UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 96-2061
HECTOR VEGA-RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,
v.
PUERTO RICO TELEPHONE COMPANY, 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
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Rick Nemcik-Cruz, with whom Charles S. Hey-Maestre was on
brief, for appellants. Vannessa Ramirez, Assistant Solicitor General, Puerto Rico
Dep't of Justice, with whom Carlos Lugo-Fiol, Solicitor General,
Garcia & Fernandez, and John M. Garcia were on brief, for
appellees.
April 8, 1997
SELYA, Circuit Judge. As employers gain access to SELYA, Circuit Judge.
increasingly sophisticated technology, new legal issues seem
destined to suffuse the workplace. This appeal raises such an
issue. In it, plaintiffs-appellants Hector Vega-Rodriguez (Vega)
and Amiut Reyes-Rosado (Reyes) revile the district court's
determination that their employer, the Puerto Rico Telephone
Company (PRTC), may monitor their work area by means of
continuous video surveillance without offending the
Constitution.1 Because the red flag of constitutional breach
does not fly from these ramparts, we affirm.
I. FACTUAL SURVEILLANCE I. FACTUAL SURVEILLANCE
In conformity with accepted summary judgment protocol,
we recount the undisputed facts in the light most congenial to
the appellants and adopt their version of any contested facts
which are material to our consideration of the issues. See,
e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990).
The Executive Communications Center (the Center) is
located in the penthouse of the PRTC's office complex in
Guaynabo, Puerto Rico. It maintains communication between the
company's various operating units and the senior executive on
duty, but it does not have primary corporate responsibility for
1To the extent that other parties are involved in this litigation for example, the plaintiffs' complaint identifies their wives and conjugal partnerships as additional plaintiffs and names two PRTC executives as codefendants their presence makes no discernible difference from an analytic standpoint. Consequently, we treat the case as if it involved only Vega, Reyes, and PRTC.
security and it does not house communication switching centers,
cables, transmission lines, or kindred equipment. For security
reasons, access to the Center is restricted; both the elevator
foyer on the penthouse floor and the doors to the Center itself
are inaccessible without a control card.
PRTC employs Vega, Reyes, and others as attendants
(known colloquially as "security operators") in the Center. They
monitor computer banks to detect signals emanating from alarm
systems at PRTC facilities throughout Puerto Rico, and they alert
the appropriate authorities if an alarm sounds. Although
individual employees work eight-hour shifts, the Center is
staffed around the clock.
The work space inside the Center consists of a large L-
shaped area that contains the computers, the monitors, and
assorted furniture (e.g., desks, chairs, consoles). The work
space is completely open and no individual employee has an
assigned office, cubicle, work station, or desk.
PRTC installed a video surveillance system at the
Center in 1990 but abandoned the project when employees groused.
In June of 1994, the company reinstated video surveillance.
Three cameras survey the work space, and a fourth tracks all
traffic passing through the main entrance to the Center. None of
them cover the rest area. The surveillance is exclusively
visual; the cameras have no microphones or other immediate
eavesdropping capability. Video surveillance operates all day,
every day; the cameras implacably record every act undertaken in
the work area. A video monitor, a switcher unit, and a video
recorder are located in the office of the Center's general
manager, Daniel Rodriguez-Diaz, and the videotapes are stored
there. PRTC has no written policy regulating any aspect of the
video surveillance, but it is undisputed that no one can view
either the monitor or the completed tapes without Rodriguez-
Diaz's express permission.
Soon after PRTC installed the surveillance system
(claiming that it was desirable for security reasons), the
appellants and several fellow employees protested. They
asserted, among other things, that the system had no purpose
other than to pry into employees' behavior. When management
turned a deaf ear, the appellants filed suit in Puerto Rico's
federal district court. They contended that the ongoing
surveillance constitutes an unreasonable search prohibited by the
Fourth Amendment, violates a constitutionally-conferred
entitlement to privacy, and abridges rights secured by the First
Amendment. After the parties had taken considerable discovery,
PRTC moved for dismissal and/or summary judgment, and the
individual defendants moved for summary judgment. The district
court found merit in these submissions and entered judgment
accordingly. The appellants then prosecuted this appeal.
In the pages that follow, we deal first with a problem
of how best to characterize the district court's ruling. We then
address the appellants' illegal search and invasion of privacy
claims. Because the appellants have neither briefed nor argued
their First Amendment claim in this venue, we deem it waived and
do not pursue it.
II. THE CHARACTERIZATION QUESTION II. THE CHARACTERIZATION QUESTION
In an effort to put the characterization question into
perspective, we trace the events leading up to the lower court's
dispositive ruling. PRTC moved in the alternative for dismissal,
Fed. R. Civ. P. 12(b)(6), or summary judgment, Fed. R. Civ. P.
56. In passing upon the motion, the district court employed the
idiom of Rule 12(b)(6) (i.e., it said that it was dismissing the
suit for failure to state a claim upon which relief might be
granted), but the praxis of Rule 56 (i.e., it considered
materials dehors the pleadings). It is imperative that we
clarify these mixed signals; although these two rules share a
certain family resemblance both are designed to cut short the
litigation of cases that do not reach a threshold of
trialworthiness they operate from different legal templates.
We conclude that the district court's order ought to be tested
against the summary judgment standard.
We start from the text of Rule 12(b), which stipulates
that if "matters outside the pleading are presented to and not
excluded by the court," a motion brought under Rule 12(b)(6)
"shall be treated as one for summary judgment and disposed of as
provided in Rule 56." We have noted before that the proper
approach to incipient conversion questions implicating these
rules is functional, not mechanical. See Garita Hotel Ltd.
Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18-19 (1st
Cir. 1992) (stating the test as "whether the court actually took
cognizance of [supplementary materials], or invoked Rule 56, in
arriving at its decision").
Here, language in the district court's ruling indicates
that it must have considered materials outside the pleadings.
Thus, under the Garita Hotel test, conversion is proper. This
circumstance militates strongly in favor of treating the lower
court's decree as one granting summary judgment. Perhaps the
only factor that tugs in a different direction is the district
judge's choice of phrase but an appellate tribunal is not bound
by the label that a district court attaches to its rulings. See,
e.g., Estate of Soler v. Rodriguez, 63 F.3d 45, 47 n.1 (1st Cir.
1995); cf. Cloutier v. Town of Epping, 714 F.2d 1184, 1188 (1st
Cir. 1983) (affirming dismissal under the summary judgment
standard although the lower court had dismissed for lack of
jurisdiction under Fed. R. Civ. P. 12(b)(1) - (2)).
We hasten to add that application of the summary
judgment standard produces no perceptible unfairness. PRTC's
motion invoked Rule 56 as one of two possible avenues for relief,
and the dispositive motions filed by the individual defendants
asked exclusively for summary judgment. The appellants responded
to these motions in kind. By that time, there had been an
adequate opportunity for discovery and the record was well-
developed.2 We therefore treat the challenged ruling as an order
for summary judgment.
Before ending this discussion, we pause to rehearse the
summary judgment standard. Given the standard's familiarity, a
lengthy exegesis is unnecessary. It suffices to say that we
must undertake de novo review, construing all reasonable
inferences from the evidence in the nonmoving party's favor. See
Garside, 895 F.2d at 48. Since the core purpose of summary
judgment is to "pierce the boilerplate of the pleadings" and
examine the parties' proof to determine whether a trial actually
is necessary, Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791,
794 (1st Cir. 1992), the entry of summary judgment is appropriate
if (and only if) no genuine issue exists as to any material fact
and the moving party is entitled to judgment as a matter of law.
See id.; see also Fed. R. Civ. P. 56(c). In applying this
formulation, a fact is "material" if it potentially affects the
outcome of the case, and an issue is "genuine" if the probative
evidence on it conflicts. See Garside, 895 F.2d at 48.
III. THE FOURTH AMENDMENT III. THE FOURTH AMENDMENT
PRTC is a quasi-public corporation. See P.R. Laws Ann.
tit. 27, 401-424 (1991). It is, therefore, a government
2To be sure, the appellants opposed summary judgment in part for want of an opportunity to depose PRTC's president, Agustin Garcia-Acevedo. But the appellants who conceded at oral argument in this court that it would not be unfair to scrutinize the district court's order under Rule 56 did not renew that objection on appeal. At any rate, given our ratio decidendi, it
is difficult to imagine how this deposition, if taken, might shore up the appellants' case.
actor, see Kauffman v. PRTC, 841 F.2d 1169, 1170 (1st Cir. 1988);
Torres-Ponce v. Jimenez, 113 P.R. Dec. 58, translated in 13 P.R.
Sup. Ct. Off'l Trans. 77, 91-93 (1982), subject to the suasion of
the Fourth Amendment, see Buenrostro v. Collazo, 973 F.2d 39, 43
(1st Cir. 1992). Building on this foundation, the appellants
allege that PRTC's continuous video surveillance contravenes the
"right of the people to be secure in their persons . . . against
unreasonable searches." U.S. Const. amend. IV. We consider that
allegation.
A. Privacy Rights and the Fourth Amendment. A. Privacy Rights and the Fourth Amendment.
Intrusions upon personal privacy do not invariably
implicate the Fourth Amendment. Rather, such intrusions cross
the constitutional line only if the challenged conduct infringes
upon some reasonable expectation of privacy. See Smith v.
Maryland, 442 U.S. 735, 740 (1979).3 To qualify under this
mantra, a privacy expectation must meet both subjective and
objective criteria: the complainant must have an actual
expectation of privacy, and that expectation must be one which
society recognizes as reasonable. See Oliver v. United States,
466 U.S. 170, 177 (1984); Smith, 442 U.S. at 740. Determining
the subjective component of the test requires only a
straightforward inquiry into the complainant's state of mind,
and, for purposes of this appeal, we are willing to assume
arguendo that the appellants, as they profess, had some
3In this context, courts tend to use adjectives like "reasonable," "legitimate," or "justifiable" interchangeably. See Smith, 442 U.S. at 740.
subjective expectation of privacy while at work. We turn, then,
to the objective reasonableness of the asserted expectation of
privacy.
In previous cases, the Supreme Court has answered this
type of question by examining such diverse factors as the
Framers' intent, the uses to which an individual has put a
location, and society's understanding that certain areas (say, a
person's home) deserve heightened protection from government
intrusions. See Oliver, 466 U.S. at 178. But the Court has not
developed a routinized checklist that is capable of being applied
across the board, and each case therefore must be judged
according to its own scenario. See, e.g., United States v.
Mancini, 8 F.3d 104, 109 (1st Cir. 1993) (considering, inter
alia, the totality of circumstances, the ability to regulate
access to particular premises, and the individual's status).
With this in mind, we proceed by first surveying the legal
principles that relate to searches of business premises and then
narrowing our focus to the facts of this case and the appellants'
asseverational array.
B. Privacy Rights and Business Premises. B. Privacy Rights and Business Premises.
Generally speaking, business premises invite lesser
privacy expectations than do residences. See G.M. Leasing Corp.
v. United States, 429 U.S. 338, 353 (1977); 1 Wayne R. LaFave,
Search & Seizure 2.4(b) (3d ed. 1996). Still, deeply rooted
societal expectations foster some cognizable privacy interests in
business premises. See Oliver, 466 U.S. at 178 n.8; Mancusi v.
DeForte, 392 U.S. 364, 367 (1968). The Fourth Amendment
protections that these expectations entail are versatile; they
safeguard individuals not only against the government qua law
enforcer but also qua employer. See National Treasury Employees
Union v. Von Raab, 489 U.S. 656, 665 (1989).
The watershed case in this enclave of Fourth Amendment
jurisprudence is O'Connor v. Ortega, 480 U.S. 709 (1987).
O'Connor's central thesis is that a public employee sometimes may
enjoy a reasonable expectation of privacy in his or her workplace
vis- -vis searches by a supervisor or other representative of a
public employer. Withal, O'Connor recognized that "operational
realities of the workplace," such as actual office practices,
procedures, or regulations, frequently may undermine employees'
privacy expectations. Id. at 717 (plurality op.). The four
dissenting Justices shared this belief, see id. at 737 (Blackmun,
J., dissenting), and subsequent case law confirms it, see, e.g.,
Von Raab, 489 U.S. at 669-72. In the last analysis, the
objective component of an employee's professed expectation of
privacy must be assessed in the full context of the particular
employment relation. See O'Connor, 480 U.S. at 717; Mancini, 8
F.3d at 109.
O'Connor is a typical case in which a public employee's
workplace-based privacy interests were vindicated. Dr. Ortega
was on administrative leave from his post at a state hospital
when hospital personnel, investigating misconduct charges,
entered his office and removed personal items from his desk and
file cabinets. 480 U.S. at 712-13. The Court held that Dr.
Ortega had a reasonable expectation of privacy in his desk and
file cabinets because he did not share them with other workers,
he used them to store personal materials, and the hospital had no
policy discouraging employees from stashing personal items there.
See id. at 718-19. Moreover, although the plurality eschewed the
issue, a majority of the Justices believed that Dr. Ortega
maintained a reasonable privacy expectation in his private office
as well. See id. at 731-32 (Scalia, J., concurring); id. at 732
(Blackmun, J., dissenting).
Applying O'Connor in various work environments, lower
federal courts have inquired into matters such as whether the
work area in question was given over to an employee's exclusive
use, compare Thompson v. Johnson County Community Coll., 930 F.
Supp. 501, 507 (D. Kan. 1996) (finding no reasonable expectation
of privacy against video surveillance of an unenclosed locker
area not sealed from view or provided for any employee's
exclusive use) with United States v. Taketa, 923 F.2d 665, 673
(9th Cir. 1991) (finding a reasonable expectation of privacy
against surreptitious video surveillance by DEA agents in an
office reserved for the defendant's exclusive use), the extent to
which others had access to the work space, see O'Bryan v. KTIV
Television, 868 F. Supp. 1146, 1159 (N.D. Iowa 1994) (finding no
reasonable expectation of privacy in an unlocked desk and
credenza located in an "open, accessible area" of the station),
the nature of the employment, see Sheppard v. Beerman, 18 F.3d
147, 152 (2d Cir. 1994) (finding that a law clerk had no
reasonable expectation of privacy in chambers' appurtenances,
desks, file cabinets, or other work spaces due to the open access
of documents between judges and clerks), and whether office
regulations placed employees on notice that certain areas were
subject to employer intrusions, compare Schowengerdt v. United
States, 944 F.2d 483, 488 (9th Cir. 1991) (finding no reasonable
expectation of privacy in either office or locked credenza when
engineer knew of security regimen, including daily office
searches) and American Postal Workers Union v. United States
Postal Serv., 871 F.2d 556, 560-61 (6th Cir. 1989) (finding no
reasonable expectation of privacy against search of employees'
lockers when employer had promulgated regulations expressly
authorizing random inspections in certain circumstances) with
Taketa, 923 F.2d at 672-73 (finding that unenforced regulations
did not defeat an otherwise reasonable expectation of privacy)
and McGregor v. Greer, 748 F. Supp. 881, 888 (D.D.C. 1990)
(finding that public employee's own desk or office, normally not
entered by co-workers or superiors, may engender a reasonable
expectation of privacy in the absence of any policy or regulation
warning otherwise).
C. Privacy Interests in the Appellants' Workplace. C. Privacy Interests in the Appellants' Workplace.
We begin with first principles. It is simply
implausible to suggest that society would recognize as reasonable
an employee's expectation of privacy against being viewed while
toiling in the Center's open and undifferentiated work area.
PRTC did not provide the work station for the appellants'
exclusive use, and its physical layout belies any expectation of
privacy. Security operators do not occupy private offices or
cubicles. They toil instead in a vast, undivided space a work
area so patulous as to render a broadcast expectation of privacy
unreasonable. See O'Connor, 480 U.S. at 717-18.
The precise extent of an employee's expectation of
privacy often turns on the nature of an intended intrusion. See
id. at 717-18; id. at 738 (Blackmun, J., dissenting). In this
instance the nature of the intrusion strengthens the conclusion
that no reasonable expectation of privacy attends the work area.
Employers possess a legitimate interest in the efficient
operation of the workplace, see id. at 723, and one attribute of
this interest is that supervisors may monitor at will that which
is in plain view within an open work area. Here, moreover, this
attribute has a greater claim on our allegiance because the
employer acted overtly in establishing the video surveillance:
PRTC notified its work force in advance that video cameras would
be installed and disclosed the cameras' field of vision.4 Hence,
4While this circumstance bears heavily on both the subjective and objective reasonableness of an employee's expectation of privacy, we do not mean to imply that an employer always can defeat an expectation of privacy by pre-announcing its intention to intrude into a specific area. See, e.g., Smith, 442
U.S. at 740 n.5 (hypothesizing that "if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry," individuals still might entertain an actual expectation of privacy regarding their homes, papers, and effects); see also Heather L. Hanson,
Note, The Fourth Amendment in the Workplace: Are We Really Being
Reasonable?, 79 Va. L. Rev. 243, 250-52 (1993). In cases in
which notice would contradict expectations that comport with
the affected workers were on clear notice from the outset that
any movements they might make and any objects they might display
within the work area would be exposed to the employer's sight.
The appellants concede that, as a general matter,
employees should expect to be under supervisors' watchful eyes
while at work. But at some point, they argue, surveillance
becomes unreasonable. In their estimation, when surveillance is
electronic and, therefore, unremitting the camera, unlike the
human eye, never blinks the die is cast. In constitutional
terms, their theory reduces to the contention that the Fourth
Amendment precludes management from observing electronically what
it lawfully can see with the naked eye. This sort of argument
has failed consistently under the plain view doctrine, and it
musters no greater persuasiveness in the present context.5 See 1
LaFave, supra, 2.7(f) (expressing skepticism about finding a
Fourth Amendment violation by fixed police video surveillance of
a person's public activities). When all is said and done,
employees must accept some circumscription of their liberty as a
condition of continued employment. See INS v. Delgado, 466 U.S.
210, 218 (1984).
Once we put aside the appellants' theory that there is
traditional Fourth Amendment freedoms, a normative inquiry is proper to determine whether the privacy expectation is nonetheless legitimate. See Hudson v. Palmer, 468 U.S. 517, 525
n.7 (1984); Smith, 442 U.S. at 740 n.5.
5We caution, however, that cases involving the covert use of clandestine cameras, or cases involving electronically-assisted eavesdropping, may be quite another story.
something constitutionally sinister about videotaping, their case
crumbles. If there is constitutional parity between observations
made with the naked eye and observations recorded by openly
displayed video cameras that have no greater range, then objects
or articles that an individual seeks to preserve as private may
be constitutionally protected from such videotaping only if they
are not located in plain view. See Taketa, 923 F.2d at 677. In
other words, persons cannot reasonably maintain an expectation of
privacy in that which they display openly. Justice Stewart
stated the proposition in no uncertain terms three decades ago:
"What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."
Katz v. United States, 389 U.S. 347, 351 (1967). Consequently,
no legitimate expectation of privacy exists in objects exposed to
plain view as long as the viewer's presence at the vantage point
is lawful. See Horton v. California, 496 U.S. 128, 133, 137
(1990); Oliver, 466 U.S. at 179. And the mere fact that the
observation is accomplished by a video camera rather than the
naked eye, and recorded on film rather than in a supervisor's
memory, does not transmogrify a constitutionally innocent act
into a constitutionally forbidden one.6 See 1 LaFave, supra,
6It is true, as the appellants repeatedly point out, that human observation is less implacable than video surveillance. But we can find no principled basis for assigning constitutional significance to that divagation. Both methods human observation and video surveillance perform the same function. Thus, videotaping per se does not alter the constitutional perspective in any material way.
2.7(f) (stating that individuals can record what is readily
observable from a nonintrusive viewing area).
The bottom line is that since PRTC could assign humans
to monitor the work station continuously without constitutional
insult, it could choose instead to carry out that lawful task by
means of unconcealed video cameras not equipped with microphones,
which record only what the human eye could observe.
D. The Appellants' Other Fourth Amendment Arguments. D. The Appellants' Other Fourth Amendment Arguments.
The appellants trot out a profusion of additional
asseverations in their effort to convince us that continuous
video surveillance of the workplace constitutes an impermissible
search. First, invoking Orwellian imagery, they recite a
catechism pasted together from bits and pieces of judicial
pronouncements recognizing the intrusive nature of video
surveillance. These statements are taken out of context.
Without exception, they refer to cameras installed
surreptitiously during the course of criminal investigations.
See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1442
(10th Cir. 1990); United States v. Cuevas-Sanchez, 821 F.2d 248,
251 (5th Cir. 1987); Hawaii v. Bonnell, 856 P.2d 1265, 1276-77
(Haw. 1993). Concealed cameras which infringe upon the rights of
criminal defendants raise troubling constitutional concerns
concerns not implicated by the employer's actions in this case.
By like token, the appellants' attempts to analogize
video monitoring to physical searches are unavailing. The silent
video surveillance which occurs at the Center is less intrusive
than most physical searches conducted by employers. PRTC's
stationary cameras do not pry behind closed office doors or into
desks, drawers, file cabinets, or other enclosed spaces, but,
rather, record only what is plainly visible on the surface.
Sounds are not recorded; thus, the cameras do not eavesdrop on
private conversations between employees. And while the Court
occasionally has characterized the taking of pictures as a
search, it is a constitutionally permissible activity if it does
not transgress an objectively reasonable expectation of privacy.
See, e.g., Dow Chem. Co. v. United States, 476 U.S. 227, 238-39
(1986) (upholding a search by aerial camera when the photographs
taken were limited to the outline of the surveilled plant's
buildings and equipment, even though the photos revealed more
detail than could be seen by the human eye).
Next, the appellants complain that while at work under
the cameras' unrelenting eyes they cannot scratch, yawn, or
perform any other movement in privacy. This complaint rings
true, but it begs the question. "[T]he test of legitimacy is not
whether a person chooses to conceal assertedly `private'
activity," but whether the intrusion is objectively unreasonable.
Oliver, 466 U.S. at 182-83; accord California v. Ciraolo, 476
U.S. 207, 212 (1986).
Finally, the appellants tout the potential for future
abuse, arguing, for example, that PRTC might expand video
surveillance "into the restrooms." Certainly, such an extension
would raise a serious constitutional question. See, e.g., People
v. Dezek, 308 N.W.2d 652, 654-55 (Mich. Ct. App. 1981) (upholding
a reasonable expectation of privacy against video surveillance in
restroom stalls). But present fears are often no more than
horrible imaginings, and potential privacy invasions do not
constitute searches within the purview of the Fourth Amendment.
See Dow Chem., 476 U.S. at 238 n.5; United States v. Karo, 468
U.S. 705, 712 (1984).
We have said enough on this score. The appellants have
failed to demonstrate the existence of an issue of material fact
sufficient to withstand summary judgment on their Fourth
Amendment claim. Because they do not enjoy an objectively
reasonable expectation of privacy against disclosed, soundless
video surveillance while at work, they have no cause of action
under the Fourth Amendment.7
IV. THE RIGHT OF PRIVACY IV. THE RIGHT OF PRIVACY
In addition to their Fourth Amendment claim, the
appellants contend that the Constitution spawns a general right,
in the nature of a privacy right, to be free from video
surveillance in the workplace.8 We do not agree.
Although the Constitution creates no free-floating
7In light of this conclusion, we need not reach the question of whether the intrusion attributable to PRTC's video monitoring is reasonable under the circumstances. See O'Connor, 480 U.S. at
725-26.
8As presented in this proceeding, this claim necessarily rises or falls on principles of federal constitutional law. We are aware both that privacy interests are somewhat more zealously guarded by Puerto Rican norms, see, e.g., P.R. Const. art. II,
1, 7, and that the appellants have a parallel suit pending in the local courts.
right to privacy, see Katz, 389 U.S. at 350-51, specific
guarantees may create protectable zones of privacy. See Paul v.
Davis, 424 U.S. 693, 712-13 (1976); Roe v. Wade, 410 U.S. 113,
152-53 (1973). Thus, the appellants' privacy claim cannot
prosper unless it is anchored in an enumerated constitutional
guaranty.
The Fourth Amendment obviously is unavailable for this
purpose. See supra Part III(C) & (D). The appellants' effort to
introduce the Ninth Amendment is similarly misdirected. The
Ninth Amendment which stipulates that "the enumeration in the
Constitution of certain rights, shall not be construed to deny or
disparage others retained by the people" does not create
substantive rights beyond those conferred by governing law. See
Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991); see also
John E. Nowak & Ronald D. Rotunda, Constitutional Law 11.7 (5th
ed. 1995) (observing that "the Ninth Amendment has not been used
as the basis for defining rights of individuals") (collecting
cases).
The appellants' privacy claim thus hinges upon a right
to privacy which has its origin in the Fourteenth Amendment's
concept of personal liberty.9 Such privacy rights do exist, see
Roe, 410 U.S. at 152, but they have been limited to fundamental
rights that are implicit in the concept of an ordered liberty.
See Paul, 424 U.S. at 713. On the facts of this case, the right
9The Fourteenth Amendment guarantees, inter alia, that no
state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, 1.
to be free from disclosed video surveillance while at work in an
open, generally accessible area does not constitute a fundamental
right.
The courts have identified two clusters of personal
privacy rights recognized by the Fourteenth Amendment. One
bundle of rights relates to ensuring autonomy in making certain
kinds of significant personal decisions; the other relates to
ensuring the confidentiality of personal matters. See Whalen v.
Roe, 429 U.S. 589, 598-600 (1977); Borucki v. Ryan, 827 F.2d 836,
840 (1st Cir. 1987). PRTC's monitoring does not implicate any of
these rights.
The autonomy branch of the Fourteenth Amendment right
to privacy is limited to decisions arising in the personal sphere
matters relating to marriage, procreation, contraception,
family relationships, child rearing, and the like. See Paul, 424
U.S. at 713; Griswold v. Connecticut, 381 U.S. 479, 485-86
(1965). The type of privacy interest which arguably is
threatened by workplace surveillance cannot be shoehorned into
any of these categories. Because the appellants do not challenge
a governmental restriction imposed upon decisionmaking in
uniquely personal matters, they cannot bring their claim within
the reach of the "autonomy" cases.
The appellants' argument is no stronger under the
confidentiality bough of the Fourteenth Amendment right to
privacy. Even if the right of confidentiality has a range
broader than that associated with the right to autonomy, but cf.
Borucki, 827 F.2d at 841-42 (suggesting that the right of
confidentiality protects only information relating to matters
within the scope of the right to autonomy), that range has not
extended beyond prohibiting profligate disclosure of medical,
financial, and other intimately personal data. See id. at 841
n.8 & 842 (collecting cases). Any data disclosed through PRTC's
video surveillance is qualitatively different, if for no other
reason than that it has been revealed knowingly by the appellants
to all observers (including the video cameras). This information
cannot be characterized accurately as "personal" or
"confidential."
The appellants also appear to rely upon the substantive
component of the Due Process Clause as a source of the envisioned
privacy right. To this extent, they are whistling past the
graveyard. The boundaries of substantive due process analysis
are not sufficiently flexible to accommodate the appellants'
claim. See, e.g., Paul, 424 U.S. at 713 (declining to enlarge
the scope of substantive due process to include a privacy
interest in preventing publication of a person's arrest record);
see generally Collins v. City of Harker Heights, 503 U.S. 115,
125 (1992) (expressing reluctance "to expand the concept of
substantive due process").
Insofar as this claim invites a substantive due process
analysis by purporting to challenge the existence of a rational
relationship between PRTC's video surveillance and its legitimate
needs qua employer, the claim is a non-starter. Even if we leave
security concerns to one side,10 video surveillance is a rational
means to advance the employer's legitimate, work-related interest
in monitoring employee performance. See O'Connor, 480 U.S. at
724 ("[P]ublic employers have a direct and overriding interest in
ensuring that the work of the agency is conducted in a proper and
efficient manner."); Alinovi v. Worcester Sch. Comm., 777 F.2d
776, 782 (1st Cir. 1985) (stating that an employee's privacy
interest may be lessened due to a "supervisor's legitimate
oversight responsibilities and the special duties that may be
owed by the employee by virtue of his employment").
V. LEAVE TO AMEND V. LEAVE TO AMEND
In a last-ditch effort to save the day, the appellants
assert that the district court should have granted them leave to
amend and that its failure to do so requires vacation of the
judgment. The assertion is meritless.
The short, dispositive answer to the appellants' plaint
is that they never sought permission to amend in the court below.
See Beaulieu v. United States IRS, 865 F.2d 1351, 1352 (1st Cir.
1989) ("[I]t is a party's first obligation to seek any relief
that might fairly have been thought available in the district
court before seeking it on appeal."). The slightly longer but
equally dispositive answer is that where, as here, plaintiffs
10The appellants berate the district court for taking improper judicial notice of the Center's role in assisting law enforcement agencies authorized to perform wiretaps. Our review has been plenary, and whether PRTC coordinates wiretaps does not bear on our analysis. Accordingly, any error in this regard was harmless.
elect to stand upon their complaint and appeal from an adverse
judgment, we have been exceedingly reluctant to direct the trial
court to permit amendment upon affirmance of the judgment. See,
e.g., Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 23 (1st
Cir. 1989). Nothing in this case warrants a deviation from that
sound praxis. The facts necessary to support the entry of
judgment are undisputed and the appellants have not adverted to
any additional facts which, if inserted into the record, could
breathe new life into their moribund federal claims. Under such
circumstances, leave to amend would be an empty exercise. See
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st Cir.
1990); Dartmouth Review, 889 F.2d at 23.
VI. CONCLUSION VI. CONCLUSION
We need go no further. Because the appellants do not
have an objectively reasonable expectation of privacy in the open
areas of their workplace, the video surveillance conducted by
their employer does not infract their federal constitutional
rights. PRTC's employees may register their objections to the
surveillance system with management, but they may not lean upon
the Constitution for support.
Affirmed. Affirmed.