Coleman v. Blair , 166 F. App'x 358 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 6, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
HELEN W. COLEMAN, also known
as Helen Snell,
Plaintiff-Appellant,
No. 05-4195
v. (D.C. No. 1:04-CV-98-PGC)
(D. Utah)
DAN G. BLAIR, Acting Director,
Office of Personnel Management;
RANDALL W. RICHARDS; OSCAR
HOWARD COLEMAN,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Helen W. Coleman appeals the district court’s dismissal
without prejudice of her action for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). We have jurisdiction to consider this appeal under
28 U.S.C. § 1291. We affirm.
Ms. Coleman alleged in her complaint that defendants-appellees Oscar
Howard Coleman, her former husband, and his divorce attorney, Randall W.
Richards, fraudulently caused a divorce decree to grant her only forty and not
fifty percent of Mr. Coleman’s federal civil service retirement annuity, in spite of
the terms of a decree of separate maintenance providing that she would receive
fifty percent. She also alleged that defendant-appellee Dan G. Blair, acting
director of the United States Office of Personnel Management (OPM), acted as an
accomplice to the fraud and embezzlement perpetrated by Mr. Coleman and
Mr. Richards by improperly relying on the fraudulent divorce decree and denying
her the additional ten percent of the annuity.
Defendants, relying on separate grounds, moved to dismiss for lack of
subject matter jurisdiction. The district court granted Mr. Blair’s motion deciding
that there was no subject matter jurisdiction because (1) Ms. Coleman failed to
identify a waiver of sovereign immunity; (2) she failed to exhaust federal
administrative remedies with the OPM and Merit Systems Protection Board and
then failed to file a lawsuit in the proper federal court, the Federal Circuit; (3) she
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had no private right of action to bring claims under Title 18 of the United States
Code; (4) her claims under Title 28 did not waive sovereign immunity; and
(5) she failed to exhaust administrative remedies for a tort claim under the
Federal Tort Claims Act. Also, the district court granted Mr. Coleman’s and
Mr. Richards’ motion to dismiss for lack of subject matter jurisdiction, deciding
that Ms. Coleman’s claims against them did not raise a federal question and there
was no diversity of citizenship.
On appeal, Ms. Coleman continues to argue that she is entitled to half of
the annuity. In addition, she argues that the district court improperly dismissed
this action for lack of subject matter jurisdiction instead of addressing the merits
of her arguments.
We review the district court’s dismissal for lack of subject matter
jurisdiction de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.
1999). Also, we liberally construe Ms. Coleman’s pro se filings. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).
Applying these standards, we conclude the district court correctly dismissed
this action for lack of subject matter jurisdiction. We affirm for substantially the
same reasons stated by the district court in its order granting defendants’ motions
to dismiss dated June 8, 2005. R., Doc. 42.
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Ms. Coleman also argues on appeal that the district court erred in refusing
to allow her to subpoena OPM records. We conclude the district court did not
abuse its discretion. See EEOC v. Dillon Cos., 310 F.3d 1271, 1274 (10th Cir.
2002) (recognizing this court reviews district court ruling on subpoenas for abuse
of discretion).
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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