Unpublished Disposition, 875 F.2d 318 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1988)

Joe T. MASCARENAS, Plaintiff-Appellant,v.Captain T.R. O'CONNOR, Mr. H. Sesma, Mrs. R. Mead, Mr. C.Arnold, Ms. D. Lockard, Ms. L. Kuwale, Ms. C.Kennedy, Mr. H. Lee, Defendants-Appellees.

No. 88-6015.

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 1989.* Decided May 15, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Joe T. Mascarenas appeals pro se the district court's order dismissing for lack of jurisdiction his employment discrimination action against several employees of the United States Department of the Navy. He contends that the defendants denied him federal employment because he is Hispanic and 52 years old. We review de novo, Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir. 1987), and affirm.

Mascarenas applied but was not selected for employment at the United States Naval Air Rework Facility (NARF). After an adverse decision by NARF's commanding officer, he brought suit claiming violations of Title VII, the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. §§ 1981, 1982, 1985(3), and the due process and equal protection clauses of the fifth amendment. He named eight individual employees of the Navy as defendants.

The government moved to dismiss. The district court found that Mascarenas failed to name the proper defendant, the Secretary of the Navy. The court further found that Mascarenas had not served the Secretary within thirty days of the filing of the complaint, and accordingly dismissed the action. Mascarenas appeals.

* Jurisdiction

The government contends that we have no jurisdiction to hear Mascarenas's appeal because (1) the district court's dismissal of his action was not a final order and (2) Mascarenas's notice of appeal was untimely. These contentions are without merit.

A district court order dismissing an action without prejudice is final and appealable. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985). Here, the district court dismissed Mascarenas's action without prejudice. It is therefore appealable.

Further, Mascarenas's notice of appeal was timely. The separate judgment dismissing Mascarenas's action was entered on November 17, 1987. Mascarenas filed a notice of appeal on January 16, 1988, sixty days from the entry of judgment.1  The notice of appeal is therefore timely. See Fed. R. App. P. 4(a).



The district court properly dismissed Mascarenas's Title VII and ADEA claims because he failed to notify the proper defendant, the Secretary of the Navy, within the jurisdictional time limit. 42 U.S.C. § 2000e-16(c). See Koucky v. Department of the Navy, 820 F.2d 300, 302 (9th Cir. 1987) (Title VII); Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1050 (1987) (ADEA).

The district court also properly dismissed Mascarenas's claims under sections 1981, 1982 and 1985(3), and the due process and equal protection clauses of the fifth amendment. In all of these claims, he sought relief from the defendant's allegedly discriminatory actions in denying him a federal employment contract. Because Title VII is the exclusive remedy for discrimination in federal employment based on race, we affirm the district court's dismissal of these claims to the extent that they are based on allegations of race discrimination. Brown v. General Services Administration, 425 U.S. 820, 835 (1976).

Moreover, the allegations in Mascarenas's complaint are insufficient to state a claim for age discrimination under section 1985 or the equal protection clause; they are vague and conclusory and do not show how the defendants conspired to discriminate against him on the basis of age. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court did not err in dismissing these claims.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Although there is no copy of notice of appeal in the clerk's record, the district court stated that Mascarenas filed a notice of appeal on January 16, 1988