
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1235                                CARLOS ROMERO-BARCELO,                                Plaintiff, Appellant,                                          v.                           MIGUEL HERNANDEZ-AGOSTO, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Michael J.  Rovell, with  whom Lisa I.  Fair, Hilary  A. Higgins,             __________________             _____________  __________________        Carlos  G. Latimer  and  Latimer, Biaggi,  Rachid, Rodriguez,  Suris &        __________________       _____________________________________________        Godreau were on brief for appellant.        _______             Marcos  A. Ram rez-Lavandero,  with whom Eduardo  A. Vera-Ram rez             ____________________________             ________________________        and  Marcos  A.  Ram rez-Lavandero  & Associates  were  on  brief  for             ___________________________________________        appellees.                                                                                      ____________________                                   January 31, 1996                                                                                      ____________________                    CYR,  Circuit Judge.   This  appeal  involves the  most                    CYR,  Circuit Judge.                          _____________          recent  installment  in  the ongoing  Cerro  Maravilla  political          scandal, which has  engaged public attention in  the Commonwealth          of  Puerto Rico  for more  than fifteen  years, and  enlisted our          attention  on  several  occasions since  1981.    In  this latest          sequel, plaintiff  Carlos Romero-Barcelo  (or "appellant")  chal-          lenges  a district court judgment dismissing various civil rights          claims, with  prejudice, based  on absolute legislative  immunity          and failure to state a claim, and dismissing, without  prejudice,          certain  pendent claims  under Puerto  Rico law.   We  affirm the          district court judgment in all respects.                                          I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    On  February 22,  1981, the  Puerto  Rico Senate,  then          controlled by the Popular Democratic Party ("PDP"), authorized an          investigation  into the  brutal ambush  and murders  of  two pro-          independence youths,  Arnaldo  Dario-Rosado    and  Carlos  Soto-          Arrivi, by Commonwealth police officers at Cerro Maravilla in the          mountains of Puerto Rico during the summer  of 1978.  At the time          of  the murders,  appellant Romero-Barcelo  was  the Governor  of          Puerto Rico, and  headed the New Progressive  Party ("NPP") which          controlled the  Senate.   As  part of  the Senate  investigation,          subpoenas  were issued  for documents  in the  possession of  the                                        ____________________               1Rule 12(b)(6) dismissals are reviewed under the rubric that          "all  reasonable inferences  from well-pleaded  facts  are to  be          drawn  in  appellant['s]  favor."    Calero-Colon v.  Betancourt-                                               ____________     ___________          Lebron, 68 F.3d 1, 2 n.1 (1st Cir. 1995).          ______                                          3          Puerto  Rico  Justice Department.    In  due course,  this  court          vacated a district court order  quashing the subpoenas, In re San                                                                  _________          Juan Star  Co., 662 F.2d 108, 111,  118-20 (1st Cir. 1981), while          ______________          noting that  a state legislature  might be enjoined "in  a proper          case."  Colon Berrios  v. Hernandez Agosto, 716 F.2d 85,  88 (1st                  _____________     ________________          Cir. 1983) (internal quotation marks omitted).                    Following  the  San  Juan  Star  decision,  the  Senate                                    _______________          Judiciary Committee (or "Committee")  gained access to  materials          which    together with other documents and testimony gathered  in          executive session     formed  the basis  for televised  Committee          hearings (or "Hearings")  which began June 15, 1983.   The Senate          voted to pay to televise the Hearings on a commercial station and          "the  hearings  were  apparently  widely  viewed."   Id.  at  87.                                                               ___          Thereafter,  we reversed a district court order enjoining Commit-          tee members and  their agents from compelling some  of the defen-          dants  in a  separate  civil  rights action  arising  out of  the          murders of Dario-Rosado and  Soto-Arrivi (the "Soto" litigation),          see  Soto v.  Romero Barcelo,  559 F.  Supp. 739,  740-41 (D.P.R.          ___  ____     ______________          1983), to appear and testify publicly at the Hearings; and, "from          publishing documents in the [Committee members'] possession  that          are covered by  the protective order issued in  [the Soto litiga-          tion] or that are transcripts  of testimony before the  Committee          by [some  of the Soto defendants]."   Colon Berrios,  716 F.2d at                                                _____________          86, 87.                      The Hearings were reconvened in  October 1984, prepara-          tory  to the  November  1984  gubernatorial  elections  in  which                                          4          Romero-Barcelo ran for reelection and lost.  Following a break in          the political action, the most  recent round of Hearings began in          October  1991,  as a  prelude  to a  PDP-sponsored  referendum in          December  1991  on   the  future  intergovernmental  relationship          between Puerto Rico and  the United States.  Once  Romero-Barcelo          announced his candidacy for Resident Commissioner, these Hearings          were extended through May  1992.  During the latter phases of the          Hearings, while the PDP controlled the Senate, defendant-appellee          Miguel Hernandez-Agosto  served as  Senate President,  defendant-          appellee Marco Antonio-Rigau headed  the Senate Judiciary Commit-          tee, and  defendant-appellee Edgardo Perez-Viera,  chief counsel,          directed Committee investigative efforts.                     Appellant  Romero-Barcelo  claims,   inter  alia,  that                                                         _____  ____          Committee members slanted and manipulated the Committee testimony          and evidence to suggest that he had been involved in the planning          and shooting of the two youths at  Cerro Maravilla, and in subse-          quent attempts to cover up the murders.  He alleges that witness-          es were interviewed in private, without legal assistance; subpoe-          nas were issued without notifying all Committee members; only one          Committee investigator was appointed and he reported  exclusively          to  the PDP  majority; access  to all  documents,  transcripts of          testimony, evidence, and  reports was restricted to  PDP members,          their aides  and assistants; the Committee violated a Puerto Rico          Supreme Court order  that the  documents and  other materials  be          made  available to the  NPP minority; witnesses  were not allowed          access to transcripts of their prior testimony before testifying;                                          5          an  investigative  report     finding  no  wrongdoing  by Romero-          Barcelo    was covered up;  the witness microphone was turned off          when  testimony  did  not suit  defendants  Hernandez-Agosto  and          Antonio-Rigau, or other PDP members.                      Romero-Barcelo alleges  that  from the  late 1970s  the          defendants  and the  Committee continuously  labelled  him as  an          assassin  or murderer, even though no evidence was ever submitted          to  substantiate  the  charge;  that  defendant  Perez  presented          information  at  the  Hearings, and  subsequently  through  press          releases and  television and radio  interviews, knowing it  to be          false or misleading; that the defendants continually disseminated          false  information  outside  the  legislative  chambers,  through          television broadcasts made at government expense, press  releases          and  interviews  arranged  and conducted  at  the  Legislature in          public  areas  and  at  television  studios,  political  speeches          delivered in  various municipalities, press  releases distributed          to news media  within and beyond Puerto Rico,  as well as written          and oral communications to the  United States Senate and House of          Representatives,  federal departments,  and agencies.   Appellant          complains that the defendants held press conferences at radio and          television stations and  other public forums after  the Hearings,          publicly passing judgment on statements made before the Committee          regarding  the credibility of witnesses, the strength or weakness          of  the evidence,  and  publicly  accusing  witnesses  and  third          parties, including Romero-Barcelo, of perjury  before the Commit-          tee.   This  campaign allegedly  was carried  out through  public                                          6          speechmaking and political  campaign rallies, as well  as televi-          sion and radio broadcasts, newspapers,and by other public means.                     In September  1992, appellant  brought suit  in federal          district  court under 42  U.S.C.   1983,  asserting violations of          his  First,  Fifth,  and Fourteenth  Amendment  rights  under the          United States Constitution,  and under 42  U.S.C.   1985(3),  for          conspiracy to  deprive him  of these constitutional  rights.   He          demanded compensatory and punitive  damages, costs, and  attorney          fees.  See 28  U.S.C.    1331 (federal question)  and 1343 (civil                 ___          rights and elective franchise).  Finally, he alleged supplemental          claims  for libel  and  slander under  Puerto Rico  law.   See 28                                                                     ___          U.S.C.    1367.   The defendants  moved to dismiss  under Fed. R.          Civ. P.  12(b)(6), asserting absolute  legislative immunity,  and          failure  to state  a claim.    The district  court dismissed  all          federal claims, with prejudice, and the libel and slander claims,          without prejudice.  Romero-Barcelo appealed.                                          II                                          II                                     DISCUSSION2                                     DISCUSSION                                     __________                    We first consider the alleged conduct that the district          court found  to  be  protected  under the  doctrine  of  absolute                                        ____________________               2We review  Rule  12(b)(6) dismissals  de novo.   Clarke  v.                                                      __ ____    ______          Kentucky  Fried Chicken of  Cal., Inc., 57  F.3d 21, 22  n.1 (1st          ______________________________________          Cir.  1995).  "The  pleading requirements, though  'minimal,' are          not  'non-existent.'"   Rumford Pharmacy,  Inc. v.  City of  East                                  _______________________     _____________          Providence, 970 F.2d 996, 998  (1st Cir. 1992) (quoting Gooley v.          __________                                              ______          Mobil  Oil Corp.,  851 F.2d  513,  515 (1st  Cir. 1988)  ("Modern          ________________          notions of 'notice  pleading' notwithstanding, a plaintiff .  . .          is  nonetheless required to set forth factual allegations, either          direct or inferential, respecting each material element necessary          to sustain recovery under some actionable legal theory.")).                                          7          legislative immunity.   Next, we determine whether  the remaining          conduct in which defendants are alleged to have engaged gave rise          to  any actionable  claim under  either section  1983  or section          1985(3).            A.   Absolute Legislative Immunity          A.   Absolute Legislative Immunity               _____________________________                    A defense  of absolute legislative  immunity for  state          legislators has been  recognized since 1951.  Colon  Berrios, 716                                                        ______________          F.2d at 89 (citing Tenney v. Brandhove, 341 U.S. 367 (1951)).  Of                             ______    _________          course,  absolute  immunity  affords  protection  not  only  from          liability but from  suit.  Agromayor v. Colberg, 738  F.2d 55, 57                                     _________    _______          (1st Cir.), cert. denied, 469 U.S. 1037 (1984)  (citing Helstoski                      _____ ______                                _________          v.  Meanor,  442 U.S.  500,  506-08 (1979)).    State legislative              ______          immunity  is "'similar in  origin and rationale  to that accorded          Congressmen  under the  Speech or  Debate Clause'" of  the United          States Constitution.   Negron-Gaztambide v. Hernandez-Torres,  35                                 _________________    ________________          F.3d 25, 27 (1st Cir. 1994), cert. denied, 115 S. Ct. 1098 (1995)                                       _____ ______          (quoting Supreme  Court of Va.  v. Consumers Union of  the United                   _____________________     ______________________________          States,  Inc., 446 U.S. 719, 732 (1980)).   Although not based on          _____________          the doctrine  of separation of  powers, as is  the constitutional          immunity  accorded Members  of  Congress, the  state  legislative          immunity defense nonetheless implicates "principles of comity and          federalism . . . ."  Agromayor, 738 F.2d at 58-59  (citing United                               _________                             ______          States  v. Gillock,  445  U.S.  360, 370-73  (1980)).   See  also          ______     _______                                      ___  ____          National Ass'n  of Social  Workers v. Harwood,  69 F.3d  622, 628          __________________________________    _______          (1st Cir. 1995).                                          8                    The immunity defense in this case protects only conduct          within  the "sphere of  legitimate legislative activity."   Colon                                                                      _____          Berrios, 716 F.2d  at 89 (citing  Doe v. McMillan, 412  U.S. 306,          _______                           ___    ________          320  (1973); Tenney, 341  U.S. at 376-77).   Absolute legislative                       ______          immunity "is justified and  defined by the functions it  protects                                                     _________          and serves,  not by  the person to  whom it  attaches."   Negron-                                                                    _______          Gaztambide, 35 F.3d  at 27 (quoting Forrester v.  White, 484 U.S.          __________                          _________     _____          219,  227 (1988)).   "[I]t is  the nature  of the  particular act          rather than the title of the office which governs whether immuni-          ty  attaches."  Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20,                          _______________    ________________          21 (1st Cir. 1992); see also Agromayor, 738 F.2d at 59.  "Acts  .                              ___ ____ _________          . .  that are  administrative  in nature  do  not 'give  rise  to          absolute  immunity  from  liability in  damages  under    1983.'"          Negron-Gaztambide, 35  F.3d at 28 (quoting Forrester, 484 U.S. at          _________________                          _________          229); see also  Agromayor, 738 F.2d at 59-60;  Cutting v. Muzzey,                ___ ____  _________                      _______    ______          724 F.2d 259, 261-62 (1st Cir. 1984).                    The scope of state legislative immunity from suit under          section  1983  is  "essentially  coterminous" with  the  absolute          immunity accorded members of Congress  under the Speech or Debate          Clause  of  the  United States  Constitution  (or  "the Clause").          Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at          _______                         ____________________          732-33).   For the Clause  to apply,  the activity  must be  "'an          integral  part of the deliberative and communicative processes by          which Members participate in committee and House proceedings with          respect to the consideration and passage or rejection of proposed          legislation or with respect to  other matters which the Constitu-                                          9          tion places within the jurisdiction  of either House.'"  Agromay-                                                                   ________          or, 738  F.2d at 59  (quoting Gravel  v. United States,  408 U.S.          __                            ______     _____________          606, 625  (1976)).   It  does not  cover "actions  that are  only          'casually  or  incidentally  related  to  legislative  affairs,'"          Harwood, 69 F.3d  at 630 (quoting United States  v. Brewster, 408          _______                           _____________     ________          U.S. 501, 528  (1972)), "or  which fall  outside the  'legitimate          legislative sphere.'"   Id.  (quoting Eastland  v. United  States                                  ___           ________     ______________          Servicemen's Fund, 421 U.S. 491, 503 (1975)).              _________________                    "While  the core  protection  conferred  by the  Clause          concerns speech or debate by a member of Congress on the floor of          either the Senate or the House", id. (citing Gravel,  408 U.S. at                                           ___         ______          625), "the  penumbra of  the Clause sprawls  more broadly."   Id.                                                                        ___          For  example, the Clause  covers voting; id.  (citing Kilbourn v.                                                   __           ________          Thompson,  103 U.S.  168, 204  (1880));  "conduct at  legislative          ________          hearings," but not  "private publication by a Senator  on his own          behalf  of documents  submitted at  a  hearing .  . .  ";   Colon                                                                      _____          Berrios,  716 F.2d  at 90  (citing Gravel,  408 U.S.  at 624-27);          _______                            ______          "members . . . and their staffs" for preparation of "an allegedly          defamatory report"; id.; and members  in "voting for its publica-                              __          tion,"  but not "general public dissemination  [of the report] by          legislative functionaries."   Id.  (citing Doe, 412  U.S. at 313-                                        ___          ___          14).  The  Clause covers "a committee hearing  or report designed          to  inform the [legislative]  membership," but not  an individual          "Senator's  publication of press  releases or news  letters," id.                                                                        __          (citing Hutchinson v. Proxmire, 443 U.S. 111, 123-33 (1979)), nor                  __________    ________          individual  "political"  activities,  such  as  are  involved  in                                          10          "legitimate 'errands' performed for  constituents, the making  of          appointments  with  Government  agencies,  [and]  assistance   in          securing Government contracts."   Harwood, 69 F.3d at 631 (alter-                                            _______          ation in original) (quoting Brewster, 408 U.S.  at 512) (internal                                      ________          quotation marks omitted).                    The district  court concluded that  the Cerro Maravilla          hearings "fell well within the legitimate legislative sphere" and          "that  the defendants  are  therefore immune  from  any civil  or          criminal prosecution  based on  conduct directly  related to  the          Cerro Maravilla investigations."  Barcelo v. Agosto, 876 F. Supp.                                            _______    ______          1332, 1342-43  (D.P.R. 1995).   The court  relied on  our earlier          analysis of the Hearings:                    The  hearings  were  properly  authorized  by                    Puerto  Rico Senate  Resolution 91  (February                    22, 1981), which provides a specific  mandate                    to the Senate  Judiciary Committee to inquire                    into the activities of  the police and  other                    agencies of the government leading up  to and                    during the  Cerro Maravilla incident  as well                    as the  behavior of the  executive branch  in                    response to the incident.                         Investigations such as this Senate Judi-                    ciary Committee  investigation constitute  an                    essential component  of the  legislative pro-                    cess. . . .          Id. (quoting Colon Berrios, 716 F.2d at 90).            ___          _____________                    The  district court then held that all of Romero-Barce-          lo's  "claims  regarding  allegedly  unconstitutional  procedures          employed by  the Committee relating to the issuance of subpoenas,          the examination of witnesses,  and the gathering of  evidence, as          well as his claims regarding the allegedly unlawful use of public          funds to broadcast the hearings and regarding slanderous comments                                          11          allegedly  made by  the defendants  must be  DISMISSED."   Id. at                                                                     ___          1343.   The court  dismissed the claims  against Hernandez-Agosto          and Antonio-Rigau,  members of  the Puerto  Rico Legislature,  as          well as the claim against Perez-Viera, chief counsel and investi-          gator for the  Committee.  Id.  at 1343  n.8 (citing Eastland  v.                                     ___                       ________          United  States  Servicemen's Fund,  421  U.S. at  507  (Speech or          _________________________________          Debate Clause immunity for issuance by investigative subcommittee          extends to its chief counsel)).   The court also rejected Romero-          Barcelo's  claim "that the defendants abused their positions and,          solely  [for]  political  reasons,  slanted  or  manipulated  the          testimony offered during the hearings to portray the plaintiff in          a negative light."   Id. at 1343 (citing Tenney, 341  U.S. at 377                               ___                 ______          ("The claim  of an unworthy  purpose does not destroy  the privi-          lege.")).  The  district court ruled, however,  that "defendants'          alleged  dissemination  of  false,   defamatory,  and  slanderous          information about  the plaintiff  through press  releases, inter-          views, and speeches  occurring outside the strict  scope of their          legislative duties" was  not protected  by legislative  immunity.          Id. (citing Hutchinson, Gravel, and Doe).           ___         __________  ______      ___               1.   Allegations of Criminal Misconduct                 1.   Allegations of Criminal Misconduct                      __________________________________                    Appellant  argues  that the  defendants  are liable  in          damages under section 1983 for their alleged  criminal conduct                                                           ________          including subornation  of perjury, intimidation of  witnesses and          obstruction of justice during  the Hearings    even  assuming the          Hearings were a proper legislative function.  Citing to Brewster,                                                                  ________          408 U.S. at 526, he relies  for further support on the  reasoning                                          12          in Gravel,  408 U.S. at 626:  "While  the Speech or Debate Clause             ______          recognizes speech, voting,  and other legislative acts  as exempt          from liability that might otherwise attach, it does not privilege          either Senator  or aide to  violate an otherwise criminal  law in          preparing for or implementing legislative acts."                   Romero-Barcelo's reliance  on Gravel and  Brewster is mis-                                               ______      ________          placed, however, as  those cases concerned whether  a legislative          immunity defense based  on the Speech or  Debate Clause protected          Members  of Congress  from  federal  criminal  prosecution.    In                                      _______  ________  ___________          Gillock,  the  Supreme  Court  carefully  distinguished  a  State          _______          legislator's narrower right to absolute legislative immunity from          private  civil  actions,  which does  not  include  immunity from          federal criminal prosecution.                      First, Tenney was a civil action brought by a                           ______                    private   plaintiff   to   vindicate  private                    rights.   Moreover, the  cases in this  Court                    which have recognized an immunity from  civil                    suit  for state  officials have  presumed the                    existence of federal criminal  liability as a                    restraining factor  on the  conduct of  state                    officials.  .  . .  Thus,  in protecting  the                    independence of state legislators, Tenney and                                                       ______                    subsequent  cases on  official immunity  have                    drawn the line at civil actions.          445 U.S. 372-73.   Absolute immunity from suit  for civil damages          under  section 1983 allegedly based  on criminal conduct does not          necessarily  immunize the  legislator or  his  aide from  federal                                          13          criminal  prosecution.3   But the  legislator  is immunized  from          suit for damages under section 1983.                                          ____________________               3As the  district  court  dictum  concerning  immunity  from          criminal  prosecution "based on  conduct directly related  to the          Cerro Maravilla investigations,"   Barcelo, 876 F. Supp. at 1343,                                             _______          is not necessary to its holding,  nor to ours, we do not  endorse          it.                                           14               2.   Contemporaneous Telecasting of Hearings                  2.   Contemporaneous Telecasting of Hearings                       _______________________________________                    Appellant  argues  that  defendants'  decision  to  use          public funds to finance live  telecasts of these Hearings was not          protected  by absolute legislative  immunity.  The  Supreme court          made clear, in Doe, 412 U.S. at  313-14, that the introduction of                         ___          documents at an open legislative hearing is protected conduct but          a private republication of the  documents by a Member of Congress          is  not.  We  hold that the legislative  decision to sponsor live          telecasts of the open Committee hearings authorized a legislative          disclosure     rather  than  a  private  republication      which          clothed defendants with  absolute legislative immunity from  suit          under  section  1983.4   But  even  assuming  the contemporaneous          "publication" of  the open  Hearings went  beyond the  reasonable          requirements of  the legislative  function, a  matter  we do  not          decide,  defendants' determination  that the  Hearings  should be          televised  at  public  expense  constituted  legislative  conduct          absolutely immune from  civil suit.  Doe, 412  U.S. at 315 ("Mem-                                               ___          bers of Congress are themselves immune for ordering or voting for                                        ____________________               4In Hutchinson, 443 U.S. at 116 n.3, the Supreme Court said:                   __________          "we assume,  without  deciding,  that a  speech  printed  in  the          Congressional  Record carries immunity under the Speech or Debate          Clause as though delivered on the floor."  Accordingly, the Court          did  not take  issue with  a  district court  suggestion that  "a          television or  radio broadcast of  [a Senator's] speech  from the          Senate  floor" would  receive  the protection  of  the Speech  or          Debate Clause.  Id. at 119.  But the Court did not agree with the                          __          suggestion that  such  a  broadcast  is analogous  to  a  Senator          issuing  a press release  relating to a  floor speech.   Id.  See                                                                   __   ___          also Cable  News Network  v. Anderson, 723  F. Supp.  835 (D.D.C.          ____ ___________________     ________          1989) (Speech or Debate Clause bars judicial review of House rule          regulating television coverage of hearings).                                           15          a publication  going beyond  the reasonable  requirements of  the          legislative function . . . .").5                 3.   Immunity of Committee Counsel               3.   Immunity of Committee Counsel                    _____________________________                    Next,  appellant argues that the immunity of a legisla-          tive  aide is  less broad  than that  available to  a legislator.          Consequently, says appellant, the chief counsel to the Committee,          defendant-appellee  Perez-Viera, is not immune from suit.  Appel-          lant relies  on Dombrowski  v. Eastland, 387  U.S. 82,  85 (1967)                          __________     ________          (per  curiam),  wherein the  Supreme  Court affirmed  a  grant of          summary judgment  for the Chairman  of a Senate  subcommittee but          reversed  a summary  judgment  order  in  favor  of  subcommittee          counsel, explaining that the "doctrine [of  legislative] immunity          is less absolute,  although applicable, when applied  to officers          or employees  of a legislative  body, rather than  to legislators          themselves."   Eight years  later, the  Supreme Court  considered          whether the  absolute immunity  of the  same Senate  Subcommittee          Chairman extended to the same  subcommittee counsel.  Eastland v.                                                                ________          United States Serviceman's Fund, 421  U.S. at 506-508.  The Court          _______________________________                                        ____________________               5Appellant argues that it was improper to grant judgment for          defendants under  Rule 12(b)(6), because  further factfinding was          required  to determine whether their decision to use public funds          to  finance live telecasts  is protected by  absolute legislative          immunity.  Appellant relies on  dicta in Colon Berrios, declining                                                   _____________          to reach "the issue of  whether the Senate's expenditure of funds          for live television  broadcast of the  hearings falls within  the          legitimate  legislative sphere"  because, inter  alia, it  "would                                                    _____  ____          involve  extensive  fact-finding"  relating  to  First  Amendment          issues regarding  prior restraint.   716  F.2d 90  n.3.   In this          case,  however, there  is no  need to  reach the  First Amendment          matters which loomed in Colon Berrios, since we are not reviewing                                  _____________          a Rule 12(b)(6) denial of injunctive relief, but a dismissal of a          civil  rights action  for damages  based in  part on  a broadcast          which has already occurred.                                            16          "[drew] no  distinction between the  Members and the  Chief Coun-          sel," id. at 507, stating  that "the day-to-day work of [legisla-                ___          tive] aides is so critical  to the Members' performance that they          must  be  treated as  [the Members']  alter egos  . .  . ."   Id.                                                                        ___          (alteration in  original) (quoting  Gravel, 408  U.S. at  616-17)                                              ______          (internal  quotation marks  omitted).   It  noted, however,  that          "[t]he complaint .  . . does not distinguish  between the activi-          ties  of the  Members and  those of  the Chief  Counsel," thereby          distinguishing Dombrowski v. Eastland.  Id.            Appellant                         __________    ________   ___          argues that his complaint does distinguish between the activities          of  Hernandez-Agosto  and  Antonio-Rigau, on  the  one  hand, and          Perez-Viera  on the other.  Nevertheless, the relevant allegation          in  the complaint     that  chief  counsel Perez-Viera  presented          information at the Committee hearings, knowing it to be false and          misleading    is part and  parcel of the parallel allegation that          all  legislator-defendants  used   the  Hearings  to  disseminate          information  about  Romero-Barcelo,  knowing it  to  be  false or          misleading.  Thus, in applying the doctrine of absolute  legisla-          tive immunity to these facts,  we draw no distinction between the          legislator-defendants and Committee counsel.              B.   Civil Rights Claims          B.   Civil Rights Claims               ___________________                    We  next consider  the claims  not  barred by  absolute          legislative immunity.                 1.   Section 1983               1.   Section 1983                    ____________                    "An  actionable  section 1983  claim must  allege facts          sufficient  to  support  a determination  '(i)  that  the conduct                                          17          complained of  has been committed  under color of state  law, and          (ii) that [the alleged] conduct worked a denial of rights secured          by  the Constitution  or laws  of the  United States.'"   Rumford                                                                    _______          Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st          _____________     _______________________          Cir. 1992) (quoting Chongris v. Board of Appeals, 811 F.2d 36, 40                              ________    ________________          (1st Cir.), cert. denied, 483 U.S. 1021 (1987)).                      ____  ______                    a.   Procedural Due Process                    a.   Procedural Due Process                         ______________________                    A viable  procedural due process claim must demonstrate          a  "deprivation by state  action of a  constitutionally protected          interest  in 'life,  liberty, or  property' .  . .   without  due                                                               _______  ___          process  of law."   Lowe v.  Scott, 959  F.2d 323, 340  (1st Cir.          _______  __ ___     ____     _____          1992)  (quoting  Zinermon v.  Burch,  494 U.S.  113,  125 (1990))                           ________     _____          (internal quotation marks omitted).6                           i.   Deprivation of Liberty Interest                          i.   Deprivation of Liberty Interest                               _______________________________                    Romero-Barcelo alleges  that the  defamatory statements          by defendants  deprived him of  a "liberty" interest in  his good          name and reputation.  Barcelo, 876 F. Supp. at 1344.  The Supreme                                _______          Court  has made  it clear  that  an actionable  deprivation of  a          liberty interest  in one's reputation  "must be accompanied  by a          change  in the  [victim's] status  or  rights (under  substantive          state  or  federal law),  perhaps  as a  touchstone  (or concrete          evidence) of the fact that the injury to reputation was inflicted          as part of a conscious government policy and is serious enough to          interfere with other liberties of the sort suggested in Meyer [v.                                                                  _____                                        ____________________               6Of  course, if  the challenged  conduct  constitutes "state          action," the  "color of  state law" requirement  is met  as well.          Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 (1982).          _____    ________________                                          18          Nebraska, 262  U.S. 390 (1923)],"  Beitzell v. Jeffrey,  643 F.2d          ________                           ________    _______          870, 878  (1st Cir. 1981)  (citing Paul  v. Davis, 424  U.S. 693,                                             ____     _____          706, 708, 710  (1976) (in the absence of  more tangible interests          such  as employment,  reputation alone  is  neither a  "property"          interest nor a "liberty" interest sufficient to require procedur-          al due process)),  such "as the  right 'to engage  in any of  the          common occupations  of life,' or  'to marry, to establish  a home          and bring up children.'"  Id.  at 877 (citing Meyer, 262 U.S.  at                                    ___                 _____          399).   As this court indicated in  Beitzell, no constitutionally                                              ________          protected "liberty"  interest in  reputation is  infringed unless          the reputational harm is "unusually serious . . . as evidenced by          the  fact that  employment (or  some  other right  or status)  is          affected."  Id. at 878.                        ___                    The district court  concluded that no serious  harm had          befallen  Romero-Barcelo.   Barcelo, 876  F.  Supp at  1345.   It                                      _______          observed  that he had been elected Resident Commissioner in 1992,          "immediately  after the last barrage of allegedly libelous state-          ments."   Id.   The  district court  noted as  well  that Romero-                    __          Barcelo had lost the gubernatorial election in 1984, but it ruled          that any  claim based  on that "serious  harm," some  eight years          earlier, was time-barred.  Id.  at 1346 (citing Wilson v. Garcia,                                     __                   ______    ______          471 U.S. 261,  276 (1985) (in section 1983  action, court borrows          local limitation  period applicable to personal  injury actions);          Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 2-3 (1st Cir. 1995)          ____________    _________________                                          19          (citing to  P.R. Laws Ann.  tit. 31,   5298(2)  (1991)) (one-year          limitation on personal injury actions).7                          ii.  The Process Due                         ii.  The Process Due                              _______________                    Romero-Barcelo  claims a deprivation of his right to be          free from  "'abusive attacks on his honor, reputation and private          or family life'  as established by Article II,  Section 8, of the          Puerto Rico  Constitution."   Barcelo,  876  F. Supp.  at  1346.8                                        _______          Although the Section 8 claim  is based in commonwealth law, hence          not  directly actionable under section 1983, Quintero de Quintero                                                       ____________________          v. Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992), Section 8 may             ____________          give  rise  to a  constitutionally protected  "liberty interest."          Assuming  arguendo, as  did the  district court,  that  Section 8                    ________          creates  a  constitutionally  protected  "liberty"  interest,  we          consider whether Romero-Barcelo received the process due.                     The process due  depends in large  part on the  circum-          stances.  Watson v.  Caton, 984 F.2d 537, 540-41 (1st  Cir. 1993)                    ______     _____          (per  curiam) (citing  Mathews  v. Eldridge,  424  U.S. 319,  335                                 _______     ________                                        ____________________               7Appellant misplaces  reliance on Limerick v. Greenwald, 666                                                 ________    _________          F.2d 733 (1st Cir. 1981), wherein a timely complaint alleged that          defendants'  actions  threatened  "unusually   serious  harm"  to          plaintiffs' reputations,  "stripping them of  their responsibili-          ties as bank  managers and threatening their  future employabili-          ty."   Id. at  735.   On appeal,  Romero-Barcelo claims,  for the                 __          first  time,  that his  law practice  suffered.   He urges  us to          assume as  much based on  defendants' efforts to  brand him  as a          "murderer" and  "assassin."  We decline his  invitation to bypass          trial court consideration of  this factual question in the  first          instance.  See Havinga v. Crowley Towing and Transp. Co., 24 F.3d                     ___ _______    ______________________________          1480, 1483 n.5 (1st Cir. 1994).               8Article II,   8, provides:  "Every person has the  right to          the  protection  of law  against  abusive attacks  on  his honor,          reputation and private  or family life."  P.R. Const., art. II,            8.                                          20          (1976)).   As  noted in  Watson, the  "cases distinguish  sharply                                   ______          between deprivations caused by  'random, unauthorized' conduct of          state  officials, and deprivations caused by conduct 'pursuant to          established  state procedure.'"   Id. at  541 (quoting  Hudson v.                                            __                    ______          Palmer, 468 U.S. 517, 532 (1984)).  "For the former, the state is          ______          not automatically liable; in the latter case there may be liabil-          ity where  the state policy  approves or directs the  conduct but          falls below constitutional standards."   Id. (footnote  omitted).                                                   __          Romero-Barcelo does not claim, however, that defendants' unimmun-                                  _____          ized actions  were taken  pursuant to  either the  Commonwealth's          direction or  its established policy.   Rather,  he alleges  that          defendants  made  numerous  libelous  statements  "in  television          studios, in political speeches made throughout the island, and in          political press  releases."  Barcelo, 876 F.  Supp. at 1345.  Nor                                       _______          has he  alleged that  the actions complained  of were  other than          "random,  unauthorized conduct"  on the  part  of the  individual          defendants.                    It  is rudimentary that a deprivation of procedural due          process caused by "random, unauthorized conduct" of a State offi-          cial  is not actionable under section  1983 unless, amongst other          things, "no adequate 'post-deprivation remedy' is available under          state law."   Perez-Ruiz v.  Crespo-Guillen, 25 F.3d 40,  42 (1st                        __________     ______________          Cir.  1994).  Romero-Barcelo neither alleged nor established that          Puerto Rico law affords  no adequate remedy for  whatever liberty          interest deprivation may  have been sustained under Section  8 of          the  Puerto Rico  Constitution.    Absent  either  an  allegation                                          21          regarding  the  inadequacy  of  commonwealth  tort  remedies  for          slander and libel, or even argumentation on the point, we decline          to address the question.  See Rumford Pharmacy Inc., 970  F.2d at                                    ___ _____________________          999; Monahan v. Dorchester Counseling  Ctr., Inc., 961 F.2d  987,               _______    _________________________________          994  n.7  (1st Cir.  1992).   We note  further that  the district          court's conclusion that Section 8  "is the main source of protec-          tion against libel  and slander under Puerto Rico  law," Barcelo,                                                                   _______          876 F. Supp. at 1346 n.11 (citing Cortes Portalatin v. Hau Colon,                                            _________________    _________          3 T.P.R.  1019 (1975)), is  not challenged on  appeal.  See  also                                                                  ___  ____          Willhauck v. Halpin, 953 F.2d 689,  704 (1st Cir. 1991) (court of          _________    ______          appeals may "affirm on any independently sufficient ground").                     b.   The First Amendment Claim                    b.   The First Amendment Claim                         _________________________                    Appellant  claims  violations  of his  First  Amendment          rights to freedom of speech and association.  Before the district          court he claimed "that his right  to free speech was chilled  and          his right to associate with the NPP was adversely affected by the          [allegedly]  defamatory  statements  made  by  the   defendants."          Barcelo, 876 F. Supp.  at 1348.  The district court found, howev-          _______          er, "that given the fact that he was elected Resident Commission-          er  on the NPP ticket, [Romero-Barcelo's] claims regarding injury          to  his right  to  associate  with the  NPP  ring  hollow."   Id.                                                                        __          Further, the court concluded that "there [was] no indication that          the  defendants compelled  the plaintiff  to  advocate either  an          unpopular or any  other type of  view."  Id.  at 1348 n.15  (con-                                                   __          trasting  Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (requir-                    ______    _______          ing display of  "Live Free or Die" motto on vehicle license plate                                          22          violates First Amendment right "to  refrain from speaking.").  We          agree.                      On  appeal,  however, Romero-Barcelo  contends  that he          "alleged  that he  was singled  out  for .  . .    harassment and          deprivation  of rights  because  of  his  beliefs  and  political          association."    The crux  of this  argument is  that defendants'          alleged  conduct, both  within  the  Hearings  and  without,  was          undertaken because of Romero-Barcelo's  association with the NPP.          The  Supreme Court  has held that  the First  Amendment "protects          nonpolicymakers from being  drummed out of public  service on the          basis  of  their  political affiliation  or  advocacy  of ideas."          Correa-Martinez  v. Arrillaga-Belendez, 903  F.2d 49,  56-57 (1st          _______________     __________________          Cir. 1990)  (citing Branti v.  Finkel, 445 U.S. 507,  517 (1980);                              ______     ______          Elrod v.  Burns, 427 U.S.  347, 357 (1976)  (plurality opinion)).          _____     _____          But  Romero-Barcelo most assuredly qualified as an NPP policymak-          er.  See id. at 57 n.6.  Thus, the district court correctly found               ___ __          no First Amendment  protection for "a politician  whose rights to          freedom  of speech,  freedom  of  association,  and  freedom  'to          disassociate [oneself] from unpopular views' have been injured by          other politicians seeking to undermine his credibility within his          own party  and with the  electorate."   Barcelo, 876 F.  Supp. at                                                  _______          1348 (alteration in original) (footnote omitted).               2.   Section 1985(3)               2.   Section 1985(3)                    _______________                    An actionable  section 1985(3)  claim must  allege that          (i) the alleged  conspirators possessed "some racial,  or perhaps          otherwise   class-based,   invidiously   discriminatory  animus,"                                          23          Griffin v. Breckenridge, 403 U.S.  88, 102 (1971), and (ii) their          _______    ____________          alleged conspiracy  was "aimed at  interfering with rights .  . .          protected against  private, as  well as  official, encroachment."          United Bhd. of Carpenters & Joiners of America v. Scott, 463 U.S.          ______________________________________________    _____          825, 833 (1983).   See also Libertad  v. Welch, 53 F.3d  428, 446                             ___ ____ ________     _____          (1st Cir. 1995) (citing Bray v. Alexandria Woman's Health Clinic,                                  ____    ________________________________          113  S. Ct.  753, 758  (1993)).   The conspiracy  allegation must          identify an overt act.  See Griffin, 403 U.S. at 93; Libertad, 53                                  ___ _______                  ________          F.3d at 450 n.18.  If no  racial animus is charged, a discrimina-          tory  class-based animus  must  be  alleged.   See   Harrison  v.                                                         ___   ________          Brooks, 519 F.2d 1358, 1359  (1st Cir. 1975) (citing Griffin, 403          ______                                               _______          U.S. at  102).    "The requirement  that  the  discrimination  be          'class-based' is not satisfied by  an allegation that there was a          conspiracy  which affected  the interests  of a class  of persons          similarly  situated with the  plaintiffs.  Rather,  the complaint          must allege facts  showing that the defendants  conspired against          the plaintiffs  because of their  membership in a class  and that          the criteria defining the class were invidious."  Id. at 1359-60.                                                            __                    The  complaint alleged that  the three defendants "con-          spired  . . . to launch a negative publicity campaign funded with          public funds  and to label [him]  as an assassin and  murderer in          order  to end his political career  and enhance their own.  [The]          defendants allegedly  used their  elected political  positions to          keep  the Committee investigations alive, and to reactivate those          committee  hearings at  politically advantageous  opportunities."          Barcelo, 876  F. Supp.  at 1349.   The district court  held these          _______                                          24          allegations  insufficient  to  support a  conspiracy  claim under          section 1985(3),  rejecting the  implicit assumption  that "since                                                    __________          the defendants are  members of the  opposing political party  and          had  substantial control over  the Committee hearings,  they must          have had a conspiracy."  Id. at 1350.  The court further found no                                   __          allegation  of an  overt act,  and  no articulation  of a  "clear          class-based  invidious discriminatory  animus behind  the alleged          actions of the alleged conspirators."  Id.  We agree that Romero-                                                 ___          Barcelo's  allegations were  insufficient  to  support a  section          1985(3) claim.                     On  appeal,  Romero-Barcelo  does  not  address   these          specific  shortcomings in the complaint, choosing instead to rest          upon a conclusory  statement that the allegations  are sufficient          for a section  1985(3) claim,9 and the argument  that the height-          ened pleading requirement for  section 1985(3) conspiracy  claims          under Slotnick  v. Staviskey,  560 F.2d 31,  33 (1st  Cir. 1977),                ________     _________          cert.  denied, 434 U.S. 1077 (1978) ("[C]omplaints cannot survive          _____  ______          a  motion to  dismiss if they  contain conclusory  allegations of          conspiracy but  do not  support their  claims with  references to          material facts."), is no longer good law, citing to Leatherman v.                                                              __________          Tarrant County Narcotics Intelligence & Coordination Unit, 113 S.          _________________________________________________________          Ct.  1160 (1993).   Leatherman  rejected  a "heightened  pleading                              __________          standard" in  civil rights  actions claiming  municipal liability          under  section 1983.   Id.  at  1161.   Even assuming  Leatherman                                 ___                             __________                                        ____________________               9Although appellant argues that he should have been given an          opportunity to amend  the complaint, our review of  the record on          appeal discloses no indication that he made such a request below.                                          25          applies to the present claim, a matter we need not address, we do          not view  the failure to  allege essential elements of  a section          1985(3) claim  as any mere  failure to comply with  a "heightened          pleading requirement."  See Griffin, 403 U.S. at 102-103.                                                                                                       ___ _______                                          26                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For their alleged conduct within the legislative forum,          we conclude that  defendants were protected by  absolute legisla-          tive immunity.  For their  conduct outside the legislative forum,          the  allegations were  insufficient  to  state actionable  claims          under sections 1983 and 1985(3).  Appellant Romero-Barcelo has no          actionable  procedural  due  process  claim  under section  1983,          either  because he  had  no constitutionally  protected "liberty"          interest,  or because  Puerto Rico  law  afforded whatever  post-          deprivation process may have been due.  Nor did appellant have an          actionable First  Amendment claim,  since there  is no  constitu-          tional  ban  against  the alleged  conduct.    Finally, appellant          failed to plead all essential elements of an actionable conspira-          cy claim under section 1985(3).         The     district    court                                                  The     district    court                                                  _________________________          judgment is affirmed.  Costs to appellees.          judgment is affirmed.  Costs to appellees.          ____________________   __________________                                          27
