
USCA1 Opinion

	




          January 11, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1397                       ILEANA BOLIVAR and LEONARDO CANDELARIO,                               Plaintiffs, Appellants,                                          v.               DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, 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                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                 ____________________            Awilda M.  Ortiz-Rivera with  whom Raul Santiago  Melendez was  on            _______________________            _______________________        brief for appellants.            Paul  D. Scott,  Appellate Staff,  Civil Division,  Department  of            ______________        Justice, with whom  Frank W. Hunger, Assistant Attorney  General, Paul                            _______________                               ____        M. Gagnon, United  States Attorney, and  Barbara L. Herwig,  Appellate        _________                                _________________        Staff,  Civil  Division, Department  of  Justice,  were on  brief  for        appellees.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 Per Curiam.  Ileana Bolivar and Leonardo Candelario were                 __________            employees of the  Federal Bureau of Investigation in  its San            Juan  office   in  Puerto  Rico.     Bolivar  worked   as  an            administrative officer and Candelario as a photographer.  The            incident that  triggered this litigation occurred in February            1993, when Candelario wrote and placed an anonymous letter in            a  "suggestion box"  in which  Candelario expressed  his view            that since  his superiors, Robert Opfer  and Hector Pesquera,            had taken charge of the office morale had dropped.  Opfer was            the special agent in  charge of the office, and  Pesquera was            the assistant special agent in charge.                   On  February  19,  1993, Opfer  and  Pesquera questioned            Candelario  about the  anonymous letter.   In  his subsequent            complaint  Candelario   states   that  Opfer   and   Pesquera            "submitted [him] to an  ordeal of intense interrogation which            lasted almost four  and a half  hours" to obtain  information            about Bolivar's  involvement in the letter.   Candelario says            that  he was  eventually  forced to  sign  a sworn  statement            indicating  that  he had  authored  the letter  but  had told            Bolivar about it.   Candelario says that he  thereupon became            ill and was later found to have suffered a heart attack.                   According  to  their later  complaint, both  Bolivar and            Candelario were then subject  to adverse personnel actions in            retaliation for Candelario's letter.  Candelario said that he            was  passed  over for  a  promotion that  was  otherwise due.                                         -2-                                         -2-            Bolivar said that she  was demoted, and that a  grievance was            filed against  her (apparently  for refusing to  cooperate in            the  investigation).   Bolivar also  said that  she had  been            slandered and  suffered damage  to her dignity,  apparently a            reference to the demotion or grievance procedure.                  On  August 3,  1993,  Bolivar and  Candelario filed  the            present  suit in  federal  district court  against their  two            superiors  and  the director  of the  FBI.   About  two weeks            later,  a similar suit was  started in the  local Puerto Rico            court  and  subsequently  removed  and  consolidated;  but on            appeal neither  Candelario nor Bolivar place  any emphasis on            the later suit.  As ultimately amended, the federal complaint            claimed that the conduct alleged violated the First Amendment            and  gave rise  to  a cause  of action  under  Bivens v.  Six                                                           ______     ___            Unknown  Named Agents, 403 U.S.  388 (1971).   The suit asked            _____________________            for  just under  $5 million  in compensatory  damages  and an            injunction.                 On February  14, 1994, the district  court dismissed the            case.    One ground,  which we  need  not discuss  at length,            involved the supposed  lack of proper service of  the summons            and  complaint.   The  other ground  was  that the  complaint            failed to state a claim on which relief may be granted.  Fed.            R. Civ. P.  12(b)(6).   Since the latter  ground involves  no            factual issue and permits a final disposition of the case, we                                         -3-                                         -3-            address  only  the latter  ground and  affirm based  on well-            settled authority.                 There is no explicit cause of action in the Constitution            for  a  violation  of   First  Amendment  rights  by  federal            officers.  The Supreme Court inferred such a remedy in Bivens                                                                   ______            as a judicial  construct.  Then, in  Bush v. Lucas, 462  U.S.                                                 ____    _____            367 (1983),  the  Supreme  Court ruled  that  no  such  First            Amendment  remedy  would  be  inferred where  the  underlying            conduct  centered around  adverse federal  personnel actions,            because Congress  had created an  elaborate and comprehensive            set of procedures and remedies to govern such cases.  See id.                                                                  ___ ___            at  385-88.     Bush,   like  this  case,   involved  alleged                            ____            retaliation  by a  superior for  a subordinate's  exercise of            what were assumed to be legitimate First Amendment rights.                 In Bush  the Court agreed that  Congress' remedies might                    ____            not be as  effective as the Bivens remedy or cover every sort                                        ______            of injury,  462 U.S. at 372; but the Court said that the need            for that remedy was  lessened by the presence of  the statute            and the  possibility of  interfering with the  federal scheme            argued  against the Bivens  remedy.    Id.  at 388-89.   This                                ______             ___            court, like other circuits, has  followed Bush and refused to                                                      ____            entertain  similar claims  in subsequent  cases.   Berrios v.                                                               _______            Department of the Army, 884 F.2d 28 (1st Cir.  1989); Roth v.            ______________________                                ____            United States, 952 F.2d 611 (1st Cir. 1991).            _____________                                         -4-                                         -4-                 Although reliance on  Bush to preempt  a state cause  of                                       ____            action for  defamation might seem more  debatable, this court            did  so  hold  in  Berrios--with  respect  to  correspondence                               _______            incident to federal  removal proceedings--on the  ground that            the defamation claims were essentially attempts "to challenge            collaterally  an  adverse  personnel  action."   Id.  at  32.                                                             ___            Accord, Roth, 952  F.2d at 614.  Bolivar  makes no attempt to            ______  ____            distinguish her  own defamation claims as  any less connected            to the complained of  personnel actions.  Interestingly, Bush                                                                     ____            itself involved defamation claims of the  same kind, 462 U.S.            at 371, and this apparently made no difference to the Supreme            Court.                 Thus, the present case is so similar to Bush and our own                                                         ____            subsequent decisions that there is no reason for any extended            discussion.   The only substantial effort  made by appellants            to  distinguish   Bush   is  to   emphasize   the   allegedly                              ____            inquisitorial  interview  of Candelario  and  to  point to  a            footnote in Bush stating:   "In addition, certain actions  by                        ____            supervisors against federal  employees, such as  wiretapping,            warrantless searches, or uncompensated  takings, would not be            defined as `personnel actions'  within the statutory scheme."            462 U.S. at 385 n.28.  We need not consider Bolivar's lack of            standing since this  shift of emphasis is  unavailing even as            to Candelario.                                         -5-                                         -5-                 Certainly  some activities of federal officers, although            taken  in  an employment  context  in  reprisal for  employee            criticism, are  independently unlawful apart  from Bivens  or                                                               ______            even  criminal.   This seems to  be the  concern of  the Bush                                                                     ____            footnote invoked by the appellants.  If a superior physically            assaulted a subordinate in response to adverse comments about            the superior's management, it might seem a leap to argue that            the civil service statutes impliedly eliminate the common law            claim  for damages for  battery.  But cf.  Green v. Hill, 954                                              _______  _____    ____            F.2d 694, 697  (11th Cir. 1992)  (holding that other  federal            remedies preempt such a claim).                 In any  event, despite  some conclusory rhetoric  in the            appellants'  brief, the  complaint  did not  allege that  the            interrogation was in any respect unlawful except so far as it                                                      ______            constituted  reprisal  for the  violation of  First Amendment            rights.   As a matter of  fact, apart from the  length of the            interview--and the government says that  Candelario elsewhere            said  that  it lasted  two  hours  rather than  four--nothing            specific is said  in the  complaint or the  appeals brief  to            ________            explain  why it  is now  described as  Gestapo-like behavior.            The  complaint in this case  is not even  arguably within the            spirit of the Bush footnote.                          ____                 If FBI officials did seek to punish legitimate criticism            through personnel actions, this would be a matter of concern;            but it  would also be a  concern for which the  civil service                                         -6-                                         -6-            statutes appear  to provide  ample remedies.   Similarly, the            Federal Employees' Compensation Act may well provide a remedy            if Candelario  did suffer a "personal  injury sustained while            in the performance of his duty," 5 U.S.C.   8102.   Obviously            a Bivens action could  provide more generous damages, whether              ______            for  denial of  promotion  or for  medical  injury, but  Bush                                                                     ____            expressly held that  this makes no difference to the analysis            or  the result.   462  U.S. at  372.   See also  Schweiker v.                                                   ________  _________            Chilicky, 487 U.S. 412, 423 (1988).             ________                 Affirmed.                   ________                                         -7-                                         -7-
