Bolivar v. FBI

Opinion

USCA1 Opinion

January 11, 1995      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1397

                       ILEANA BOLIVAR and LEONARDO CANDELARIO,

                               Plaintiffs, Appellants,

                                          v.

               DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                             and Young,* District Judge.
                                         ______________

                                 ____________________

            Awilda M.  Ortiz-Rivera with  whom Raul Santiago  Melendez was  on
            _______________________            _______________________
        brief for appellants.
            Paul  D. Scott,  Appellate Staff,  Civil Division,  Department  of
            ______________
        Justice, with whom  Frank W. Hunger, Assistant Attorney  General, Paul
                            _______________                               ____
        M. Gagnon, United  States Attorney, and  Barbara L. Herwig,  Appellate
        _________                                _________________
        Staff,  Civil  Division, Department  of  Justice,  were on  brief  for
        appellees.

____________________

____________________
                            
        ____________________

        *Of the District of Massachusetts, sitting by designation.



Per Curiam.  Ileana Bolivar and Leonardo Candelario were
                 __________

            employees of the  Federal Bureau of Investigation in  its San

            Juan  office   in  Puerto  Rico.     Bolivar  worked   as  an

            administrative officer and Candelario as a photographer.  The

            incident that  triggered this litigation occurred in February

            1993, when Candelario wrote and placed an anonymous letter in

            a  "suggestion box"  in which  Candelario expressed  his view

            that since  his superiors, Robert Opfer  and Hector Pesquera,

            had taken charge of the office morale had dropped.  Opfer was

            the special agent in  charge of the office, and  Pesquera was

            the assistant special agent in charge.  

                 On  February  19,  1993, Opfer  and  Pesquera questioned

            Candelario  about the  anonymous letter.   In  his subsequent

            complaint  Candelario   states   that  Opfer   and   Pesquera

            "submitted [him] to an  ordeal of intense interrogation which

            lasted almost four  and a half  hours" to obtain  information

            about Bolivar's  involvement in the letter.   Candelario says

            that  he was  eventually  forced to  sign  a sworn  statement

            indicating  that  he had  authored  the letter  but  had told

            Bolivar about it.   Candelario says that he  thereupon became

            ill and was later found to have suffered a heart attack.  

                 According  to  their later  complaint, both  Bolivar and

            Candelario were then subject  to adverse personnel actions in

            retaliation for Candelario's letter.  Candelario said that he

            was  passed  over for  a  promotion that  was  otherwise due.

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Bolivar said that she  was demoted, and that a  grievance was

            filed against  her (apparently  for refusing to  cooperate in

            the  investigation).   Bolivar also  said that  she had  been

            slandered and  suffered damage  to her dignity,  apparently a

            reference to the demotion or grievance procedure. 

                 On  August 3,  1993,  Bolivar and  Candelario filed  the

            present  suit in  federal  district court  against their  two

            superiors  and  the director  of the  FBI.   About  two weeks

            later,  a similar suit was  started in the  local Puerto Rico

            court  and  subsequently  removed  and  consolidated;  but on

            appeal neither  Candelario nor Bolivar place  any emphasis on

            the later suit.  As ultimately amended, the federal complaint

            claimed that the conduct alleged violated the First Amendment

            and  gave rise  to  a cause  of action  under  Bivens v.  Six
                                                           ______     ___

            Unknown  Named Agents, 403 U.S.  388 (1971).   The suit asked
            _____________________

            for  just under  $5 million  in compensatory  damages  and an

            injunction.

                 On February  14, 1994, the district  court dismissed the

            case.    One ground,  which we  need  not discuss  at length,

            involved the supposed  lack of proper service of  the summons

            and  complaint.   The  other ground  was  that the  complaint

            failed to state a claim on which relief may be granted.  Fed.

            R. Civ. P.  12(b)(6).   Since the latter  ground involves  no

            factual issue and permits a final disposition of the case, we

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address  only  the latter  ground and  affirm based  on well-

            settled authority.

                 There is no explicit cause of action in the Constitution

            for  a  violation  of   First  Amendment  rights  by  federal

            officers.  The Supreme Court inferred such a remedy in Bivens
                                                                   ______

            as a judicial  construct.  Then, in  Bush v. Lucas, 462  U.S.
                                                 ____    _____

            367 (1983),  the  Supreme  Court ruled  that  no  such  First

            Amendment  remedy  would  be  inferred where  the  underlying

            conduct  centered around  adverse federal  personnel actions,

            because Congress  had created an  elaborate and comprehensive

            set of procedures and remedies to govern such cases.  See id.
                                                                  ___ ___

            at  385-88.     Bush,   like  this  case,   involved  alleged
                            ____

            retaliation  by a  superior for  a subordinate's  exercise of

            what were assumed to be legitimate First Amendment rights.

                 In Bush  the Court agreed that  Congress' remedies might
                    ____

            not be as  effective as the Bivens remedy or cover every sort
                                        ______

            of injury,  462 U.S. at 372; but the Court said that the need

            for that remedy was  lessened by the presence of  the statute

            and the  possibility of  interfering with the  federal scheme

            argued  against the Bivens  remedy.    Id.  at 388-89.   This
                                ______             ___

            court, like other circuits, has  followed Bush and refused to
                                                      ____

            entertain  similar claims  in subsequent  cases.   Berrios v.
                                                               _______

            Department of the Army, 884 F.2d 28 (1st Cir.  1989); Roth v.
            ______________________                                ____

            United States, 952 F.2d 611 (1st Cir. 1991).
            _____________

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Although reliance on  Bush to preempt  a state cause  of
                                       ____

            action for  defamation might seem more  debatable, this court

            did  so  hold  in  Berrios--with  respect  to  correspondence
                               _______

            incident to federal  removal proceedings--on the  ground that

            the defamation claims were essentially attempts "to challenge

            collaterally  an  adverse  personnel  action."   Id.  at  32.
                                                             ___

            Accord, Roth, 952  F.2d at 614.  Bolivar  makes no attempt to
            ______  ____

            distinguish her  own defamation claims as  any less connected

            to the complained of  personnel actions.  Interestingly, Bush
                                                                     ____

            itself involved defamation claims of the  same kind, 462 U.S.

            at 371, and this apparently made no difference to the Supreme

            Court.

                 Thus, the present case is so similar to Bush and our own
                                                         ____

            subsequent decisions that there is no reason for any extended

            discussion.   The only substantial effort  made by appellants

            to  distinguish   Bush   is  to   emphasize   the   allegedly
                              ____

            inquisitorial  interview  of Candelario  and  to  point to  a

            footnote in Bush stating:   "In addition, certain actions  by
                        ____

            supervisors against federal  employees, such as  wiretapping,

            warrantless searches, or uncompensated  takings, would not be

            defined as `personnel actions'  within the statutory scheme."

            462 U.S. at 385 n.28.  We need not consider Bolivar's lack of

            standing since this  shift of emphasis is  unavailing even as

            to Candelario.

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Certainly  some activities of federal officers, although

            taken  in  an employment  context  in  reprisal for  employee

            criticism, are  independently unlawful apart  from Bivens  or
                                                               ______

            even  criminal.   This seems to  be the  concern of  the Bush
                                                                     ____

            footnote invoked by the appellants.  If a superior physically

            assaulted a subordinate in response to adverse comments about

            the superior's management, it might seem a leap to argue that

            the civil service statutes impliedly eliminate the common law

            claim  for damages for  battery.  But cf.  Green v. Hill, 954
                                              _______  _____    ____

            F.2d 694, 697  (11th Cir. 1992)  (holding that other  federal

            remedies preempt such a claim).

                 In any  event, despite  some conclusory rhetoric  in the

            appellants'  brief, the  complaint  did not  allege that  the

            interrogation was in any respect unlawful except so far as it
                                                      ______

            constituted  reprisal  for the  violation of  First Amendment

            rights.   As a matter of  fact, apart from the  length of the

            interview--and the government says that  Candelario elsewhere

            said  that  it lasted  two  hours  rather than  four--nothing

            specific is said  in the  complaint or the  appeals brief  to
            ________

            explain  why it  is now  described as  Gestapo-like behavior.

            The  complaint in this case  is not even  arguably within the

            spirit of the Bush footnote.
                          ____

                 If FBI officials did seek to punish legitimate criticism

            through personnel actions, this would be a matter of concern;

            but it  would also be a  concern for which the  civil service

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statutes appear  to provide  ample remedies.   Similarly, the

            Federal Employees' Compensation Act may well provide a remedy

            if Candelario  did suffer a "personal  injury sustained while

            in the performance of his duty," 5 U.S.C.   8102.   Obviously

            a Bivens action could  provide more generous damages, whether
              ______

            for  denial of  promotion  or for  medical  injury, but  Bush
                                                                     ____

            expressly held that  this makes no difference to the analysis

            or  the result.   462  U.S. at  372.   See also  Schweiker v.
                                                   ________  _________

            Chilicky, 487 U.S. 412, 423 (1988). 
            ________

                 Affirmed.  
                 ________

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