Bolivar v. FBI
U.S. Court of Appeals for the First Circuit
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January 11, 1995 [NOT FOR PUBLICATION]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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