USCA1 Opinion

January 11, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-1397
ILEANA BOLIVAR and LEONARDO CANDELARIO,
Plaintiffs, Appellants,
v.
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
and Young,* District Judge.
______________
____________________
Awilda M.

Ortiz-Rivera with

whom Raul Santiago

Melendez was

_______________________
_______________________
brief for appellants.
Paul D. Scott, Appellate Staff, Civil Division, Department
______________
Justice, with whom Frank W. Hunger, Assistant Attorney General, P
_______________
_
M. Gagnon, United States Attorney, and Barbara L. Herwig, Appell
_________
_________________
Staff, Civil Division, Department of Justice, were on brief
appellees.
____________________
____________________
____________________
*Of the District of Massachusetts, sitting by designation.

Per Curiam.
__________
employees of the
Juan

office

Ileana Bolivar and Leonardo Candelario were

Federal Bureau of Investigation in

in

Puerto

Rico.

Bolivar

worked

its San
as

administrative officer and Candelario as a photographer.

incident that

an
The

triggered this litigation occurred in February

1993, when Candelario wrote and placed an anonymous letter in

a

"suggestion box"

that since

in which

Candelario expressed

his superiors, Robert Opfer

his view

and Hector Pesquera,

had taken charge of the office morale had dropped.

the special agent in

charge of the office, and

Opfer was

Pesquera was

the assistant special agent in charge.

On

February

19,

Candelario

about the

complaint

Candelario

1993, Opfer

about Bolivar's
that

he was

indicating

Pesquera questioned

anonymous letter.
states

"submitted [him] to an
lasted almost four

and

that

In

his subsequent

Opfer

and

ordeal of intense interrogation which

and a half

hours" to obtain

involvement in the letter.

eventually
that

he had

Bolivar about it.

Pesquera

forced to
authored

sign

information

Candelario says
a sworn

the letter

Candelario says that he

statement

but

had told

thereupon became

ill and was later found to have suffered a heart attack.

According

to

their later

Candelario were then subject

complaint, both

to adverse personnel actions in

retaliation for Candelario's letter.

was

passed

over for

Bolivar and

Candelario said that he

promotion that

-2-2-

was

otherwise due.

Bolivar said that she

filed against
the

her (apparently

investigation).

slandered and

was demoted, and that a

grievance was

for refusing to

Bolivar also

suffered damage

cooperate in

said that

she had

to her dignity,

been

apparently a

reference to the demotion or grievance procedure.

On

August 3,

present

court

Bolivar and

suit in

federal

and

the director

superiors
later,

1993,

district court

a similar suit was

and

subsequently

appeal neither
the later suit.

Candelario filed

of the

against their

FBI.

About

started in the
removed

and

the
two

two weeks

local Puerto Rico

consolidated;

Candelario nor Bolivar place

but on

any emphasis on

As ultimately amended, the federal complaint

claimed that the conduct alleged violated the First Amendment

and

gave rise

to

a cause

of action

Unknown Named Agents, 403 U.S.

_____________________
for

just under

$5 million

under

388 (1971).

in compensatory

Bivens v.
______

Six
___

The suit asked

damages

and an

injunction.
On February
case.

14, 1994, the district

One ground,

which we

need

court dismissed the

not discuss

involved the supposed

lack of proper service of

and

other ground

complaint.

The

was

that the

at length,
the summons
complaint

failed to state a claim on which relief may be granted.

R. Civ. P.

12(b)(6).

Since the latter

ground involves

Fed.
no

factual issue and permits a final disposition of the case, we

-3-3-

address

only

the latter

ground and

affirm based

on well-

settled authority.
There is no explicit cause of action in the Constitution
for

violation

officers.

First

Amendment

rights

by

federal

The Supreme Court inferred such a remedy in Bivens

______

as a judicial
367 (1983),
Amendment
conduct

of

construct.
the

Supreme

remedy

would

centered around

because Congress

Then, in

Bush v. Lucas, 462

____
_____

Court ruled
be

that

inferred where

adverse federal

had created an

no
the

such

U.S.
First

underlying

personnel actions,

elaborate and comprehensive

set of procedures and remedies to govern such cases.

See id.
___ ___

at

alleged

385-88.

retaliation

Bush,
____
by a

like

this

superior for

case,

involved

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

and the
argued

lessened by the presence of

possibility of

interfering with the

against the Bivens

______

remedy.

court, like other circuits, has

entertain

similar claims

Id.
___

the statute

federal scheme

at 388-89.

This

followed Bush and refused to

____

in subsequent

cases.

Department of the Army, 884 F.2d 28 (1st Cir.

______________________

Berrios v.
_______

1989); Roth v.
____

United States, 952 F.2d 611 (1st Cir. 1991).

_____________

-4-4-

Although reliance on
action for
did

so

Bush to preempt
____

defamation might seem more

hold

in

Berrios--with

a state cause

of

debatable, this court

respect

to

correspondence

_______
incident to federal

removal proceedings--on the

ground that

the defamation claims were essentially attempts "to challenge

collaterally

an

adverse

Accord, Roth, 952

______ ____
distinguish her

personnel

F.2d at 614.

action."

Bolivar

at

32.

makes no attempt to

own defamation claims as

to the complained of

Id.
___

any less connected

personnel actions.

Interestingly, Bush
____

itself involved defamation claims of the

same kind, 462 U.S.

at 371, and this apparently made no difference to the Supreme

Court.
Thus, the present case is so similar to Bush and our own
____
subsequent decisions that there is no reason for any extended
discussion.
to

The only substantial effort

distinguish

inquisitorial

Bush
____

is

interview

to

emphasize

of Candelario

footnote in Bush stating:

____
supervisors against federal

to Candelario.

and

to

employees, such as

defined as `personnel actions'

standing since this

the

allegedly
point to

"In addition, certain actions

warrantless searches, or uncompensated

462 U.S. at 385 n.28.

made by appellants

a
by

wiretapping,

takings, would not be

within the statutory scheme."

We need not consider Bolivar's lack of

shift of emphasis is

unavailing even as

-5-5-

Certainly
taken

in

an employment

criticism, are
even

some activities of federal officers, although

criminal.

context

in

reprisal for

independently unlawful apart

This seems to

be the

footnote invoked by the appellants.

employee

from Bivens
______

concern of

or

the Bush
____

If a superior physically

assaulted a subordinate in response to adverse comments about

the superior's management, it might seem a leap to argue that
the civil service statutes impliedly eliminate the common law
claim

for damages for

F.2d 694, 697

battery.

(11th Cir. 1992)

But cf.
_______

Green v. Hill, 954

_____
____

(holding that other

federal

remedies preempt such a claim).

In any
appellants'

event, despite
brief, the

some conclusory rhetoric

complaint

did not

in the

allege that

the

interrogation was in any respect unlawful except so far as it

______
constituted
rights.

reprisal

for the

As a matter of

violation of

fact, apart from the

First Amendment
length of the

interview--and the government says that

said

that

it lasted

specific is said
________
explain
The

why it

two

in the
is now

hours

Candelario elsewhere

rather than

complaint or the
described as

complaint in this case

four--nothing

appeals brief

to

Gestapo-like behavior.

is not even

arguably within the

spirit of the Bush footnote.

____
If FBI officials did seek to punish legitimate criticism
through personnel actions, this would be a matter of concern;
but it

would also be a

concern for which the

civil service

-6-6-

statutes appear

to provide

ample remedies.

Similarly, the

Federal Employees' Compensation Act may well provide a remedy

if Candelario

did suffer a "personal

injury sustained while

in the performance of his duty," 5 U.S.C.

a Bivens action could
______
for

denial of

8102.

Obviously

provide more generous damages, whether

promotion

or for

medical

injury, but

Bush

____
expressly held that
or

the result.

462

this makes no difference to the analysis

U.S. at

372.

Chilicky, 487 U.S. 412, 423 (1988).

________
Affirmed.
________

-7-7-

See also
________

Schweiker v.
_________