1

 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.

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. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

On December 6, 2005, plaintiff filed the instant action against the Office of Special Counsel

(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

2215.1

 On December 13, 2005, the Court granted plaintiff permission to proceed with this action

in forma pauperis.

 

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2

 The Board denied her complaint. See Rhodes v. Office of Personnel Management, 95 M.S.P.R. 433 (M.S.P.B. 2004)

(Table). Plaintiff unsuccessfully petitioned for review of the final decision of the Board. See Rhodes v. Office of Personnel

Management, 110 Fed. App’x 118 (Fed. Cir. Sept. 15, 2004) (per curiam), cert. denied, 543 U.S. 1073 (2005). 

2

To clarify the basis for plaintiff’s breach of contract claim, the Court sent her a Magistrate

Judge’s Questionnaire (MJQ) on July 17, 2006, in which it asked her to provide all facts to support

such claim. On July 21, 2006, plaintiff filed her answers in which she merely directed the Court’s

attention to five attached documents: (1) a June 18, 2001 letter from plaintiff to Thomas Stanton

regarding a motion for settlement; (2) a Statement of the Case that provides some background

information but essentially relates events relative to prior litigation; (3) a July 18, 2006 “Motion to

Receive Immediate Retirement Annuity Payments by Restored Direct Deposit” and attached

“Reasons for Granting the Petition/Motion”; (4) a November 29, 2004 Proof of Service to various

governmental entities; and (5) a verification page.

The attachment to the third document, entitled “Reasons for Granting the Petition/Motion,”

provides the best insight into the nature of plaintiff’s claim. It sets forth a history of “malicious” and

“retaliatory tactics” allegedly taken against Plaintiff related to her retirement from governmental

service, including a recitation of allegations that she has made since 1994 regarding disregard for

various statutory provisions, including the Whistleblower Protection Act. It states that the OSC

represented the IRS during an Equal Employment Opportunity Commission (EEOC) hearing of

December 12, 2001, and that in 2001, an Administrative Judge of the EEOC “ordered Special

Counsel Thomas Stanton to come to an agreement with [her] for the Whistleblowing claim.” The

attachment also states that, although “[t]his order was agreed to on July 20, 2001, [it] has not been

finalized by OSC or the Secretary of Treasury.” Finally, the document indicates that Plaintiff has

filed a complaint with the Merit System Protection Board (the Board).2

 

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 The Proof of Service attached to her answer to MJQ merely shows that plaintiff mailed a “Notice” to various

governmental entities, including the Office of Special Counsel, on November 29, 2004. The verification page merely

shows that plaintiff declares under penalty of perjury the truth and correctness of her answer to the MJQ. Neither of

these documents provide any detail regarding plaintiff’s breach of contract claim.

3

The first attached document to the MJQ, Plaintiff’s June 18, 2001 letter to defendant

Stanton, states that an Administrative Judge at the EEOC directed “each party to work together to

come to a final settlement.” It concludes with the following statement: “Be it resolved that the

signature of Timothy Stanton . . . will present this Motion to the Agency and certify that this Motion

for Settlement was read, and to the best of his knowledge, the allegations sited (sic) are good grounds

to support this settlement.” The document shows no signature of Timothy Stanton, despite a place

for such signature.

The second attached document, entitled “Statement of the Case”, appears to have been

written by Plaintiff. It clearly relates to prior litigation involving plaintiff, and is mostly irrelevant

to the instant action for breach of contract. However, it does state that after Plaintiff’s June 18,

2001 letter, “Stanton agreed to a one million and three hundred thousand dollars settlement with

[her] telephonically, on July 20, 2001.”3

According to her answers to the questionnaire, Plaintiff seeks $1,300,000.00 for the alleged

breach of contract. The Court has not issued process in the case. 

II. JURISDICTION

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit

 

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4

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).

Courts have “a continuing obligation to examine the basis for their jurisdiction.” See MCG,

Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise

the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th

Cir. 1999). In fact, Fed. R. Civ. P. 12(h)(3) requires that federal courts dismiss an action “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the

subject matter.” 

Plaintiff asserts a breach of contract claim against defendants which, in essence, is a breach

of contract claim against the United States. Suit on any contract with the United States in excess

of $10,000 must be brought in the Court of Claims. See 28 U.S.C. §§ 1346(a), 1491(a)(1); Clinton

v. Goldsmith, 526 U.S. 529, 539 n.13 (1999). Because plaintiff seeks more than $10,000 in damages,

this Court has no jurisdiction over such a claim. Accordingly, this action should be dismissed for

lack of subject matter jurisdiction.

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff’s

complaint for lack of subject matter jurisdiction.

SIGNED this 13th day of December, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, 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, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. 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

 

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