Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

No. 90-55083.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Southern District of California, No. CA88-1301-JL1-BTM; J. Lawrence Irving, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before CANBY and RYMER, Circuit Judges, and LEVI, District Judge.^** 

MEMORANDUM^*** 

Edward Peterman appeals the district court's dismissal of his action for lack of subject matter jurisdiction. Peterman concedes that the district court properly dismissed certain claims in his complaint because the availability of relief under the Civil Service Reform Act (CSRA) precluded relief in the district court, but he contends that the district court should not have dismissed other claims because they were not precluded. We affirm.

* Peterman first argues that, although the CSRA precludes Bivens¹  actions for money damages, Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989), it does not preclude actions for injunctive relief based on constitutional violations. Peterman relies on Spagnola v. Mathis, 859 F.2d 223, 230 (D.C. Cir. 1988) (en banc), in which the D.C. Circuit "affirmed the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights."

Peterman has pointed to no Ninth Circuit authority adopting this position, and other circuits have reached the opposite conclusion. See, e.g., Hallock v. Moses, 731 F.2d 754, 757-58 (11th Cir. 1984) (plaintiff's claim for equitable relief based on unconstitutional retaliation for filing grievance must be pursued through the CSRA procedures). We need not reach the issue, however, because even if we were to adopt the D.C. Circuit's position, Peterman has not shown how his constitutional rights were violated so as to warrant equitable relief.

On the face of his complaint, he has raised only issues of contract and tort. On appeal, he asserts that the defendants violated his first amendment rights, apparently because they retaliated against him for filing a grievance. Even if we construe his complaint liberally to include such a claim, he has not stated a claim that would establish a constitutional violation. The Supreme Court has held that a public employer only violates an employee's first amendment rights by retaliation if the employee's speech was on an issue of public concern:

[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 75 L. Ed. 2d 708, 720 (1983). Here, Peterman simply filed a grievance in his own employment matter, and he gives no indication that he spoke out on an issue of public concern. Therefore, the defendants could not have violated Peterman's first amendment rights, and Peterman did not establish a basis for subject matter jurisdiction outside of the CSRA.

II

Peterman next argues that the CSRA does not apply to defendant Engelhardt because she was not a supervisor and therefore was not covered by the CSRA. See 5 U.S.C. § 2302(b). This argument also lacks merit. If Engelhardt's actions were simply those of a fellow worker and were not prohibited by the CSRA, then Peterman has not established subject matter jurisdiction as to Engelhardt. As stated above, Peterman has not shown a constitutional violation, and his claims for defamation and infliction of emotional distress do not raise federal questions. Thus, Peterman's claim against Engelhardt was properly dismissed even if it were not precluded by the CSRA.

III

Finally, Peterman contends that he should have been permitted to bring suit in the district court for violation of his first amendment rights because the retaliatory acts were beyond the scope of the CSRA. As with his first argument, Peterman cannot establish subject matter jurisdiction on this ground because he has not stated facts that would establish a constitutional violation.

AFFIRMED.