UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-2424


MINISTER TRAZELL,

                    Plaintiff - Appellant,

             v.

ARLINGTON COUNTY,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:19-cv-01491-LMB-TCB)


Submitted: June 11, 2020                                          Decided: July 9, 2020


Before DIAZ and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Minister Trazell, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Minister Trazell appeals the district court’s order sua sponte dismissing his civil

action for lack of subject matter jurisdiction. Trazell alleged discrimination against him as

an Indigenous American, in not hiring him for an open position for which he qualified, and

claimed violations of the Civil Rights Act of 1866, 14 Stat. 27, Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2018), and 42 U.S.C. §§ 1981,

1983, 1985, 1986 (2018). He asserted the district court had federal question jurisdiction

under 28 U.S.C. § 1331 (2018). The district court applied the well-pleaded complaint rule

and dismissed the action for lack of subject matter jurisdiction because the court was unable

to discern the substance of plaintiff’s factual allegations. We vacate and remand.

       “If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see Arbaugh v. Y&H Corp., 

, 514 (2006); United States ex rel. Carson v. Manor Care, Inc., 

, 303 (4th

Cir. 2017). A plaintiff bears the burden of establishing jurisdiction. Demetres v. E.W.

Const., Inc., 

, 272 (4th Cir. 2015). In a facial challenge, a plaintiff is afforded

the same procedural protections as he would receive under Fed. R. Civ. P. 12(b)(6),

wherein the facts alleged are taken as true, and the action must not be dismissed if the

complaint alleges sufficient facts to invoke subject matter jurisdiction. Beck v. McDonald,

, 270 (4th Cir. 2017) (citation omitted). A federal court is also required to

dismiss an in forma pauperis action or appeal if it is frivolous, malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2018). Pro se pleadings must be

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liberally construed. Bazemore v. Best Buy, 

, 200 (4th Cir. 2020). To avoid

dismissal for failure to state a claim, a complaint must “contain factual allegations that

‘raise a right to relief above the speculative level, thereby nudging [the] claims across the

line from conceivable to plausible.’”

review de novo a dismissal

for lack of subject matter jurisdiction, 

, and a dismissal for failure

to state a claim under § 1915, Martin v. Duffy, 

, 248 (4th Cir. 2017).

       “In recent years, the Supreme Court has cautioned against drive-by jurisdictional

rulings, that dismiss a claim for lack of jurisdiction when some threshold fact has not been

established, without explicitly considering whether the dismissal should be for lack of

subject matter jurisdiction or for failure to state a claim.” Holloway v. Pagan River

Dockside Seafood, Inc., 

, 452 (4th Cir. 2012) (internal quotation marks and

citations omitted). “Its admonition is grounded in the principle that the subject matter

jurisdiction of a federal court is not generally resolved by concluding that the plaintiff has

failed to allege an element of a federal cause of action or that the plaintiff might not be able

to prove an element of a federal cause of action.”

must look more

fundamentally at whether the plaintiff’s claim is determined by application of a federal law

over which Congress has given the federal courts jurisdiction.”

his complaint

should not be dismissed for a lack of subject matter jurisdiction, as the federal courts have

been given the power and the authority to hear and resolve such claims.”

matter jurisdiction relates to a federal court’s power to hear a case, and that power

is generally conferred by the basic statutory grants of subject matter jurisdiction, such as

28 U.S.C. § 1331 or 28 U.S.C. § 1332.”

(citation omitted).

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       “If a plaintiff invoking § 1331 pleads a colorable claim arising under the

Constitution or laws of the United States, he invokes federal subject matter jurisdiction,

and deficiencies of the claim should be addressed by the other mechanisms provided by

the federal rules.”

and citation omitted). In Holloway, we

concluded there was subject matter jurisdiction over plaintiff’s claim since his complaint

“alleged a colorable Jones Act claim in that it was not ‘so insubstantial, implausible,

foreclosed by prior decisions . . . or otherwise completely devoid of merit as not to involve

a federal controversy.’”

(citation omitted). Here, it is not clear from the district

court’s order that it applied this standard; and it did not explicitly consider whether the

dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.

       Accordingly, we vacate the district court’s order and remand for further proceedings

consistent with this opinion. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

                                                              VACATED AND REMANDED




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