FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
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.
Howard, Chief Judge, Selya, Circuit Judge, and McConnell,
District Judge. [*]
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.
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).
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.
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.
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. 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."
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, 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.
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.
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.
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.
investigation continued until mid-November of 2007, when the
CID issued a report finding no evidence of illegal 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.
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.
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.
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.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 ...