                                                         NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ____________

                                        No. 13-2985
                                       ____________

                                   WINSTON J. BANKS,
                                                  Appellant,

                                              v.

                               FIRST JUDICIAL DISTRICT
                          __________________________________

                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                 (D.C. Civ. No. 13-cv-01889)
                       District Judge: Honorable Eduardo C. Robreno
                         __________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    November 26, 2013

      Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: November 26, 2013)
                                        ____________

                                         OPINION
                                       ____________


PER CURIAM

          Appellant Winston J. Banks appeals from an order of the District Court dismissing

his civil action for lack of subject matter jurisdiction. For the reasons that follow, we will

affirm.
       On July 12, 2007, Banks filed a Charge of Discrimination with the Pennsylvania

Human Relations Commission and the Equal Employment Opportunity Commission, in

which he alleged discrimination on the basis of race, sex, and disability. Specifically, he

asserted that he had been hired as a “tipstaff” on January 24, 2000 by Judge Glynnis Hill

of the Philadelphia Court of Common Pleas, First Judicial District. On October 20, 2006,

he requested permission to leave early due to a medical condition. Although he had a

balance of 40 sick leave days or more, Judge Hill told him that if he left work he would

be terminated. Banks, a veteran, went to the Veterans Administration Hospital for

treatment anyway and was terminated that day. Banks further asserted that a pregnant

law clerk had been treated more favorably in that she had been allowed to work from

home, and that two white male court officers left work before the end of their shifts on a

number of occasions.

       Banks was issued a right-to-sue letter, and he then filed his first pro se federal

unlawful discrimination civil action in 2008 in the United States District Court for the

Eastern District of Pennsylvania, see D.C. Civ. No. 08-cv-03132. Banks appeared to

allege only that his termination violated the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101, et seq., and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601,

et seq. The District Court dismissed the complaint and Banks appealed to this Court. On

August 17, 2009, we affirmed, see Banks v. Court of Common Pleas FJD, 342 Fed.

Appx. 818 (3d Cir. 2009), holding that the Court of Common Pleas, as an instrumentality

of the Commonwealth of Pennsylvania, was entitled to Eleventh Amendment immunity



                                              2
from a suit arising out of its alleged failure to comply with the requirements of the ADA

and the FMLA.

       Banks then filed a pro se civil action in state court based on the same events. The

complaint was dismissed and Banks’ appeal to the Pennsylvania Commonwealth Court

was unsuccessful.

       On September 21, 2012, Banks filed a second EEOC charge, in which he again

claimed that his termination was unlawful, and explained that he should have filed his

original EEOC charge under the Government Employee Rights Act (“GERA”), 42 U.S.C.

§ 2000e-16c. 1 The EEOC dismissed the charge as untimely filed on January 22, 2013.

Banks filed a response to the dismissal with the EEOC, and then he returned to federal

court on April 10, 2013 with the instant pro se civil action, alleging that his termination

violated GERA’s anti-discrimination provisions. The defendant Court of Common Pleas,

First Judicial District, filed a motion to dismiss the complaint for lack of subject matter

jurisdiction, contending that judicial review of the EEOC’s decision dismissing the

GERA charge lies exclusively in the court of appeals. In an order entered on May 22,

2013, the District Court, agreeing with the Court of Common Pleas, dismissed Banks’

second federal action for lack of subject matter jurisdiction.




1
 GERA provides that all personnel actions affecting state employees shall be free of any
discrimination based on race, religion, sex, national origin, age, and disability. See id. In
enacting GERA, Congress made the standards of the federal anti-discrimination laws
applicable to state employees who are appointed to the personal staffs of elected state
officials. See Stitz v. City of Eureka Springs, Ark., 9 F. Supp.2d 1046, 1055 (W.D. Ark.
1998).
                                              3
       Banks appeals. We have jurisdiction under 28 U.S.C. § 1291. “When reviewing

an order dismissing a claim for lack of subject matter jurisdiction, we exercise plenary

review over legal conclusions and review findings of fact for clear error.” White-Squire

v. United States Postal Service, 592 F.3d 453, 456 (3d Cir. 2010). Here, it is undisputed

that Judge Hill is an elected state official, see 42 Pa. Cons. Stat. Ann. § 3131(a).

Accordingly, Banks appropriately, if tardily, filed his Charge of Discrimination pursuant

to GERA, see 42 U.S.C. § 2000e-16c.

       The question presented by this appeal concerns Banks’ avenue for judicial review

of the EEOC’s decision dismissing his September 21, 2012 GERA charge. GERA

provides that “[a]ny party aggrieved by a final order” of the Equal Employment

Opportunity Commission “may obtain a review of such order under chapter 158 of Title

28,” or, in other words, review of this agency’s GERA orders lies exclusively in a court

of appeals. 42 U.S.C. § 2000e-16c(c). See also Kelley v. City of Albuquerque, 542 F.3d

802, 808 n.4 (10th Cir. 2008) (same); Crain v. Butler, 419 F. Supp.2d 785, 788 (E.D.N.C.

2005) (same). This provision that the courts of appeals have exclusive jurisdiction to

review EEOC orders in GERA cases is a “dramatic departure” from the other anti-

discrimination laws, which, like the ADA, provide for de novo review in a federal district

court, cf. Kelley, 542 F.3d at 808 n.4 (addressing Title VII). Accordingly, the District

Court properly dismissed Banks’ second civil action based on a GERA claim for lack of

subject matter jurisdiction. 2


2
  Although Banks did not file an appeal of the EEOC’s decision in this Court within the
required 60 days, see, e.g., Brazoria County, Tex. v. E.E.O.C., 391 F.3d 685, 688 (5th
                                              4
For the foregoing reasons, we will affirm the order of the District Court dismissing the

Banks’ complaint for lack of subject matter jurisdiction.




Cir. 2004) (“Under chapter 158, there is a 60 – day period to file a petition for review of
an agency order.”), it appears that the EEOC’s untimeliness determination was
nonetheless correct in that his September 21, 2012 GERA charge of discrimination was
not filed within 180 days from the date of his termination on October 20, 2006, see 42
U.S.C. § 2000e-16c(b)(1).
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