                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit

No. 02-1821

              IVETTE SANTIAGO-MARRERO, RAMON DIAZ-ORTIZ,
                AND CONJUGAL PARTNERSHIP DIAZ-SANTIAGO,
                        Plaintiffs, Appellants,

                                        v.

     UNITED STATES OF AMERICA, KEVIN BEASON, SUSAN BEASON,
     CONJUGAL PARTNERSHIP BEASON-BEASON, ESTEE LAUDER, INC.,
           X INSURANCE COMPANY, AND JOHN DOE 01CV2736,
                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                     Before

                        Torruella, Circuit Judge,
                     Coffin, Senior Circuit Judge,
                       and Lipez, Circuit Judge.



     Joseph Deliz-Hernandez for appellants.
     Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Miguel A. Fernandez,
Assistant United States Attorney, were on brief for appellee United
States of America.
     Arturo Diaz-Angueira with whom Roberto Feliberti was on brief
for appellee Estee Lauder.



                                March 31, 2003
          Per Curiam. Appellant Ivette Santiago-Marrero claims on

appeal     that    the   district   court   erroneously   denied       her   the

opportunity to amend her discrimination complaint.                She alleges

that an employee of the federal government harassed her and caused

her to be terminated from her job "because she was a Puerto Rican

who could not speak English."           We vacate the dismissal of her

complaint against the federal defendants and remand for further

proceedings.

      Briefly summarized, the facts as alleged in the complaint are

as follows.       Appellant was hired in early 2000 by Estée Lauder,

Inc., to work as a cosmetics salesperson at the Fort Buchanan Post

Exchange, a store run by the Army & Air Force Exchange Service

(AAFES).1     Santiago-Marrero speaks virtually no English, and she

routinely referred non-Spanish speaking customers to her bilingual

supervisor.       In June 2001, after appellant had been on the job for

about eighteen months, a new manager, Kevin Beason, took over at

the   Post   Exchange.      Appellant   claims   that   Beason,    a    federal

employee, repeatedly harassed her because of her inability to speak

English and ultimately denied her access to the Post Exchange by

forcing her to return her ID, thus barring her from her work site.

Estée Lauder told appellant that the company did not have a



      1
       The AAFES is operated under the Department of Defense, and
its personnel are federal employees. See Army & Air Force Exch.
Serv. v. Sheehan, 456 U.S. 728, 733, 736 (1982); Honeycutt v. Long,
861 F.2d 1346, 1349 n.3 (5th Cir. 1988).

                                      -2-
position for her at any other location, and she therefore was

terminated.

     Appellant filed suit on December 27, 2001 against the United

States, Beason, and Estée Lauder, Inc.,2 claiming violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -

e17, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§

621-634,3 and the Fourteenth Amendment to the U.S. Constitution.

She alleged in her complaint that Beason "maliciously maneuvered

this entire ordeal" because of her status as a non-English speaking

Puerto Rican.   Appellant also had filed an administrative claim

under the Federal Tort Claims Act in October 2001.

     The district court dismissed the claims against Beason and the

United States with prejudice, and dismissed the claims against

Estée Lauder without prejudice, allowing appellant to pursue claims

against her employer under Puerto Rico law in commonwealth courts.

The court stated that neither the Title VII nor the ADEA claim was

viable against the United States (or Beason) because appellant was

not employed by the government.   Although appellant had asked in

her opposition to defendants' motion to dismiss for leave to amend



     2
       The complaint also was filed on behalf of appellant's
husband and their conjugal partnership, and against Beason's wife
and their conjugal partnership. For simplicity, we refer in both
instances only to the primary party.
     3
       The ADEA claim rests on the allegation that appellant's
replacement at the Post Exchange was younger than she. No other
facts are alleged to suggest that age played any role in this case.

                               -3-
her complaint to add an FTCA claim, and further urged that the

court take jurisdiction of her claims under Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U.S. 388 (1971),4 the district court did

not receive that memorandum before its decision.5

     The   court,   however,   did    review   the   memorandum   when   it

considered appellant's motion for reconsideration and stated that

nothing in the opposition justified vacating its earlier ruling.

In denying the request to amend, the court stated:

     Almost a year after the filing of the complaint
     plaintiffs attempt to recast their complaint against the
     United States under the Federal Tort Claims Act . . . .
     In the Motion for Reconsideration they mention, in
     passing, to "permit the present case to continue as a
     Biven's case." . . . . There is no justification for
     seeking amendment of the complaint for this purpose at
     this late stage of the proceedings.    Accordingly, the
     request to amend complaint . . . . is DENIED[.]

     Appellant does not argue that the court erred in concluding

that she did not have viable claims against the federal defendants

under either Title VII or the ADEA.            Nor does she contest the

court's decision to dismiss without prejudice the federal claims

against Estée Lauder.   Her only contention – and the only issue we



     4
       In Bivens, the Supreme Court "recognized for the first time
an implied private action for damages against federal officers
alleged to have violated a citizen's constitutional rights." Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, 519 (2001).
     5
       There was some confusion over the due date for appellant's
opposition, which was filed on April 29, 2002 – the day before the
court signed its decision on the motion to dismiss – but the court
eventually considered the memorandum, and so its timing proved to
be of no consequence.

                                     -4-
address – is whether the court wrongly denied her the opportunity

to amend her complaint to include FTCA and Bivens claims.

     Under Federal Rule of Civil Procedure 15(a), a litigant may

amend a pleading once as a matter of right before a responsive

pleading is filed and subsequently only if the parties consent or

"by leave of court."    Judge v. City of Lowell, 160 F.3d 67, 79 (lst

Cir. 1998); Fed. R. Civ. P. 15(a).           Here, appellant filed a first

amended    complaint   approximately        one   month   after   her    original

complaint to correct a typographical error and a defendant's name,

and she therefore needed the court's permission before amending

again.

     A district court's denial of leave to amend is reviewed for

abuse of discretion, Judge, 160 F.3d at 79, but we examine its

decision "through the prism of Federal Rule of Civil Procedure

15(a), which indicates that leave to amend a complaint 'shall be

freely given    when   justice   so    requires,'"        Hatch v.      Dep't   for

Children, Youth & Their Families, 274 F.3d 12, 19 (lst Cir. 2001).

"In practice, this means that the denial of such a motion will be

upheld so long as the record evinces an arguably adequate basis for

the court's decision (e.g., futility, bad faith, undue delay, or a

dilatory motive on the movant's part)."             Id.

     The    district   court   invoked       timeliness     concerns     when   it

rejected appellant's attempt to add new claims "at this late stage

of the proceedings," but it relied on the mistaken observation that


                                      -5-
the complaint had been filed almost a year earlier.                  In reality,

the complaint had been filed just four months before the requested

amendment,6 a lapse in time that strikes us as fairly brief.                    In

addition,   the     court   twice   implied   that      it   might   have    ruled

differently had appellant timely asserted a Bivens claim.                   In its

original    grant    of   defendants'     motion   to    dismiss,     the   court

expressly noted that "[t]he complaint is not cast in the terms of

a Bivens claim against Mr. Beason."           And in ruling on the motion

for reconsideration, as noted earlier, the court stated that there

was no justification for allowing transformation of the case to one

based on Bivens or the FTCA at that "late" date.

     In    light    of    the   court's   timing   mistake,7     and    its    own

indication that it might have acted differently had it viewed the

Bivens' claim as timely raised, we vacate the dismissal of the

claims against the federal defendants.             As we cannot say without

some inquiry that amendment would be futile, and no other basis for

dismissing the complaint is apparent, we are unable to affirm the

court's decision on an alternative ground.           See Correa-Martinez v.


     6
       As noted earlier, the complaint was filed on December 27,
2001.   Appellant's opposition to the motion to dismiss, which
contained the request to amend, was filed on April 29, 2002.
     7
        We note that the court also understated appellant's
invocation of Bivens. Although the court correctly noted that the
two-page motion for reconsideration contained only a brief request
to allow the case to proceed as a Bivens action, that motion
explicitly referred to the earlier opposition to the motion to
dismiss, in which appellant presented a more developed Bivens
argument.

                                      -6-
Arrillaga-Belendez, 903 F.2d 49, 52 (lst Cir. 1990) ("[W]e may

affirm a dismissal for failure to state a claim only if it clearly

appears, according to the facts alleged, that the plaintiff cannot

recover on any viable theory.").              We emphasize, however, that we

have not substantively explored appellant's new legal claims, and

thus offer no view on their viability.8

      We do offer two additional observations: first, in asserting

a   constitutional     claim,   appellant       has   repeatedly   invoked   the

Fourteenth Amendment.      That provision, of course, speaks only to

the conduct of state officials and is inapplicable to actions by

federal officials.      See, e.g., Dry v. United States, 235 F.3d 1249,

1255 (10th Cir. 2000) (Fourteenth Amendment is "applicable only to

actions   by   state    and     local    entities,      not   by   the   federal

government.").    Any constitutionally based discrimination claim

brought by appellant must therefore be cognizable under the Fifth

Amendment.     See Davis v. Passman, 442 U.S. 228, 248-49 (1979)

(plaintiff alleging gender discrimination may bring Bivens action



      8
       Defendants argue that a tort claim based on Beason's
interference with appellant's employment is barred by a specific
exclusion in the FTCA for "[a]ny claim arising out of . . .
interference with contract rights," 28 U.S.C. § 2680(h).        In
addition, they point out that she filed her complaint before the
expiration of the six-month waiting period for FTCA claims. See 28
U.S.C. § 2675(a). As for the constitutional claim, appellant's
motion opposing dismissal indicates that it is based on the use of
language as a proxy for national origin discrimination. It is up
to the district court to determine in the first instance whether,
on the facts alleged, these claims provide a viable basis for
recovery.

                                        -7-
for Fifth Amendment violation). Second, our decision is a vacatur,

not a reversal; it does not require the district court to allow

appellant the opportunity to amend her complaint if, after further

review, the court concludes that appellant's proposed amended

complaint fails to set forth "a general scenario which, if proven,

would entitle the plaintiff to relief against the defendant on some

cognizable theory," Hatch, 274 F.3d at 19, or fails for any other

reason.

     The judgment against the federal defendants is vacated and the

case is remanded to the district court for further proceedings.




                               -8-
