Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1095 (9th Cir. 1989)

Thomas Lowell KETCHUM, Jr., Plaintiff-Appellant,v.UNITED STATES DEPARTMENT OF TRANSPORTATION; FederalAviation Administration; Edward Lee Couch, AirTraffic Manager, Reno ATC Tower, NV,Defendants-Appellees.

No. 88-15163.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1989.Decided Nov. 20, 1989.

Before WALLACE, PREGERSON and ALARCON, Circuit Judges.


Ketchum appeals from the dismissal of his action brought in the district court against the Department of Transportation, the Federal Aviation Administration, and Couch. The district court had authority to entertain his action pursuant to 28 U.S.C. §§ 1331 and 1346(b). We have jurisdiction over his timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

The district court properly dismissed the action against the two governmental agencies because actions based on deceit are precluded by the Federal Tort Claims Act. 28 U.S.C. § 2680(h).

We need not decide which party is correct on the merits or whether Couch is shielded from Ketchum's action by the absolute immunity doctrine. See Briscoe v. LaHue, 460 U.S. 325, 370 (1983); Butz v. Economou, 438 U.S. 478, 513 (1978). Rather, we decide this case based on whether Ketchum may bring his Bivens action against Couch. Specifically, we must decide whether the action is precluded by the Civil Service Reform Act when the acts sued upon in the Bivens action are alleged to subvert the administrative remedies of the Act.

Both parties cited our case of Kotarski v. Cooper, 799 F.2d 1342 (9th Cir. 1986). Unfortunately, neither in subsequent memoranda to this court nor at oral argument did either counsel point out that the Supreme Court remanded that case for our reconsideration in light of Schweiker v. Chilicky, 108 S. Ct. 2460 (1988). When we did so, we came to a different conclusion, which is dispositive of this case. Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989). Clearly, Ketchum's action against Couch is foreclosed by our second Kotarski opinion and we so hold.

Ketchum's motion for sanctions is denied.


Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.