Villanueva v. US

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Published. [10-2431]

Case: 10-2431

Document: 00116298074

Page: 1

Date Filed: 11/30/2011

Entry ID: 5599377

United States Court of Appeals
For the First Circuit

No. 10-2431
LUIS JAVIER VILLANUEVA,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Stahl, and Thompson, Circuit Judges.

Juan José Nolla-Acosta on brief for appellant.
Héctor E. Ramírez-Carbo, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Luke Cass, Assistant United States
Attorney, were on brief, for appellee.

November 30, 2011

Case: 10-2431

Document: 00116298074

Per

Curiam.

Page: 2

Former

Date Filed: 11/30/2011

federal

employee

Luis

Entry ID: 5599377

Javier

Villanueva ("Villanueva") appeals the dismissal of his lawsuit
against the United States.

Finding that this appeal lacks merit,

we summarily affirm.
Villanueva was employed as a custodial worker at a Coast
Guard Air Station in Puerto Rico for four and one half years before
being fired for allegedly pilfering various items.

Claiming that

the firing and the procedures employed during the firing were
improper, Villanueva filed suit.

More specifically, he alleged

constitutional violations and negligence, and claimed jurisdiction
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),
2671 et seq., and the Administrative Procedure Act ("APA"), 5
U.S.C. § 701 et seq.

The only defendant Villanueva named was the

United States.
The United States moved to dismiss the complaint for lack
of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The
government argued that there was no jurisdiction under the FTCA
because its limited waiver of sovereign immunity is not applicable
to constitutional tort claims. It further claimed jurisdiction was
lacking under the APA because Nonappropriated Fund employees like
Villanueva cannot proceed under the APA.

Villanueva filed an

opposition to the motion to dismiss, offering no counter argument
as to the FTCA or APA's applicability, and instead requesting that
he be allowed to amend the complaint to name his former supervisors

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as defendants and to include a Bivens action.

Entry ID: 5599377

See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).

Villanueva offered no grounds to support his request for

amendment, nor did he proffer a proposed amended complaint.

The

district court denied the request to amend and granted the motion
to dismiss.

Villanueva filed a motion seeking reconsideration of

the request to amend, which the court also denied.
followed.

This appeal

In it, Villanueva argues that all three rulings -

dismissal of the complaint, denial of the request to amend, and
denial of the motion to reconsider - were erroneous.

We consider

each in turn.
We review de novo a district court's ultimate legal
conclusion on a motion to dismiss for lack of jurisdiction.

Gill

v. United States, 471 F.3d 204, 205 (1st Cir. 2006). As Villanueva
has abandoned his position that jurisdiction is proper under the
APA by entirely failing to brief the issue on appeal, that argument
is waived, see United States v. Marsh, 561 F.3d 81, 83 n.4 (1st
Cir. 2009), and we only consider whether jurisdiction exists under
the FTCA.1
Absent

a

waiver,

sovereign

immunity

(which

is

jurisdictional in nature) shields the United States from suit. See

1

Additionally, in a proposed amended complaint, which
Villanueva attached to his motion for reconsideration, he removed
the language from the original complaint that claimed jurisdiction
under the APA. Only a claim under the FTCA remained.
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Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).

The

FTCA provides a limited congressional waiver of sovereign immunity
for certain torts committed by federal employees acting in the
scope of their employment.

Santoni v. Potter, 369 F.3d 594, 602

(1st Cir. 2004). One requirement of the FTCA is that circumstances
must be present whereby "the United States, if a private person,
would be liable to the claimant in accordance with the law of the
place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).
This requirement is fatal to Villanueva's position.
The Supreme Court has consistently held that "law of the
place" means law of the state - making state law the source of
substantive liability under the FTCA.

Meyer, 510 U.S. at 478.

Since federal and not state law provides the basis for liability in
a constitutional claim (such as Villanueva's), constitutional tort
claims are not cognizable under the FTCA.

Id.

As explicitly

stated by the Supreme Court, "the United States simply has not
rendered itself liable under § 1346(b) for constitutional tort
claims."

Id.

The result is clear - the FTCA does not provide

jurisdiction over Villanueva's suit.2
err in dismissing the complaint.

The district court did not

We proceed to the request to

amend.

2

Villanueva makes a bald assertion that the Constitution and
federal common law provide jurisdiction for his suit.
This
argument is untenable.
As noted, sovereign immunity bars the
United States from suit absent waiver. Villanueva points to no
source of waiver other than the inapplicable FTCA.
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We review a district court's denial of a request for
leave to amend a complaint for abuse of discretion.
Skeirik, 582 F.3d 238, 243 (1st Cir. 2009).

Chiang v.

We defer to the

court's denial if any adequate reason for the decision is apparent
on the record.
faith

or

Id.

dilatory

"Grounds for denial include 'undue delay, bad
motive

.

.

.

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party . . . [and] futility of amendment.'"

ACA Fin.

Guar. Corp. v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Here the district court found that amendment of the
complaint

would

be

tantamount

to

restarting

the

proceedings,

complete with new defendants (Villanueva's supervisors) and an
entirely new cause of action (the Bivens claim).

The court found

that Villanueva had waited too long to alter the nature of the
proceedings so drastically.

We agree.

This is not a case of new allegations coming to light
following discovery, or of previously unearthed evidence surfacing.
Rather Villanueva was well aware of the facts underlying his claim
and the involvement of his former supervisors before he filed suit.
See Palmer v. Champion Mortg., 465 F.3d 24, 31 (1st Cir. 2006).

He

has offered no justification for his delayed attempt to bring them
on board.

Nor can we discern one.

Therefore, while the four month

period between the filing of the complaint and the request to amend

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may not on its face seem particularly long, we think it is under
the circumstances at hand.

See, e.g., Kay v. N.H. Democratic

Party, 821 F.2d 31, 34-35 (1st Cir. 1987) (per curiam) (finding
undue delay when plaintiff offered no justification for waiting
three months after new information came to light to seek to amend
his complaint).
Furthermore, amendment of the complaint would have been
unduly prejudicial to the United States.

While Villanueva wanted

to add a Bivens action and to include his former supervisors as
named defendants, he also sought to maintain the United States as
a defendant.

The Bivens doctrine allows a plaintiff to pursue

constitutional claims against federal officials in their individual
capacities.

See Chiang, 582 F.3d at 243; see also McCloskey v.

Mueller, 446 F.3d 262, 271 (1st Cir. 2006).

It does not override

sovereign immunity so as to permit suits against the United States.
Chiang, 582 F.3d at 243; McCloskey, 446 F.3d at 272.

Thus, even if

the district court had granted the motion to amend, the court still
would not have had subject matter jurisdiction over the United
States, and one can hardly claim that having to defend that action
would not have been unduly prejudicial to the United States.

The

district court did not abuse its discretion in denying the motion
to amend.

We turn to the motion for reconsideration.
We review the denial of a motion for reconsideration for

abuse of discretion.

United States v. Allen, 573 F.3d 42, 53 (1st

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Reconsideration may be proper where the movant shows

a manifest error of law or newly discovered evidence, or where the
district court has misunderstood a party or made an error of
apprehension.

See Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76,

81-82 (1st Cir. 2008).

Motions for reconsideration are not to be

used as a vehicle for a party to advance arguments that could and
should have been presented to the district court prior to its
original ruling.

See Allen, 573 F.3d at 53.

Villanueva's motion falls short.

He did not demonstrate

an error of law, the existence of new evidence, or that the
district court misapprehended the original request to amend.
Instead, Villanueva simply reiterated his request and then advanced
various arguments as to why amendment was appropriate.

These

arguments could and should have been presented in his original
request (which, as noted above, was devoid of any rationale).

The

district court did not abuse its discretion.
For these reasons, we summarily affirm.
27.0(c).

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See 1st Cir. R.