
USCA1 Opinion

	




          October 12, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                          ____________________        No. 93-1059                                  ANGEL LUIS FIGUEROA,                                Plaintiff, Appellant,                                          v.                    U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Angel Luis Figueroa on brief pro se.            ___________________            A.  John  Pappalardo,  United  States  Attorney,  and  Suzanne  E.            ____________________                                   ___________        Durrell, Assistant United States Attorney, on Memorandum in Support of        _______        Motion for Summary Disposition, for appellees.                                 ____________________                                   October 12, 1993                                 ____________________                      Per Curiam.  This  case is an example of  the adage                      __________            that  haste makes  waste.   Angel Luis  Figueroa ("Figueroa")            brought  a suit  under  42 U.S.C.     1983 against  the  Drug            Enforcement  Administration  (DEA)  and  two  of its  special            agents,  alleging  that the  individual  defendants knowingly            relied  on false  information  in affidavits  used to  obtain            forfeitures of  funds belonging to Figueroa.  In granting IFP            status to  Figueroa, the  district court noted  that although            the  action was brought pursuant to section 1983, "it must be            construed  as  a  Bivens-type  action   .  .  .  because  the            defendants are federal, not  state, agents" (citing to Bivens                                                                   ______            v. Six Unknown Named Agents, 403 U.S. 388 (1971)).               ________________________                      The government  then  moved  for  judgment  on  the            pleadings or for summary judgment, urging as its first ground            for  dismissal that the DEA  agents were not  alleged to have            acted under state law so that  no claim had been stated.  The            district  court  allowed  the  motion  for  judgment  on  the            pleadings, noting in the  margin order that "  1983  does not            apply to D.E.A. Agents" and  citing precedent to that effect.            A motion for leave to amend, admittedly not mentioning Bivens                                                                   ______            but referring  to the jurisdictional statute  for asserting a            Bivens  claim,  was  denied.    On  appeal  by Figueroa,  the            ______            government offers other defenses.                      There  is no way to  avoid a remand.   The district            court may well  have been misled by the  government's motion;            but having told Figueroa that his claim would be construed as            a Bivens action, the district court could not then dismiss on              ______            the  ground that Figueroa had called it a section 1983 action            in  the complaint.   If  the district  court wanted  a formal            amendment, it could  have insisted on  that, but an  outright            dismissal in this situation without  leave to amend will  not            wash.                      The  government  appears  to  be  correct  that the            action  against the DEA itself  is a suit  against the United            States, no waiver  of sovereign immunity has  been shown, and            accordingly  the dismissal as to  it can be  affirmed on that            ground.  But despite the government's claims to the contrary,            sovereign immunity  does not appear  to shield the  agents in            their personal  capacities, see, e.g., Butz  v. Economou, 438                                        ___  ____  ____     ________            U.S.  478, 501 (1978)  (Bivens actions  would be  "drained of                                    ______            meaning  if  federal  officials  were  entitled  to  absolute            immunity for their constitutional  transgressions") (internal            quotation omitted), nor is  it likely that qualified immunity            would  do so if the  agents were engaged  in fraud or knowing            falsehood,  see, e.g.,  Malley v. Briggs,  475 U.S.  335, 341                        ___  ____   ______    ______            (1986)  (qualified  immunity  does  not  protect  "those  who            knowingly violate the law").  Of course, we have no reason to            think  that they were so  engaged -- Figueroa's complaint and                                         -3-            sparse subsequent filings are utterly devoid of detail -- but            the complaint's  allegations must  be taken as  true for  the            limited purpose of this appeal.                      The  government's  remaining alternative  ground is            res  judicata,  based on  Figueroa's  failure  to pursue  his            present objections in the forfeiture proceedings.  If we were            dealing  with clear law and clear facts we would give serious            attention  to this issue  in order possibly  to avoid further            proceedings in a busy district court.  But we know relatively            little  about the  details  of the  forfeiture proceeding  or            Figueroa's  role in it, and in rem forfeitures are a peculiar            legal  animal   whose  res  judicata  implications  are  more            difficult  to  determine  without   a  better  record.    See                                                                      ___            generally Restatement (Second) of Judgments    22, 30 (1982).            _________                      Accordingly, we  affirm the judgment  in dismissing                                       ______            the  complaint against the DEA and vacate the dismissal as to                                               ______            the named  agents in  their individual capacities  and remand                                                                   ______            the  case against  them  to the  district  court for  further            proceedings consistent with this opinion.                      It is so ordered.                      ________________                                         -4-
