Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)

MEMORANDUM^* 

Justin C.S. Kim was previously employed at the Defense Language Institute as an instructor. His position was in the "excepted service" which did not afford him the protection of civil service.

Kim's employment at the institute was characterized by obstreperous conduct. He was terminated because of insubordination and unprofessional conduct. He brought suit on constitutional and state common-law tort grounds, alleging the dismissal violated his rights. His case was dismissed on a motion for summary judgment, from which he timely appeals.

Having been discharged from government employment, Kim claims: (1) his first amendment rights were violated in that his conduct characterized as insubordination and unprofessionalism was "protected activity," (2) his fifth amendment rights were violated in that he had (a) a property right to the job from which he was fired and (b) a liberty interest against slander that would affect his employability, (3) he was entitled to relief under the Freedom of Information Act in that he was denied information relevant to his removal, (4) he was entitled to injunctive relief, and (5) summary judgment on these claims was inappropriate. All of these claims lack merit, and the district court's grant of summary judgment against Kim was proper.

Kim's claims were properly denied because: (1) Connick v. Myers, 461 U.S. 138 (1983), holds that speech primarily concerned with one's own employment situation is not protected by the first amendment, and Kim's speech falls into this category. Moreover, a federal employee is not entitled to a constitutional remedy for an alleged violation of first amendment rights where sufficient statutory remedies exist, Bush v. Lucas, 462 U.S. 367, 386 (1983); and Kim had sufficient remedies under the Army Civilian Appellate Review Agency, 5 C.F.R. Sec. 771.201, et seq., the adequacy of which he does not dispute and which may still be open to him. [Supp. ER-II, Att. 6 at 2]. (2) There is no property right in a federal excepted service job, i.e., a position without contractual or tenure security or a "reasonable expectation of continued employment," Dorr v. County of Butte, 795 F.2d 875, 878 (9th Cir. 1986); cf. Boehm v. Foster, 670 F.2d 111, 114 (9th Cir. 1982); and no liberty interest exists in connection with a discharge from the excepted service unless honesty or morality is brought into question in connection with the discharge in a manner that diminishes his future employment opportunities. Board of Regents v. Roth, 408 U.S. 564, 573 (1972). Consequently, Kim cannot point to any property or liberty interest of which he was deprived. (3) The Freedom of Information Act, 5 U.S.C. § 552 et. seq., does not allow damages. In any event, the required information was provided to him in February, 1985, rendering his claim moot. (4) Injunctive relief is properly denied where summary judgment is granted in the opponent's favor, since injunctive relief requires that some degree of success on the merits be shown.

Furthermore, personal liability does not attach to individual federal employee defendants where the power to discharge an employee is within their discretionary authority since this entitles them to qualified immunity, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Also, state common law tort claims can only be brought against the United States under the Federal Tort Claims Act. Kim never pled nor proved jurisdiction under the FTCA, 28 U.S.C. § 2670, et seq.

The district court entered two orders fully analyzing Kim's claims and the law entitling the government to summary judgment. [ER: 35, ER: 109]. The record affirmatively shows Kim was discharged "for cause." He had frequent disputes with his supervisor, refused to accept class assignments, was absent without leave, and made threatening remarks and gestures at his supervisor. [Supp. ER-I, 29, 48, 80; Supp. ER-II, Att. 4 and 5]. In all respects, Kim was accorded ample and appropriate procedural consideration in the manner in which his discharge was processed in connection with these charges.

The judgment of the district court is affirmed.

AFFIRMED.