Morales v. Ramirez

• Decision Date: 09 May 1990
• Docket Number: Nos. 89-1909,89-2066,s. 89-1909
• Citation: 906 F.2d 784
• Parties: Awilda MORALES, et al., Plaintiffs, Appellees, v. Sylvia O. RAMIREZ, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 784

906 F.2d 784

Awilda MORALES, et al., Plaintiffs, Appellees, v. Sylvia O. RAMIREZ, et al., Defendants, Appellants.

Nos. 89-1909, 89-2066.

United States Court of Appeals First Circuit.

Heard May 9, 1990.

Argued June 29, 1990.

John S. Koppel, Atty., Appellate Section, Civil Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Daniel F. Lopez-Romo, U.S. Atty., and Barbara L. Herwig, Atty., Civil Div., Dept. of Justice were on brief, for defendants, appellants.

John M. Garcia, with whom Garcia & Fernandez, San Juan, P.R., was on brief, for plaintiffs, appellees.

Before SELYA and CYR, Circuit Judges, and ROSENN ^*, Senior Circuit Judge.

SELYA, Circuit Judge.

Seeking money damages (but not reinstatement), Awilda Morales, appellee before us, sued several federal functionaries in the district court. ¹ Her original salmagundi of claims was gradually winnowed as time went by and rulings intervened. We see no point in looking backward, but concentrate instead on what survives: Morales' claim that defendants, in their individual capacities, violated her rights under the Due Process Clause by maliciously causing her to be prosecuted on unfounded criminal charges.

After some earlier skirmishing not now relevant, the court below denied defendants' request for summary judgment in respect to this cause of action, ruling that defendants were not shielded by qualified immunity. Morales v. Ramirez, Civ. No. 87-1416 (D.P.R. July 11, 1989). These interlocutory appeals followed. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985) (immediate appeal lies from denial of government official's pretrial motion for summary judgment based on qualified immunity defense).

I

On a Mitchell-type intermediate appeal, customary summary judgment rules prevail. See Amsden v. Moran, 904 F.2d 748 (1st Cir.1990); Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.1988). Hence, appellate review of the district court's order is plenary. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Like the court below, "we are obliged to examine the properly documented portions of the record and draw all reasonable inferences therefrom in the light most hospitable to the party opposing the motion." Amsden, at 752. We must affirm the refusal to terminate the case unless we conclude that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Consonant with the foregoing, we limn the facts in the manner required by the liturgy of Rule 56 and thereafter proceed with our analysis of the legal issues involved.

II

For slightly over three years, plaintiff toiled as a secretary to Ronaldo Sanabria, director of the Caribbean Area Office of the United States Department of Labor (DOL). In November 1983, Morales received a promotion to become a wage-and-hours compliance officer. She began as a trainee under the direct supervision of defendant Sylvia O. Ramirez. Ramirez remained her immediate superior at all times material hereto.

In early 1985, based largely on the perceived similarity of different signatures, Ramirez began to voice suspicions that Morales had falsified documents and forged signatures. Ramirez saw to it that Morales' impending promotion was sidetracked. She also consulted defendant Jorge Concepcion, a special agent of the federal Office of Inspector General (OIG). Concepcion started a preliminary investigation, first attempting to verify the authenticity of the questioned signatures. After discovering that one of the signatures was bogus, Concepcion advised Ramirez to inform the hierarchs at DOL.

Contrary to standard protocol and for reasons best known to herself, Ramirez chose to leapfrog over Sanabria (her immediate superior and a person thought to be favorably disposed toward Morales). Instead, she contacted DOL's assistant regional administrator, defendant Anthony J. Ponturiero. Ramirez gave Ponturiero certain materials to review, including plaintiff's case diary sheets and three investigative files which she (Ramirez) had compiled. Ponturiero detected certain irregularities. He concluded that Morales had forged the signature of at least one employee on an interview statement and had submitted travel vouchers which did not correspond to the peregrinations reported in her case diary sheets. Ponturiero ascertained that, in an apparent coverup, some of Morales' sheets had been edited to show that she had conducted interviews telephonically rather than in person (as originally asserted). He also discovered that someone had substituted new, unsigned statements for two of the "signed" statements which had come under scrutiny.

In July 1985, Ponturiero informed Ramirez about his findings and notified her that he had turned the matter over to OIG for a more detailed probe. Concepcion resumed the paper chase. In October, he interviewed Morales, formally apprising her of the inquest and warning her of her rights in respect to possible criminal proceedings. When confronted with the claimed irregularities, Morales admitted discrepancies (including forging an employee's signature on an interview record), but passed them off as inadvertent errors committed, for the most part, in reliance upon what she had learned from DOL colleagues. Concepcion's analysis of the travel documents told him a different tale, revealing to his satisfaction that Morales, inter alia, had sought reimbursement for trips never taken. And when Concepcion broached the discrepancy between unsigned and signed statements in Morales' work files, she asserted her Fifth Amendment right to remain silent.

OIG gave Concepcion's final report (dated January 9, 1986) to the United States Attorney for the District of Puerto Rico to determine whether criminal prosecution was warranted. In providing a list of witnesses to the prosecutor, Concepcion omitted Sanabria's name. The omission was hurtful to plaintiff inasmuch as Sanabria's testimony would have been strongly supportive of her. Without talking to Sanabria, the United States Attorney chose to present the case to a grand jury. A nine-count indictment was handed up, charging Morales with falsification of federal documents and making materially untrue statements for financial gain in violation of 18 U.S.C. Secs. 287, 1001, 1341, 2071(b).

In May 1986, plaintiff resigned. In October 1986, the criminal case was tried. After both sides rested, the district court, relying heavily on Sanabria's testimony, granted Morales' motion for judgment of acquittal under Fed.R.Crim.P. 29. This civil action ensued.

III

Plaintiff's one remaining cause of action is, in her words, "a constitutional tort claim for egregious malicious prosecution." Appellee's Brief at 3. As such, it is brought under the imprimatur of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Court has described Bivens as generally "establish[ing] that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).

We digress to note, and thereafter to skirt, a singular complication affecting Bivens actions in the federal workplace. Many federal workers, like plaintiff, come within the ambit of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (1978) (codified in various sections of 5 U.S.C.). It is not precisely settled whether CSRA--which comprises an "integrated scheme of administrative and judicial review," United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988)--prevents a former federal worker from maintaining a Bivens action for malicious prosecution. On a preliminary motion, the district court declined to dismiss Morales' suit, finding no preclusion. Morales v. Ramirez, Civ. No. 87-1416 (D.P.R. July 20, 1988). The question is not free from doubt. Cf., e.g., Bush v. Lucas, 462 U.S. 367, 380-90, 103 S.Ct. 2404, 2412-17, 76 L.Ed.2d 648 (1983) (CSRA held to bar Bivens claim for abridgement of plaintiff's First Amendment rights); Stephens v. Coleman, 901 F.2d 1571, 1575-76, (11th Cir.1990) (CSRA held to preclude plaintiff's Bivens claims for due process infractions); Lombardi v. SBA, 889 F.2d 959, 961 (10th Cir.1989) (similar to, and following, Bush v. Lucas ); Berrios v. Dept. of the Army, 884 F.2d 28, 31-33 (1st Cir.1989) (CSRA held to preempt plaintiff's defamation suit against former supervisors).

That intricate legal riddles spark judicial interest is not enough to justify a court in volunteering solutions. Because the CSRA issue is not squarely before us, see, e.g., Domegan v. Fair, 859 F.2d 1059, 1061-62 (1st Cir.1988) (Mitchell-type interlocutory appeal requires only that court review denial of qualified immunity); Goyco de Maldonado v. Rivera, 849 F.2d 683, 684 (1st Cir.1988) (similar), ² and because the instant appeals are resolvable on alternate grounds, we take no view of this issue. Rather, we assume arguendo that plaintiff's putative cause of action escapes CSRA preclusion. On this assumption, we turn to appellants' other arguments.

IV

Qualified immunity operates to shield government officials exercising discretionary powers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The normative standard is objective and independent of the merit of the underlying constitutional claim:

Because qualified immunity does not address the substantive viability of [the asserted] claim, but rather the objective reasonableness of a defendant's actions, a plaintiff who is entitled to...