William Ríos-Piñeiro v. United States of America

United States Court of Appeals
For the First Circuit
No. 12-1618
WILLIAM RÍOS-PIÑEIRO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Maricarmen Almodóvar Díaz, with whom Almodóvar Díaz Law Office
was on brief, for appellant.
Michael J. Elston, Special Assistant United States Attorney,
with whom Rosa Emilia Rodríguez Vélez, United States Attorney, was
on brief, for appellee.
April 15, 2013

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HOWARD, Circuit Judge. Plaintiff William Ríos-Piñeiro
appeals the district court's grant of summary judgment in favor of
the United States in this Federal Tort Claims Act ("FTCA") action.
The United States Postal Service ("USPS") terminated Ríos's
employment contract after concluding that he had stolen mail
containing money. Ríos sued the United States in the District
Court of Puerto Rico over the events relating to that contract
termination. After careful review of the summary judgment record,
we affirm.
I. Background
We assess the record that was before the district court
on the motion for summary judgment, drawing all reasonable 1
inferences in favor of the non-moving party, Ríos. See Roman v.
Potter, 604 F.3d 34, 38 (1st Cir. 2010).
Ríos was a contract employee with the USPS for over
twenty-eight years, responsible for sorting mail and delivering it
along an established route in Florida, Puerto Rico. He was one of
five letter carriers in the Florida Post Office. In May 2006, Ríos
had a falling out with carrier Mark Nieves over Nieves's work-
related conduct. Ríos began reporting Nieves's misdeeds to
Postmaster Albert Gonzalez. This led to confrontations between
Nieves and Ríos, once nearly culminating in a fistfight.
Included in this record are the factual findings of the 1
Postal Service Board of Contract Appeals. See infra, Sec. II.A.
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In June 2006, Nieves reported to Lucydali Rivera, the
Postal Inspector responsible for the Florida Post Office, that he
had seen Ríos take mail from the "hot case" -- the container for
misaddressed mail -- and remove money from an envelope. On the
basis of this report, the Inspection Service coordinated an
investigative operation designed to catch Ríos in the act of theft.
On July 12, 2006, postal inspectors prepared three test
envelopes, each containing a greeting card, United States currency
and fluorescent powder. The inspectors marked the bills and
recorded their serial numbers, and sealed the envelopes. The
envelopes contained destination and return addresses in the state
of Florida, which would ordinarily lead to their placement in the
hot case for proper delivery.
Rivera requested that Nieves meet her and other postal
inspectors before going to work in the morning. At this meeting,
they provided Nieves with the envelopes and asked him to place them
around the Florida Post Office. The inspectors determined that
Nieves should perform this task because they worried that their
presence would arouse suspicion in the small office. Nieves drove
from this meeting to the Post Office, with the inspectors following
behind. Shortly after arriving, Nieves telephoned the inspectors
to inform them that he had set the bait. In follow-up calls, he
reported that the envelopes were not where he had placed them and
that Ríos had left to purchase breakfast for some of the postal
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employees. The postal inspectors decided to wait until after Ríos
completed his delivery route to confront him about the missing
envelopes.
Once Ríos had returned to the post office from his daily
deliveries, inspectors summoned him into the postmaster's office.
Once inside, the inspectors asked him to empty his pockets. He was
in possession of several U.S. banknotes, including a $5 bill whose
serial number matched a $5 bill from one of the envelopes and which
bore the inspectors' mark. Screening with an ultraviolet light
revealed that Ríos had fluorescent powder on his hands and the
pocket area of his pants. The inspectors then explained to Ríos
that they would take him to the men's bathroom to search him for
additional money. Two male inspectors escorted him to the
bathroom. They asked him to remove his shoes and lower his pants,
and he complied. One of the inspectors pulled the band of Ríos's
underwear away from his body and looked at his genital area. This
search yielded no other evidence, and none of the envelopes or the
greeting cards were ever found. Based on this incident, USPS
terminated Ríos's contract. Postal inspectors subsequently
persuaded local authorities to bring criminal charges against Ríos,
which were all dismissed.
Ríos initiated an administrative appeal to the Postal
Service Board of Contract Appeals ("PSBCA"), which convened a two-
day evidentiary hearing to determine whether the USPS breached
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Ríos's contract. Both parties had the opportunity to present
witnesses and subject opposing witnesses to cross-examination.
Ríos denied the allegation of theft, claiming that he had received
the $5 bill from Nieves that morning while he was collecting money
to purchase breakfast. According to Ríos, when he and Nieves shook
hands that morning, additional powder transferred onto him. The
PSBCA was unconvinced by this theory. Based on the evidence
collected during the postal inspectors' investigation, the PSBCA
determined that Ríos was in possession of the $5 bill and that the
fluorescent powder on his hands and trousers "indicated that he was
the person who opened at least one of the prepared envelopes." The
PSBCA held that this serious breach of his employment contract
justified the decision to terminate Ríos's contract. Ríos did not
appeal this decision to the Federal Circuit.
Meanwhile, Ríos had initiated a FTCA suit against the
United States for the actions of USPS employees on the date of the
sting, alleging six torts. On the government's motion, a
magistrate judge recommended dismissing three of the six claims
and the district court adopted the magistrate's reasoning without
any objection from Ríos.
The government then sought summary judgment on the
remaining claims, which were for negligent supervision, invasion of
privacy, and malicious prosecution. The government submitted a
record containing, among other exhibits, the proceedings before the
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PSBCA and its decision. In response, Ríos requested that the court
strike the PSBCA's factual findings from the record. Declining to
do so, the district court instead incorporated those findings, and
granted judgment to the government. In his appeal, Ríos pays
particular attention to the district court's decision to give the
PSBCA findings preclusive effect over factual matters.
II. Discussion
Review of a grant of summary judgment is de novo. Henry
v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012). Summary judgment
is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). In this
case, the existence or non-existence of factual disputes hinges
upon whether the PSBCA's order precludes relitigating these issues
in the district court. "The applicability vel non of preclusion
principles is a question of law." Monarch Life Ins. Co. v. Ropes
& Gray, 65 F.3d 973, 978 (1995).
A. Collateral Estoppel
Collateral estoppel, or issue preclusion, is a doctrine
of judicial economy that grants preclusive effect to final
adjudications of fact or law in subsequent litigation. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Its basic
application is straightforward: "When an issue of fact or law is
actually litigated and determined by a valid and final judgment,
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and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the
parties, whether on the same or a different claim." Mihos v.
Swift, 358 F.3d 91, 101 (1st Cir. 2004) (quoting Restatement
(Second) of Judgments § 27 (1982)).
As a threshold matter, we must decide whether collateral
estoppel applies to the administrative decision of the PSBCA. The
Supreme Court has stated its preference for applying issue
preclusion "to those determinations of administrative bodies that
have attained finality." Astoria Fed. Sav. & Loans Ass'n v.
Solimino, 501 U.S. 104, 107 (1991). If the administrative agency
"is acting in a judicial capacity . . . [and] the parties have had
an adequate opportunity to litigate, the courts have not hesitated
to apply res judicata to enforce repose." United States v. Utah
Const. & Min. Co., 384 U.S. 394, 422 (1966); see also Bath Iron
Works Corp. v. Director, Office of Workers' Comp. Programs, U.S.
Dep't of Labor, 125 F.3d 18, 21 (1st Cir. 1997) (granting
preclusive effect to the factual findings of a state administrative
agency).
We see no reason not to apply this general rule to the
PSBCA. Congress created the PSBCA as part of its comprehensive
approach to resolving public contract disputes. 41 U.S.C. §§ 7101-
7109. The PSBCA, along with parallel boards in other government
agencies, provides an alternative to the Federal Court of Claims
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for adjudicating these disputes. Id. § 7104(b)(1). Its
procedures, which include limited discovery and examination of
witnesses at a hearing, are set forth in regulations, 39 C.F.R. §
955. Such an adjudicative scheme is sufficient to trigger the
doctrine of collateral estoppel. Cf. Emiabata v. United States, 90
Fed. Cl. 22, 28 (2009) ("[C]ollateral estoppel may apply to
decisions of a Board of Contract Appeals that are deemed final.").
Even if the PSBCA's factual findings may have preclusive
effect as a general matter, however, we still must be satisfied
that collateral estoppel applies in this specific instance. We
look to the following four factors: 1) that both the prior and
subsequent proceedings involved "the same issue of law or fact;" 2)
that "the parties actually litigated" the issue in the prior
proceeding; 3) that the prior proceeding "actually resolved the
issue in a final and binding judgment"; and 4) that "its resolution
of that issue of law or fact was essential to its judgment."
Monarch Life Ins. Co., 65 F.3d at 978.
The factual issues before the PSBCA were identical to
those raised in Ríos's FTCA suit, viz., the historical events of
July 12, 2006. Not only did the administrative matter and the FTCA
action address the same events, but both parties also presented the
same factual narratives before the successive adjudicative bodies.
The PSBCA rejected Ríos's theory that Nieves deceptively planted
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the evidence on him, yet Ríos pressed the same factual claim
before the district court.
Furthermore, the PSBCA actually resolved the issue with
a final, binding judgment. It weighed the competing versions of
events, and it deemed the government's version more persuasive.
Ríos's failure to appeal this decision gave it finality. And the
question of whether Ríos stole mail was essential to the PSBCA's
holding. Though the ultimate legal issue in the administrative
action involved Ríos's rights under his employment contract, the
only way to determine the propriety of terminating his contract was
by first deciding whether he had stolen mail. The PSBCA held:
"Respondent has demonstrated that by stealing the contents of mail
entrusted to him, Appellant breached his contract . . . ." The
district court correctly concluded that the PSBCA’s findings
precluded relitigation of the factual issues in Ríos's FTCA suit.
B. Review of Summary Judgment
The PSBCA's findings preclude any claim of factual
dispute on the issue of theft. What is left is to apply the law to
the uncontested facts to determine whether summary judgment was
properly granted as to Ríos's FTCA claims for negligent
supervision, malicious prosecution, and invasion of privacy by
postal inspectors. We assess these claims under the law of Puerto
Rico, as we have held that an FTCA claim "must be comparable to a
cause of action against a private citizen recognized in the
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jurisdiction where the tort occurred." Abreu v. United States, 468
F.3d 20, 23 (1st Cir. 2006) (quotations omitted).
1. Malicious Prosecution
Under Puerto Rico law, the tort of malicious prosecution
includes four elements: "1) that a criminal action was initiated
or instigated by the defendants; 2) that the criminal action
terminated in favor of plaintiff; 3) that defendants acted with
malice and without probable cause; and 4) that plaintiff suffered
damages." Barros-Villahermosa v. United States, 642 F.3d 56, 58
(1st Cir. 2011) (quotations omitted). The PSBCA’s finding of theft
by Ríos is conclusive as to the third element. At a minimum, the
Board's findings demonstrate that the postal inspectors had
probable cause to initiate a prosecution against Ríos. Therefore,
the district court properly handled this claim.
2. Negligent Supervision
In this appeal, Ríos states only that a cause of action
for negligent supervision exists under Puerto Rico law and cites
cases affirming that proposition. He makes no developed argument,
however, about how the facts here support that cause of action.
The claim is therefore waived. United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990), ("[I]ssues averted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived").
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3. Invasion of Privacy
Ríos’s invasion of privacy claim under the FTCA results
from the body search that the postal inspectors conducted. The
claim is based on the Puerto Rico Constitution, which states that
"[t]he dignity of the human being is inviolable." Puerto Rico
Const. Art. II, § 1. Likewise, article 2, section 8 guarantees
every person "the right to the protection of law against abusive
attacks on his honor, reputation and private or family life." Id.
§ 8. The Puerto Rico Supreme Court has held that the rights
enshrined in these sections are enforceable "ex proprio vigore",
Colón v. Romero Barceló, 12 P.R. Offic. Trans. 718 (1982).
Therefore, "[a] claim for the invasion of privacy is actionable
under Article II, §§ 1 and 8 of the Puerto Rico constitution,"
Mojica Escobar v. Roca, 926 F. Supp. 30, 34 (D.P.R. 1996), and the
Puerto Rico Supreme Court has held that the "scope for a just
interpretation [of invasion of privacy torts] is very wide."
Cortes Portalatin v. Hau Colon, 3 P.R. Offic. Trans. 1019 (1975).
The government argues, in part, that there was no
actionable invasion of Ríos's privacy because he consented to the
search. Postal Inspector Angel Nieves's deposition, which Ríos
himself submitted to the district court, contained the following
statement about the bathroom search: "it was explained to him that
we were going to be taking him to the restroom because we were
going to do a search to make sure that he didn't have any more of
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the money on him." Nieves again explained this to Ríos once they
were in the bathroom. Ríos did not protest the search at that
time, nor as it progressed. Instead, he complied with requests
that he take off his shoes and lower his trousers. When the
inspector pulled back Ríos's underwear, Ríos remained silent.
In his brief Ríos does not challenge the proposition that
consent vitiates his invasion of privacy claim. Instead, he
asserts only that "[I]t is an issue of fact that precludes summary
disposition, whether Ríos, being searched while under arrest by
postal inspectors, was free to oppose the instructions given by
these law enforcement agents." We do not know whether Ríos
disputes Nieve's description of events. Ríos's deposition, which
he included in his opposition to the summary judgment and which may
or may not cast a different light on the search, is in Spanish and
therefore outside of the scope of our review. See Local Rule
30.0(e). Nor has Ríos ever attempted to rebut Nieves's testimony
(which, we note again, he submitted to the district court) in his
filings in the district court or before us. If his Spanish-
language deposition counters Nieves's testimony, Ríos had ample
opportunity to bring it to our attention. As there is no evidence
in the record controverting that Ríos consented to the search,
summary judgment was proper as to his invasion of privacy claim.
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III. Conclusion
For the foregoing reasons, we affirm the district court
as to all claims.2
Ríos also asks us to hold that the district court improperly 2
dismissed his claim for lost wages "as a cognizable remedy for the
tort actions submitted pursuant to the Federal Tort Claims Act."
The government points out, and our review of the record confirms,
that the district court did not issue such a ruling with respect to
any of the counts that are relevant to this appeal. Moreover, Ríos
did not object to the magistrate-judge's recommendation that the
district court dismiss a claim based on intentional infliction of
emotional distress, the only count in which the complaint referred
to lost wages. "Only those issues fairly raised by the objections
to the magistrate's report are subject to review in the district
court and those not preserved by such objection are precluded from
appeal." School Union No. 37 v. United Nat'l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010).
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