Gonzalez v. Otero

United States Court of Appeals
For the First Circuit
No. 16-1572
VICENTE GONZÁLEZ ET AL.,
Plaintiffs, Appellants,
v.
ROGELIO VÉLEZ ET AL.,
Defendants, Appellees,
OCTAVIO OTERO ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Chief Judge,
Selya, Circuit Judge, and
McConnell, District Judge.
Nicolás Nogueras-Cartagena and Nogueras Law & Associates on
brief for appellants.
Michael J. Carlson, Litigation Attorney, United States Army
Litigation Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellees.

Of the District of Rhode Island, sitting by designation.
July 24, 2017
SELYA, Circuit Judge. This is a federal-sector
employment discrimination case, in which the plaintiffs have
attempted to improve their lot by invoking extravagant theories of
liability. The plaintiffs' theories run headlong into an
impenetrable barrier forged by the combination of the Civil Service
Reform Act (CSRA), see 5 U.S.C. § 1201 (and scattered sections of
Title 5 of the U.S. Code), and Title VII, see 42 U.S.C. §§ 2000e
to 2000e-17. The plaintiffs' claims cannot breach this barrier
either by cloaking them in the raiment of the Bivens doctrine, see
Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388, 389
(1971), or by garbing them as causes of action brought under the
Racketeer Influenced and Corrupt Organizations Act (RICO), see 18
U.S.C. §§ 1961-1968. Accordingly, we affirm the district court's
dismissal of the plaintiffs' third amended complaint.
I. BACKGROUND
Because this appeal follows the granting of a motion to
dismiss, we draw the facts from the operative version of the
complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1st Cir.
2013). We are at liberty, though, to supplement those facts with
facts "gleaned from documents incorporated by reference into the
complaint, matters of public record, and facts susceptible to
judicial notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
- 3 -
Plaintiff-appellant Vicente González and plaintiff-
appellant Víctor Franco were hired in 1996 as civilian employees
of the Department of Army Civilian Police (DACP). As such, both
men were attached to the Army garrison at Fort Buchanan in
Guaynabo, Puerto Rico. By 2007, González had risen to the rank of
chief. Franco remained an investigator. At that time, long-
simmering workplace conflicts came to a boil: the plaintiffs allege
that they were victims of a "witch hunt," culminating in a criminal
investigation instigated by a cadre of coworkers and supervisors.
In February of 2007, González's direct supervisor, James
Adamski, announced plans to leave his post as the head of the
Directorate of Emergency Services (DES) at Fort Buchanan. González
told Adamski privately of his interest in the position. This news
spread — and it did not receive unanimous acclaim. According to
the plaintiffs, some of their colleagues hatched a plot to keep
the job in the hands of a non-Puerto Rican and non-Hispanic
individual. The plot had its genesis (the plaintiffs say) in the
belief that such an individual would be more likely to acquiesce
in the garrison's corrupt culture.
To put meat on these bones, the plaintiffs asserted that
the garrison commander (Stephen Ackman) and a staff judge advocate
(Mark Nozaki) resented González's refusal to cooperate with their
pernicious practices, which included wiping away valid traffic
citations and conducting warrantless electronic surveillance.
- 4 -
Adamski, Ackman, Nozaki, Raymond Johnson (the garrison's fire
chief), and Gunner Pederson (the garrison's deputy commander) "all
conspired to ensure that González could not compete for the DES
Director's opening, and to terminate his employment as Chief of
Police of the DACP." Relatedly, the conspirators contrived to
have Johnson, rather than González, appointed as the interim DES
director. Other DACP personnel — including Rogelio Vélez, Octavio
Otero, and Edwin Sepúlveda — were part of the conspiracy. As such,
they began spreading false and defamatory information about the
plaintiffs. For example, Vélez and Otero approached a federal
prosecutor and instigated a criminal investigation of the
plaintiffs' activities. In this regard, they told the prosecutor
that González had been using his position for personal gain and
that Franco had been employing his security credentials for
"inappropriate purposes."
The plaintiffs further alleged that the prosecutor
swallowed this bait hook, line, and sinker: he relayed the negative
information to the Criminal Investigations Division (CID), which
then assigned two agents, Billy Higgason and Ramón Román, to look
into the matter. In the course of the probe, Vélez gave a sworn
statement, describing several examples of González's purported
abuse of his authority. For instance, Vélez said that González
had nullified several traffic citations in exchange for money or
favors, had falsified a DACP investigator's training certificate,
- 5 -
had attempted to interfere with the detention of a suspected drug
smuggler, and had solicited investments in his sister-in-law's
music album from coworkers. Sepúlveda confirmed that González had
asked him to invest $2,000 in the sister-in-law's music album.
So, too, Otero identified a number of instances in which González
ostensibly had taken actions that were either illegal or improper.
According to the complaint, Otero also implicated
Franco. He told investigators that Franco had brought a relative
into the garrison and allowed him to leave with several cases of
liquor. The investigators were given security videotape
purporting to show Franco loading boxes into a vehicle.
With the CID investigation underway, Ackman — in
consultation with Nozaki and Pederson, among others — decided to
suspend the plaintiffs. He placed González and Franco on
administrative leave in April of 2007, but they continued to
receive their regular pay and benefits.
In the plaintiffs' view, it became crystal clear, as
early as May 31, that there was no probable cause to bring criminal
charges. Nevertheless, Franco was not allowed to return to work
until late July. Even then, he was assigned mundane tasks for
approximately four months until he was permitted to return to his
regular work.
The investigation continued until mid-November of 2007,
when the CID issued a report finding no evidence of illegal
- 6 -
activity. Despite this finding, Johnson had González's security
clearance revoked near the end of November. As late as the
following February, Pederson urged that the revocation remain in
effect. González's security clearance was not restored until April
of 2008 — and it was not until then that González regained his
former position.
While still on administrative leave, the plaintiffs —
both of whom are Hispanic and Puerto Rican — began complaining
about disparate treatment due to race and national origin. They
sought advice from the Army's Equal Employment Opportunity (EEO)
office, which provided counseling and, in memoranda documenting
the completion of that counseling, notified each plaintiff of his
right to file a formal complaint within fifteen days. There is no
allegation that González ever filed a formal EEO complaint.
Franco, however, filed a formal complaint within the
prescribed time period. He received a final decision on June 11,
2007, which concluded that "no employment harm" had occurred
because Franco had not experienced any loss of pay or pay grade.
This decision explicitly warned that Franco had a limited time in
which to take further action: he could either appeal the decision
to the Equal Employment Opportunity Commission (EEOC) within
thirty days or file suit in federal court within ninety days. See
29 C.F.R. §§ 1614.402(a), 1614.407(a). Franco did neither.
- 7 -
On March 17, 2008 (well over ninety days after Franco's
receipt of the final administrative decision), González and Franco
joined forces and filed this action in the federal district court.1
Their complaint named twelve defendants (all sued in their personal
capacities): Vélez, Otero, Sepúlveda, Adamski, Johnson, Ackman,
Nozaki, Pederson, Higgason, Román, Berta Santiago (a Fort Buchanan
detective), and Jorge Quiñones (a DACP investigator). We skip
over a salmagundi of intervening pleadings, not relevant here, and
focus on the plaintiffs' third amended complaint. That complaint
alleged deprivations of the plaintiffs' First, Fourth, Fifth, and
Fourteenth Amendment rights and sought damages under the Bivens
doctrine. See 403 U.S. at 389. It also proffered RICO claims,
see 18 U.S.C. §§ 1961-1968, positing that the named defendants
conspired "to defraud the criminal investigation process and to
fabricate a fraudulent criminal investigation against
[p]laintiffs." In support of the RICO claims, the complaint set
forth a laundry list of predicate acts, see id. § 1961(1),
including obstruction of justice, see id. § 1503; obstruction of
criminal investigations, see id. § 1510; obstruction of state or
local law enforcement, see id. § 1511; tampering with a witness,
1
The plaintiffs' spouses and their respective conjugal
partnerships were named as plaintiffs and remain parties to this
appeal. Their claims are purely derivative, though, and for ease
in exposition, we refer to González and Franco as if they were the
sole plaintiffs and appellants. Our decision is, of course,
binding on all parties.
- 8 -
victim, or informant, see id. § 1512; mail fraud, see id. § 1341;
and wire fraud, see id. § 1343.
The defendants moved to dismiss, asserting, inter alia,
want of personal and subject-matter jurisdiction and failure to
state an actionable claim. See Fed. R. Civ. P. 12(b)(1)-(2), (6).
The plaintiffs dropped their claims against Adamski and Quiñones
and disavowed their First Amendment claims, but opposed the motion
in all other respects. About six and one-half years after the
filing of the dismissal motion — a delay resulting, at least in
part,2 from a disorienting record, a steady influx of haphazard
filings, and muddled briefing — the district court granted the
motion and entered judgment in the defendants' favor. See González
v. Otero, 172 F. Supp. 3d 477, 509 (D.P.R. 2016). The court
dismissed all claims against Otero, Sepúlveda, Ackman, Nozaki,
Higgason, and Román because the plaintiffs had failed to serve
them within the allotted time and had not shown good cause for
this failure. See id. at 498; see also Fed. R. Civ. P. 4(m). The
plaintiffs have not challenged this ruling on appeal.
2 Some part of this delay was attributable to the court's
effort to ascertain the applicability vel non of the Westfall Act,
see 28 U.S.C. § 2679(d)(1), and whether the United States should
be substituted for certain defendants. Because this issue
ultimately proved to be a dead letter and the district court's
handling of it has no bearing on the outcome of the present appeal,
there is no need to describe what transpired.
- 9 -
As to the other defendants (Vélez, Johnson, Pederson,
and Santiago), the court ruled that the plaintiffs could not dodge
the preclusive effect of the CSRA and Title VII by "creatively"
pleading causes of action. González, 172 F. Supp. 3d at 503-06.
In expounding upon this point, the court explained that, had the
plaintiffs brought their claims under the appropriate statutes,
they would be time-barred because they had failed to comply with
various administrative procedures and deadlines. See id. at 496-
97. Using a belt-and-suspenders approach, the court held, in the
alternative, that various defendants were entitled to either
absolute or qualified immunity. See id. at 506-08.
This timely appeal ensued.
II. ANALYSIS
We review de novo a district court's order granting a
motion to dismiss. See SEC v. Tambone, 597 F.3d 436, 441 (1st
Cir. 2010) (en banc); Fothergill v. United States, 566 F.3d 248,
251 (1st Cir. 2009). We accept as true all well-pleaded facts and
draw all reasonable inferences therefrom in the pleader's favor.
See Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012).
We are not bound by the lower court's reasoning, though, "but may
affirm the order of dismissal on any ground made manifest by the
record." Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012)
(quoting Román-Cancel v. United States, 613 F.3d 37, 41 (1st Cir.
2010)).
- 10 -
The parties' briefs raise an ear-splitting cacophony of
issues. We cut through the noise and focus on an issue that we
find dispositive of this appeal: preclusion.
Federal-sector employment claims typically take one of
two paths. The first path runs through the CSRA, which constitutes
"a comprehensive system for reviewing personnel action[s] taken
against federal employees." United States v. Fausto, 484 U.S.
439, 455 (1988). Such personnel actions include any actions
undertaken in contravention of an employee's constitutional
rights. See Irizarry v. United States, 427 F.3d 76, 77-78 (1st
Cir. 2005); see also 5 U.S.C. § 2301(b)(2) ("All employees and
applicants for employment should receive fair and equitable
treatment in all aspects of personnel management . . . with proper
regard for their . . . constitutional rights."). As a general
matter, the CSRA occupies much of the field and (with some
exceptions) precludes resort to other forms of redress. See Elgin
v. Dep't of the Treasury, 567 U.S. 1, 11-12 (2012) ("Given the
painstaking detail with which the CSRA sets out the method for
covered employees to obtain review of adverse employment actions,
it is fairly discernible that Congress intended to deny such
employees an additional avenue of review in district court."); see
also Fausto, 484 U.S. at 455 (holding that CSRA precluded federal
employee from bringing backpay suit against government).
- 11 -
Some types of claims, though, are excluded from the
CSRA's monopoly over federal-sector employment actions. In
particular, the statute "shall not be construed to extinguish or
lessen" rights or remedies available under certain anti-
discrimination statutes. 5 U.S.C. § 2302(d). As relevant here,
Section 717 of Title VII creates a private right of action for
federal employees with respect to workplace discrimination on the
basis of, inter alia, race or national origin. See 42 U.S.C.
§ 2000e-16. This maps the contours of the second path through
which federal-sector employment cases may proceed.
These paths sometimes intersect. When a federal
employee attributes an adverse employment action in part to bias
based on race or national origin in derogation of federal
antidiscrimination laws, his case becomes a "mixed case." See
Perry v. MSPB, 137 S. Ct. 1975, 1979 (2017). This term — "mixed
case" — signifies that the federal employee's case is governed
partially by the CSRA and partially by Title VII. See Kloeckner
v. Solis, 568 U.S. 41, 44-45 (2012). The distinction is
consequential because, among other things, the two statutes have
different jurisdictional trappings. In a typical case, CSRA claims
must be presented to the agency-employer itself and, if pursued
further, reviewed by the Merit Systems Protection Board (MSPB),
with subsequent litigation taking place in the Court of Appeals
for the Federal Circuit. See id. In contrast, standard Title VII
- 12 -
claims must proceed in accordance with regulations promulgated by
the EEOC and subsequent litigation starts in a federal district
court. See Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015).
Here, the plaintiffs' allegations are a jumble.
Stripped to their core, they seem to present a mixed case. The
plaintiffs complain of discrimination based on race and national
origin, as well as discrimination based on their unwillingness to
tolerate corrupt practices within the garrison. Specific
procedures exist for the prosecution of such mixed cases: the
aggrieved employee may file a discrimination complaint with the
employing agency itself, typically with its EEO office, or may
file a complaint with the MSPB. See Kloeckner, 568 U.S. at 44-
45; Rodriguez v. United States, 852 F.3d 67, 84 (1st Cir. 2017).
Either route comes with its own administrative processes. See
Kloeckner, 568 U.S. at 45. A claimant cannot avoid those processes
and their concomitant deadlines by the simple expedient of
masquerading an employment discrimination claim in the guise of a
different legal theory. See Brown v. Gen. Servs. Admin., 425 U.S.
820, 835 (1976) (holding that federal employee who missed deadline
for filing Title VII claim could not bring suit based on alleged
discriminatory conduct under Declaratory Judgment Act); cf. Tapia-
Tapia v. Potter, 322 F.3d 742, 745 (1st Cir. 2003) (finding
appellant's age discrimination allegations "not justiciable" when
styled as constitutional claims because Age Discrimination in
- 13 -
Employment Act "provides the exclusive federal remedy for age
discrimination in employment").
In this case, the plaintiffs have not made any effort to
prosecute claims under the CSRA and, in any event, the district
court had no jurisdiction to hear such claims. See Irizarry, 427
F.3d at 78-79. Nor have the plaintiffs attempted to resurrect
their Title VII claims; their third amended complaint does not so
much as mention Title VII and, even apart from that omission, the
record makes manifest that neither plaintiff has met the relevant
Title VII deadlines.
Faced with this inhospitable legal landscape, the
plaintiffs try to breathe life into their federal-sector
employment claims by carving out two additional paths to relief.
On the facts of this case, both paths are dead ends.
To begin, the plaintiffs asseverate that the
Constitution itself provides an avenue, under the aegis of the Due
Process Clause, for bringing federal-sector employment claims
against coworkers and supervisors in their individual capacities.
For this proposition, they rely on the Supreme Court's decision in
Bivens. As we explain below, Bivens cannot carry the weight that
the plaintiffs load upon it.
In Bivens, the Court held that a Fourth Amendment
violation by federal agents, acting under color of governmental
authority, gave rise to a cause of action for money damages against
- 14 -
those agents in their individual capacities. See Bivens, 403 U.S.
at 389. The basis for recognizing such a new constitutional tort
and, thus, allowing such suits to proceed, is — as the plaintiffs
suggest — derived from the Constitution itself. See Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66-67 (2001).
While the boundaries of Bivens-type liability are hazy,
the Supreme Court, in its most recent term, made plain its
reluctance to extend the Bivens doctrine to new settings. See
Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam);
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). To this end, the
Court specified that when a Bivens-type claim is lodged, the
appropriate analysis must begin by determining whether the
plaintiff is seeking to extend the Bivens doctrine to a new
context. See Abbasi, 137 S. Ct. at 1864. For this purpose, a
context is considered new "[i]f the case is different in a
meaningful way from previous Bivens cases decided by [the Supreme]
Court." Id. at 1859. Once it is determined that the context is
new, the next step is to ask whether an alternative means of
obtaining relief exists and, if so, whether "special factors"
counsel hesitation in extending the reach of the Bivens doctrine.
Id. at 1865.
With respect to the Bivens doctrine, the universe of
previous "cases decided by [the Supreme] Court," id. at 1859, is
narrow. Bivens itself arose in a context that bears no resemblance
- 15 -
to the workplace-based discrimination that lies at the heart of
the plaintiffs' case.
Since deciding Bivens, the Court has recognized an
implied right of action for constitutional torts in only two other
contexts. In the first of these cases, the Court held that the
Due Process Clause of the Fifth Amendment permitted a damages
action where a staffer sued a Member of Congress for cashiering
her because of her gender. See Davis v. Passman, 442 U.S. 228,
243-44 (1979). Subsequently, the Court allowed a Bivens-type
action under the Eighth Amendment in a case in which federal
correctional officers had failed to treat a prisoner's asthma
during his incarceration. See Carlson v. Green, 446 U.S. 14, 20-
23 (1980).
For the most part, Bivens and its progeny arose in
contexts that differ meaningfully from the present context. Bivens
involved the illegal search of an individual's home — an issue
foreign to this case.3 So, too, this case — which is not concerned
3 We note that González and Franco allege, as a tiny part of
the parade of horribles that they muster, that their offices were
illegally searched. While this allegation may implicate the Fourth
Amendment, it is inextricably intertwined with a myriad of more
serious allegations, none of which brings the Fourth Amendment
into play. Given the Supreme Court's manifest reluctance to extend
the Bivens doctrine, we do not think that the tail should be
permitted to wag the dog. This is all the more so where, as here,
the federal-sector employment context meaningfully distinguishes
the plaintiffs' case from Bivens.
- 16 -
either with the rights of prison inmates or with the strictures of
the Eighth Amendment — differs meaningfully from Carlson.
This brings us to Davis, which arose in a context that
bears a superficial similarity to the present context. That case,
like this one, involves discrimination claims of federal
employees. But even if we assume for argument's sake that the
context is substantially the same, the plaintiffs hit a roadblock
at the next step of the analysis, that is, whether there exists an
alternative process that Congress reasonably may have viewed as an
equally effective surrogate for an action brought directly under
the Constitution. See Abbasi, 137 S. Ct. at 1858; Carlson, 446
U.S. at 18-19.
The linchpin of the Davis Court's analysis was its
conclusion that Title VII, as then written, did not apply to
congressional employees.4 See Davis, 442 U.S. at 247. Here, no
such exemption bars the gateway to relief: the plaintiffs — unlike
the plaintiff in Davis — had available to them alternative
processes (the CSRA and Title VII) that Congress reasonably might
have viewed as effective substitutes for an action brought under
the Constitution.5 The existence of such alternative processes is
4
Title VII has since been extended to cover legislative
employees. See 2 U.S.C. § 1302(a)(2).
5
The CSRA was not enacted until 1978. See Pub. L. No. 95-
454, 92 Stat. 1111 (1978). Consequently, it was unavailable to
the Davis plaintiff and, in all events, it would not have applied
- 17 -
a special factor that counsels convincingly against applying the
holding in Davis to federal employees generally.
Viewed against this backdrop, we conclude that the
plaintiffs are seeking to extend the Bivens doctrine beyond
acceptable limits. Federal-sector employment claims are sui
generis: 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. There is no justification for implying a Bivens-
type remedy.
The plaintiffs dispute this conclusion. They argue
that the statutory and regulatory mosaic does not afford as
complete relief as a Bivens action and, thus, Congress might not
have viewed those statutes and regulations as providing equally
effective remediation. To illustrate this point, the plaintiffs
note that they could not obtain punitive damages under either the
CSRA or Title VII.6 See Bush v. Lucas, 462 U.S. 367, 372 & n.8
(1983) (explaining that CSRA damages do not include punitive
to a congressional staffer. See Davis v. Billington, 681 F.3d
377, 385-86 (D.C. Cir. 2012).
6 The plaintiffs also insist that their months-long
suspensions are not covered under the CSRA. This insistence is
misplaced. See 5 U.S.C. § 2302(a)(2)(A)(xii) (defining "personnel
action" to include "any . . . significant change in duties,
responsibilities, or working conditions," whether or not
specifically denominated).
- 18 -
damages); 42 U.S.C. § 1981a(b)(1) (excluding government from
punitive damages liability under Title VII).
This same argument was addressed and rejected by the
Bush Court. See 462 U.S. at 372 & n.8. There, the Court considered
whether the CSRA, together with other laws, precluded a federal
employee's claim that he had been retaliated against for exercising
his First Amendment rights. See id. at 385-86 & n.25. Assuming
arguendo that greater damages would be available in a
constitutional tort suit, the Court nonetheless held that the
existing statutory regime precluded such a suit. See id.The Bush Court couched its inquiry in a consideration of
whether special factors existed that counselled hesitation in
extending the Bivens remedy. See id. at 380. The Court determined
that such factors were present, explaining that the "elaborate,
comprehensive scheme that encompasses substantive provisions
forbidding arbitrary action by supervisors and procedures —
administrative and judicial — by which improper action may be
redressed" militates against allowing the Bivens doctrine to
intrude into the federal employment arena. 462 U.S. at 385; see
Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989) (noting
that the Supreme Court "has jealously guarded [the] CSRA against
inconcinnous judicial incursions").
The Bush Court's reasoning applies with undiminished
force in the case at hand. The relevant "inquiry must concentrate
- 19 -
on whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and benefits
of allowing a damages action to proceed." Abbasi, 137 S. Ct. at
1857-58. In the context of this case, the careful layering of
federal statutes, including the CSRA and Title VII, involves a
wide range of policy considerations best left to Congress's
superior understanding of governmental structures and systems
nationwide. See id. at 1858; see also Bush, 462 U.S. at 389 ("Not
only has Congress developed considerable familiarity with
balancing governmental efficiency and the rights of employees, but
it also may inform itself through factfinding procedures such as
hearings that are not available to the courts.")
We conclude, therefore, that there is no basis for
extending the Bivens doctrine to claims alleging arbitrary or
discriminatory treatment in those precincts of the federal
workplace patrolled by the CSRA and Title VII. The fact that other
or different relief might be available to federal employees if
constitutional tort suits were permitted does not alter this
conclusion. The very purpose for which Congress enacted the CSRA
was "to replace the haphazard arrangements for administrative and
judicial review of personnel action" that characterized the
preexisting civil service system. Fausto, 484 U.S. at 444.
Engrafting new causes of action on an ad hoc basis would create a
- 20 -
patchwork that perpetuates the same infirmities that the CSRA was
designed to avoid.
The plaintiffs also attempt to blaze a trail to relief
by alleging RICO violations. The question of whether the CSRA and
Title VII, taken together, preclude a civil RICO action brought by
a federal employee against his coworkers and supervisors is one of
first impression at the federal appellate level. Several district
courts, though, have held that the CSRA precludes a civil RICO
action in this context. See, e.g., Bloch v. Exec. Office of the
President, 164 F. Supp. 3d 841, 857 (E.D. Va. 2016) (holding that
"civil RICO claim[s] . . . alleging unlawful activity in connection
with plaintiff's removal from federal employment" are precluded);
Ferris v. Am. Fed'n of Gov't Emps., 98 F. Supp. 2d 64, 69 (D. Me.
2000) (holding that, in a federal-sector employment action,
plaintiff "must seek redress . . . under the CSRA, not RICO").
These decisions are consistent with our case law, which
has termed the CSRA framework "the exclusive mechanism for
challenging adverse personnel actions in federal employment."
Rodriguez, 852 F.3d at 82; see Berrios v. Dep't of the Army, 884
F.2d 28, 30 (1st Cir. 1989) ("There is no longer any serious
dispute that the CSRA preempts challenges to personnel actions
brought under federal law."). They also fit snuggly with the
statutory text, which instructs that the CSRA "shall not be
construed to extinguish or lessen" the rights and remedies
- 21 -
available under a list of enumerated statutes. 5 U.S.C. § 2302(d).
RICO is not one of these enumerated statutes, and the venerable
maxim inclusio unius est exclusio alterius applies. See Frazier
v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir. 2002)
(explaining that, "in harmony with the maxim . . . , the explicit
provision of [one thing] within a statute cuts sharply against the
implication of [others]").
Much the same reasoning pertains to the preclusive
effect of Title VII vis-à-vis civil RICO actions. No less an
authority than the Supreme Court has made pellucid that Title VII
"provides the exclusive judicial remedy for claims of
discrimination in federal employment." Brown, 425 U.S. at 835.
"Exclusive" ordinarily means "exclusive," and we can envision no
reason why a RICO claim premised on allegations of discrimination
in federal employment might somehow elude the grasp of this
congressionally declared exclusivity.
To sum up, we hold that the CSRA and Title VII, taken
together, preclude the plaintiffs' constitutional tort claims.
Similarly, we hold that the CSRA and Title VII, taken together,
preclude the plaintiffs' RICO claims. Lastly, we hold that there
are no other arguably non-precluded claims before us.7 These
7We recognize that the third amended complaint is a stream-
of-consciousness pleading, characterized more by prolixity than by
clarity of expression. It may be possible for an inventive mind
to tease arguably non-precluded claims out of its interstices. On
- 22 -
holdings, taken in cumulation, sound the death knell for the
plaintiffs' appeal.
Two loose ends remain. First, the plaintiffs lament the
length of time — roughly six and one-half years — that elapsed
between the filing of the motion to dismiss and the district
court's decision. They contend that this delay warrants vacating
the judgment. This contention is hopeless.
Delay in the administration of justice is always
regrettable. But there is no fixed time within which a district
court must decide a dispositive motion, and delay alone is not a
sufficient ground for vacating a civil judgment that, like this
one, is correct on the merits. In such a situation, vacation of
the judgment would be an empty exercise: on remand, the district
court would simply re-enter its original judgment. Cf. Gibbs v.
Buck, 307 U.S. 66, 78 (1939) (stating that it would be "useless"
to reverse and remand where district court had corrected its error
after an appeal was taken). We made it plain, long ago, that we
will not force litigants "round and round the mulberry bush for no
better reason than ceremonial punctiliousness." Jusino v. Zayas,
875 F.2d 986, 990 (1st Cir. 1989).
appeal, however, claims are deemed abandoned unless they are, at
a minimum, accompanied by some developed argumentation. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The plaintiffs'
briefs contain nothing resembling developed argumentation with
respect to any such arguably non-precluded claims.
- 23 -
Second, the plaintiffs fault the district court for
failing to rule on their motion for summary judgment. Once the
court granted the motion to dismiss and jettisoned the action,
however, the plaintiffs' motion for summary judgment became moot.
See McCulloch v. Vélez, 364 F.3d 1, 3-4 (1st Cir. 2004) (explaining
that district court's allowance of motion to dismiss mooted pending
motion for summary judgment). A court has no obligation — indeed,
no authority — to adjudicate moot questions. See Barr v. Galvin,
626 F.3d 99, 104 (1st Cir. 2010). Seen in this light, the district
court's decision to forgo any ruling on the summary judgment motion
was both proper and logical.
III. CONCLUSION
We need go no further.8 For the reasons elucidated
above, the judgment of the district court is
Affirmed.
8
Because we hold that the CSRA and Title VII, taken together,
preclude the plaintiffs' claims, we take no view of the welter of
other defenses (such as absolute immunity, qualified immunity, and
the like) relied on by the district court and advanced by various
defendants.
- 24 -