Rebecca Fuller v. Jerre Kaufman Gordon Ravenscroft Robert T. Simon Richard C. Jernigan

43 F.3d 1479 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Rebecca FULLER, Plaintiff-Appellant, v. Jerre KAUFMAN; Gordon Ravenscroft; Robert T. Simon; Richard C. Jernigan, Defendants-Appellees. No. 94-35301. United States Court of Appeals, Ninth Circuit. Submitted Dec. 5, 1994.* Decided Dec. 13, 1994. Before: NOONAN, O'SCANNLAIN, and LEAVY, Circuit Judges. — 1 — MEMORANDUM** — 2 — Rebecca Fuller appeals the district court's dismissal of her claim for lack of subject matter jurisdiction. We review de novo a district court's conclusion that it lacks subject matter jurisdiction. Carpenter v. Department of Transp., 13 F.3d 313, 314 (9th Cir.1994). We affirm. — 3 — Fuller alleges that the defendants violated 42 U.S.C. Sec. 1983 by, among other things, denying her free speech rights. The district court dismissed the complaint, finding that it was barred by intragovernmental immunity pursuant to Chappell v. Wallace, 462 U.S. 293 (1983). In Chappell, the Supreme Court held that enlisted military personnel may not maintain suits to recover damages from a superior officer for alleged constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). However, the Court expressly left open the question of whether the appellant's statutory claim was judicially cognizable. Id. at 305 n. 3. This court has done the same. Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir.1988), cert. denied, 490 U.S. 1098 (1989). — 4 — In this case we do not reach the cognizability issue because Fuller's section 1983 claim must be rejected for failure to allege exhaustion of intraservice remedies. Miller v. Newbauer, 862 F.2d 771, 775 (9th Cir.1988). — 5 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4 [-s-s] ** 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 R. 36-3