KATHRYN I. BLANKENSHIP,
Plaintiff-Appellant,

v.

The Honorable ALAN A.
McDONALD, United States District
Court Judge, Eastern District of
No. 97-35898
Washington, personally, and the
marital community composed of
D.C. No.
ALAN A. McDONALD and RUBY K.
CV-97-03019-OMP
McDONALD; JAMES R. LARSEN,
OPINION
Clerk, United States District
Court, Eastern District of
Washington, personally, and the
marital community composed of
JAMES R. LARSEN and L. DIANNE
EMMONS,
Defendants-Appellees. 

Appeal from the United States District Court
for the Eastern District of Washington
Owen M. Panner, District Judge, Presiding

Argued and Submitted
December 10, 1998--Seattle, Washington

Filed May 14, 1999

Before: Thomas M. Reavley,1 Edward Leavy and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Leavy

_________________________________________________________________

COUNSEL

James Lobsenz, Carney, Badley, Smith & Spellman, Seattle,
Washington; Victoria L. Vreeland, Gordon, Thomas, Honey-
well, Malanca, Peterson & Haheim, Seattle, Washington, for
the plaintiff-appellant.

Walter Meyer, Meyer, Fluegge & Tenney, Yakima, Washing-
ton; Leslie Weatherhead, Witherspoon, Kelley, Davenport &
Toole, Spokane, Washington, for the defendants-appellees.

Robert Loeb and Maria Simon, Attorneys, Department of Jus-
tice, Washington, DC, for the amicus.

_________________________________________________________________
OPINION

LEAVY, Circuit Judge:

This case requires us to decide whether a federal court
reporter who has no effective remedies under the Civil Ser-
vice Reform Act ("CSRA")2 has an action for money dam-
ages, commonly called a Bivens action,3  for alleged
constitutional violations in the workplace. The plaintiff, Kath-
ryn Blankenship, appeals the district court's judgment of dis-
missal. We have jurisdiction pursuant to 28 U.S.C.S 1291 and
we affirm.

I.

Blankenship filed this action against the defendants, Dis-
trict Court Judge Alan A. McDonald and Court Clerk James
Larsen, in their individual capacities. The allegations in the
complaint are considered true for purposes of the motion to
dismiss and may be summarized as follows:

Blankenship was appointed in 1985 as a court reporter for
the United States District Court for the Eastern District of
Washington. From 1985 to 1990, she worked in Spokane,
Washington, and in 1990, she was transferred to Yakima,
Washington in the same district. She worked throughout her
employment as the official court reporter for Judge McDon-
ald. James Larsen supervised the court reporters in Spokane
and Yakima.

In July 1994, Blankenship was subpoenaed to testify in a
former employee's hearing pursuant to a complaint filed
under the court's Equal Employment Opportunity ("EEO")
plan. Blankenship testified about events and conduct in the
Yakima courthouse, particularly involving the conduct of
Judge McDonald's in-court clerk, which included abuse of
personnel rules, use of court facilities for private business,
regular and excessive profanity, and sexist and racist jokes
and comments. She also testified that Judge McDonald
reviewed her official transcripts prior to filing, edited and
deleted words, required her to change the reports of proceed-
ings, and would not allow her to certify the reports "as
amended." She testified that Judge McDonald and his in-court
clerk often passed notes which included comments about a lit-
igant, witness, or attorney that were disrespectful and rude.

Immediately following the hearing, James Larsen was
observed talking with Judge McDonald outside the court-
house. The next working day, Judge McDonald confronted
Blankenship and demanded to know why she had "aired the
court's dirty laundry."

James Larsen met Blankenship outside the courthouse and
told her that she had three options: (1) to take a voluntary
transfer to Spokane to be part of a pool of court reporters; (2)
to take permanent medical disability; or (3) to be terminated
for poor performance due to a delay in filing a recent tran-
script. Blankenship exercised none of these options. James
Larsen then scheduled a performance review for November
10, 1994. Blankenship did not attend the review and sent a
letter to Larsen protesting the review, stating that she should
not be punished for bringing judicial improprieties to the
court's attention.

In November 1994, Larsen sent a written "performance
report" to Blankenship by mail, principally citing Blanken-
ship's failure to meet certain transcript filing deadlines. In
December 1994, Larsen wrote Blankenship that she would be
transferred to Spokane effective February 1, 1995. Blanken-
ship refused to be transferred to Spokane. On February 1,
1995, Larsen wrote to Blankenship that he planned to recom-
mend her termination. Blankenship responded in writing that
the stated reasons for the proposed termination were pretex-
tual. By letter dated February 13, 1995, signed by the four
then-active district court judges, Blankenship was officially
terminated by the court effective March 3, 1995.

In her complaint, filed in February 1997, Blankenship
alleged that defendants violated her first and fifth amendment
rights, and that these violations caused her injuries for which
she should receive money damages. The district court dis-
missed the complaint for failure to state a claim upon which
relief could be granted.

II.

[1] Blankenship, as an appointed judicial employee, is a
member of the "excepted service" under the CSRA.4 Blanken-
ship argues that because she has no administrative or judicial
remedies under the CSRA as a member of the excepted ser-
vice, she is entitled to assert a Bivens claim.

In Bivens, the Supreme Court held that a plaintiff could
state a claim and recover money damages against federal offi-
cials for constitutional violations where there are no "special
factors counseling hesitation in the absence of affirmative
action by Congress." 
403 U.S. at 396
-97. "When the design
of a Government program suggests that Congress has pro-
vided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
administration," the Supreme Court has not created additional
Bivens remedies. Schweiker v. Chilicky, 
487 U.S. 412
, 423
(1988). Accordingly, we have declined to create a Bivens
remedy if there are "indications that congressional action has
not been inadvertent." Moore v. Glickman, 113 F.3d 988, 993
(9th Cir. 1997) (quoting Chilicky, 
487 U.S. at 423
).

[2] The CSRA contains an "elaborate remedial system that
has been constructed step by step, with careful attention to
conflicting policy considerations . . . " Bush v. Lucas, 462
U.S. 367, 388 (1983). In Saul v. United States , 928 F.2d 829,
840 (9th Cir. 1991), we stated:

       "The CSRA's comprehensive remedial provisions
       convince us that there was no inadvertence by Con-
       gress in omitting a damages remedy against supervi-
       sors whose work-related actions allegedly violate a
       subordinate's constitutional rights. In the area of fed-
       eral employment, Congress is better equipped than
       we to strike an appropriate balance between employ-
       ees' interests in remedying constitutional violations
       and the interests of the government and the public in
       maintaining the efficiency, morale and discipline of
       the federal workforce."

[3] Because congressional action has not been inadvertent
in providing certain remedies and denying others to judicial
employees, we hold that the CSRA precludes a Bivens rem-
edy in this case. Accord Lee v. Hughes, 145 F.3d 1272, 1275
(11th Cir. 1998). Congress has given judicial employees cer-
tain employment benefits and remedies, such as back pay,
severance pay, family and medical leave, and health and
retirement benefits. Congress has withheld other benefits and
remedies, such as review of adverse personnel decisions. This
demonstrates that the lack of more complete remedies was not
inadvertent. See Moore, 113 F.3d at 992; Kotarski v. Cooper,
866 F.2d 311, 312 (9th Cir. 1989).

III.

[4] Blankenship's complaint also alleged state tort claims
for intentional infliction of emotional distress. Blankenship's
state claims are preempted by the CSRA. Preemption is nec-
essary because "[b]oth the CSRA and its legislative history
show that Congress did not intend that state tort law operate
within the interstices of the act." Saul v. United States, 928
F.2d at 842; accord David v. United States, 820 F.2d 1038,
1043 (9th Cir. 1987).

Blankenship also alleged a claim under 42 U.S.C.
S 1985(2) which prohibits conspiracies "to deter, by force,
intimidation, or threat, any party or witness in any court of the
United States . . . from testifying to any matter pending
therein, freely, fully, and truthfully." Blankenship claimed
that the defendants conspired to retaliate against her for giv-
ing testimony in the EEO hearing of a fellow employee.

[5] We have previously held that "[a]llegations of witness
intimidation under S 1985(2) will not suffice for a cause of
action unless it can be shown the litigant was hampered in
being able to present an effective case." David v. United
States, 820 F.2d at 1040. Because Blankenship was not a
party to the EEO proceeding, she can show no injury under
S 1985(2). Id.; accord Rutledge v. Arizona Board of Regents,
859 F.2d 732, 735 (9th Cir. 1988) (even if potential witnesses
to plaintiff's federal action were intimidated, such intimida-
tion had no effect on plaintiff's ability to present a case in fed-
eral court).

The judgment of the district court is AFFIRMED. the end

_______________________________________________________________

FOOTNOTES

1 The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the United States Court of Appeals, Fifth Circuit, sitting by des-
ignation.
2 The CSRA is codified and amended in various sections of Title 5,
United States Code.
3 A "Bivens action" is the commonly used phrase describing a judicially
created remedy for unconstitutional conduct by federal officials. This con-
stitutional tort theory was set out in Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 
403 U.S. 388
(1971).
4 "Civil service" consists of all appointive positions, including those in
the judicial branch, 5 U.S.C. S 2101; court reporters are appointed under
28 U.S.C. S 753(a); "civil service" includes those in "excepted service"
under 5 U.S.C. S 2103, which includes everyone who is not in the two
other categories of civil service.