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                                                                       No. l7-312C

                                                           (Filed: August 22, 2017)                                           FILED
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                                                                                                                            U.S. COURT OF
THURSTON SANDERS,                                                                                                          FEDERAL CLAIMS


                                               Plaintiff,



THE I.JNITED STATES,

                                               Defendant.

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                                                           OPINION AND ORDER

       Thurston Sanders, a currently incarcerated pro se plaintiff, alleges that he was
unlawfully denied an opportunity to participate in a federally funded job-training program
on the basis of his age. The Govemment has filed a motion to dismiss for lack of subject
matter jurisdiction. For reasons explained below, the Court GRANTS the Govemment's
motion to dismiss Mr. Sanders' claims.

                                                                       Backsround

        Mr.   Sanders is an inmate a1 the Federal Corrections Institute at Fort Dix, New
Jersey. Compl . at2. At some point, Mr. Sanders was enrolled in the "Lincoln Technical
Institute HVAC Training Program." Id. at 1 . On or around September 4, 201 5, Mr. Sanders
was dismissed from this training program. Id. at 3. Mr. Sanders alleges that he was
dismissed due to his age in violation ofthe "Age Discrimination Act". Id. at l. Mr. Sanders
first filed a grievance with the Federal Bureau ofPrisons on June 27,2016. Id. at 7. On
Augusl 2, 2016, the Federal Bureau of Prisons denied his "adrninistrative tort claim"
because Mr. Sanders "[had] not alleged a physical injury actionable under the Federal Tort
Claims Act." Id.

        On February 22,2017, Mr. Sanders filed a complaint before the U.S. District Court
of New Jersey seeking $ I .2 million for being dismissed from the Lincoln Technical
Institute HVAC Training Program due to his age. Sanders v. United States, Case No. 17-




                                                                                                               7017 1q5D !000 t i'lh   ESrih
12 1 8,Dkt. No. 1 , at 6 (D.N.J. Feb. 22,2017). According to the complaint, the Government
violated the "Age Discrimination Act" by unlawfully dismissing Mr. Sanders from the
training program. Id. On March 7, 2017, thirteen days later, Mr. Sanders filed a complaint
before this Court seeking $ 1.2 million for unlawful age discrimination resulting in his
dismissal from thc same training program. Compl. at 4. The Govemment filed a Rule
 12(bXl)motiontodismissonMay26,20lT. Gov.'s Mot. at 1. In Mr. Sanders' response
to the Government's motion to dismiss, he requests both that the Court stay proceedings
and refer him to the Court's pro bono counsel program. Pl.'s Resp. at l-2. The parties
completed briefing on the motion to dismiss on August 15,2017 and the Court has deemed
oral argument unnecessary.

                                           Discussion

          The Tucker Act ordinarily is the focus of subject matter jurisdiction in this Court,
and states:

                The United States Court of Federal Claims shall have
                jurisdiction to render judgment upon any claim against the
                United States founded either upon the Constitution, or any Act
                of Congress or any regulation of an executive department, or
                upon any express or implied contract with the United States, or
                for liquidated or unliquidated damages in cases not sounding
                in tort.

28 U.S.C. $ 1a9l(a)(1). The Tucker Act itself "does not create a cause of action." RHI
Holdings. Inc. v. United States,142F.3d 1459,1461 (Fed. Cir. 1998). Thus, a plaintiff
must identi$ a "separate source of substantive law that creates the right to money
damages" in order to invoke the Court's jurisdiction over a claim. Greenlee County. Ariz.
v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005)). Failure to establish jurisdiction under the Tucker Act
requires the Court to dismiss under Rule 12(bX1). Outlaw v. United States, 116 Fed. Cl.
656, 658 (2014). When deciding a Rule 12(b)(l) motion to dismiss, a court must assume
all the undisputed facts in the complaint are true and draw reasonable inferences in the non-
movant's favor. Erikson v. Pardus, 551 U.S. 89,91 (2007). Courts hold pleadings made
by pro se plaintiffs to a less stringent standard and liberally construe language in the
plaintiffs favor. Erickson, 551 U.S. at 94; Haines v. Kemer,404 U.S. 519,520 (1972).
However, Mr. Sanders' claim does not survive the 12(b)(1) motion to dismiss.

      This Court does not have jurisdiction to adjudicate claims of age discrimination
becausc district courts have exclusive jurisdiction over claims arising under the Age
Discrimination in Employment Act. Dixon v. United States, 1'1 Ct. C|.73,77 (1989);
Cottrell v. United States,42 Fed. Cl. 144, 149-50 ( 1998) ("As courts have repeatedly held,
there is no Tucker Act jurisdiction in the Court of Federal Claims to entertain claims
involving racc, sex, and age discrimination or other claims involving civil rights
violations."). Mr. Sanders claims he was dismissed from the training program because he
was "too old" and explicitly refers to the "Age Discrimination Act" in his complaint.
Compl. at l. 'fherefore, this Court does not have jurisdiction over Mr. Sanders' claim.

        In addition, this Court does not possess jurisdiction over "any claim . . . pending in
any other court . . . ." 28 U.S.C. $ 1500. Claims based on substantially the same facts are
considered the same claim for purposes of $ 1500. Pelleerini v. United States, 103 Fed.
Cl. 47, 50 (2012). This complaint and the complaint currently filed in the U.S. District
Court of New Jersey cite the same facts to allege the same claims. See Sanders v. United
States, Case No. 17-1218, Dkt. No. 1 (D.N.J. Feb.22,2017) (seeking $1.2 million for the
unlawful dismissal from a training program based upon age discrimination). Therefore,
this Court does not have jurisdiction over Mr. Sanders' claim.

                                         Conclusion

       For the reasons stated above, the Govemment's motion to dismiss is GRANTED.
Mr. Sanders has properly filed this claim before the U.S. District Court of New Jersey and
the matter should be resolved there. The Clerk of the Court shall enter judgment
accordingly. In addition, Mr. Sanders' requests to stay proceedings and be referred to the
pro bono counsel program are DENIED as moot. No costs.

       IT IS SO ORDERED.

                                                          ,fl,.*e hfl,J*
                                                         THOMAS C. WFIEELER
                                                         Judge
