USSERY v. USA

Filing 7

Order of Dismissal granting 6 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Nancy B. Firestone for Senior Judge Edward J. Damich. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7016 3010 0000 4308 4263)

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No. l8-l9C
(Filed: March 5,2018)
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FILED
MAR

JOHN USSERY,
Plaintiff,

-

5

2018

U.S. COURT OF
FEDERAL CI.AIMS

V.

THE UNITED STATES,
Delendant.
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ORDERDISMISSING CASE
On Deccmber 29,2017, Plaintiff, proceeding pro se, filed a complaint alleging
that he was unjustly terminated from his probationary position with the Department of
Agriculture in June 201 1 , on the basis of race and age discrimination. On February 27 ,
2018, Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) of the Rules ofthe
United States Court of Federal Claims ("RCFC") for lack ofjurisdiction and lailure to
file within the six year statute of limitations period. Plaintiffhas not responded; however,
as jurisdiction is a threshold question, the Court may rule on the Defendant's motion
without waiting for a response.

Plaintiffhas filed this claim pro se or without legal counsel. A pro se plaintiffs
pleadings are generally held to "less stringent standards" than those ofa prolessional
laryer. Haines v, Kerner,404 U.S. 519,520-21 (1972). However, the Court cannot
extend this leniency to relieve plaintiffs of their jurisdictional burden. Kelleyv. Sec'y,
U.S.Dep'tofLabor,8l2F.2d1378, 1380(Fed.Cir. 1987). IftheCourtfindsthatitlacks
subject matter jurisdiction over a claim, it must dismiss that claim. RCFC l2(hX3).
Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act and the Age
Discrimination in Employment Act based upon allegations that he was unjustly
terminated from his position on the basis of his race and age. It is well established that
this Court lacks jurisdiction to hear claims based on discrimination or other civil rights
violations. Taylor v. United States,310 Fed. Appx. 390, 393 (Fed. Cir. 2009) ("Because
Title VII vests jurisdiction over discrimination claims exclusively in the district court, the
Court ofFederal Claims cannot exercise jurisdiction over those claims."). Therefore, this
Court must dismiss this claim for lack of subiect matter iurisdiction.

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Additionally, Plaintiff has named the Secretary of Agriculture and Mr. James H.
Redington, a second tier supervisor of Plaintiff, as defendants. This Court lacks
jurisdiction over these defendants. The only proper defendant in this Court is the United
States. United States v. Sherwood,312 U.S. 584, 588 (1941) ("ifthe relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdiction of the court.").
Finally, even if this Court maintained jurisdiction, Plaintiff s claims are out of
time pursuant to this Court's six year statute of limitations. See 28 U.S.C. $ 2501.
Plaintiff alleges the Department of Agriculture wrongfully terminated him on June 9,
2011 and alleges various actions that occurred prior to his termination. As a result, to
meet this Court's jurisdictional limitation of six years, Plaintiff s claim had to be filed on
or before June 9,2017. Therefore, Plaintiffs Complaint filed on December 15,2017 is
out of time and this Court lacks subject matter jurisdiction.
For the reasons set forth above, the Defendant's Motion to Dismiss is
GRANTED and the Clerk is directed to dismiss the case and enter judgment accordingly.

IT IS SO ORDERXD.
B. FIRESTO

EDWARD J. DAMICH
Senior Judge