Tritz v. United States Postal Service

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRENE TRITZ, an individual, No. 10-56967

Plaintiff-Appellant,

D.C. No.

v. 8:10-cv-00182-

DOC-RNB

UNITED STATES POSTAL SERVICE ;

THE CALIFORNIA FRANCHISE TAX

BOARD ; INTERNAL REVENUE OPINION

SERVICE ,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

April 17, 2013—San Francisco, California

Filed July 9, 2013

Before: Mary M. Schroeder, Sidney R. Thomas,

and Barry G. Silverman, Circuit Judges.

Opinion by Judge Thomas

2 TRITZ V . UNITED STATES POSTAL SERVICE

SUMMARY*

Tucker Act

The panel affirmed on alternative grounds the district

court’s dismissal of an action brought by a former Postal

Service employee against the United States Postal Service.

The panel reversed the district court’s determination that

it lacked subject matter jurisdiction to hear the employee’s

breach of contract claim. The panel held that the Tucker

Act’s grant of jurisdiction to the Court of Federal Claims to

hear contract claims against the Postal Service seeking more

than $10,000 in damages is concurrent with the independent

grant of jurisdiction to the United States district courts under

the Postal Reorganization Act. The panel affirmed the

dismissal of the contract claim on the separate ground that the

employee failed to state a claim that would entitle her to

relief. The panel also held that the district court properly

dismissed the employee’s claims of retaliation and hostile

work environment as barred by res judicata. The panel held

that the district court erred in holding that the employee’s

discrimination claim was barred by a 2006 Settlement

Agreement, but affirmed the dismissal of the claim on the

separate ground that the employee failed to state a claim.

Finally, the panel affirmed the district court’s dismissal of the

employee’s derivative claims against the Internal Revenue

Service and the California Franchise Tax Board.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TRITZ V . UNITED STATES POSTAL SERVICE 3

COUNSEL

Willie Jordan-Curtis, Associate Clinical Professor of Law,

Andrew B. Compton, Matthew J. Palmer, David C. Potts

(argued), Michael R. Shumway, Law Students, University of

Arizona Pro Bono Appellate Project, Tucson, Arizona, for

Plaintiff-Appellant.

André Birotte, Jr., United States Attorney, Leon W.

Weidman, Chief, Civil Division, Russell W. Chittenden

(argued), Assistant United States Attorney, Los Angeles,

California, for Defendants-Appellees United States Postal

Service and Internal Revenue Service.

Kamala D. Harris, Attorney General, W. Dean Freeman,

Supervising Deputy Attorney General, Marla K. Markman

(argued), Deputy Attorney General, Los Angeles, California,

for Defendant-Appellee California Franchise Tax Board.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether the Tucker Act grants

exclusive jurisdiction to the Court of Federal Claims to hear

contract claims against the United States Postal Service

(“Postal Service”) seeking more than $10,000 in damages.

We conclude that the Tucker Act’s grant of jurisdiction to the

Court of Federal Claims to hear such claims is concurrent

with the independent grant of jurisdiction to the United States

district courts under the Postal Reorganization Act (“PRA”),

39 U.S.C. §§ 401 and 409. We affirm the district court’s

dismissal of the action on alternative grounds.

4 TRITZ V . UNITED STATES POSTAL SERVICE

I

According to her complaint,1 Irene Tritz was an employee

of the Postal Service for over thirty-three years. During that

time, she filed several complaints for gender discrimination,

age discrimination, disability discrimination, retaliation, and

a hostile work environment. Following a bench trial in 1991,

a district court judge held that the Postal Service had

discriminated against Tritz on account of her sex. Before the

court ruled on damages, Tritz and the Postal Service entered

into a settlement agreement (“1991 Settlement Agreement”).

In 2005, Tritz brought a pro se complaint against the

Postal Service alleging a hostile work environment.

Although a jury found in her favor and awarded her

$275,000, Tritz again entered into a settlement agreement

with the Postal Service (“2006 Settlement Agreement”).

Under the terms of the settlement, the Postal Service agreed

to provide Tritz with a letter of recommendation and to pay

her $225,000 as compensation for her claimed emotional

injury. In exchange, Tritz agreed to release all of her

claims—known and unknown, pending or otherwise—against

the Postal Service and its employees. In February 2006, the

parties signed the settlement agreement and the district court

judge accordingly dismissed Tritz’s action.

In 2010, Tritz brought her present complaint pro se. She

claims that the Postal Service breached the 1991 and 2006

1

On a motion to dismiss, we generally accept the allegations in the

complaint as true. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295

(9th Cir. 1998). However, we need not accept as true conclusory

allegations that are contradicted by documents referred to in the

complaint. Id. at 1295–96.

TRITZ V . UNITED STATES POSTAL SERVICE 5

Settlement Agreements, and that the 2006 Settlement

Agreement is voidable because her assent was the result of

undue influence and fraudulent misrepresentation. She also

brings claims for intentional infliction of emotional distress,

conspiracy, discrimination, retaliation, and a hostile work

environment. For relief, Tritz requests, among other things,

that the 2006 Settlement Agreement be voided; that she be

awarded trial costs of $14,723.25; that taxes and penalties be

waived; and that she receive her original jury award of

$275,000 (i.e., that she be paid $50,000 in addition to her

settlement award).

The district court granted the federal defendants’ motion

to dismiss Tritz’s complaint. It dismissed Tritz’s breach of

contract claim for lack of subject matter jurisdiction, holding

that the Tucker Act, 28 U.S.C. § 1491(a)(1), grants the Court

of Federal Claims exclusive jurisdiction to hear breach of

contract claims against the Postal Service that put more than

$10,000 in controversy. It dismissed seven of Tritz’s claims

for lack of subject matter jurisdiction because it held that

Tritz had not complied with the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2675(a). Finally, the district court

held that Tritz’s remaining three claims were barred by res

judicata.

We review de novo the district court’s dismissal for lack

of subject matter jurisdiction. Whisnant v. United States,

400 F.3d 1177, 1180 (9th Cir. 2005). We also review de

novo the district court’s dismissal regarding res judicata. W.

Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th

Cir. 1997). We may affirm the district court’s dismissal on

any grounds supported by the record. Franklin v. Terr,

201 F.3d 1098, 1100 n.2 (9th Cir. 2000).

6 TRITZ V . UNITED STATES POSTAL SERVICE

II

The United States, as sovereign, is immune from suit in

state or federal court except to the extent that Congress has

expressly waived such sovereign immunity. United States v.

Mitchell (Mitchell I), 445 U.S. 535, 538 (1980). “[T]he terms

of [Congress’s] consent to be sued in any court define that

court’s jurisdiction to entertain the suit.” Id. The Tucker Act

provides that “[t]he United States Court of Federal Claims

shall have jurisdiction to render judgment upon any claim

against the United States founded . . . upon any express or

implied contract with the United States.” 28 U.S.C.

§ 1491(a)(1).2 The Supreme Court has long recognized that

this provision of the Tucker Act effects a waiver of sovereign

immunity and grants jurisdiction to the Court of Federal

Claims with regard to contract claims against the United

States. United States v. Mitchell (Mitchell II), 463 U.S. 206,

215 (1983).

Contrary to the Postal Service’s argument, nothing in the

language of the Tucker Act makes its grant of jurisdiction to

2

W e assume, without deciding, that a claim against the Postal Service

is a claim against the United States for the purposes of the Tucker Act.

There is support in the precedents of our sister circuits for Tritz’s

argument that the Tucker Act is inapplicable because the Postal Service

is an entity separate from the United States. See Licata v. U.S. Postal

Serv., 33 F.3d 259, 263 (3d Cir. 1994); Cont’l Cablevision of St. Paul, Inc.

v. U.S. Postal Serv., 945 F.2d 1434, 1440 (8th Cir. 1991); White v.

Bloomberg, 501 F.2d 1379, 1384 n.6 (4th Cir. 1974). In a separate

context, we have also characterized the Postal Service as standing apart

from the United States, Currier v. Potter, 379 F.3d 716, 724–25 (9th Cir.

2004), but we have never decided that the Tucker Act is wholly

inapplicable to claims against the Postal Service. W e decline to do so now

because even if the Tucker Act applies, the district court had concurrent

subject matter jurisdiction to hear Tritz’s breach of contract claim.

TRITZ V . UNITED STATES POSTAL SERVICE 7

the Court of Federal Claims exclusive for all contract claims

over $10,000. It is true that we have read the Tucker Act and

the “Littler Tucker Act”3 together to “provide for jurisdiction

solely in the Court of Federal Claims for Tucker Act claims

seeking more than $10,000 in damages, and concurrent

district court jurisdiction over claims seeking $10,000 or

less.” McGuire v. United States, 550 F.3d 903, 910–11 (9th

Cir. 2008) (emphasis added). However, the Supreme Court

has explained that this reading is not correct in all instances:

It is often assumed that the Claims Court has

exclusive jurisdiction of Tucker Act claims

for more than $10,000. (Title 28 U.S.C.

§ 1346(a)(2) expressly authorizes concurrent

jurisdiction in the district courts and the

Claims Court for claims under $10,000.) That

assumption is not based on any language in

the Tucker Act granting such exclusive

jurisdiction to the Claims Court. Rather, that

court’s jurisdiction is “exclusive” only to the

extent that Congress has not granted any

other court authority to hear the claims that

may be decided by the Claims Court.

Bowen v. Massachusetts, 487 U.S. 879, 910 n.48 (1988)

(emphasis added).

3

The Little Tucker Act expressly provides that district courts shall have

concurrent jurisdiction with the Court of Federal Claims over all claims

against the United States for less than $10,000. 28 U.S.C. § 1346(a)(2).

The Little Tucker Act is so named because it modifies the main Tucker

Act, not because its congressional sponsor was a representative with the

name Tucker and a smaller stature than John Randolph Tucker.

8 TRITZ V . UNITED STATES POSTAL SERVICE

In other words, the Tucker Act and Little Tucker Act

create a presumption of exclusive jurisdiction in the Court of

Federal Claims, but that presumption can be overcome by an

independent statutory grant of jurisdiction to another court.

In another context, we interpreted the Tucker Act

consistently with Bowen and found that the presumption of

exclusive jurisdiction was overcome. In In re Liberty

Construction, we explained that “claims against the United

States may be entertained by the district courts, regardless of

the amount sought, so long as there exists a basis for

jurisdiction independent of the Tucker Act.” Concrete Tie,

Inc. v. Liberty Constr., Inc. (In re Liberty Constr., Inc.),

9 F.3d 800, 801–02 (9th Cir. 1993) (footnote omitted). Then,

after noting that the Small Business Act’s “sue and be sued”

provision, 15 U.S.C. § 634(b)(1), independently vested

jurisdiction in the district courts over claims against the Small

Business Administration, we upheld the district court’s

jurisdiction to hear an action against the Small Business

Administration despite the Tucker Act’s grant of jurisdiction

to the Court of Federal Claims. Id. at 802.

The PRA provides that “the United States district courts

shall have original but not exclusive jurisdiction over all

actions brought by or against the Postal Service.” 39 U.S.C.

§ 409(a). The plain language of this provision grants district

courts jurisdiction over contract actions against the Postal

Service. Flamingo Indus. (USA) Ltd. v. U.S. Postal Serv.,

302 F.3d 985, 995 (9th Cir. 2002), reversed on other grounds,

540 U.S. 736 (2004), on remand, 366 F.3d 789; Wright v.

U.S. Postal Serv., 29 F.3d 1426, 1430 (9th Cir. 1994). We

have previously concluded that “[t]here is . . . no basis for

differentiating between the [Small Business Act and the

PRA]” with regard to their respective sovereign immunity

TRITZ V . UNITED STATES POSTAL SERVICE 9

waivers and jurisdictional grants. Wright, 29 F.3d at 1430.

Therefore, we now hold that, like the Small Business Act in

Liberty Construction, the PRA independently grants district

courts jurisdiction, concurrent with the Court of Federal

Claims, to hear claims against the Postal Service for more

than $10,000. See Liberty Constr., 9 F.3d at 802; see also

Bowen, 487 U.S. at 910 n.48.

The Federal Circuit has also interpreted the PRA and the

Tucker Act to authorize district courts to hear contract claims

against the Postal Service regardless of the amount in

controversy. Benderson Development Co., Inc. v. U.S. Postal

Serv., 998 F.2d 959, 963 (Fed. Cir. 1993). In Benderson, the

Federal Circuit considered whether the district court had

jurisdiction to hear the contract claim of a landowner against

the Postal Service for $500,000. Id. at 961. Because the

landowner characterized his complaint as stating a breach of

contract claim and the Postal Service characterized it as

stating a takings claim, the Federal Circuit remanded to the

district court to determine the true nature of the complaint.

Id. The Federal Circuit concluded that if the landowner’s

complaint stated a takings claim, then the Court of Federal

Claims should hear it. Id. But if the landowner’s complaint

stated a contract claim, then the dispute was “to be resolved

by the district court in the exercise of its every-day

jurisdiction over contract matters affecting the Postal

Service” under 39 U.S.C. §§ 401(1) and 409(a). Id. at 963.

The D.C. Circuit’s decision in Shaffer v. Veneman,

325 F.3d 370 (D.C. Cir. 2003), is not to the contrary. In that

case, the district court concluded that the Court of Federal

Claims had exclusive jurisdiction to hear a farmer’s

complaint against the U.S. Department of Agriculture

(“USDA”) alleging breach of a settlement agreement. Id. at

10 TRITZ V . UNITED STATES POSTAL SERVICE

371. The D.C. Circuit agreed with the district court that the

Court of Federal Claims had jurisdiction under the Tucker

Act, but it also acknowledged that just because “the Court of

Federal Claims has jurisdiction does not necessarily mean . . .

that its jurisdiction is exclusive.” Id. at 372. The court then

went on to consider, and reject, the farmer’s argument that the

Equal Credit Opportunity Act and the Administrative

Procedure Act provided independent bases for subject matter

jurisdiction in the district court. Id. at 372–73. In holding

that the district court lacked subject matter jurisdiction, the

D.C. Circuit did not hold that the Tucker Act’s grant of

jurisdiction to the Court of Federal Claims is always

exclusive. Rather, it merely held that there was no other

independent statutory basis for the district court’s jurisdiction

in that case. In contrast, in this case the PRA clearly confers

independent subject matter jurisdiction on the district courts

to hear claims against the Postal Service.

The Postal Service suggests that the Contract Disputes

Act (“CDA”), 41 U.S.C. §§ 7101–09, bars district courts from

hearing breach of contract claims against the Postal Service.

For certain claims sounding in contract, the CDA “established

a comprehensive framework for resolving contract disputes

between executive branch agencies and government

contractors.” Menominee Indian Tribe v. United States,

614 F.3d 519, 521 (D.C. Cir. 2010). Under the CDA, parties

to covered disputes may only appeal to the relevant board of

contract appeals or the Court of Federal Claims; appeal to the

district courts is not available. 41 U.S.C. §§ 7103–05.

However, the CDA only applies to specified categories of

procurement contracts. See 41 U.S.C. § 7102(a) (providing

that the CDA applies to contracts for “(1) the procurement of

property, other than real property in being; (2) the

procurement of services; (3) the procurement of construction,

TRITZ V . UNITED STATES POSTAL SERVICE 11

alteration, repair, or maintenance of real property; or (4) the

disposal of personal property.”). Tritz’s 1991 and 2006

Settlement Agreements are not procurement contracts within

the meaning of the CDA, so the CDA does not apply.4

In sum, even assuming that the Tucker Act confers

jurisdiction on the Court of Federal Claims to hear claims

against the Postal Service, the PRA also vests the district

courts with independent jurisdiction over such claims, so

jurisdiction in the Court of Federal Claims is not exclusive.

Bowen, 487 U.S. at 910 n.48; Wright, 29 F.3d at 1430;

Liberty Constr., 9 F.3d at 801–02. Accordingly, we reverse

the district court’s determination that it lacked subject matter

jurisdiction to hear Tritz’s breach of contract claim.

III

A

Although the district court erroneously dismissed Tritz’s

breach of contract claim on jurisdictional grounds, we affirm

its dismissal of the contract claim on the separate ground that

she fails to state a claim that would entitle her to relief.

Construed liberally, Tritz’s pro se complaint alleges three

claims for breach of contract, see Ortez v. Washington Cnty.,

88 F.3d 804, 807 (9th Cir. 1996) (explaining that pro se

complaints are liberally construed), but each one fails.

First, Tritz alleges that the Postal Service breached its

promise in the 2006 Settlement Agreement to classify her

settlement award as tax-free. However, nothing in the 2006

4

In any event, we made clear in Wright that the CDA does not override

independent grants of jurisdiction to the district courts. 29 F.3d at 1431.

12 TRITZ V . UNITED STATES POSTAL SERVICE

Settlement Agreement—which she attached to her

complaint—mentions tax consequences. Tritz also alleges

that the assistant U.S. attorney negotiating on behalf of the

Postal Service and the district court judge presiding over the

settlement assured her that her settlement money would not

be taxable. This, too, is contradicted by an attachment to her

complaint—the transcript of the settlement hearing:

The Court: Now, I’ve had conversations

privately with . . . Mrs. Tritz

. . . with respect to the tax

consequences, and Mrs. Tritz

understands that there are

no—there is no guarantees,

there are no representations

with respect to the tax

c o n s e q u en c e s o f t h a t

$225,000. That’s going to be

something that is between

Mrs. Tritz, the IRS, and her

tax preparer.

Is that acceptable, Mrs. Tritz?

Ms. Tritz: Yes, it is, Your Honor.

More importantly, the 2006 Settlement Agreement included

a plain integration clause whereby “the parties agree[d] that

any other prior or contemporaneous representations or

understandings not explicitly contained in this written

Settlement Agreement, whether written or oral, are of no

further legal or equitable force or effect.”

TRITZ V . UNITED STATES POSTAL SERVICE 13

Second, Tritz alleges that the Postal Service breached the

1991 Settlement Agreement by failing to pay her according

to a grade two levels higher than her job assignment.

However, nothing in the 1991 Settlement Agreement—which

was also attached to Tritz’s complaint—concerns adjustments

to her pay level following the settlement.

Finally, Tritz asserts that the Postal Service breached a

condition in the 2006 Settlement Agreement that third parties

can use information relating to her case for their own

purposes. Again, this claim is contradicted by the

attachments to her complaint. Nothing in the 2006 Settlement

Agreement provides for the use of her case or related

information by third parties. Indeed, the agreement

specifically provides that “this Settlement Agreement will not

be regarded as a precedent.”

Because the documents attached to Tritz’s complaint

defeat her breach of contract allegations, Tritz cannot state a

claim that would entitle her to relief. Fed. R. Civ. P.

12(b)(6); see also Aguayo v. U.S. Bank, 653 F.3d 912, 917

(9th Cir. 2011) (explaining that “[a] complaint must not be

dismissed unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of the claim which would

entitle the plaintiff to relief”); Nat’l Ass’n for the

Advancement of Psychoanalysis v. Cal. Bd. of Psych.,

228 F.3d 1043, 1049 (9th Cir. 2000) (“In determining

whether plaintiffs can prove facts in support of their claim

that would entitle them to relief, we may consider facts

contained in documents attached to the complaint.”).

14 TRITZ V . UNITED STATES POSTAL SERVICE

B

1

The district court properly dismissed Tritz’s claims of

“Fraud/Misrepresentation,” “Conspiracy,” and “Intentional

Infliction of Emotional Distress” for failure to comply with

the FTCA’s administrative exhaustion requirement. The

FTCA effects a limited waiver of sovereign immunity to

allow certain common law tort claims to proceed against the

United States. Smith v. United States, 507 U.S. 197, 201

(1993) (citing 28 U.S.C. § 1346(b)(1)). However, federal

district courts have jurisdiction to hear a plaintiff’s tort claim

under the FTCA only after the plaintiff has exhausted the

claim by submitting it to the appropriate federal agency first.5

Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir.

2006) (citing 28 U.S.C. § 2675(a)). A district court may

dismiss a pro se complaint for failure to allege compliance

with the FTCA’s administrative exhaustion requirement if it

clearly appears that the deficiency cannot be overcome by

amendment. Gillepsie v. Civiletti, 629 F.2d 637, 640 (9th Cir.

1980).

Tritz has not alleged compliance with the FTCA’s

administrative exhaustion requirement. According to the

declaration of the Tort Claims Coordinator for Tritz’s Postal

Service district, Tritz has not submitted any of her tort claims

to the Postal Service. Decl. of Catharine Cox ¶4, Dfdt. Mot.

5

The FTCA applies to tort claims against the Postal Service. 39 U.S.C.

§ 409(c).

TRITZ V . UNITED STATES POSTAL SERVICE 15

Dismiss.6 Therefore, the district court properly dismissed

these tort claims for failure to comply with the FTCA’s

administrative exhaustion requirement. Gillepsie, 629 F.2d

at 640.

2

Conversely, the district court erred in applying the FTCA

to dismiss Tritz’s claims that the 2006 Settlement Agreement

is voidable because of undue influence and interference by

the court and that the agreement is unlawful because it

violates the rights of others. The FTCA does not apply to

common law contract claims. See Winchell v. U.S. Dep’t of

Agric., 961 F.2d 1442, 1444 (9th Cir. 1992). Tritz alleges

that the 2006 Settlement Agreement is voidable under the

principles of California contract law because of undue

influence and interference by the court. Similarly, Tritz

alleges that the settlement agreement is unlawful under the

principles of California contract law because it violates the

rights of others. For these three claims, Tritz seeks rescission

of the contract rather than a tort remedy. Thus, these are

contract claims to which the FTCA does not apply. Id.

Nevertheless, we affirm the district court’s dismissal of

these claims on the separate ground that Tritz fails to state a

claim that would entitle her to relief. Tritz does not allege

that any named defendant unduly influenced her into entering

the settlement agreement. Rather, she alleges that she was

6

Because the Postal Service asserted a “factual,” rather than a “facial,”

attack on the district court’s subject matter jurisdiction, it is proper to

consider the Cox declaration, which the Postal Service submitted with its

motion to dismiss. Savage v. Glendale Union High Sch., 343 F.3d 1036,

1039 (9th Cir. 2003).

16 TRITZ V . UNITED STATES POSTAL SERVICE

unduly influenced by the presiding district court judge, who

is not a named defendant and could assert judicial immunity

even if he was. The same is true with respect to her claim of

interference by the court. Therefore, Tritz cannot prove any

set of facts that would entitle her to relief from a named

defendant on these claims.

Tritz’s claim that the contract is unlawful because it

violates the rights of other individuals also fails. Nothing in

the 2006 Settlement Agreement affects the independently

held rights of other individuals. Because the attached

settlement agreement contradicts Tritz’s claim we affirm the

district court’s dismissal on the separate ground that Tritz can

prove no set of facts in support of her claim that would entitle

her to relief. Fed. R. Civ. P. 12(b)(6); see also Aguayo,

653 F.3d at 917; Nat’l Ass’n for the Advancement of

Psychoanalysis, 228 F.3d at 1049.

C

The district court properly dismissed Tritz’s claims of

retaliation and hostile work environment as barred by res

judicata. Res judicata applies where there is (1) an identity of

claims, (2) a final judgment on the merits, and (3) identity or

privity between parties. Glickman, 123 F.3d at 1192 (citing

Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313,

323–24 (1971)). Court-approved settlement agreements, like

the 2006 Settlement Agreement, have res judicata effect.

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,

746–47 (9th Cir. 2006).

Tritz’s present complaint alleges retaliation and a hostile

work environment based on the same conduct that was at

issue in her 2005 lawsuit against the Postal Service. Indeed,

TRITZ V . UNITED STATES POSTAL SERVICE 17

she supports her allegations by pointing to the 2005 jury

verdict. Thus, there is identity of claims, identity of parties,

and a final judgment—the 2006 Settlement Agreement—to

bar Tritz’s claims for retaliation and hostile work

environment. Id.

The district court erred in holding that Tritz’s claim of

discrimination was barred by the 2006 Settlement Agreement.

In her complaint, Tritz alleges that the presiding judge, and

not the Postal Service, discriminated against her. Thus, there

is no identity of claims or parties between Tritz’s current

complaint and her 2005 lawsuit against the Postal Service.

Nevertheless, because the judge is not a named defendant we

affirm the district court’s dismissal of this claim on the

separate ground that Tritz has failed to state a claim entitling

her to relief.

D

Because we affirm the district court’s dismissal of all

Tritz’s claims for relief, we dismiss her derivative claims

against the Internal Revenue Service and the California

Franchise Tax Board seeking waiver of taxes and penalties on

her settlement award.

IV

In sum, although the district court had subject matter

jurisdiction to consider Tritz’s breach of contract claim

against the Postal Service, it did not err in dismissing it

18 TRITZ V . UNITED STATES POSTAL SERVICE

because she failed to state a claim upon which relief could be

granted. None of her remaining claims are viable. Therefore,

we affirm the district court’s dismissal of her complaint.

AFFIRMED.