Bolivar v. Director of F.B.I.

• Decision Date: 11 January 1995
• Docket Number: No. 94-1397,94-1397
• Citation: 45 F.3d 423
• Parties: NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Ileana BOLIVAR and Leonardo Candelario, Plaintiffs, Appellants, v. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 423

45 F.3d 423 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

Ileana BOLIVAR and Leonardo Candelario, Plaintiffs, Appellants, v. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL Defendants, Appellees.

No. 94-1397

United States Court of Appeals First Circuit.

Jan. 11, 1995

Appeal from the United States District Court for the District of Puerto Rico [Hon. Juan M. Perez-Gimenez, U.S. 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.

D. Puerto Rico

AFFIRMED.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and YOUNG, ^* District Judge.

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. 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 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...