          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                October 15, 2007
                               No. 07-10091
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

LOUISE RHODES

                                          Plaintiff-Appellant

v.

U S OFFICE OF SPECIAL COUNSEL; THOMAS STANTON, SENIOR
ATTORNEY

                                          Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CV-2402


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Louise Rhodes moves to proceed in forma pauperis (IFP) to appeal the
district court’s dismissal of her civil complaint for lack of subject matter
jurisdiction. The district court construed Rhodes’s complaint as a breach of
contract claim against the United States in excess of $10,000, and therefore
concluded that it lacked subject matter jurisdiction under the Tucker
Act, 28 U.S.C. §§ 1346(a)(2) and 1491(a), which vests the Court of Claims with


      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 07-10091

exclusive jurisdiction over such claims. The Tucker Act is only a jurisdictional
statute; it does not create any substantive right enforceable against the United
States for damages. United States v. Testan, 424 U.S. 392, 398 (1976). To
invoke jurisdiction under the Tucker Act, as relevant to this case, the plaintiff
must identify an express or implied contract that provides a separate
substantive right to monetary damages against the United States. Griswold v.
United States, 61 Fed. Cl. 458, 462 (Fed. Cl. 2004).
      By moving for IFP, Rhodes is challenging the district court’s certification
that IFP status should not be granted on appeal because her appeal is not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202. Any determination of
whether Rhodes’s appeal involves legal points arguable on their merits, however,
entails a determination of whether a contract exists, since the presumption that
there is a contract is at the heart of both the district court’s holding that it
lacked subject matter jurisdiction and its certification that the appeal was not
taken in good faith. Thus, whether a contract exists is inextricably intertwined
with the certification decision.
      This court has previously noted that “in reversing the trial court in cases
where the merits are so intertwined with the certification decision as to
constitute the same issue, the prior expedient practice of determining the merits
of the appeal as well as the appropriateness of the IFP status will remain an
available appellate disposition.” Baugh, 117 F.3d at 202. However, the record
is inadequately developed to allow us to employ that option. Because the
determination whether a contract exists between the parties is determinative of
both the district court’s jurisdiction under the Tucker Act and the merits of
Rhodes’s claim, we decline to determine the merits of the appeal and instead
vacate the judgment of the district court and remand the case for further
proceedings. See Am. Fed.’n of Gov’t Employees Local 1 v. Stone, 146 F.App’x 704
(5th Cir. 2005).
      IFP GRANTED; VACATED AND REMANDED.

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