Rodriguez-Abreu v. United States of America et al

Filing 74

OPINION AND ORDER: Granting 53 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. Signed by Judge Gustavo A. Gelpi on 1/22/18. (PJH) Modified on 1/23/2018 to edit docket entry text and change document type to Opinion(ram).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

1
2
3

JUAN A. RODRIGUEZ-ABREU, et al.,

4

Plaintiffs,

5
6
7

v.

CASE NO. 16-1370 (GAG)

JEFF SESSIONS,1 et al.,
Defendants.

8
OPINION AND ORDER

9

Plaintiffs, eleven correctional officers,2 sued Defendants, the United States, et al.,3 under the

10

Administrative Procedures Act (APA) and for violating rights guaranteed by the Fifth Amendment of

11
the United States Constitution under Bivens v. Six Unknown Named Agents of the Federal Bureau of

12
13
14
15
16

Narcotics, 403 U.S. 388 (1971). (Docket No. 52). Presently before the Court is Defendants’ motion to
dismiss (and a supplement) under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
(Docket Nos. 53; 72). After reviewing the parties’ submissions and pertinent law, Defendants’ motion
to dismiss is GRANTED.
I.

17

Factual and Procedural Background
Plaintiffs were correctional officers at the Metropolitan Detention Center (MDC) in Guaynabo,

18
19
20
21
22
23
24

1

Per Fed. R. Civ. P. 25(d), Attorney General Jeff Sessions is automatically substituted as a party in this

case.
2

Juan A. Rodríguez-Abreu, Mildred Aponte-Navarro, Mike Rodríguez, Lina R. Rodríguez, Andrés
Laureano-Ramos, Sonia E. Aponte-Agosto, José R. Rosa-Floran, Marisol Montero-Mejías, Giovanny RosaMontero, José D. Correa-Rivera, and Luz Delia Figueroa-Ortiz.
3

The U.S. Department of Justice, Charles S. Samuels, the Federal Bureau of Prisons, Jerry C. Martinez,
Helen Marberry, PQR Insurance Company, STU Insurance Company, John Doe, Jane Doe, United States of
America, U.S. Attorney General, and Conjugal Partnerships Doe-Lynch, Samuels-Doe, Doe Marberry,
Martinez-Doe.

Civil No. 16-1370 (GAG)

1

Puerto Rico. (Docket No. 52 at 4-5). While they were employed, in February 2013, a fellow guard was

2

murdered. Id. at 5. A day later, the FBI interviewed Plaintiffs and transported them and their families

3

to a safe house somewhere in Puerto Rico, and later, to the United States. Id. at 5-6. Once in the United

4

States, Plaintiffs moved with their families to locations where friends or relatives lived. Id. at 6.

5
6
7
8
9
10

Eventually, the Bureau of Prisons reassigned Plaintiffs to facilities at those locations. Id. According to
Plaintiffs, they were assigned to work with inmates at those locations and placed in direct and imminent
danger. Id. The ensuing facts provided in the complaint are presented confusingly and, fortunately, are
not dispositive at this stage. The main takeaway, however, is that Plaintiffs filed administrative tort
complaints between 2014-15. Id. at 10-12. Eventually, in March 2016, Plaintiffs filed the first of four
complaints in this case.
If one were to print the four versions of Plaintiffs’ complaint, the corresponding motions to

11
dismiss, responses, and requests for leave to amend the complaint, the stack of papers would, as

12
13
14
15
16
17

Winston Churchill once said, “by its very length defend[] itself against the risk of being read.”4
Originally, Plaintiffs filed a complaint asserting claims under the Federal Tort Claims Act (FTCA) and
Bivens, 403 U.S. at 388. (Docket No. 1). Months later, they filed the first of three amended complaints.
(Docket No. 22). When Defendants replied by filing their first motion to dismiss, Plaintiffs amended
their complaint again, replacing the FTCA claims with claims under the Civil Service Reform Act
(CSRA). (Docket Nos. 23; 28; 29). In due time, Defendants moved to dismiss the CSRA claims

18

because Plaintiffs failed to exhaust administrative remedies; the Court agreed and dismissed the CSRA

19

count. (Docket Nos. 38; 42) When Defendants moved to dismiss the surviving Bivens claim in a

20

separate motion, Plaintiffs asked to amend their complaint again. (Docket Nos. 43; 47). The Court

21

acquiesced. In the third amended complaint, Plaintiffs substituted their claims under the CSRA for

22

claims under the Administrative Procedure Act (APA). (Docket Nos. 51; 52).

23
24

4

DOMINIQUE ENRIGHT, THE WICKED WIT OF WINSTON CHURCHILL 21 (2001).
2

Civil No. 16-1370 (GAG)

1

Thus, the third amended complaint asserts claims under the APA and Bivens. Plaintiffs allege

2

that the APA allows them to seek judicial review for the decision to transfer them from the MDC to

3

other prisons without adequate notice. (Docket No. 52 at 15). In their second count, Plaintiffs allege

4

that Bivens entitles them to recover damages for Defendants’ negligence for failing to consider the

5
6
7
8
9
10

threats they received, as well as the health problems that arose as a result. Id. For the third time,
Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Docket
Nos. 53; 73).
II.

Standard of Review
As courts of limited jurisdiction, federal courts must construe their jurisdictional grants

narrowly. Destek Grp. v. State of N.H. Pub. Utils. Comm’n, 318 F.3d 32, 38 (1st Cir. 2003).
Consequently, the party asserting jurisdiction carries the burden of showing the existence of federal

11
jurisdiction. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). When deciding whether to dismiss

12
13
14
15
16
17

a complaint for lack of subject matter jurisdiction, the Court “may consider whatever evidence has
been submitted, such as . . . depositions and exhibits.” Aversa v. United States, 99 F.3d 1200, 1210
(1st Cir. 1996); Torres v. Bella Vista Hosp., Inc., 523 F. Supp. 2d 123, 132 (D.P.R. 2007). Motions
brought under Rule 12(b)(1) are subject to the same standard of review as Rule 12(b)(6). NegrónGaztambide v. Hernández-Torres, 35 F.3d 25, 27 (1st Cir. 1994); Torres, 523 F. Supp. 2d at 132.
When considering a motion to dismiss for failure to state a claim upon which relief can be

18

granted under Rule 12(b)(6), the Court analyzes the complaint in a two-step process under the current

19

context-based “plausibility” standard established by the Supreme Court. See FED. R. CIV. P. 12(b)(6),

20

Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citing Ocasio-

21

Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011), which discusses Ashcroft v. Iqbal, 556

22

U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). First, the Court must “isolate

23

and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash

24

cause-of-action elements.” Id. A complaint does not need detailed factual allegations, but “[t]hreadbare
3

Civil No. 16-1370 (GAG)

1

recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

2

Iqbal, 556 U.S. at 678-79. Second, the Court must then “take the complaint’s well-[pleaded] (i.e., non-

3

conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader’s favor, and

4

see if they plausibly narrate a claim for relief.” Schatz, 669 F.3d at 55. Plausible means something

5
6
7
8

more than merely possible, and gauging a pleaded situation’s plausibility is a context-specific job that
compels the Court to draw on its judicial experience and common sense. Id. (citing Iqbal, 556 U.S. at
678-79). This “simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of” the necessary element. Twombly, 550 U.S. at 556.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility

9
10

of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)). If, however, the “factual content, so

11
taken, ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct

12
13
14
15
16
17

alleged,’ the claim has facial plausibility.” Ocasio-Hernández, 640 F.3d at 12 (quoting Iqbal, 556 U.S.
at 678).
III.

Discussion
Defendants advance three arguments: (1) the CSRA precludes the APA and Bivens, (2) Bivens

claims are time-barred, and (3) federal employees are entitled to qualified immunity. (Docket No. 53).
In their response, Plaintiffs only address the second and third arguments. (Docket No. 56). Since the

18

Court can grant Defendants’ motion based on their first argument alone under Rule 12(b)(6), it will

19

not consider the remaining two.

20

Whether the CSRA Precludes the APA

21

The APA allows judicial review for “final agency action for which there is no other adequate

22

remedy in a court.” 5 U.S.C. § 704 (emphasis added). As Defendants point out, “not only does the

23

CSRA provide a remedy . . . it provides the sole remedy.” (Docket No. 53 at 7). The First Circuit “has

24

termed the CSRA framework ‘the exclusive mechanism for challenging adverse personnel actions in
4

Civil No. 16-1370 (GAG)

1

federal employment.’” Gonzalez v. Velez, 864 F.3d 45, 55 (1st Cir. 2017) (quoting Rodriguez v. United

2

States, 852 F.3d 67, 82 (1st Cir. 2017)). Indeed, the First Circuit has held that “[a] federal employee

3

generally may not pursue alternative routes of judicial review, such as by filing a civil action in district

4

court under the APA.” Rodriguez, 852 F.3d at 82. Accordingly, lower courts in the First Circuit have

5
6
7
8
9
10

held that the CSRA precludes an APA claim in the context of federal employment. See, e.g., Villanueva
v. United States, 740 F. Supp. 2d 322, 325 (D.P.R. 2010) (APA inapplicable because remedy lies in
CSRA); Taydus v. Cisneros, 902 F. Supp. 288, 294 (D. Mass. 1995). Other circuits have ruled
similarly. See Taydus 902 F. Supp. at 292-93 (listing cases from the 4th, 5th, 6th, 9th, 11th, and D.C.
Circuits).
Here, the CSRA precludes Plaintiffs’ APA claims. Plaintiffs are federal employees and contest
a transfer, which is a personnel action under the CSRA. See U.S.C. § 2302 (a)(2)(A)(iv). Plaintiffs also

11
concede that the CSRA governs their claims. (Docket No. 26 at 1 (“Defendant alleges that Plaintiffs’

12
13
14
15
16
17

claims under the Federal Torts Claims Act are preempted by the Civil Service Reform Act. We agreed
[sic].”)). Because the CSRA applies here and the CSRA is “the exclusive mechanism for challenging
adverse personnel actions in federal employment,” the CSRA precludes the APA in this case.
Gonzalez, 864 F.3d at 55. Plaintiffs are not entitled to circumvent their failure to prosecute their case
under the CSRA by bringing a claim under the APA. Worsening matters, Plaintiffs do not argue why
the CSRA does not preclude the APA. “It is not enough merely to mention a possible argument in the

18

most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and

19

put flesh on its bones. . . . ‘Judges are not expected to be mindreaders. Consequently, a litigant has an

20

obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.’” United

21

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citing Rivera-Gomez v. De Castro, 843 F.2d 631,

22

635 (1st Cir. 1988) (internal quotations omitted)). Taking all the facts in the complaint as true, the

23

Court finds that Plaintiffs have not pled a plausible claim for relief. The APA count is therefore

24

DISMISSED.
5

Civil No. 16-1370 (GAG)

1

Whether the CSRA Precludes Bivens

2

Plaintiffs’ second count seeks relief under Bivens. In Bivens, the Supreme Court established

3

“that a Fourth Amendment violation by federal agents, acting under color of governmental authority,

4

gave rise to a cause of action for money damages against those agents in their individual capacities.”

5
6
7
8
9
10

Gonzalez, 864 at 52 (citing Bivens, 403 U.S. at 389). Essentially, the Supreme Court created “a new
constitutional tort.” Id. The boundaries of this type of tort “are hazy” and the Supreme Court has “made
plain its reluctance to extend the Bivens doctrine to new settings.” Id. The test to determine if Bivens
applies should consider three questions: (1) would it be extended to a new context, (2) are there
alternative means of obtaining relief, and if so, (3) do special factors “counsel hesitation in extending
the reach of the Bivens doctrine.” Id. (citing Ziglar v. Abbasi, 137 S. Ct. 1857, 1865 (2017)).
Recent First Circuit case law supports finding that Plaintiffs lack a plausible claim under

11
Bivens because the CSRA provides an alternative means of obtaining relief. In Gonzalez, the First

12
13
14
15
16
17

Circuit rejected an attempt to sue coworkers and supervisors—federal employees—in their individual
capacities under Bivens. Id. Addressing plaintiffs’ discrimination claims, the First Circuit explained
that “the CSRA and Title VII, with their regulatory accoutrements, form a comprehensive remedial
network fully capable of protecting federal employees against acts of discrimination in the workplace.”
Id. at 54. Thus, when the CSRA provides an adequate remedy “[t]here is no justification for implying
a Bivens-type remedy.” Id. Here, Plaintiffs concede that the CSRA applies. To their misfortune, they

18

failed to adequately prosecute the CSRA claims. But this “accident” does not entitle them to relief

19

under Bivens because it does not defeat the fact that an adequate remedy existed under the CSRA, a

20

dispositive factor. See id. at 53 (even assuming the case does not apply Bivens to a new context,

21

“plaintiffs hit a roadblock at the next step of the analysis, that is, whether there exists an alternative

22

process that Congress reasonably may have viewed as an equally effective surrogate for an action

23

brought directly under the Constitution,” in this case the CSRA). Therefore, Plaintiffs’ second claim

24

is also DISMISSED.
6

Civil No. 16-1370 (GAG)

1

Articles 1802 and 1803

2

Plaintiffs’ claims under Articles 1802 and 1803 of the Puerto Rico Civil Code are dismissed as

3

well. “[A] plaintiff may only pursue an Article 1802 claim when it is based on ‘tortious or negligent

4

conduct distinct from that covered by the specific laws invoked, or which have an independent basis

5
6
7
8
9
10

to support them.’” Irizarry v. Kmart Corp., No. CV 15-2330, 2016 WL 270386, at *2 (D.P.R. Jan. 21,
2016). An 1803 claim asserts the same conduct but holds superiors accountable under the doctrine of
respondeat superior. Here Plaintiffs base their Article 1802 and 1803 claims on tortious conduct that
they allege is covered by the APA and Bivens. Therefore it is not “conduct distinct from that covered
by the specific laws invoked.” Nor do Plaintiffs have “an independent basis to support [their 1802 and
1803]” because the CSRA establishes the exclusive remedy for the type of conduct that Plaintiffs are
suing for. See also Torres-Medina v. Dep’t of the Army, No. 15-2085, 2016 WL 4179885, at *3 (D.P.R.

11
Aug. 4, 2016) (“Plaintiff’s Article 1802 and 1803 claims also fail. The Rehabilitation Act is not only

12
13
14
15
16
17
18

‘the judicial avenue appropriate for a federal employee’s disability discrimination allegation, . . . [but
also] the exclusive remedy for [Plaintiff]’s disability discrimination claim’”) (internal citations
omitted); De Jesus-Maldonado v. Veterans Admin. Hosp., No. 09-1574, 2009 WL 2778055, at *2
(D.P.R. Aug. 25, 2009) (“Because of the exclusive nature of the remedy, an FTCA action may not be
brought in conjunction with a state law tort claim, such as Article 1802.”) (emphasis added) Therefore,
if Plaintiffs’ APA and Bivens counts fail because the CSRA provides the exclusive remedy, so must
their 1802 and 1803 counts.

19

Even if the CSRA did not preclude the Articles 1802 and 1803 counts, the Court notes that it

20

may dismiss the claims against the United States and federal employees in their official capacity. It is

21

well established that, as a sovereign, the United States is immune from suit unless it waives its

22

immunity and consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is

23

axiomatic that the United States may not be sued without its consent and that the existence of consent

24

is a prerequisite for jurisdiction.”). The United States has not expressly waived its immunity here, nor
7

Civil No. 16-1370 (GAG)

1

has it expressly consented to be sued under the state laws of Puerto Rico; thus, jurisdiction does not

2

exist. Accordingly, counts three and four are DISMISSED.

3
4
5
6
7

IV.

Conclusion
Defendants’ motion to dismiss at Docket No. 53 is GRANTED. Plaintiffs’ claims are

dismissed with prejudice and the Court will enter judgment accordingly.
SO ORDERED.
In San Juan, Puerto Rico this 22nd day of January, 2018.
s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
8