                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                        September 28, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 SOLOMON PANICKER,

        Plaintiff - Appellant,
                                                              No. 12-6115
 v.                                                    (D.C. No. 5:11-CV-01145-F)
                                                              (W.D. Okla.)
 STATE DEPARTMENT OF
 AGRICULTURE; MERIT PROTECTION
 COMMISSION; DEPARTMENT OF
 AGRICULTURE, Director; OKLAHOMA
 OFFICE OF PERSONNEL
 MANAGEMENT, Commissioner; SUSAN
 BUSSEY, Merit Protection Commissioner;
 COMMISSIONER OF AGRICULTURE,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.




        *After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
       Petitioner-Appellant Solomon Panicker, a former Oklahoma Department of

Agriculture (ODA) employee appearing pro se,1 appeals from the district court’s

dismissal of his discrimination complaint for lack of subject matter jurisdiction.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

       On October 12, 2011, Mr. Panicker filed his complaint against the ODA and other

state defendants alleging racial discrimination. Mr. Panicker’s complaint points to three

main instances of discrimination: (1) he was falsely accused of a co-worker’s “work

issues,” which resulted in two suspensions; (2) he was “harassed, demoralized, and

intimidated” by his director; and (3) he was told to resign by phone. ROA, Vol. 1 at 7.

       On April 23, 2012, the United States District Court for the Western District of

Oklahoma found that it lacked subject matter jurisdiction to hear the case and

consequently dismissed the case without prejudice pursuant to Fed. R. Civ. P. 12(b)(1).

Id. at 13-14; see Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)

(“[D]ismissals for lack of jurisdiction should be without prejudice because the court,

having determined that it lacks jurisdiction over the action, is incapable of reaching a

disposition on the merits of the underlying claims.”).


       1
         Because Mr. Panicker is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however at the point at which we begin to
serve as his advocate.”).


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       The district court also denied Mr. Panicker leave to amend the complaint. The

court reasoned that amendment would be futile as time-barred because the complaint

“arises out of [Mr. Panicker’s] long ago terminated employment with the ODA and . . .

his complaints filed with the Merit Protection Commission which were finally

adjudicated in 1993.” ROA, Vol. 1 at 15. Mr. Panicker filed his notice of appeal on

April 27, 2012.

       We understand Mr. Panicker to argue in this appeal that the district court erred by

ruling it lacked subject matter jurisdiction to hear this case and by denying Mr. Panicker

leave to amend his complaint. He also argues that during his employment with the ODA,

he was subjected to racial discrimination in violation of his civil rights2 and Executive

Order Number 10925, which established the President’s Committee on Equal

Employment Opportunity (EEOC).

       We first address subject matter jurisdiction. “We review a dismissal for lack of

subject-matter jurisdiction de novo, accepting the district court’s findings of jurisdictional

facts unless they are clearly erroneous.” Montoya v. Chao, 296 F.3d 952, 954-55 (10th

Cir. 2002). As the party invoking federal jurisdiction, Mr. Panicker has the burden of

       2
         Mr. Panicker’s opening brief argues that this is a “Race Discrimination” case and
states that he is “an Immigrant from Asia.” Aplt. Br. at 2. Construing his argument
liberally, we interpret his briefs to contend he was discriminated against in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. However, he never
raised this claim with the district court in his complaint or mentioned that he was part of a
protected class. His complaint only alleged “Discrimination, Harrassment [sic], and Hate
Crime.” ROA, Vol. 1 at 7.


                                             -3-
establishing subject matter jurisdiction. Marcus v. Kan. Dep’t of Revenue, 170 F.3d

1305, 1309 (10th Cir. 1999).

       Mr. Panicker did not fulfill this burden. His one-page complaint fails to establish

a basis for federal subject matter jurisdiction, and no diversity jurisdiction exists because

all parties are Oklahoma residents. Thus, the district court properly dismissed Mr.

Panicker’s complaint without prejudice for lack of subject matter jurisdiction.

       We next address the district court’s denial of leave to amend Mr. Panicker’s

complaint because Mr. Panicker’s claims are time-barred. We review the district court’s

refusal to allow Mr. Panicker “leave to file an amended complaint” for abuse of

discretion. Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010). Courts should

give leave to amend freely, especially when the plaintiff is proceeding pro se. Fed. R.

Civ. P. 15(a); see also Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998). But

courts may refuse to give parties leave to amend “upon a showing of . . . futility of

amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993). “A proposed

amendment is futile if the complaint, as amended, would be subject to dismissal.”

Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Serv., Inc., 175 F.3d 848, 859

(10th Cir. 1999). We agree with the district court that granting leave to amend in this

instance would be futile because no amendment would change that Mr. Panicker’s claims

are time-barred.

       Like the district court, we find that “[u]ncontroverted evidence shows that [Mr.

Panicker] resigned from the ODA on May 21, 1991, approximately 20 years before this
                                             -4-
action was filed on October 12, 2011.” ROA, Vol. 1 at 17. The statutes of limitations

have long since run on any employment-related legal theory or cause of action.3

       We affirm the district court’s dismissal of Mr. Panicker’s complaint for lack of

subject matter jurisdiction and the court’s denial of leave to amend the complaint.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




       3
         Mr. Panicker purports to bring this action based on the Oklahoma Merit
Protection Commission’s denial of his petition for relief. In 1993, the Oklahoma Court of
Civil Appeals affirmed the state district court’s determination that Mr. Panicker’s claim
with the Merit Protection Commission was untimely.
       Furthermore, to preserve a claim under Title VII of the Civil Rights Act of 1964,
an aggrieved employee must submit a charge of discrimination to the EEOC within 180
days of the allegedly unlawful incident, or within 300 days of the incident if the
employee first presented the charge to a state or local equal employment opportunity
agency. See 42 U.S.C. § 2000e-5(e)(1). On July 15, 2011, the EEOC dismissed Mr.
Panicker’s claim as untimely.

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