Bolivar v. Director of the FBI

• Decision Date: 14 February 1994
• Docket Number: Civil No. 93-2084(PG) & 93-2339(PG).
• Parties: Ileana BOLIVAR, et al., Plaintiffs, v. DIRECTOR OF THE FBI, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

846 F. Supp. 163

Ileana BOLIVAR, et al., Plaintiffs, v. DIRECTOR OF THE FBI, et al., Defendants.

Civil Nos. 93-2084(PG) & 93-2339(PG).

United States District Court, D. Puerto Rico.

February 14, 1994.

COPYRIGHT MATERIAL OMITTED

Luis Plaza, Raúl Santiago Meléndez, Hato Rey, PR, for plaintiffs.

Maria Hortensia Rios, Asst. U.S. Atty., Hato Rey, PR, for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

This is an action for injunctive relief and damages filed on August 3, 1993, by plaintiffs Ileana Bolivar¹ and Leonardo Candelario. Plaintiffs are Federal Bureau of Investigation ("FBI") employees. See amended petition at ¶¶ 4, 5. In the original petition, plaintiffs invoked jurisdiction pursuant to 42 U.S.C. § 1983. An amended petition was filed on October 5, 1993, invoking 28 U.S.C. § 1331(a), the First Amendment to the United States Constitution, and Bivens v. Six Unknown Named Agents in the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as a jurisdictional bases. Id. at ¶ 1. Plaintiffs' request for a temporary restraining order was denied by this Court on August 5, 1993.

Since claims under 42 U.S.C. § 1983 can only be asserted for constitutional violations committed by state officials under color of state law, the jurisdictional basis alleged in the original petition was fatally flawed. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). Upon careful consideration of defendants' motion to dismiss and plaintiffs' opposition to the same, this Court finds that this action should be dismissed for lack of subject matter jurisdiction, lack of jurisdiction over defendants, insufficiency of service of process, and failure to state a claim upon which relief can be granted. Rule 12(b)(1), (2), (5) and (6) of the Federal Rules of Civil Procedure. Civil case number 93-2399, which was recently consolidated with the instant action, should be dismissed as well.

I. FACTUAL BACKGROUND

For purposes of Rule 12(b) of the Fed.R.Civ.P., plaintiffs' factual allegations must be deemed as a true and accurate account of the facts in this case. Cardona del Toro v. United States, 791 F.Supp. 43, 45 (D.P.R.1992), aff'd., 983 F.2d 1046 (1st Cir. 1993) (citing Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1960, 100 L.Ed.2d 531 (1988)). According to the complaint, in February 1993, plaintiff Candelario wrote an anonymous letter expressing his concern about the low morale at the FBI San Juan Office since defendants Robert J. Opfer and Héctor M. Pesquera assumed the management of said Office. See amended petition at ¶ 10. Opfer is the Special Agent in Charge at the FBI San Juan Office; Pesquera is the Assistant Special Agent in Charge. Id.

Candelario placed the anonymous letter in the Office's suggestion box. Id. On February 19, 1993, defendants Opfer and Pesquera questioned Candelario about the letter. Id. at ¶ 11. The purpose of the questioning was "to obtain from Candelario a written admission declaring that the person responsible for writing the letter was ... Bolivar." Id. During the questioning, Candelario prepared a sworn statement to the effect that he was the sole person responsible for the anonymous letter, but that he had notified plaintiff Bolivar of his intention to write said letter. Id. at ¶ 12.

Plaintiffs Bolivar and Candelario allege that defendants took adverse personnel actions against them in retaliation for Candelario's letter. Id. at ¶¶ 13-22. Bolivar claims that: 1) she received a performance rating of "unacceptable" on a Performance Appraisal Report; 2) she was demoted; 3) a grievance against her was filed with FBI Headquarters; and 4) she has been slandered and her dignity has been substantially damaged. Id. at ¶¶ 13, 21(a), 18, 22(b), 16, 17, 21(c).

Candelario, in turn, claims that he was not promoted when due, and that he suffered a heart attack as a result of the February 19, 1993, questioning. Id. at ¶¶ 15, 21(b), 12, 22(a).

II. FAILURE TO PROPERLY SERVE SUMMONS

On October 8, 1993, plaintiffs filed an urgent motion regarding their request for preliminary and permanent injunctive relief. In said motion, plaintiffs allege that defendants Opfer and Pesquera had not replied to the original petition and complaint within the sixty-day term provided by Rule 12(a) of the Fed.R.Civ.P. Although the motion did not specify what sort of relief plaintiffs were seeking — as required by Local Rule 311.2 —, plaintiffs apparently intended for their motion to be construed as one for entry of default pursuant to Rule 55 of the Fed. R.Civ.P.

Defendants filed an opposition to plaintiffs' urgent motion bringing to the attention of this Court that Opfer and Pesquera had not been served with summons. These defendants, however, received copy of plaintiffs' complaint on or about August 5, 1993. See defendants' motion at p. 3. The U.S. Attorney's Office was not served with summons and copy of the complaint until October 5, 1993; there was no proof to the effect that the Attorney General has been served by certified or registered mail, as required by Rule 4(d)(4) of the Fed.R.Civ.P. Id.

Rule 4(d)(5) of the Fed.R.Civ.P. provides that service of summons and complaint upon an officer of the United States shall be accomplished by: (1) serving the United States pursuant to Rule 4(d)(4), and (2) sending a copy of the summons and complaint by registered or certified mail to such officer. Rule 4(d) also requires that "the summons and complaint shall be served together."

Also relevant to this case is Rule 12(a), which establishes that a federal officer shall answer or otherwise plead within sixty (60) days after service upon the United States Attorney. Since the U.S. Attorney's Office was served with summons and complaint on October 5, 1993, defendants Opfer and Pesquera had until December 6, 1993 to file their answer or otherwise plead. Therefore, plaintiffs' urgent motion filed on October 8, 1993, was premature.

Moreover, summons were issued by the Clerk's Office on August 3, 1993 — more than six (6) months ago. Plaintiffs have never challenged defendants' argument that Opfer and Pesquera were not properly served on August 5, 1993, nor have plaintiffs perfected service. Plaintiffs have the burden of establishing that proper service has been effected. Sáez Rivera v. Nissan Manufacturing Co., 788 F.2d 819, 821 n. 2 (1st Cir. 1986). Since plaintiffs have not shown that they have served defendants Opfer and Pesquera with both copy of the complaint and summons, there is insufficiency of service of process. Consequently, this Court lacks personal jurisdiction over these defendants. The claims against them should be dismissed. See Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 246, 90 L.Ed. 185 (1946); Rule 12(b)(2), (5) of the Fed.R.Civ.P.

III. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED BY THIS COURT

Not only have plaintiffs failed to properly serve defendants Opfer and Pesquera, but also they have not brought to the attention of this court a claim upon which relief can be granted. Rule 12(b)(1), (6) of the Fed. R.Civ.P.

A suit may be brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971), for certain constitutional violations by federal employees. Plaintiffs Bolivar and Candelario claim that defendants infringed upon their First Amendment rights. See amended petition at ¶¶ 1, 20, 21, 22. Notwithstanding an allegation for violation of constitutional rights, Congress may withhold a remedy "when defendants show that Congress had provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 19, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980) (citing Bivens v. Six Unknown Named Agents, 403 U.S. at 397, 91 S.Ct. at 2005). Given that plaintiffs allege that defendants took adverse personnel actions against them, a review of relevant federal civil service statutes is warranted.

The Civil Service Reform Act of 1978, Pub.L. No. 95-454, as amended ("CSRA"), 5 U.S.C. § 7101 et seq., establishes a comprehensive remedial scheme for administrative and judicial review of federal personnel matters. See Berrios v. Department of Army, 884 F.2d 28, 30-31 (1st Cir.1989). The CSRA's scheme for review of adverse personnel actions is the type of "narrowly tailored employee compensation scheme" that "preempts the more generous tort recovery statutes." Brown v. General Services Administration, 425 U.S. 820, 834-35, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); see also Berrios v. Department of Army, 884 F.2d at 30 ("there is no longer any serious dispute that the CSRA preempts challenges to personnel actions brought under federal law.") The "CSRA contains within its four corners `an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.'" Montplaisir v. Leighton, 875 F.2d 1, 2 (1st Cir.1989).

The Supreme Court held in Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2406, 76 L.Ed.2d 648 (1983), that federal personnel actions and practices may only be challenged through the mechanism provided by Congress in the CSRA; "it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy." Id. In Bush, the Supreme Court refused to create a Bivens-type remedy for a First Amendment violation "arising out of an employment relationship that is governed by the CSRA's comprehensive procedural and substantive provisions giving meaningful remedies against the United States." Schweiker v. Chilicky, 487 U.S. 412, 422, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988).

The First Circuit has likewise held that the CSRA "prohibits a federal employee from bringing a damages action against his superior premised on alleged abridgment of First Amendment rights in the workplace." Montplaisir v. Leighton, ...