Williаm RIOS-PINEIRO, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
No. 12-1618.
United States Court of Appeals, First Circuit.
April 15, 2013.
713 F.3d 688
E. Ineffective Assistance of Appellate Counsel
Although Rosenthal had raised the issue of ineffective appellate counsel in his second motion for a new trial, he dropped the issue from his third motion. Consequently, the motion judge only made passing reference to this particular claim in the order. Rosenthal then filed a motion for reconsidеration, in which he asked the motion judge to resolve the issue of ineffective appellate counsel definitively. The motion judge denied the motion.
Before the district court, on this issue the Commonwealth argued that Rosenthal failed to exhaust his state remedies as required by
The district court then proceeded to resolve the claim on the merits. It held that Rosenthal had not shown ineffective assistance of appellate counsel for failing to raise the issues of competency, waiver of his right to testify, and ineffective assistance of trial cоunsel on appeal. It further held that Rosenthal was not prejudiced by his appellate counsel‘s decision, because none of these possible arguments were meritorious. On appeal, the Commonwealth, while maintaining Rosenthal‘s failure to exhaust state remedies, has conceded that “the goal of judicial economy may better be servеd if the merits of the claim are addressed.”
We agree. The district court‘s order dealt with this issue comprehensively. On de novo review, we adopt its legal analysis and have nothing to add. Rosenthal‘s claim of ineffective assistance of appellate counsel fails.
III. Conclusion
For the foregoing reasons, we affirm the district court‘s order.
Michael J. Elston, Special Assistant United States Attorney, with whom Rosa Emilia Rodríguez Vélez, United States Attorney, was on brief, for appellee.
Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.
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.
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 еnvelopes. 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 employees. The postal inspectors decided to wait until after Ríos completed his delivery route to confront him about the missing envelopes.
Once Ríos had rеturned 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 re
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 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 determinеd 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, whiсh were for negligent supervision, invasion of privacy, and malicious prosecution. The government submitted a record containing, among other exhibits, the proceedings before the 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 judgmеnt 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.”
A. Collateral Estoppel
Collateral estoppel, or issue preclusion, is a doctrine of judicial economy that
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. & Loan Ass‘n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (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, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); see also Bath Iron Works Corp. v. Dir., 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.
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 оr 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 Nievеs deceptively planted 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
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, аnd 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 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 elemеnts: “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 herе 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“).
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 Puеrto Rico Constitution, which states that “[t]he dignity of the human being is inviolable.”
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 Nieves‘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 Niеves‘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.
III. Conclusion
For the foregoing reasons, we affirm the district court as to all claims.2