Rebecca Fuller, Plaintiff-appellant, v. Jerre Kaufman; Gordon Ravenscroft; Robert T. Simon;richard C. Jernigan, Defendants-appellees, 43 F.3d 1479 (9th Cir. 1994)

MEMORANDUM^** 

Rebecca Fuller appeals the district court's dismissal of her claim for lack of subject matter jurisdiction. We review de novo a district court's conclusion that it lacks subject matter jurisdiction. Carpenter v. Department of Transp., 13 F.3d 313, 314 (9th Cir. 1994). We affirm.

Fuller alleges that the defendants violated 42 U.S.C. § 1983 by, among other things, denying her free speech rights. The district court dismissed the complaint, finding that it was barred by intragovernmental immunity pursuant to Chappell v. Wallace, 462 U.S. 293 (1983). In Chappell, the Supreme Court held that enlisted military personnel may not maintain suits to recover damages from a superior officer for alleged constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). However, the Court expressly left open the question of whether the appellant's statutory claim was judicially cognizable. Id. at 305 n. 3. This court has done the same. Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir. 1988), cert. denied, 490 U.S. 1098 (1989).

In this case we do not reach the cognizability issue because Fuller's section 1983 claim must be rejected for failure to allege exhaustion of intraservice remedies. Miller v. Newbauer, 862 F.2d 771, 775 (9th Cir. 1988).

AFFIRMED.