Viсente GONZÁLEZ et al., Plaintiffs, Appellants, v. Rogelio VÉLEZ et al., Defendants, Appellees, Octavio Otero et al., Defendants.
No. 16-1572
United States Court of Appeals, First Circuit.
July 24, 2017
864 F.3d 45
Farthing claims that at least part of his job was “organizing the basis of an infrastructure to support the marketing of his employer‘s property,” and, further, that he engaged in sales activities as the employee of a real estate seller—that is, Coco Beach—rather than as an intermediary between a seller and buyer. See
Viewing the evidence in the light most favorable to Farthing, we do not agree with the court below that “there is no genuine [factual] dispute” relevant to these issues. Burns, 829 F.3d at 8 (quoting
III.
We vacate the entry of summary judgment in favor of Coco Beach and remand for further proceedings consistent with this opinion. No costs are awarded.
Michael J. Carlson, Litigation Attorney, United States Army Litigation Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellees.
Before HOWARD, Chief Judge, SELYA, Circuit Judge, and MCCONNELL, District Judge.*
SELYA, Circuit Judge.
This is a federal-sector employment discrimination case, in which the plaintiffs have attempted to improve their lot by invoking extravagant theories of liability. The plaintiffs’ theories run headlong into an impenetrable barrier forged by the combination of the Civil Service Reform Act (CSRA), see
I. BACKGROUND
Because this appeal follows the granting of a motion to dismiss, we draw the facts from the operative version of the complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013). We are at liberty, though, to supplement those facts with facts “gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
Plaintiff-appellant Vicente González and plaintiff-appellant Víctor Franco were hired in 1996 as civilian employeеs of the Department of Army Civilian Police (DACP). As such, both men were attached to the Army garrison at Fort Buchanan in Guaynabo, Puerto Rico. By 2007, González had risen to the rank of chief. Franco remained an investigator. At that time, long-simmering workplace conflicts came to a boil: the plaintiffs allege that they were victims of a “witch hunt,” culminating in a criminal investigation instigated by a cadre of coworkers and supervisors.
In February of 2007, González‘s direct supervisor, James Adamski, announced plans to leave his post as the head of the Directorate of Emergency Services (DES) at Fort Buchanan. González told Adamski privately of his intеrest in the position. This news spread and it did not receive unanimous acclaim. According to the plaintiffs, some of their colleagues hatched a plot to keep the job in the hands of a non-Puerto Rican and non-Hispanic individual. The plot had its genesis (the plaintiffs say) in the belief that such an individual would be more likely to acquiesce in the garrison‘s corrupt culture.
To put meat on these bones, the plaintiffs asserted that the garrison commander (Stephen Ackman) and a staff judge advocate (Mark Nozaki) resented González‘s refusal to cooperate with their pernicious practices, which included wiping away valid traffic citations and conducting warrantless electronic surveillance. Adamski, Ackman, Nozaki, Raymond Johnson (the garrison‘s fire chief), and Gunner Pederson (the garrison‘s deputy commander) “all conspired to ensure that González could not compete for the DES Director‘s opening, and to terminate his employment as Chief of Police of the DACP.” Relatedly, the conspirators contrived to have Johnson, rather than González, appointed as the interim DES director. Other DACP personnel—including Rogelio Vélez, Octavio Otero, and Edwin Sepúlveda—were part of the conspiracy. As such, they began spreading false and defamatory information about the plaintiffs. For example, Vélez and Otero approached a federal prosecutor and instigated a criminal investigation of the plaintiffs’ activities. In this regard, they told the prosecutor that González had been using his position for personal gain and that Franco had been employing his security credentials for “inappropriate purposes.”
The plaintiffs further alleged that the prosecutor swallowed this bait hook, line, and sinker: he relayed the negative information to the Criminal Investigations Division (CID), which then assigned two agents, Billy Higgason and Ramón Román, to look into the matter. In the course of the probe, Vélez gave a sworn statement, describing several examples of González‘s purported abuse of his authority. For instance, Vélez said that González had nulli
According to the complaint, Otero also implicated Franco. He told investigators that Franco had brought a relative into the garrison and allowed him to leave with several cases of liquor. The investigators were given security videotape purporting to show Franco loading boxes into a vehicle.
With the CID investigation underway, Ackman—in consultation with Nozaki and Pederson, among others—decided to suspend the plaintiffs. He placed González and Franco on administrative leave in April of 2007, but they continued to receive their regular pay and benefits.
In the plaintiffs’ view, it became crystal clear, as early as May 31, that there was no probable cause to bring criminal charges. Nevertheless, Franco was not allowed to return to work until late July. Even then, he was assigned mundane tasks for approximately four months until he was permitted to return to his regular work.
The investigation continued until mid-November of 2007, when the CID issued a report finding no evidence of illegal activity. Despite this finding, Johnson had González‘s security clearance revoked near the end of November. As late as the following February, Pederson urged that the revocation remain in effect. González‘s security clearance was not restored until April of 2008—and it was not until then that González regained his former position.
While still on administrative leave, the plaintiffs—both of whom are Hispanic and Puerto Rican—began complaining about disparate treatment due to race and national origin. They sought advice from the Army‘s Equal Employment Opportunity (EEO) office, which provided counseling and, in memoranda documenting the completion of that counseling, notified each plaintiff of his right to file a formal complaint within fifteen days. There is no allegation that González ever filed a formal EEO complaint.
Franco, however, filed a formal complaint within the prescribed time period. He received a final decision on June 11, 2007, which concluded that “no employment harm” had occurred because Franco had not experienced any loss of pay or pay grade. This decision explicitly warned that Franco had a limited time in which to take further action: he could either appeal the decision to the Equal Employment Opportunity Commission (EEOC) within thirty days or file suit in federal court within ninety days. See
On March 17, 2008 (well over ninety days after Franco‘s receipt of the final administrative decision), González and Franco joined forces and filed this action in the federal district сourt.1 Their complaint named twelve defendants (all sued in their personal capacities): Vélez, Otero, Sepúlveda, Adamski, Johnson, Ackman, Nozaki, Pederson, Higgason, Román, Berta Santiago (a Fort Buchanan detective), and Jorge Quiñones (a DACP investigator). We skip over a salmagundi of inter
The defendants moved to dismiss, asserting, inter alia, want of personal and subject-matter jurisdiction and failure to state an actionable claim. See
As to the other defendants (Vélez, Johnson, Pederson, and Santiago), the court ruled that the plaintiffs could not dodge the preclusive effect of the CSRA and Title VII by “creatively” pleading causes of action. González, 172 F.Supp.3d at 503-06. In expounding upon this point, the court explained that, had the plaintiffs brought their claims under the appropriate statutes, they would be time-barred because they had failed to comply with various administrative procedures and deadlines. See id. at 496-97. Using a belt-and-suspenders approach, the court held, in the alternative, that various defendants were entitled to either absolute or qualified immunity. See id. at 506-08.
This timely appeal ensued.
II. ANALYSIS
We review de novo a district court‘s order granting a motion to dismiss. See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc); Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009). We accept as true all well-pleaded facts and draw all reasonable inferences therefrom in the pleader‘s favor. See Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). We are not bound by the lower court‘s reasoning, though, “but may affirm the order of dismissal on any ground made manifest by the record.” Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (quoting Román-Cancel v. United States, 613 F.3d 37, 41 (1st Cir. 2010)).
The parties’ briefs rаise an ear-splitting cacophony of issues. We cut through the noise and focus on an issue that we find dispositive of this appeal: preclusion.
Federal-sector employment claims typically take one of two paths. The first path runs through the CSRA, which con
Some types of clаims, though, are excluded from the CSRA‘s monopoly over federal-sector employment actions. In particular, the statute “shall not be construed to extinguish or lessen” rights or remedies available under certain antidiscrimination statutes.
These paths sometimes interseсt. When a federal employee attributes an adverse employment action in part to bias based on race or national origin in derogation of federal antidiscrimination laws, his case becomes a “mixed case.” See Perry v. MSPB, — U.S. —, 137 S.Ct. 1975, 1979, 198 L.Ed.2d 527 (2017). This term—“mixed case“—signifies that the federal employee‘s case is governed partially by the CSRA and partially by Title VII. See Kloeckner v. Solis, 568 U.S. 41, 44-45, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012). The distinction is consequential because, among other things, the two statutes have different jurisdictional trappings. In a typical case, CSRA claims must be presented to the agency-employer itself and, if pursued further, reviewed by the Merit Systems Protection Board (MSPB), with subsequent litigation taking place in the Court of Appeals for the Federal Circuit. See id. In contrast, standard Title VII claims must proceed in accordance with regulations promulgated by the EEOC and subsequent litigation starts in a federal district court. See Mach Mining, LLC v. EEOC, — U.S. —, 135 S.Ct. 1645, 1649, 191 L.Ed.2d 607 (2015).
Here, the plaintiffs’ allegations are a jumble. Stripped to their core, they seem to present a mixed case. The plaintiffs complain of discrimination based on race and national origin, as well as discrimination based on their unwillingness to tolerate corrupt practices within the garrison. Specific procedures exist for the prosecu
In this case, the plaintiffs have not made any effort to prosecute claims under the CSRA and, in any event, the district court had no jurisdiction to hear such claims. See Irizarry, 427 F.3d at 78-79. Nor have the plaintiffs attempted to resurrect their Title VII claims; their third amended complaint does not so much as mention Title VII and, even apart from that omission, the record makes manifest that neither plaintiff has met the relevant Title VII deadlines.
Faced with this inhospitable legal landscape, the plaintiffs try to breathe life into their federal-sector employment claims by carving out two additional paths to relief. On the facts of this case, both paths are dead ends.
To begin, the plaintiffs asseverate that the Constitution itself provides an avenue, under the aegis of the Due Process Clause, for bringing federal-sector employment claims against coworkers and supervisors in their individual capacities. For this proposition, they rely on the Supreme Court‘s decision in Bivens. As we explain below, Bivens cannot carry the weight that the plaintiffs load upon it.
In Bivens, the Court held that a Fourth Amendment violation by federal agents, acting under color of governmental authority, gave rise to a cause of action for money damages against those agents in their individual capacities. See Bivens, 403 U.S. at 389. The basis for recognizing such a new constitutional tort and, thus, allowing such suits to proceed, is—as the plaintiffs suggest—derived from the Constitution itself. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).
While the boundaries of Bivens-type liability are hazy, the Supreme Court, in its most recent term, made plain its reluctance to extend the Bivens doctrine to new settings. See Hernandez v. Mesa, — U.S. —, 137 S.Ct. 2003, 2006, 198 L.Ed.2d 625 (2017) (per curiam); Ziglar v. Abbasi, — U.S. —, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). To this end, the Court specified that when a Bivens-type claim is lodgеd, the appropriate analysis must begin by determining whether the plaintiff is seeking to extend the Bivens doctrine to a new context. See Abbasi, 137 S.Ct. at 1864. For this purpose, a context is considered new “[i]f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. Once it is determined that the context is new, the next step is to ask whether an alternative means of obtaining relief exists and, if so, whether “special factors” coun
With respect to the Bivens doctrine, the universe of previous “cases decided by [the Supreme] Court,” id. at 1859, is narrow. Bivеns itself arose in a context that bears no resemblance to the workplace-based discrimination that lies at the heart of the plaintiffs’ case.
Since deciding Bivens, the Court has recognized an implied right of action for constitutional torts in only two other contexts. In the first of these cases, the Court held that the Due Process Clause of the Fifth Amendment permitted a damages action where a staffer sued a Member of Congress for cashiering her because of her gender. See Davis v. Passman, 442 U.S. 228, 243-44, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Subsequently, the Court allowed a Bivens-type action under the Eighth Amendment in a case in which federal correctional officеrs had failed to treat a prisoner‘s asthma during his incarceration. See Carlson v. Green, 446 U.S. 14, 20-23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
For the most part, Bivens and its progeny arose in contexts that differ meaningfully from the present context. Bivens involved the illegal search of an individual‘s home—an issue foreign to this case.3 So, too, this case—which is not concerned either with the rights of prison inmates or with the strictures of the Eighth Amendment—differs meaningfully from Carlson.
This brings us to Davis, which arose in a context that bears a superficial similarity to the present context. That case, like this one, involves discrimination claims of federal employees. But even if we assume for argument‘s sake that the сontext is substantially the same, the plaintiffs hit a roadblock at the next step of the analysis, that is, whether there exists an alternative process that Congress reasonably may have viewed as an equally effective surrogate for an action brought directly under the Constitution. See Abbasi, 137 S.Ct. at 1858; Carlson, 446 U.S. at 18-19.
The linchpin of the Davis Court‘s analysis was its conclusion that Title VII, as then written, did not apply to congressional employees.4 See Davis, 442 U.S. at 247. Here, no such exemption bars the gateway to relief: the plaintiffs—unlike the plaintiff in Davis—had available to them alternative processes (the CSRA and Title VII) that Congress reasonably might have viewed as effective substitutes for an action brought under the Constitution.5 The existence of such alternative processes is a special factor that counsels convincingly against applying the holding in Davis to federal employees generally.
Viewed against this backdrop, we conclude that the plaintiffs are seeking to
The plaintiffs dispute this conclusion. They argue that the statutory and regulatory mosaic does not afford as complete relief as a Bivens action and, thus, Congress might not have viewed those statutes and regulations as providing equally effective remediation. To illustrate this point, the plaintiffs note that they could not obtain punitive damages under either the CSRA or Title VII.6 See Bush v. Lucas, 462 U.S. 367, 372 & n.8, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (explaining that CSRA damages do not include punitive damages);
This same argument was addressed and rejected by the Bush Court. See 462 U.S. at 372 & n.8. Thеre, the Court considered whether the CSRA, together with other laws, precluded a federal employee‘s claim that he had been retaliated against for exercising his First Amendment rights. See id. at 385-86 & n.25. Assuming arguendo that greater damages would be available in a constitutional tort suit, the Court nonetheless held that the existing statutory regime precluded such a suit. See id.
The Bush Court couched its inquiry in a consideration of whether special factors existed that counselled hesitation in extending the Bivens remedy. See id. at 380. The Court determined that such factors were present, explaining that the “elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures—administrative and judicial—by which improper action may be redressed” militates against allowing the Bivens doctrine to intrude into the federal employment arena. 462 U.S. at 385; see Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989) (noting that the Supreme Court “has jealously guarded [the] CSRA against inconcinnous judicial incursions“).
The Bush Court‘s reasoning applies with undiminished force in the case at hand. The relevant “inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action tо proceed.” Abbasi, 137 S.Ct. at 1857-58. In the context of this case, the careful layering of federal statutes, including the CSRA and Title VII, involves a wide range of policy considerations best left to Congress‘s superior understanding of governmental structures and systems nationwide. See id. at 1858; see also Bush, 462 U.S. at 389 (“Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.“).
We conclude, therefore, that there is no basis for extending the Bivens doctrine to claims alleging arbitrary or discriminatory treаtment in those precincts of the federal
The plaintiffs also attempt to blaze a trail to relief by alleging RICO violations. The question of whether the CSRA and Title VII, taken together, preclude a civil RICO action brought by a federal employee against his coworkers and supervisors is one of first impression at the federal appellate level. Several district courts, though, have held that the CSRA precludes a civil RICO action in this context. See, e.g., Bloch v. Exec. Office of the President, 164 F.Supp.3d 841, 857 (E.D. Va. 2016) (holding that “civil RICO claim[s] . . . alleging unlawful activity in connection with plaintiff‘s removal from federal employment” are precluded); Ferris v. Am. Fed‘n of Gov‘t Emps., 98 F.Supp.2d 64, 69 (D. Me. 2000) (holding that, in a federal-sector employment action, plaintiff “must seek redress . . . under the CSRA, not RICO“).
These decisions are consistent with our case law, which has termed the CSRA framework “the exclusive mechanism for challenging adverse personnel actions in federal employment.” Rodriguez, 852 F.3d at 82; see Berrios v. Dep‘t of the Army, 884 F.2d 28, 30 (1st Cir. 1989) (“There is no longer any serious dispute that the CSRA preempts challenges to personnel actions brought under federal law.“). They also fit snuggly with the statutory text, which instructs that the CSRA “shall not be construed to extinguish or lessen” the rights and remedies available under a list of enumerated statutes.
Much the same reasoning pertains to the preclusive effect of Title VII vis-à-vis civil RICO actions. No less an authority than the Supreme Court has made pellucid that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Brown, 425 U.S. at 835. “Exclusive” ordinarily means “exclusive,” and we can envision no reason why a RICO claim premised on allegations of discrimination in federal employment might somehow elude the grasp of this congressionally declared exclusivity.
To sum up, we hold that the CSRA and Title VII, taken together, preclude the plaintiffs’ constitutional tort claims. Similarly, we hold that the CSRA and Title VII, taken together, preclude the plaintiffs’ RICO claims. Lastly, we hold that there are no other arguably non-precluded claims before us.7 These holdings,
Two loose ends remain. First, the plaintiffs lament the length of time—roughly six and one-half years—that elapsed between the filing of the motion to dismiss and the district court‘s decision. They contend that this delay warrants vacating the judgment. This contention is hopeless.
Delay in the administration of justice is always regrettable. But thеre is no fixed time within which a district court must decide a dispositive motion, and delay alone is not a sufficient ground for vacating a civil judgment that, like this one, is correct on the merits. In such a situation, vacation of the judgment would be an empty exercise: on remand, the district court would simply re-enter its original judgment. Cf. Gibbs v. Buck, 307 U.S. 66, 78, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (stating that it would be “useless” to reverse and remand where district court had corrected its error after an appeal was taken). We made it plain, long ago, that we will not force litigants “round and round the mulberry bush for no better reason than ceremonial punctiliousness.” Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989).
Second, the plaintiffs fault the district court fоr failing to rule on their motion for summary judgment. Once the court granted the motion to dismiss and jettisoned the action, however, the plaintiffs’ motion for summary judgment became moot. See McCulloch v. Vélez, 364 F.3d 1, 3-4 (1st Cir. 2004) (explaining that district court‘s allowance of motion to dismiss mooted pending motion for summary judgment). A court has no obligation—indeed, no authority—to adjudicate moot questions. See Barr v. Galvin, 626 F.3d 99, 104 (1st Cir. 2010). Seen in this light, the district court‘s decision to forgo any ruling on the summary judgment motion was both proper and logical.
III. CONCLUSION
We need go no further.8 For the reasons elucidated above, the judgment of the district court is
Affirmed.