Blue v. Widnall

152 F.3d 1149, 98 Cal. Daily Op. Serv. 6349, 98 Daily Journal DAR 8795, 1998 U.S. App. LEXIS 18790, 74 Empl. Prac. Dec. (CCH) 45,495, 1998 WL 472500
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 14, 1998
DocketNo. 97-15107
StatusPublished
Cited by1 cases

This text of 152 F.3d 1149 (Blue v. Widnall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blue v. Widnall, 152 F.3d 1149, 98 Cal. Daily Op. Serv. 6349, 98 Daily Journal DAR 8795, 1998 U.S. App. LEXIS 18790, 74 Empl. Prac. Dec. (CCH) 45,495, 1998 WL 472500 (9th Cir. 1998).

Opinion

BRUNETTI, Circuit Judge:

John Blue, an African-American male and disabled veteran, applied for a civilian intelligence position with the Air Force and was not selected. The district court. dismissed Counts II, III, and IV of Blue’s complaint, which alleged violations of veteran’s preference and merit system principles in the selection process, on the grounds that the court lacked subject matter jurisdiction due to Blue’s failure to point to a waiver of sovereign immunity and, alternatively, that Blue failed to state a claim for which relief could be granted. The court then granted summary judgment in favor of the Air Force on Count I, Blue’s Title VII race/color discrimination claim, on the ground that Blue failed to present sufficient evidence that the Air Force’s proffered explanation for Blue’s non-selection was pretextual. Blue appeals the district court’s dismissal of Counts II-IV and its grant of summary judgment on Count I. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Dismissal of Counts II-IV

The district court dismissed Counts II-IV of Blue’s complaint on the grounds that it lacked subject matter jurisdiction and, alternatively, that Blue failed to state a claim for which relief could be granted. We affirm on the first ground and do not discuss the second.

The plaintiff in a lawsuit against the United States must point to an unequivocal waiver of sovereign immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983). Whether the government waives its sovereign immunity is a question of subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). We review de novo a dismissal for lack of subject matter jurisdiction. Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997).

On appeal, Blue asserts jurisdiction under 5 U.S.C. § 702 et seq., the Administrative Procedure Act (“APA”). The APA waives sovereign immunity for actions against the United States and its agencies brought under 28 U.S.C. § 1331 (i.e., federal question jurisdiction) to the extent that nonmonetary relief is sought. Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980). The district court determined that the APA did not provide a basis for jurisdiction, because jurisdiction was preempted by 5 U.S.C. §§ 7511 and 7701 et seq., the Civil Service Reform Act (“CSRA”).

Blue’s claims in Counts II-IV constitute “prohibited personnel practices” as described in the Veteran’s Preference Act (“VPA”), 5 U.S.C'. § 2302(b). The CSRA provides for procedures to challenge such actions. Veit v. Heckler, 746 F.2d 508, 510-11 (9th Cir.1984). [1151]*1151"[F]ederal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere." Id. at 511.

The CSRA required Blue to present his allegations of prohibited personnel practices to the OSC. However, Blue did not present the allegations alleged in Counts II and III of his complaint to the USC or the MSPB.1 As the CSRA does not authorize judicial review of Blue's alleged violations of the VPA, even if those violations deprived Blue of property and procedural rights, see Saul v. United States, 928 F.2d 829, 839 (9th Cir.1991), we lack jurisdiction to review these claims.

Blue did file a written complaint with the OSC alleging that the Air Force violated certain parts of 5 U.S.C. § 2302(b).2 The violations alleged in that complaint appear in Count PT of his complaint to the trial court. The USC responded to Blue by letter on August 23, 1996, stating that it lacked jurisdiction to entertain his claims.

Blue now argues that we have limited jurisdiction to review whether the USC performed an adequate inquiry into his complaint. See Veit, 746 F.2d at 510-11 (stating that the system established by the CSRA provides review of prohibited personnel practices by the USC with judicial scrutiny "limited, at most, to insuring compliance with the statutory requirement that the OSC perform an adequate inquiry . . . ." (citation omitted)).3 However, if Blue wanted the district court or this court to determine whether the OSC adequately performed its function, he needed to make the USC a party to the action. As he failed to do so, we are not in a position to exercise limited jurisdiction to determine whether the OSC performed an adequate inquiry into Blue's complaint.

Thus, the district court properly- dismissed Counts II-IV for lack of subject matter jurisdiction.

II. Summary Judgment on Count I

Blue presented a prima facie case of race/color discrimination under Title VII. The Air Force presented legitimate, nondiscriminatory reasons for its actions with regard to Blue. Thus, the burden of production rested with Blue to show by a preponderance of the evidence that the reasons put forth by the Air Force were pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The district court found that Blue failed to produce such evidence and granted summary judgment in favor of the Air Force.

Blue needed to "produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext." Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995)(internal quotation omitted). Still, Blue needed to "produce evidence of facts that either directly show[edj a discriminatory motive or show[ed] that the [Air Force's] explanation for his rejection [was] not credible." Id. Particularly, he must have shown "specific, substantial evidence of pretext" sufficient to "permit a rational trier of fact to find that [the Air Force] intentionally discriminated against him because of his [race or color]. . . ." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889, 890 (9th Cir.1994).

On appeal, Blue claims that he put forth several pieces of evidence that demonstrated that the Air Force's proffered explanation for its employment decision was pretextual. We

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152 F.3d 1149, 98 Cal. Daily Op. Serv. 6349, 98 Daily Journal DAR 8795, 1998 U.S. App. LEXIS 18790, 74 Empl. Prac. Dec. (CCH) 45,495, 1998 WL 472500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-v-widnall-ca9-1998.