Allen v. U.S. Department of Homeland Security et al

Filing 100

ORDER granting 89 Motion to Dismiss the Federal Emergency Management Agency ("FEMA"). Signed by Judge John W. deGravelles on 09/18/2014. (CGP)

UNITED STATES MIDDLE DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DERRICK ALLEN
VERSUS

CIVIL ACTION NO: 13-503-JWD-SCR

JEH JOHNSON, SECRETARY,
U.S. DEPARTMENT OF
HOMELAND SECURITY, ET AL
ORDER

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s retaliation claims under Title
VII. (Doc. XXX.) Defendants Jeh Johnson1, Secretary of the U.S. Department of Homeland Security,
and the Federal Emergency Management Agency (“FEMA”) have each moved to dismiss Plaintiff’s
claims against FEMA with prejudice for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil procedure 12(b)(1).
Plaintiff brought Title VII retaliation claims against both Defendants regarding alleged EEO
activity in which Plaintiff opposed FEMA’s hiring practices. The merits of those claims are not
before the Court today, as the Motions to Dismiss concern only subject matter jurisdiction.
The Court must dismiss a case for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the case. Wright v. U.S. Postal Servs., 344 F.
Supp. 2d 956, 957 (M.D. La. 2004) (citing Home Builders Ass’n Of Miss., Inc v. City of Madison,
143 F.3d 1006, 1010 (5th Circ.1998)). Furthermore, the plaintiff bears the burden of demonstrating
that subject matter jurisdiction exists. See id., (citing Paterson v. Weinberger, 644 F.2d 521, 523

1

Pursuant to Federal Rule of Civil procedure 25(d), Jeh Johnson has been substituted for
Janet Napolitano by operation of law, as she is no longer the Secretary of the Department of
homeland Security.

(5th Cir. 1981)).
Defendant claims that FEMA is not a proper defendant under Title VII, in a “federal sector
case,” and the court thus lacks subject matter jurisdiction. Defendant claims sovereign immunity.
Title VII prohibits employment discrimination claims, including retaliation, based on race,
color, religion, sex, or national origin by federal employees. In an action brought under Title VII,
the only proper defendant is the head of the federal agency in his or her official capacity. See
Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (Proper defendant in employment
discrimination action against Postal Service was Postmaster General, rather than Postal Service itself
or supervisors who made allegedly discriminatory decisions.); 42 U.S.C. § 2000e-16; 29 U.S.C.
§ 794a(a)(1) (adopting Title VII procedures); See also Quevedo v. Army & Air Force Exch. Serv.,
No. 00–10360, 234 F.3d 29 (5th Cir.2000) (unpublished) (“By statute, the only proper party
defendant in either a Title VII action ... brought against the United States is the head of the agency
in which the alleged discriminatory acts occurred.”).
Title VII only waives sovereign immunity in regards to the agency head, , i.e. Jeh Johnson.
It is clear that he is the only party against whom Congress has permitted plaintiff’s claims to be
asserted. Accordingly. Plaintiff’s claims against FEMA are hereby dismissed for lack of subject
matter jurisdiction.
IT IS ORDERED that Defendants’ Motion to Dismiss the Federal Emergency Management
Agency (“FEMA”) is hereby GRANTED.
Signed in Baton Rouge, Louisiana, on September 18, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA