          United States Court of Appeals
                      For the First Circuit


No. 12-1618

                      WILLIAM RÍOS-PIÑEIRO,

                      Plaintiff, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before

                   Torruella, Lipez and Howard,
                          Circuit Judges.


     Maricarmen Almodóvar Díaz, with whom Almodóvar Díaz Law Office
was on brief, for appellant.
     Michael J. Elston, Special Assistant United States Attorney,
with whom Rosa Emilia Rodríguez Vélez, United States Attorney, was
on brief, for appellee.



                          April 15, 2013
             HOWARD, Circuit Judge.             Plaintiff William Ríos-Piñeiro

appeals the district court's grant of summary judgment in favor of

the United States in this Federal Tort Claims Act ("FTCA") action.

The    United   States     Postal     Service     ("USPS")   terminated     Ríos's

employment contract after concluding that he had stolen mail

containing money.          Ríos sued the United States in the District

Court of Puerto Rico over the events relating to that contract

termination.     After careful review of the summary judgment record,

we affirm.

                                  I. Background

             We assess the record that was before the district court

on    the   motion   for    summary    judgment,1     drawing    all    reasonable

inferences in favor of the non-moving party, Ríos.                  See Roman v.

Potter, 604 F.3d 34, 38 (1st Cir. 2010).

             Ríos was a contract employee with the USPS for over

twenty-eight years, responsible for sorting mail and delivering it

along an established route in Florida, Puerto Rico.                He was one of

five letter carriers in the Florida Post Office.                In May 2006, Ríos

had a falling out with carrier Mark Nieves over Nieves's work-

related     conduct.       Ríos   began    reporting    Nieves's       misdeeds   to

Postmaster Albert Gonzalez.            This led to confrontations between

Nieves and Ríos, once nearly culminating in a fistfight.



       1
       Included in this record are the factual findings of the
Postal Service Board of Contract Appeals. See infra, Sec. II.A.

                                          -2-
             In June 2006, Nieves reported to Lucydali Rivera, the

Postal Inspector responsible for the Florida Post Office, that he

had seen Ríos take mail from the "hot case" -- the container for

misaddressed mail -- and remove money from an envelope.               On the

basis   of    this   report,   the   Inspection    Service    coordinated    an

investigative operation designed to catch Ríos in the act of theft.

             On July 12, 2006, postal inspectors prepared three test

envelopes, each containing a greeting card, United States currency

and fluorescent powder.          The inspectors marked the bills and

recorded their serial numbers, and sealed the envelopes.                    The

envelopes contained destination and return addresses in the state

of Florida, which would ordinarily lead to their placement in the

hot case for proper delivery.

             Rivera requested that Nieves meet her and other postal

inspectors before going to work in the morning.              At this meeting,

they provided Nieves with the envelopes and asked him to place them

around the Florida Post Office.             The inspectors determined that

Nieves should perform this task because they worried that their

presence would arouse suspicion in the small office.             Nieves drove

from this meeting to the Post Office, with the inspectors following

behind.      Shortly after arriving, Nieves telephoned the inspectors

to inform them that he had set the bait.            In follow-up calls, he

reported that the envelopes were not where he had placed them and

that Ríos had left to purchase breakfast for some of the postal


                                      -3-
employees.   The postal inspectors decided to wait until after Ríos

completed his delivery route to confront him about the missing

envelopes.

            Once Ríos had returned to the post office from his daily

deliveries, inspectors summoned him into the postmaster's office.

Once inside, the inspectors asked him to empty his pockets.         He was

in possession of several U.S. banknotes, including a $5 bill whose

serial number matched a $5 bill from one of the envelopes and which

bore the inspectors' mark.          Screening with an ultraviolet light

revealed that Ríos had fluorescent powder on his hands and the

pocket area of his pants.       The inspectors then explained to Ríos

that they would take him to the men's bathroom to search him for

additional   money.      Two   male   inspectors   escorted   him   to   the

bathroom.    They asked him to remove his shoes and lower his pants,

and he complied.      One of the inspectors pulled the band of Ríos's

underwear away from his body and looked at his genital area.             This

search yielded no other evidence, and none of the envelopes or the

greeting cards were ever found.             Based on this incident, USPS

terminated    Ríos's    contract.       Postal   inspectors   subsequently

persuaded local authorities to bring criminal charges against Ríos,

which were all dismissed.

            Ríos initiated an administrative appeal to the Postal

Service Board of Contract Appeals ("PSBCA"), which convened a two-

day evidentiary hearing to determine whether the USPS breached


                                      -4-
Ríos's contract.     Both parties had the opportunity to present

witnesses and subject opposing witnesses to cross-examination.

Ríos denied the allegation of theft, claiming that he had received

the $5 bill from Nieves that morning while he was collecting money

to purchase breakfast. According to Ríos, when he and Nieves shook

hands that morning, additional powder transferred onto him.                The

PSBCA was unconvinced by this theory.              Based on the evidence

collected during the postal inspectors' investigation, the PSBCA

determined that Ríos was in possession of the $5 bill and that the

fluorescent powder on his hands and trousers "indicated that he was

the person who opened at least one of the prepared envelopes."             The

PSBCA held that this serious breach of his employment contract

justified the decision to terminate Ríos's contract.           Ríos did not

appeal this decision to the Federal Circuit.

           Meanwhile, Ríos had initiated a FTCA suit against the

United States for the actions of USPS employees on the date of the

sting,   alleging   six   torts.      On   the    government's   motion,     a

magistrate judge recommended dismissing three of the six claims

and the district court adopted the magistrate's reasoning without

any objection from Ríos.

           The   government   then    sought     summary   judgment   on   the

remaining claims, which were for negligent supervision, invasion of

privacy, and malicious prosecution.            The government submitted a

record containing, among other exhibits, the proceedings before the


                                     -5-
PSBCA and its decision. In response, Ríos requested that the court

strike the PSBCA's factual findings from the record.           Declining to

do so, the district court instead incorporated those findings, and

granted judgment to the government.             In his appeal, Ríos pays

particular attention to the district court's decision to give the

PSBCA findings preclusive effect over factual matters.

                              II. Discussion

           Review of a grant of summary judgment is de novo.            Henry

v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012).           Summary judgment

is appropriate "if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law."          Fed. R. Civ. P. 56(a).       In this

case, the existence or non-existence of factual disputes hinges

upon whether the PSBCA's order precludes relitigating these issues

in the district court.       "The applicability vel non of preclusion

principles is a question of law."           Monarch Life Ins. Co. v. Ropes

& Gray, 65 F.3d 973, 978 (1995).

A.         Collateral Estoppel

           Collateral estoppel, or issue preclusion, is a doctrine

of   judicial   economy     that   grants    preclusive   effect   to   final

adjudications   of   fact    or law    in   subsequent    litigation.    See

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979).           Its basic

application is straightforward:        "When an issue of fact or law is

actually litigated and determined by a valid and final judgment,


                                      -6-
and     the     determination    is    essential    to     the    judgment,     the

determination is conclusive in a subsequent action between the

parties, whether on the same or a different claim."                      Mihos v.

Swift, 358 F.3d 91, 101 (1st Cir. 2004) (quoting Restatement

(Second) of Judgments § 27 (1982)).

               As a threshold matter, we must decide whether collateral

estoppel applies to the administrative decision of the PSBCA.                   The

Supreme       Court   has   stated    its   preference    for    applying     issue

preclusion "to those determinations of administrative bodies that

have attained finality."              Astoria Fed. Sav. & Loans Ass'n v.

Solimino, 501 U.S. 104, 107 (1991). If the administrative agency

"is acting in a judicial capacity . . . [and] the parties have had

an adequate opportunity to litigate, the courts have not hesitated

to apply res judicata to enforce repose."                United States v. Utah

Const. & Min. Co., 384 U.S. 394, 422 (1966);                see also Bath Iron

Works Corp. v. Director, Office of Workers' Comp. Programs, U.S.

Dep't    of     Labor,   125   F.3d   18,   21   (1st    Cir.    1997)   (granting

preclusive effect to the factual findings of a state administrative

agency).

               We see no reason not to apply this general rule to the

PSBCA.        Congress created the PSBCA as part of its comprehensive

approach to resolving public contract disputes. 41 U.S.C. §§ 7101-

7109.     The PSBCA, along with parallel boards in other government

agencies, provides an alternative to the Federal Court of Claims


                                        -7-
for    adjudicating    these    disputes.   Id.   §   7104(b)(1).    Its

procedures, which include limited discovery and examination of

witnesses at a hearing, are set forth in regulations, 39 C.F.R. §

955.    Such an adjudicative scheme is sufficient to trigger the

doctrine of collateral estoppel. Cf. Emiabata v. United States, 90

Fed. Cl.    22,   28   (2009)   ("[C]ollateral estoppel   may   apply to

decisions of a Board of Contract Appeals that are deemed final.").

            Even if the PSBCA's factual findings may have preclusive

effect as a general matter, however, we still must be satisfied

that collateral estoppel applies in this specific instance.           We

look to the following four factors:         1) that both the prior and

subsequent proceedings involved "the same issue of law or fact;" 2)

that "the parties actually litigated" the issue in the prior

proceeding; 3) that the prior proceeding "actually resolved the

issue in a final and binding judgment"; and 4) that "its resolution

of that issue of law or fact was essential to its judgment."

Monarch Life Ins. Co., 65 F.3d at 978.

            The factual issues before the PSBCA were identical to

those raised in Ríos's FTCA suit, viz., the historical events of

July 12, 2006.    Not only did the administrative matter and the FTCA

action address the same events, but both parties also presented the

same factual narratives before the successive adjudicative bodies.

The PSBCA rejected Ríos's theory that Nieves deceptively planted




                                     -8-
the evidence on him, yet Ríos pressed the same factual claim

before the district court.

           Furthermore, the PSBCA actually resolved the issue with

a final, binding judgment.            It weighed the competing versions of

events, and it deemed the government's version more persuasive.

Ríos's failure to appeal this decision gave it finality.                       And the

question of whether Ríos stole mail was essential to the PSBCA's

holding.   Though the ultimate legal issue in the administrative

action involved Ríos's rights under his employment contract, the

only way to determine the propriety of terminating his contract was

by first deciding whether he had stolen mail.                    The PSBCA held:

"Respondent has demonstrated that by stealing the contents of mail

entrusted to him, Appellant breached his contract . . . ."                          The

district   court    correctly     concluded      that    the   PSBCA’s        findings

precluded relitigation of the factual issues in Ríos's FTCA suit.

B.         Review of Summary Judgment

           The     PSBCA's   findings      preclude     any    claim     of    factual

dispute on the issue of theft.           What is left is to apply the law to

the uncontested facts to determine whether summary judgment was

properly   granted     as    to       Ríos's   FTCA     claims     for    negligent

supervision, malicious prosecution, and invasion of privacy by

postal inspectors.     We assess these claims under the law of Puerto

Rico, as we have held that an FTCA claim "must be comparable to a

cause of   action     against     a    private   citizen recognized            in   the


                                         -9-
jurisdiction where the tort occurred." Abreu v. United States, 468

F.3d 20, 23 (1st Cir. 2006) (quotations omitted).

            1.   Malicious Prosecution

            Under Puerto Rico law, the tort of malicious prosecution

includes four elements:    "1) that a criminal action was initiated

or instigated by the defendants; 2) that the criminal action

terminated in favor of plaintiff; 3) that defendants acted with

malice and without probable cause; and 4) that plaintiff suffered

damages."    Barros-Villahermosa v. United States, 642 F.3d 56, 58

(1st Cir. 2011) (quotations omitted). The PSBCA’s finding of theft

by Ríos is conclusive as to the third element.        At a minimum, the

Board's   findings   demonstrate    that   the   postal   inspectors   had

probable cause to initiate a prosecution against Ríos.        Therefore,

the district court properly handled this claim.

            2.   Negligent Supervision

            In this appeal, Ríos states only that a cause of action

for negligent supervision exists under Puerto Rico law and cites

cases affirming that proposition.     He makes no developed argument,

however, about how the facts here support that cause of action.

The claim is therefore waived.     United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990), ("[I]ssues averted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived").




                                   -10-
            3.    Invasion of Privacy

            Ríos’s invasion of privacy claim under the FTCA results

from the body search that the postal inspectors conducted.                  The

claim is based on the Puerto Rico Constitution, which states that

"[t]he dignity of the human being is inviolable."               Puerto Rico

Const. Art. II, § 1.      Likewise, article 2, section 8 guarantees

every person "the right to the protection of law against abusive

attacks on his honor, reputation and private or family life."               Id.

§ 8.      The Puerto Rico Supreme Court has held that the rights

enshrined in these sections are enforceable "ex proprio vigore",

Colón v. Romero Barceló, 12 P.R. Offic. Trans. 718 (1982).

Therefore, "[a] claim for the invasion of privacy is actionable

under Article II, §§ 1 and 8 of the Puerto Rico constitution,"

Mojica Escobar v. Roca, 926 F. Supp. 30, 34 (D.P.R. 1996), and the

Puerto Rico Supreme Court has held that the "scope for a just

interpretation [of invasion of privacy torts] is very wide."

Cortes Portalatin v. Hau Colon, 3 P.R. Offic. Trans. 1019 (1975).

            The   government   argues,    in   part,   that   there   was    no

actionable invasion of Ríos's privacy because he consented to the

search.     Postal Inspector Angel Nieves's deposition, which Ríos

himself submitted to the district court, contained the following

statement about the bathroom search: "it was explained to him that

we were going to be taking him to the restroom because we were

going to do a search to make sure that he didn't have any more of


                                   -11-
the money on him."   Nieves again explained this to Ríos once they

were in the bathroom.    Ríos did not protest the search at that

time, nor as it progressed.    Instead, he complied with requests

that he take off his shoes and lower his trousers.         When the

inspector pulled back Ríos's underwear, Ríos remained silent.

           In his brief Ríos does not challenge the proposition that

consent vitiates his invasion of privacy claim.         Instead, he

asserts only that "[I]t is an issue of fact that precludes summary

disposition, whether Ríos, being searched while under arrest by

postal inspectors, was free to oppose the instructions given by

these law enforcement agents."         We do not know whether Ríos

disputes Nieve's description of events.     Ríos's deposition, which

he included in his opposition to the summary judgment and which may

or may not cast a different light on the search, is in Spanish and

therefore outside of the scope of our review.        See Local Rule

30.0(e).   Nor has Ríos ever attempted to rebut Nieves's testimony

(which, we note again, he submitted to the district court) in his

filings in the district court or before us.         If his Spanish-

language deposition counters Nieves's testimony, Ríos had ample

opportunity to bring it to our attention.    As there is no evidence

in the record controverting that Ríos consented to the search,

summary judgment was proper as to his invasion of privacy claim.




                                -12-
                         III. Conclusion

          For the foregoing reasons, we affirm the district court

as to all claims.2




     2
       Ríos also asks us to hold that the district court improperly
dismissed his claim for lost wages "as a cognizable remedy for the
tort actions submitted pursuant to the Federal Tort Claims Act."
The government points out, and our review of the record confirms,
that the district court did not issue such a ruling with respect to
any of the counts that are relevant to this appeal. Moreover, Ríos
did not object to the magistrate-judge's recommendation that the
district court dismiss a claim based on intentional infliction of
emotional distress, the only count in which the complaint referred
to lost wages. "Only those issues fairly raised by the objections
to the magistrate's report are subject to review in the district
court and those not preserved by such objection are precluded from
appeal." School Union No. 37 v. United Nat'l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010).

                               -13-
