Ivette Santiago-Marrero, Ramon Diaz-Ortiz, and Conjugal Partnership Diaz-Santiago v. United States of America, Kevin Beason, Susan Beason, Conjugal Partnership…

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1821
IVETTE SANTIAGO-MARRERO, RAMON DIAZ-ORTIZ,
AND CONJUGAL PARTNERSHIP DIAZ-SANTIAGO,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, KEVIN BEASON, SUSAN BEASON,
CONJUGAL PARTNERSHIP BEASON-BEASON, ESTEE LAUDER, INC.,
X INSURANCE COMPANY, AND JOHN DOE 01CV2736,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Joseph Deliz-Hernandez for appellants.
Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Miguel A. Fernandez,
Assistant United States Attorney, were on brief for appellee United
States of America.
Arturo Diaz-Angueira with whom Roberto Feliberti was on brief
for appellee Estee Lauder.
March 31, 2003

-- 1 of 8 --

1 The AAFES is operated under the Department of Defense, and
its personnel are federal employees. See Army & Air Force Exch.
Serv. v. Sheehan, 456 U.S. 728, 733, 736 (1982); Honeycutt v. Long,
861 F.2d 1346, 1349 n.3 (5th Cir. 1988).
-2-
Per Curiam. Appellant Ivette Santiago-Marrero claims on
appeal that the district court erroneously denied her the
opportunity to amend her discrimination complaint. She alleges
that an employee of the federal government harassed her and caused
her to be terminated from her job "because she was a Puerto Rican
who could not speak English." We vacate the dismissal of her
complaint against the federal defendants and remand for further
proceedings.
Briefly summarized, the facts as alleged in the complaint are
as follows. Appellant was hired in early 2000 by Estée Lauder,
Inc., to work as a cosmetics salesperson at the Fort Buchanan Post
Exchange, a store run by the Army & Air Force Exchange Service
(AAFES).1 Santiago-Marrero speaks virtually no English, and she
routinely referred non-Spanish speaking customers to her bilingual
supervisor. In June 2001, after appellant had been on the job for
about eighteen months, a new manager, Kevin Beason, took over at
the Post Exchange. Appellant claims that Beason, a federal
employee, repeatedly harassed her because of her inability to speak
English and ultimately denied her access to the Post Exchange by
forcing her to return her ID, thus barring her from her work site.
Estée Lauder told appellant that the company did not have a

-- 2 of 8 --

2 The complaint also was filed on behalf of appellant's
husband and their conjugal partnership, and against Beason's wife
and their conjugal partnership. For simplicity, we refer in both
instances only to the primary party.
3 The ADEA claim rests on the allegation that appellant's
replacement at the Post Exchange was younger than she. No other
facts are alleged to suggest that age played any role in this case.
-3-
position for her at any other location, and she therefore was
terminated.
Appellant filed suit on December 27, 2001 against the United
States, Beason, and Estée Lauder, Inc.,2 claiming violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -
e17, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§
621-634,3 and the Fourteenth Amendment to the U.S. Constitution.
She alleged in her complaint that Beason "maliciously maneuvered
this entire ordeal" because of her status as a non-English speaking
Puerto Rican. Appellant also had filed an administrative claim
under the Federal Tort Claims Act in October 2001.
The district court dismissed the claims against Beason and the
United States with prejudice, and dismissed the claims against
Estée Lauder without prejudice, allowing appellant to pursue claims
against her employer under Puerto Rico law in commonwealth courts.
The court stated that neither the Title VII nor the ADEA claim was
viable against the United States (or Beason) because appellant was
not employed by the government. Although appellant had asked in
her opposition to defendants' motion to dismiss for leave to amend

-- 3 of 8 --

4 In Bivens, the Supreme Court "recognized for the first time
an implied private action for damages against federal officers
alleged to have violated a citizen's constitutional rights." Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, 519 (2001).
5 There was some confusion over the due date for appellant's
opposition, which was filed on April 29, 2002 – the day before the
court signed its decision on the motion to dismiss – but the court
eventually considered the memorandum, and so its timing proved to
be of no consequence.
-4-
her complaint to add an FTCA claim, and further urged that the
court take jurisdiction of her claims under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971),4 the district court did
not receive that memorandum before its decision.5
The court, however, did review the memorandum when it
considered appellant's motion for reconsideration and stated that
nothing in the opposition justified vacating its earlier ruling.
In denying the request to amend, the court stated:
Almost a year after the filing of the complaint
plaintiffs attempt to recast their complaint against the
United States under the Federal Tort Claims Act . . . .
In the Motion for Reconsideration they mention, in
passing, to "permit the present case to continue as a
Biven's case." . . . . There is no justification for
seeking amendment of the complaint for this purpose at
this late stage of the proceedings. Accordingly, the
request to amend complaint . . . . is DENIED[.]
Appellant does not argue that the court erred in concluding
that she did not have viable claims against the federal defendants
under either Title VII or the ADEA. Nor does she contest the
court's decision to dismiss without prejudice the federal claims
against Estée Lauder. Her only contention – and the only issue we

-- 4 of 8 --

-5-
address – is whether the court wrongly denied her the opportunity
to amend her complaint to include FTCA and Bivens claims.
Under Federal Rule of Civil Procedure 15(a), a litigant may
amend a pleading once as a matter of right before a responsive
pleading is filed and subsequently only if the parties consent or
"by leave of court." Judge v. City of Lowell, 160 F.3d 67, 79 (lst
Cir. 1998); Fed. R. Civ. P. 15(a). Here, appellant filed a first
amended complaint approximately one month after her original
complaint to correct a typographical error and a defendant's name,
and she therefore needed the court's permission before amending
again.
A district court's denial of leave to amend is reviewed for
abuse of discretion, Judge, 160 F.3d at 79, but we examine its
decision "through the prism of Federal Rule of Civil Procedure
15(a), which indicates that leave to amend a complaint 'shall be
freely given when justice so requires,'" Hatch v. Dep't for
Children, Youth & Their Families, 274 F.3d 12, 19 (lst Cir. 2001).
"In practice, this means that the denial of such a motion will be
upheld so long as the record evinces an arguably adequate basis for
the court's decision (e.g., futility, bad faith, undue delay, or a
dilatory motive on the movant's part)." Id.
The district court invoked timeliness concerns when it
rejected appellant's attempt to add new claims "at this late stage
of the proceedings," but it relied on the mistaken observation that

-- 5 of 8 --

6 As noted earlier, the complaint was filed on December 27,
2001. Appellant's opposition to the motion to dismiss, which
contained the request to amend, was filed on April 29, 2002.
7 We note that the court also understated appellant's
invocation of Bivens. Although the court correctly noted that the
two-page motion for reconsideration contained only a brief request
to allow the case to proceed as a Bivens action, that motion
explicitly referred to the earlier opposition to the motion to
dismiss, in which appellant presented a more developed Bivens
argument.
-6-
the complaint had been filed almost a year earlier. In reality,
the complaint had been filed just four months before the requested
amendment,6 a lapse in time that strikes us as fairly brief. In
addition, the court twice implied that it might have ruled
differently had appellant timely asserted a Bivens claim. In its
original grant of defendants' motion to dismiss, the court
expressly noted that "[t]he complaint is not cast in the terms of
a Bivens claim against Mr. Beason." And in ruling on the motion
for reconsideration, as noted earlier, the court stated that there
was no justification for allowing transformation of the case to one
based on Bivens or the FTCA at that "late" date.
In light of the court's timing mistake,7 and its own
indication that it might have acted differently had it viewed the
Bivens' claim as timely raised, we vacate the dismissal of the
claims against the federal defendants. As we cannot say without
some inquiry that amendment would be futile, and no other basis for
dismissing the complaint is apparent, we are unable to affirm the
court's decision on an alternative ground. See Correa-Martinez v.

-- 6 of 8 --

8 Defendants argue that a tort claim based on Beason's
interference with appellant's employment is barred by a specific
exclusion in the FTCA for "[a]ny claim arising out of . . .
interference with contract rights," 28 U.S.C. § 2680(h). In
addition, they point out that she filed her complaint before the
expiration of the six-month waiting period for FTCA claims. See 28
U.S.C. § 2675(a). As for the constitutional claim, appellant's
motion opposing dismissal indicates that it is based on the use of
language as a proxy for national origin discrimination. It is up
to the district court to determine in the first instance whether,
on the facts alleged, these claims provide a viable basis for
recovery.
-7-
Arrillaga-Belendez, 903 F.2d 49, 52 (lst Cir. 1990) ("[W]e may
affirm a dismissal for failure to state a claim only if it clearly
appears, according to the facts alleged, that the plaintiff cannot
recover on any viable theory."). We emphasize, however, that we
have not substantively explored appellant's new legal claims, and
thus offer no view on their viability.8
We do offer two additional observations: first, in asserting
a constitutional claim, appellant has repeatedly invoked the
Fourteenth Amendment. That provision, of course, speaks only to
the conduct of state officials and is inapplicable to actions by
federal officials. See, e.g., Dry v. United States, 235 F.3d 1249,
1255 (10th Cir. 2000) (Fourteenth Amendment is "applicable only to
actions by state and local entities, not by the federal
government."). Any constitutionally based discrimination claim
brought by appellant must therefore be cognizable under the Fifth
Amendment. See Davis v. Passman, 442 U.S. 228, 248-49 (1979)
(plaintiff alleging gender discrimination may bring Bivens action

-- 7 of 8 --

-8-
for Fifth Amendment violation). Second, our decision is a vacatur,
not a reversal; it does not require the district court to allow
appellant the opportunity to amend her complaint if, after further
review, the court concludes that appellant's proposed amended
complaint fails to set forth "a general scenario which, if proven,
would entitle the plaintiff to relief against the defendant on some
cognizable theory," Hatch, 274 F.3d at 19, or fails for any other
reason.
The judgment against the federal defendants is vacated and the
case is remanded to the district court for further proceedings.

-- 8 of 8 --