The opinion of the court was delivered by: Jeremy Fogel United States District Judge
ORDER*fn1 GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND
Plaintiff Ronnie Littlejohn ("Littlejohn") claims that he was subjected to race discrimination while employed in the office of the Clerk of the United States Bankruptcy Court for the Eastern District of California ("bankruptcy court"), and that the discrimination culminated in his unlawful termination. The government seeks dismissal of the action for lack of subject matter jurisdiction. The Court has considered the briefing of the parties, including the briefing submitted after the hearing, and the oral argument presented on September 23, 2011.*fn2 For the reasons discussed below, the motion will be granted, without leave to amend.
Littlejohn filed this action on March 9, 2011. The government filed its motion to dismiss on June 9, 2011. Littlejohn filed opposition and a first amended complaint. The parties then stipulated that Littlejohn could file a second amended complaint ("SAC"). Littlejohn lodged the operative SAC on August 16, 2011; it was filed on August 26, 2011. The SAC alleges the following facts:
Littlejohn began working for the bankruptcy court in December 1988. SAC ¶ 5. In 2007, a managerial employee named Robert Herndon ("Herndon") began discriminating and retaliating against Littlejohn. Id. ¶ 7. At that time, Littlejohn was the only African American employee in the bankruptcy court clerk's office. Id. In June 2007, Herndon unfairly accused Littlejohn of abandoning his workstation without authorization. Id. ¶ 8. In March 2008, Herndon initiated disciplinary action against Littlejohn for failing to issue an Order to Show Cause, even though another employee actually was responsible for issuing the document. Id. In the same month, Herndon initiated disciplinary action against Littlejohn for failing to docket a particular document. Id.
In March 2010, Littlejohn discovered a computer feature on the bankruptcy court computer operating system that revealed that approximately 150 case notices had not been served by the bankruptcy court's Fresno division, and that approximately 360 notices had not been served by the court's Sacramento and Modesto divisions. SAC ¶ 9. Littlejohn immediately alerted Herndon to this problem. Id. Littlejohn assumed that Herndon would serve the notices for the Fresno division and would alert the Sacramento and Modesto divisions of the problem. Id. ¶ 10. Instead, Herndon deleted approximately 315 notices from the bankruptcy court's operating system in an attempt to cover up the district-wide violation of applicable rules of bankruptcy procedure and civil procedure. Id. ¶ 11. Herndon terminated Littlejohn in April 2010, both because of Littlejohn's race and in retaliation for Littlejohn's having raised concerns about the unserved notices. Id. ¶ 12.
Littlejohn alleges that he intended to appeal the termination pursuant to the bankruptcy court's Employee Dispute Resolution ("EDR") plan, which would have permitted an appeal to the Chief Judge. SAC ¶ 13. However, the notice of adverse action that he received read as follows:
Your actions described herein constitute unacceptable work performance, inexcusable neglect of duty, and actions which bring discredit to the court, its judges, and this office and constitute cause for dismissal. Accordingly, you are hereby terminated from your position as a deputy clerk effective immediately. You are advised that you have five calendar days from the date of this notice within which to respond to the charges and actions specified herein. You may respond in less than five days if you wish. Should you choose to respond, your response must be submitted in writing to the Sacramento Deputy Clerk in Charge, Shelly Fritch.
SAC, Exh. 5 (emphasis added); ¶ 13. The formal basis for termination is unclear, as Littlejohn provides only page 3 of the document containing this language. Littlejohn alleges that he called Cyndi Moore in human resources and requested to proceed under the EDR plan, and that Moore told him he did not have that option. Id. ¶ 13. He claims that he unwillingly pursued his administrative remedies under the grievance procedure to which he was directed. Id. The grievance was denied. Id.
Littlejohn alleges that the purported reason for his termination was that he served one civil minute order late. SAC ¶ 16. He claims that seventeen other case managers served civil minute orders late or not at all and were not disciplined. Id. He asserts the following claims: (1) violation of the "CSRA Act 1978 5 U.S.C. § 2302"; (2) violation of the Whistleblower Protection Act, 5 U.S.C. § 2302; (3) violation of the First Amendment right of free speech; (4) tortious termination in violation of the public policy of the California Constitution; (5) violation of the "Back Pay Act 5 of U.S.C. Section (b)(1), (b)(1)(A)(i)(ii), (a)(1)(2), (B)(i)(ii), (2)(A)"; and (6) a claim for damages under the Federal Tort Claims Act. He asks that the Court Remand the case back to the Bankruptcy Court or to Ninth Circuit so that Plaintiff can have the opportunity to appeal his remedy under the Disciplinary Action Policy in which he inquired about and was denied proper access.
The government moves to dismiss the SAC for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.