Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 39 (9th Cir. 1990)

August HEITMAN; Janet Heitman; Jerry Youel, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.

No. 89-35507.

United States Court of Appeals, Ninth Circuit.

Submitted May 8, 1990.* Decided May 14, 1990.

Before FARRIS, PREGERSON and BOOCHEVER, Circuit Judges.


August Heitman, Janet Heitman, and Jerry Youel appeal the district court's dismissal of their claims for lack of subject matter jurisdiction. August Heitman and Jerry Youel were civilian employees of the United States Coast Guard, and Janet Heitman is August's spouse. Plaintiffs claim that the Coast Guard forced Heitman and Youel to work under unsafe conditions, retaliated against them for filing labor and administrative grievances, and eventually forced them to resign. The district court held that the exclusive remedy for plaintiffs' employment related claims was provided by the Civil Service Reform Act of 1978, and dismissed the suit for lack of subject matter jurisdiction. Plaintiffs appeal. We affirm.

Except for injuries arising out of and in the course of their employment, the Civil Service Reform Act is the exclusive remedy for all such employment related disputes with the United States. See Lehman v. Morrissey, 779 F.2d 526 (9th Cir. 1985). As to possible disability claims, plaintiffs exclusive remedy is the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101-8193 (1982).

Before bringing their claim to federal court Plaintiffs must at a minimum exhaust their administrative remedies. See Lehman at 528. They have not done so. We understand Plaintiffs' argument that they pursued their administrative remedies as far as possible and that any further administrative procedures would be futile. However, even if futility were a valid excuse for exhaustion under these circumstances, cf. Gemmell v. FAA, 558 F. Supp. 918 (D.D.C. 1982), Plaintiffs never pursued administrative remedies for the claims they now press in federal court and have made no showing of futility. Plaintiffs only brought charges of unsafe working conditions before the Federal Labor Relations Authority. These charges arose out of the same nexus of facts as the claims Plaintiffs now pursue, but they are distinct claims. Plaintiffs have never pursued any administrative remedies for their allegations of constructive termination, nor have they demonstrated why such claims would be futile.



The panel unanimously finds this case suitable for submission without oral argument. See 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 Circuit Rule 36-3