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Kidd v. United States

*fn* submitted: September 20, 1993.

DEL KIDD; JUDY KIDD, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE. DEL KIDD; JUDY KIDD, PLAINTIFFS-APPELLANTS, V. UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-91-00523-HDM(R), D.C. No. CV-91-00523-HDM. Howard D. McKibben, District Judge, Presiding

Before: Fletcher, Poole, and O'scannlain, Circuit Judges.

MEMORANDUM

In No. 92-15657, Del and Judy Kidd appeal pro se the district court's orders (1) dismissing their action for damages for lack of subject-matter jurisdiction; and (2) denying their request for leave to file an amended complaint. In No. 92-16455, the Kidds appeal the district court's order denying their motion for discovery pending appeal. We have jurisdiction to review these orders pursuant to 28 U.S.C. § 1291. We affirm.

I

No. 92-15657

A. Dismissal for Lack of Subject-Matter Jurisdiction

We review de novo the district court's dismissal for lack of subject-matter jurisdiction. Rivera v. United States, 924 F.2d 948, 950 (9th Cir. 1991).

Del Kidd is an employee of the federal Bureau of Reclamation, an agency of the United States Department of the Interior. On July 12, 1991, the Kidds filed a complaint in the federal district court for the District of Nevada, naming the United States, the Bureau, the Department, and unnamed employees of those agencies as defendants. The Kidds alleged numerous wrongful actions taken by various employees of the Bureau and Department, including Del's supervisors, against Del during the course of his employment. The Kidds first attempted to obtain redress for these alleged actions through the grievance procedures prescribed by the Civil Service Reform Act of 1978 ("CSRA"). Unsatisfied with the results and convinced that Del's grievances were mishandled, the Kidds filed the instant action.

In their complaint, the Kidds alleged subject-matter jurisdiction under the federal question statute, 28 U.S.C. § 1331, and 28 U.S.C. § 1346(b) and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80. They alleged constitutional and common-law tort claims for (1) defamation, (2) negligence, (3) deprivation of due process, (4) intentional infliction of emotional distress, (5) abuse of authority, and (6) civil conspiracy.

In Rivera, this court held that the CSRA provides the exclusive remedy for federal civil service employees who allege claims arising out of their employment. 924 F.2d at 951-52. Thus, the district court correctly dismissed the Kidds' action to the extent they sought to allege claims under the FTCA. See id. (holding plaintiffs' FTCA claims were barred by CSRA).

In Saul v. United States, this court held that the CSRA precludes constitutional tort claims against individual defendants brought under Bivens v. Six Unknown Named Agents of Fed. Narcotics Bureau, 403 U.S. 388 (1970). 928 F.2d 829, 835-40 (9th Cir. 1991). The court held that a Bivens claim is precluded whether or not the CSRA provides a remedy for the particular alleged wrong. 928 F.2d at 835-40. The court also held that the CSRA preempts common-law tort claims. Id. at 840-43. Relying on Saul, the district court dismissed the Kidds' action.

The Kidds contend that this case is distinguishable from Saul. We disagree. It is true that the plaintiff in Saul failed to seek redress under the CSRA before filing his district court action. See 928 F.2d at 833. Nevertheless, the Kidds' pursuit of remedies under the CSRA is irrelevant. As we stated above, the CSRA would preclude their claims even if they did not have a remedy under that statute. See id. at 835-40. Thus, the Kidds' pursuit of their administrative remedies is not a distinguishing factor.

The Kidds also contend that their case is distinguishable because their claims arise not out of "ordinary job-related circumstances," but rather, out of the "mishandling" of Del's grievances. This contention lacks merit. First, some of their allegations (those relating to the letter of warning, the transfer and suspension, and the harassment) are job-related.*fn1 Thus, any claims based on these allegations are barred by the CSRA. See Saul, 928 F.2d at 835-43. Second, even if Del's grievances were somehow mishandled, the CSRA provides a remedy -- administrative review by the Merit Systems Protection Board and a subsequent appeal, if necessary, to the Federal Circuit. See 5 U.S.C. §§ 1204(a) & 7703(b)(1).

We thus conclude that the district court did not err by dismissing the Kidds' action for lack of subject-matter jurisdiction. See Saul, 928 F.2d at ...


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