Opinion
13-471
04-10-2013
Herbert Ellsworth Gregory, Plaintiff, v. United States General Services Administration, Defendant.
MEMORANDUM OPINION
This matter is before the Court on plaintiff's pro se complaint and application to proceed in forma pauperis. The Court will grant plaintiff's in forma pauperis application and will dismiss the case for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring dismissal "at any time" jurisdiction is found wanting).
Plaintiff, a resident of Alexandria, Virgina, sues the General Services Administration for allegedly rescinding a conditional job offer. Citing Kloeckner v. Solis, 133 S.Ct. 596 (2012), plaintiff claims that jurisdiction lies in this court because the Merit Systems Protection Board ("MSPB") denied his "mixed case appeal." Compl. at 8-11. However, plaintiff has not alleged that the decision was based on his membership in a protected class and the attached administrative record belies such a claim. See Compl., Ex. 1 (MSPB Initial Decision describing appeal as "alleging that the agency had breached a contract with him, and he had been subjected to a suitability action"); Kloeckner, 133 S.Ct. at 604 (describing mixed cases as "those appealable to the MSPB and alleging discrimination" cognizable under the federal antidiscrimination laws). Consequently, the Civil Service Retirement Act, 5 U.S.C. §§ 8331 et seq., provides the exclusive remedy for adjudicating plaintiff's claim. Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005). "That regime provides for adjudication of all claims by OPM, 5 U.S.C. § 8347(b), appeal of adverse decisions by OPM to the MSPB, id. § 8347(d)(1), and subsequent review of MSPB decisions in the Federal Circuit, id. § 7703(b)(1); 28 U.S.C. § 1295(a)(9)." Id. Since plaintiff claims to have exhausted those remedies, Compl. at 8-9, this action will be dismissed. A separate Order accompanies this Memorandum Opinion.
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United States District Judge