     Case: 16-30836       Document: 00514478967         Page: 1     Date Filed: 05/18/2018




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

                                     No. 16-30836                              FILED
                                   Summary Calendar                        May 18, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
CARLOS R. POREE,

               Plaintiff - Appellant

v.

STEVEN T. MNUCHIN, SECRETARY, U.S. DEPARTMENT OF TREASURY,

               Defendant - Appellee




                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:00-CV-1348


Before HIGGINBOTHAM, HAYNES, and HIGGINSON Circuit Judges.
PER CURIAM: *
       Poree worked as a revenue agent for the Internal Revenue Service from
July 3, 1967 until his termination on December 17, 1976. On November 7,
1977, after shooting his wife and father-in-law, Poree went on a shooting spree
through downtown New Orleans. The jury rejected Poree’s defense of not guilty
by reason of insanity, and Poree was sentenced to life in prison without the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                       No. 16-30836

possibility of parole on January 3, 1979. On July 20, 1999, a federal district
court granted Poree’s application for a writ of habeas corpus, vacating the
conviction and sentence. The district court ordered the state to accept the
Plaintiff’s plea of not guilty by reason of insanity. Thereafter, Poree was
diagnosed with schizophrenia and was civilly committed to the Louisiana State
Hospital, where he has remained confined ever since.
       Poree brought this suit on June 29, 2000 seeking reinstatement into the
IRS, back pay, and disability retirement. The case was administratively closed
and stayed by the district court on January 7, 2003, pending a determination
that Poree was able to establish that he was competent to proceed. On motion
by Poree, the district court found that Poree was competent to proceed and
reopened the case on March 31, 2015. On July 9, 2015, Defendant moved to
dismiss the action without prejudice under Rule 12(b)(1), arguing that the
district court lacked jurisdiction over the case because Poree cannot establish
that he exhausted his administrative remedies before the Civil Service
Commission. The district court granted that motion on June 27, 2016. Poree
appeals from that dismissal.
       Our review of a dismissal for want of subject matter jurisdiction is de
novo. 1 “Federal courts are courts of limited jurisdiction, possessing only that
power authorized by Constitution and statute.” 2 “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.” 3 “In
examining a Rule 12(b)(1) motion, the district court is empowered to consider
matters of fact which may be in dispute.” 4 “A case is properly dismissed for

       1  Home Builders Ass’n of Miss. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)
(citing Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (5th Cir. 1994)).
        2 Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (internal quotation marks omitted).
        3 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
        4 Ramming, 281 F.3d at 161 (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.

1981)).
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                                    No. 16-30836

lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” 5
      The district court construed Poree’s claim as seeking relief under the
Civil Service Reform Act of 1978. Before a plaintiff may bring an action in the
district court under the CSRA, he must have exhausted his administrative
remedies. 6 On appeal, Poree argues that he exhausted his remedies by
appealing his dismissal to the district director who dismissed him, then to the
regional U.S. Civil Service Commission office in Dallas, Texas, then to the
national office of the U.S. Civil Service Commission in Washington, D.C. Poree
claims that former district director William Orr visited him at his residence
and informed him that his appeal had been granted and that he would be
reinstated. Poree offers no evidence in support of his claims outside of his own
recollection. Poree’s own unsworn and contradictory assertions are not
sufficient to carry his burden in establishing the exhaustion that would allow
the federal courts to exercise subject matter jurisdiction over his claim. The
district court correctly dismissed his case without prejudice.
      AFFIRMED.




      5 Hooks v. Landmark Indus., Inc., 797 F.3d 309, 312 (5th Cir. 2015) (quoting Home
Builders Ass’n of Miss., 143 F.3d at 1010) (internal quotation marks omitted).
      6 See 29 C.F.R. § 1614.310; Smith v. Porter, 400 F. App’x 806, 812 (5th Cir. 2010)


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