

                  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  &amp;  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.

                                2

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

                                3

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

                                4

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.                                                                           

                                5

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-

                                6

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.

                                7

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.                   

                                8

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 &amp; 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.                                                                        

                                9

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

                                10

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                                                                  

                                11

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.

                                12

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

                                13

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.

                                14

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.

                                15

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

                                16

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                                                                           

                                17

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.

                                18

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) &amp; (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 &amp; 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.

                                19

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.                                                                           

                                20

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  &amp; 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                   

                                21

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.

                                22

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.                            

                                23
