Davis v. Department of the Navy

56 F. App'x 363

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2003
• Docket: No. 02-16056; D.C. No. CV-01-00714-SPK
• Status: Published

Opinion

MEMORANDUM

**

Hillery Davis, Jr. appeals pro se the district court’s order dismissing his action against the Department of the Navy alleging wrongful termination, defamation of character and racial discrimination. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Mundy v. United States, 983 F.2d 950, 952 (9th Cir.1993), and we affirm.

The district court properly dismissed Davis’ wrongful termination claim for untimeliness because Davis did not file his complaint in federal district court until October 30, 2001, over a year after the Merit Systems Protection Board’s final decision. See 5 U.S.C. § 7703(b)(2) (requiring that claims for review be filed within 30 days of the MSPB’s final decision); Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998).

The district court properly dismissed Davis’ defamation claim because it was barred by the intentional torts exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680(h); Mundy, 983 F.2d at 952 (recognizing that § 2680(h) provides an express exception to the FTCA’s waiver of the Government’s immunity to tort claims for any claim arising out of libel, slander, misrepresentation, deceit, or interference with contract).

The district court properly dismissed Davis’ racial discrimination claims because he failed to exhaust administrative remedies before the Equal Employment Opportunities Commission. See Vinieratos v. Dep’t of the Air Force, 939 F.2d 762, 776 (9th Cir.1991).

AFFIRMED.

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.