Sherlyn Johnson v. U.S. Secretary of the Army

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10454
Non-Argument Calendar
____________________
SHERLYN JOHNSON,
Plaintiff-Appellant,
versus
U.S. SECRETARY OF THE ARMY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:22-cv-00036-CLM
____________________
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2 Opinion of the Court 23-10454
Before ROSENBAUM, G RANT, and A NDERSON , Circuit Judges.
PER CURIAM:
Sherlyn Johnson, in a counseled complaint, sued the
Secretary of the Army, alleging race and gender discrimination and
unlawful retaliation. The district court concluded that it lacked
subject-matter jurisdiction and dismissed her suit without
prejudice. Johnson now challenges that conclusion on appeal. We
affirm.
Johnson’s third amended complaint includes two counts:
(1) “Violation of 42 U.S.C. § 1981 Discrimination”; and
(2) “Violation of 42 U.S.C. § 1981 Retaliation.” The district court
dismissed her complaint for lack of jurisdiction, reasoning that the
federal government has not waived its sovereign immunity for
§ 1981 claims. On appeal, Johnson argues that even though her
“chosen language highlighted 42 U.S.C. § 1981, the basis and crux
of her argument pertained to violations of [Title VII]”—claims for
which the United States has waived its immunity. To support that
contention, she points to other parts of the complaint that
alternatively mention Title VII and the Federal Torts Claims Act as
bases for the court’s jurisdiction.
Although Johnson may have mentioned Title VII in her
complaint, she did not bring any Title VII claims against the
Secretary. Instead, she chose to sue under § 1981. But we have
long held that “the United States has not waived its immunity to
suit under” § 1981. United States v. Timmons, 672 F.2d 1373, 1380
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23-10454 Opinion of the Court 3
(11th Cir. 1982). That section “does not provide a cause of action
for discrimination under color of federal law.” Lee v. Hughes, 145
F.3d 1272, 1277 (11th Cir. 1998). Because Johnson’s only claims
against the Secretary were brought under § 1981, the district court
properly concluded that it lacked subject-matter jurisdiction.
Accordingly, we AFFIRM.
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