Redondo-Borges v. U.S. Dept., Housing, Urban Dev.

Decision Date26 August 2005
Docket NumberNo. 04-2576.,04-2576.
Citation421 F.3d 1
PartiesMiguel REDONDO-BORGES, et al., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Miguel J. Ortega-Muñoz, with whom John F. Nevares, Waleska M. Valdes-Marchand, and John F. Nevares & Associates, PSC were on brief, for appellants.

Robert D. Kamenshine, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, H.S. Garcia, United States Attorney, and Barbara C. Biddle, Attorney, were on brief, for federal appellees.

Salvador Antonetti-Stutts, Solicitor General of Puerto Rico, with whom Mariana D. Negrón-Vargas, Deputy Solicitor General, and Doraliz E. Ortiz-De-León Assistant Solicitor General, were on brief, for remaining appellees.

Before SELYA, DYK* and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

This appeal involves a disappointed bidder who, after apparently winning the procurement race, lost the prize when the contracting agency deemed him (and his company) "nonresponsible." After careful review, we conclude that the plaintiffs' federal claims, to the extent they have been preserved, fail to state cognizable causes of action under 42 U.S.C. § 1983. Consequently, we affirm the district court's dismissal of the action.


Since the district court decided this case on a motion to dismiss, we derive the raw facts from the plaintiffs' amended complaint (supplemented, for the sake of completeness, by certain uncontested facts).

The tale began on December 4, 2001, when the Puerto Rico Public Housing Authority (PRPHA) awarded plaintiff-appellant Celta Construction Co. (Celta) a contract to restore the Lirios del Sur housing project in Ponce, Puerto Rico. The funds for that project had been assigned to PRPHA as part of a drug elimination program sponsored by the United States Department of Housing and Urban Development (HUD).

Plaintiff-appellant Miguel Redondo-Borges is Celta's president. In a letter dated May 21, 2002, PRPHA informed Celta that it was annulling the bid award because it had determined that Redondo-Borges (and, therefore, Celta) was a "nonresponsible bidder." The agency premised that determination on the past actions of Redondo Construction Company (RCC). According to PRPHA, RCC (a firm in which Redondo-Borges served as an officer) had defaulted on a contract with the agency in 1998. That contract related to the same Lirios de Sur housing project.1

The amended complaint claims, without an iota of detail, that in addition to losing the 2001 bid award, Redondo-Borges and his companies have been suspended from participating in public contracts ever since RCC's alleged default. The amended complaint also claims that the plaintiffs have lost unspecified private business because a local newspaper published an account of PRPHA's "nonresponsibility" determination.


Redondo-Borges, his wife, and their conjugal partnership brought the underlying action in the federal district court on May 19, 2003. They later amended their complaint to add Celta as a plaintiff. The amended complaint named two groups of defendants: HUD, the Secretary of HUD, and two lower-ranking HUD officials, Thomas Teresi and Michael Colon (collectively, the federal defendants) comprise one group and PRPHA and three PRPHA officials, Ileana Echegoyen, Jorge Rivera, and Carlos Laboy-Diaz (collectively, the commonwealth defendants) comprise the other. The plaintiffs advanced claims under 42 U.S.C. § 1983 and the Privacy Act of 1974, 5 U.S.C. § 552a, to which they appended claims under local law for breach of contract and the like. The defendants variously moved to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state an actionable claim. See Fed.R.Civ.P. 12(b)(1), (6). The district court referred the motions to a magistrate judge, see Fed.R.Civ.P. 72(b), who recommended dismissal. The plaintiffs objected to the magistrate judge's recommended disposition of the motions.

The district court reviewed the matter de novo. See id. The court ultimately issued a thoughtful opinion in which it (i) dismissed the claims against the federal defendants because the plaintiffs had failed to state any viable cause of action against them; (ii) dismissed the claims for money damages against the commonwealth defendants in their official capacities on the ground of Eleventh Amendment immunity; (iii) dismissed the claims for prospective injunctive relief against the commonwealth defendants in their official capacities because the plaintiffs had failed to state any claim cognizable under section 1983; (iv) dismissed the claims against the commonwealth defendants in their individual capacities based on qualified immunity; (v) dismissed the Privacy Act claims against the commonwealth defendants because the Act applies only to federal agencies; and (vi) elected not to exercise supplemental jurisdiction over the remaining claims, which it dismissed without prejudice pursuant to 28 U.S.C. § 1367(c). See Celta Constr. v. HUD, 337 F.Supp.2d 396, 399-403 (D.P.R.2004). This timely appeal followed.


We subdivide our analysis of the issues presented into several segments. We begin by elucidating some of the legal standards applicable to motions to dismiss.

A. The Rule 12(b)(6) Framework.

The district court dismissed the plaintiff's action for failure to state a claim upon which relief might be granted. Because there is no heightened pleading standard in civil rights cases, Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66-67 (1st Cir.2004), a district court considering a Rule 12(b)(6) motion must view the plaintiff's complaint through the prism of Fed.R.Civ.P. 8(a)(2)'s notice pleading requirements. Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir.2005). "A complaint satisfies that standard if it contains `a short and plain statement of the claim showing that the pleader is entitled to relief,' and `give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

The court must "assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiff's stated theory of liability." In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir.2003). Those facts may be derived from the complaint, whatever documents are either annexed to it or fairly incorporated into it, and any relevant matters that are susceptible to judicial notice. Centro Medico, 406 F.3d at 5. In that process, however, the court need not credit "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996).

We review the entry of an order of dismissal under Rule 12(b)(6) de novo, applying the same criteria that bound the lower court. Centro Medico, 406 F.3d at 5. The threshold for affirmance is high: "[w]e will affirm a dismissal only if it is transparently clear that the complaint, in light of the facts alleged, engenders no viable theory of liability." Id. at 6.

B. Waiver.

We begin our discussion of the plaintiffs' claims by explaining what is not before us. Few principles are more sacrosanct in this circuit than the principle that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). As a corollary to this principle, "a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace." Id. (internal quotation marks omitted). Even during appellate review of a Rule 12(b)(6) dismissal, which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to "do counsel's work, create the ossature for the argument, and put flesh on its bones." Id.

Application of these wise insights narrows the field of our endeavor. In their brief, the plaintiffs completely ignore both the district court's holding on their Privacy Act claim and its scuttling of their supplemental claims. We therefore deem them to have waived any appeal as to those rulings. The only claims that remain for adjudication are those advanced under 42 U.S.C. § 1983. We address those claims in the pages that follow.

C. Constitutional Claims Against Federal Defendants.

The plaintiffs try to shoehorn their constitutional claims against the federal defendants into the contours of section 1983. That endeavor has all the hallmarks of a futile gesture: after all, a section 1983 claim normally does not lie against a federal official. See Chatman v. Hernandez, 805 F.2d 453, 455 (1st Cir.1986) (per curiam) ("Section 1983 applies to persons acting `under color of state law' and not to persons acting pursuant to federal law."). The plaintiffs allege no facts that might permit a detour around that rule. Cf. Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir.1979) (explaining that a section 1983 claim may lie against federal officers "when [they] are engaged in a conspiracy with state officials to deprive constitutional rights").

Federal officials sometimes can be liable for constitutional torts committed under color of federal law on terms that bear a family resemblance to those that govern section 1983 actions. The doctoral framework was limned by the Supreme Court in Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Here, however, even if we give the plaintiffs the benefit of every doubt and recharacterize their claims against the federal defendants as Bivens claims, they would...

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