiabata likewise could not meet the exacting
requirements for obtaining a writ of mandamus, which
would require, among other things, that he have no alter-
native means of obtaining the relief requested. Mallard v.
U.S. Dist. Court,
490 U.S. 296, 309 (1989).
Case: 21-1703 Document: 18 Page: 8 Filed: 04/08/2022
8 EMIABATA v. US
evidence. Hopi Tribe v. United States,
782 F.3d 662, 666
(Fed. Cir. 2015). Pro se plaintiffs are entitled to a liberal
construction of their complaints, Erickson v. Pardus,
551
U.S. 89, 94 (2007), but they must meet jurisdictional re-
quirements, Kelley v. Sec’y, U.S. Dep’t of Labor,
812 F.2d
1378, 1380 (Fed. Cir. 1987).
Mr. Emiabata challenges the dismissal of his default
termination claims based on the doctrine of res judicata.
Under that doctrine, “a judgment on the merits in a prior
suit bars a second suit involving the same parties or their
privies based on the same cause of action,” Parklane Hosi-
ery Co. v. Shore,
439 U.S. 322, 326 n.5 (1979), precluding
“the parties or their privies from relitigating issues that
were or could have been raised in that action,” Allen v.
McCurry,
449 U.S. 90, 94 (1980). A claim is precluded
when “(1) the parties are identical or in privity; (2) the first
suit proceeded to a final judgment on the merits; and (3)
the second claim is based on the same set of transactional
facts as the first.” Ammex, Inc. v. United States,
334 F.3d
1052, 1055 (Fed. Cir. 2003). We agree with the Claims
Court that Mr. Emiabata’s termination claims here are
covered by the doctrine: the parties are the same in the two
suits; we affirmed the Claims Court’s final judgment on the
merits of the termination claim in the first suit; and the
two claims are based on the same transactional facts—spe-
cifically, the same contract and same agency conduct.
Emiabata II, 792 F. App’x at 937–39. In these circum-
stances, the doctrine of res judicata, based on policies of ju-
dicial economy and finality, properly precludes what
amounts to an attempt to relitigate the claim he presented
earlier.
IV
For the foregoing reasons, we dismiss Mr. Emiabata’s
appeal as to his suspension claims for lack of jurisdiction
and affirm the Claims Court’s dismissal of his termination
claims.
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EMIABATA v. US 9
The parties shall bear their own costs.
AFFIRMED IN PART, DISMISSED IN PART
