1

 This matter was re-opened in the District Court after remand by the Fifth Circuit in December 2007. Plaintiff

objects to the automatic referral of this case to the magistrate judge pursuant to Special Order No. 3-251 upon the reopening because the Special Order applies only “at case opening.” (See Movant’s Resp. to Special Order 3-251, doc.

39; Oppose Order Granting Extension Time, doc. 43.) Because this case has been opened anew, Special Order 3-

251applies, and Plaintiff’s objections are without merit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LOUISE RHODES, §

Plaintiff, §

vs. § No. 3:05-CV-2402-K (BH)

§ ECF

U.S. OFFICE OF SPECIAL COUNSEL, § Referred to U.S. Magistrate Judge

et al., §

Defendants. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to Special Order No. 3-251, the District Court referred this case for pretrial management,1

 including the determination of non-dispositive motions and issuance of findings of fact and

recommendations to the District Court on dispositive motions. Before the Court is a Motion to

Dismiss and Alternatively, Motion for Summary Judgment and Supporting Brief filed by Defendant

United States Office of Special Counsel (OSC) on March 7, 2008. Plaintiff has responded to the

motion by filing Remand by U.S. Court of Appeals for the Fifth Circuit for Case No. 07-10091,

Rhodes v. Office of Special Counsel; Thomas Stanton, dated December 7, 2007 back to the Northern

District Court, Dallas Division for Further Proceedings and Motion for Relief of Claims (hereinafter

referred to as Response or Motion for Relief). On April 9, 2008, OSC filed Defendant’s Response

to Plaintiff’s “Motion for Relief of Claims”. 

Based on the relevant filings and applicable law, the Court recommends that Defendant’s

motion to dismiss be GRANTED, and that Plaintiff’s motion for relief be DENIED.
2

 In its entirety, the Complaint states:

The Whistleblower Protection Act Agreement was BREACHED in the matter of Louise

Rhodes vs. Secretary of Treasury Paul H. O’Neill-Internal Revenue Service; Agency Nos.

99-2320 and 01-2215.

The Office of Special Counsel cc: GLS:DAL-152-00, Thomas Stanton, Regional Counsel,

GLS; address: 4050 Alpha Rd. 7th Floor, Mail Stop 2500 MSRO, Dallas, TX 75244-4203;

phone: 972-308-7365; Fax 972-308-7341 represented the Dept. Of the Treasury, Internal

Revenue Service.

(Compl. at 1.) Although Plaintiff appears to seek compensation for various claims, including $1,300,000 as damages,

in her motion for relief, (see Mot. Relief), her complaint at best alleges only a breach of contract claim.

3

 Plaintiff’s answer to the question posed by the Court constitutes an amendment to the filed complaint. See

Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). 

2

I. BACKGROUND

On December 6, 2005, Plaintiff filed the instant action against the OSC and Thomas Stanton,

Regional Counsel for the Internal Revenue Service (IRS). She alleges that defendants breached an

agreement reached under the Whistleblower Protection Act in the matter of Rhodes v. Secretary of

Treasury, Paul H. O’Neill – Internal Revenue Service, Nos. 99-2320 and 2215.2

 Based on the complaint and Plaintiff’s answer to a Magistrate Judge’s Questionnaire (MJQ),3

 the Court construed the

action as alleging a breach of contract against the United States and dismissed the complaint for lack

of jurisdiction because Plaintiff seeks more than $10,000 in a court other than the Court of Claims

– the court designated by statute to have sole jurisdiction over such breach of contract claims.

Plaintiff appealed the dismissal, and the Fifth Circuit Court of Appeals remanded the case for further

proceedings because it found the existence of a contract to be inextricably intertwined with the jurisdictional issue. 

On January 8, 2008, the Court ordered defendants to be served with process. Defendant OSC

responded with the instant motion to dismiss under Fed. R. Civ. P. 12(b)(1) and (6) and alternate

motion for summary judgment. Plaintiff responded to the motion to dismiss with her motion for

relief. OSC thereafter responded to the motion for relief.
3

II. RULE 12(b)(1) MOTION TO DISMISS

Defendant OSC moves to dismiss the action against it pursuant to Fed. R. Civ. P. 12(b)(1)

for lack of standing to sue because it was not a party to the alleged contract.

A. Standard of Review

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges

a federal court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts

of limited jurisdiction; without jurisdiction conferred by the Constitution and statute, they lack the

power to adjudicate claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the

burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). 

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court

should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). Considering rule

12(b)(1) motions first “prevents a court without jurisdiction from prematurely dismissing a case with

prejudice.” Id. When a court dismisses for lack of subject matter jurisdiction, that dismissal “is not

a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that

does have proper jurisdiction.” Id.

The district court may dismiss for lack of subject matter jurisdiction based on (1) the

complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). A motion to dismiss based on the
4

complaint alone presents a “facial attack” that requires the court to merely decide whether the

allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject

matter jurisdiction. See Patterson v. Weinberger, 644 F. 2d 521, 523 (5th Cir. 1998); see also

Rodriguez v. Tex. Comm’n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998) (citation omitted). “If

sufficient, those allegations alone provide jurisdiction.” 644 F.2d at 523. Facial attacks are usually

made early in the proceedings. Id. Where the defendant supports the motion with evidence, then

the attack is “factual” and “no presumptive truthfulness attaches to plaintiff’s allegations, and the

existence of disputed material facts will not preclude the trial court from evaluating for itself the

merits of jurisdictional claims.” Williamson, 645 F.2d at 413. A factual attack may occur at any

stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).

Regardless of the nature of attack, the party asserting jurisdiction constantly carries the burden of

proof to establish that jurisdiction does exist. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001) (per curiam); Rodriguez, 992 F. Supp. at 879.

“In the special case where the challenged basis of jurisdiction is also an element of plaintiff’s

federal cause of action, the proper course of action is to limit the jurisdictional inquiry to facial

scrutiny, and reserve the factual scrutiny for the merits of the cause of action.” Lewis v. Knutson,

699 F.2d 230, 237 (5th Cir. 1983); see also Montez v. Department of Navy, 392 F.3d 147, 150 (5th

Cir. 2004) (quoting Williamson, 645 F.2d at 415). In such circumstances, the court should dismiss

the case under Rule 12(b)(1) only if the facial attack succeeds. Id. Of course, “if the jurisdictional

challenge does not implicate the merits of the cause of action, the jurisdictional basis must survive

both facial and factual attacks before the district court can address the merits of the claim.” Id.

In this case, Defendant OSC’s motion presents both a facial and a factual attack, which
5

requires the Court to resolve matters outside the pleadings. See Ramming, 281 F.3d at 161; see also

Williamson, 645 F.2d at 412-13. Accordingly, no presumption of truth attaches to Plaintiff’s factual

allegations. See Williamson, 645 F.2d at 412. Because the issue of Plaintiff’s standing to bring this

action against OSC does not implicate the merits of her breach of contract action, the Court may

look beyond the face of Plaintiff’s complaint as amended by the answer to the MJQ to determine the

issue of jurisdiction, if necessary. See Levin v. Friedman Driegert & Hsueh, L.L.C., No. 3:00-CV1681-D, 2001 WL 804528, at *2-3 (N.D. Tex. July 5, 2001) (finding that whether the plaintiff was

a party to the contract affected standing but did not implicate the merits of the breach of contract

claim). 

B. Standing

Defendant OSC argues that Plaintiff lacks standing to pursue the instant breach of contract

action against it because any injury to her is not fairly traceable to conduct on its part. More specifically, it argues that it was not a party to the alleged contract between Plaintiff and the IRS.

“Article III of the Constitution limits federal ‘Judicial Power,’ that is, federal-court jurisdiction, to ‘Cases’ and ‘Controversies.’” United States Parole Comm’n v. Geraghty, 445 U.S. 388,

395 (1980). “One element of the case-or-controversy requirement is that [plaintiffs], based on their

complaint, must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997).

This requirement, like other jurisdictional requirements, is “not subject to waiver.” Lewis v. Casey,

518 U.S. 343, 349 n.1 (1996). The Supreme Court, furthermore, “insist[s] on strict compliance”

with the requirement. Raines, 521 U.S. at 819. To meet the standing requirement plaintiffs “must

allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to

be redressed by the requested relief.” Id. at 818 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984));
4

 Although the original complaint alone shows that Plaintiff lacks standing to pursue her breach of contract

claim against the OSC, Plaintiff has amended her complaint with her answer to the MJQ. That answer directed the

Court’s attention to five attached documents which further show that the parties to the alleged contract was Plaintiff and

the IRS. They also show allegations that Mr. Stanton represented the IRS, and that OSC through Mr. Stanton represented

the IRS. Nothing in Plaintiff’s answer to the MJQ, including the attachments, show that Plaintiff has standing to pursue

her breach of contract claim against OSC. 

6

accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “The constitutional limits on

standing eliminate claims in which the plaintiff has failed to make out a case or controversy between

[the plaintiff] and the defendant.” Lewis v. Knutson, 699 F.2d 230, 236 (5th Cir. 1983). 

1. Facial Attack

Plaintiff’s brief complaint shows that the contract alleged to have been breached was

between Plaintiff and the IRS. The complaint further alleges that Thomas Stanton, Regional

Counsel - GLS (General Legal Services) represented the IRS. Assuming the truth of Plaintiff’s

allegations in her complaint, as the Court must, the allegations simply do not bestow standing on

Plaintiff to pursue a breach of contract claim against OSC. Any injury from the alleged breach is

not fairly traceable to it, and OSC is therefore not liable for such breach. Because OSC is not a

proper defendant in this action, its facial attack on jurisdiction succeeds and the Rule 12(b)(1)

motion to dismiss should be granted on the face of the complaint alone.4

2. Factual Attack

In addition, OSC also provides undisputed affidavit evidence that (1) it does not represent

other federal agencies; (2) did not represent the Department of Treasury or the IRS in relation to

Plaintiff’s alleged contract; and (3) Thomas Stanton was not employed by OSC for any time period

relevant to the instant litigation. (See Def.’s App. Supp. Mot. Dismiss.) In response to the motion

to dismiss, Plaintiff filed a motion for relief but failed to refute the affidavit evidence. Based upon

the complaint as supplemented by undisputed facts evidenced in the record, OSC’s factual attack
7

on jurisdiction likewise succeeds, and the motion to dismiss may also be granted on this basis.

III. MOTION FOR RELIEF

In response to the instant motion to dismiss, Plaintiff filed a motion for relief in which she

requests that the Court 

grant relief to the Plaintiff for $1,300,000 and to receive her embezzled retirement

funds (annuity benefits) in the amount of $169,207.28 and be compensated for violating the Civil Rights Act of 1964 and the Whistleblower Protection Act of 1991,

which consists of: punitive damages, compensatory damages (future pecuniary

losses), emotional pain and suffering, inconvenience and mental anguish, loss of

enjoyment of life and physical pain and suffering. 

(See Mot. Relief at 1.) To the extent Plaintiff seeks relief for any claim other than breach of

contract, the motion necessarily fails because a party cannot obtain relief on a claim not presented

to the Court. With respect to the asserted breach of contract claim, the motion fails because Plaintiff

invokes no rule or other authority for her motion, and has provided no basis for obtaining relief

through such motion against either defendant. Additionally, the motion fails because Plaintiff lacks

standing to pursue this action against OSC.

IV. RECOMMENDATION

For the reasons stated herein, the Court should GRANT Defendant OSC’s motion to dismiss

(doc. 36) and DENY Plaintiff’s motion for relief (doc. 44). Defendant OSC should be dismissed

from this action because Plaintiff lacks standing to pursue this action against it. 

SO RECOMMENDED on this 22nd day of May, 2008.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE
8

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings and recommendation

on all parties by mailing a copy to each of them. Pursuant to Title 28, United States Code, Section

636(b)(1), any party who desires to object to these findings and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory or general objections. Failure to file written

objections to the proposed findings and recommendation within ten days after being served with a

copy shall bar the aggrieved party from appealing the factual findings, legal conclusions, and recommendation of the Magistrate Judge that are accepted by the District Court, except upon grounds of

plain error. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en

banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE