United States Court of Appeals
For the First Circuit
No. 04-2576
MIGUEL REDONDO-BORGES ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Dyk* and Howard,
Circuit Judges.
Miguel J. Ortega-Muñoz, with whom John F. Nevares, Waleska M.
Valdes-Marchand, and John F. Nevares & Associates, PSC were on
brief, for appellants.
Robert D. Kamenshine, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, with whom Peter D.
Keisler, Assistant Attorney General, H. S. Garcia, United States
Attorney, and Barbara C. Biddle, Attorney, were on brief, for
federal appellees.
Salvador Antonetti-Stutts, Solicitor General of Puerto Rico,
with whom Mariana D. Negrón-Vargas, Deputy Solicitor General, and
Doraliz E. Ortiz-De-León, Assistant Solicitor General, were on
brief, for remaining appellees.
__________
*Of the Federal Circuit, sitting by designation.
August 26, 2005
SELYA, Circuit Judge. This appeal involves a
disappointed bidder who, after apparently winning the procurement
race, lost the prize when the contracting agency deemed him (and
his company) "nonresponsible." After careful review, we conclude
that the plaintiffs' federal claims, to the extent they have been
preserved, fail to state cognizable causes of action under 42
U.S.C. § 1983. Consequently, we affirm the district court's
dismissal of the action.
I. BACKGROUND
Since the district court decided this case on a motion to
dismiss, we derive the raw facts from the plaintiffs' amended
complaint (supplemented, for the sake of completeness, by certain
uncontested facts).
The tale began on December 4, 2001, when the Puerto Rico
Public Housing Authority (PRPHA) awarded plaintiff-appellant Celta
Construction Co. (Celta) a contract to restore the Lirios del Sur
housing project in Ponce, Puerto Rico. The funds for that project
had been assigned to PRPHA as part of a drug elimination program
sponsored by the United States Department of Housing and Urban
Development (HUD).
Plaintiff-appellant Miguel Redondo-Borges is Celta's
president. In a letter dated May 21, 2002, PRPHA informed Celta
that it was annulling the bid award because it had determined that
Redondo-Borges (and, therefore, Celta) was a "nonresponsible
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bidder." The agency premised that determination on the past
actions of Redondo Construction Company (RCC). According to PRPHA,
RCC (a firm in which Redondo-Borges served as an officer) had
defaulted on a contract with the agency in 1998. That contract
related to the same Lirios de Sur housing project.1
The amended complaint claims, without an iota of detail,
that in addition to losing the 2001 bid award, Redondo-Borges and
his companies have been suspended from participating in public
contracts ever since RCC's alleged default. The amended complaint
also claims that the plaintiffs have lost unspecified private
business because a local newspaper published an account of PRPHA's
"nonresponsibility" determination.
II. TRAVEL OF THE CASE
Redondo-Borges, his wife, and their conjugal partnership
brought the underlying action in the federal district court on May
19, 2003. They later amended their complaint to add Celta as a
plaintiff. The amended complaint named two groups of defendants:
HUD, the Secretary of HUD, and two lower-ranking HUD officials,
Thomas Teresi and Michael Colon (collectively, the federal
defendants) comprise one group and PRPHA and three PRPHA officials,
Ileana Echegoyen, Jorge Rivera, and Carlos Laboy-Diaz
1
Although Redondo-Borges and RCC challenged the allegations of
default, it is unclear what has become of that challenge. The
record reveals only that the challenge went to arbitration. There
is no information about either the outcome or the status of the
arbitration proceeding.
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(collectively, the commonwealth defendants) comprise the other.
The plaintiffs advanced claims under 42 U.S.C. § 1983 and the
Privacy Act of 1974, 5 U.S.C. § 552a, to which they appended claims
under local law for breach of contract and the like. The
defendants variously moved to dismiss the amended complaint for
lack of subject matter jurisdiction and for failure to state an
actionable claim. See Fed. R. Civ. P. 12(b)(1), (6). The district
court referred the motions to a magistrate judge, see Fed. R. Civ.
P. 72(b), who recommended dismissal. The plaintiffs objected to
the magistrate judge's recommended disposition of the motions.
The district court reviewed the matter de novo. See id.
The court ultimately issued a thoughtful opinion in which it (i)
dismissed the claims against the federal defendants because the
plaintiffs had failed to state any viable cause of action against
them; (ii) dismissed the claims for money damages against the
commonwealth defendants in their official capacities on the ground
of Eleventh Amendment immunity; (iii) dismissed the claims for
prospective injunctive relief against the commonwealth defendants
in their official capacities because the plaintiffs had failed to
state any claim cognizable under section 1983; (iv) dismissed the
claims against the commonwealth defendants in their individual
capacities based on qualified immunity; (v) dismissed the Privacy
Act claims against the commonwealth defendants because the Act
applies only to federal agencies; and (vi) elected not to exercise
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supplemental jurisdiction over the remaining claims, which it
dismissed without prejudice pursuant to 28 U.S.C. § 1367(c). See
Celta Constr. v. HUD, 337 F. Supp. 2d 396, 399-403 (D.P.R. 2004).
This timely appeal followed.
III. DISCUSSION
We subdivide our analysis of the issues presented into
several segments. We begin by elucidating some of the legal
standards applicable to motions to dismiss.
A. The Rule 12(b)(6) Framework.
The district court dismissed the plaintiff's action for
failure to state a claim upon which relief might be granted.
Because there is no heightened pleading standard in civil rights
cases, Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d
61, 66-67 (1st Cir. 2004), a district court considering a Rule
12(b)(6) motion must view the plaintiff's complaint through the
prism of Fed. R. Civ. P. 8(a)(2)'s notice pleading requirements.
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
5 (1st Cir. 2005). "A complaint satisfies that standard if it
contains 'a short and plain statement of the claim showing that the
pleader is entitled to relief,' and 'give[s] the defendant fair
notice of what the plaintiff's claim is and the grounds upon which
it rests.'" Id. (alteration in original) (quoting Fed. R. Civ. P.
8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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The court must "assume the truth of all well-pleaded
facts and indulge all reasonable inferences that fit the
plaintiff's stated theory of liability." In re Colonial Mortg.
Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003). Those facts may be
derived from the complaint, whatever documents are either annexed
to it or fairly incorporated into it, and any relevant matters that
are susceptible to judicial notice. Centro Medico, 406 F.3d at 5.
In that process, however, the court need not credit "bald
assertions, unsupportable conclusions, periphrastic
circumlocutions, and the like." Aulson v. Blanchard, 83 F.3d 1, 3
(1st Cir. 1996).
We review the entry of an order of dismissal under Rule
12(b)(6) de novo, applying the same criteria that bound the lower
court. Centro Medico, 406 F.3d at 5. The threshold for affirmance
is high: "[w]e will affirm a dismissal only if it is transparently
clear that the complaint, in light of the facts alleged, engenders
no viable theory of liability." Id. at 6.
B. Waiver.
We begin our discussion of the plaintiffs' claims by
explaining what is not before us. Few principles are more
sacrosanct in this circuit than the principle that "issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). As a corollary to this
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principle, "a litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever hold its peace." Id.
(internal quotation marks omitted). Even during appellate review
of a Rule 12(b)(6) dismissal, which takes place under a set of
plaintiff-friendly guidelines, the reviewing court cannot be
expected to "do counsel's work, create the ossature for the
argument, and put flesh on its bones." Id.
Application of these wise insights narrows the field of
our endeavor. In their brief, the plaintiffs completely ignore
both the district court's holding on their Privacy Act claim and
its scuttling of their supplemental claims. We therefore deem them
to have waived any appeal as to those rulings. The only claims
that remain for adjudication are those advanced under 42 U.S.C.
§ 1983. We address those claims in the pages that follow.
C. Constitutional Claims Against Federal Defendants.
The plaintiffs try to shoehorn their constitutional
claims against the federal defendants into the contours of section
1983. That endeavor has all the hallmarks of a futile gesture:
after all, a section 1983 claim normally does not lie against a
federal official. See Chatman v. Hernandez, 805 F.2d 453, 455 (1st
Cir. 1986) (per curiam) ("Section 1983 applies to persons acting
'under color of state law' and not to persons acting pursuant to
federal law."). The plaintiffs allege no facts that might permit
a detour around that rule. Cf. Hampton v. Hanrahan, 600 F.2d 600,
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623 (7th Cir. 1979) (explaining that a section 1983 claim may lie
against federal officers "when [they] are engaged in a conspiracy
with state officials to deprive constitutional rights").
Federal officials sometimes can be liable for
constitutional torts committed under color of federal law on terms
that bear a family resemblance to those that govern section 1983
actions. The doctoral framework was limned by the Supreme Court in
Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388, 397
(1971). Here, however, even if we give the plaintiffs the benefit
of every doubt and recharacterize their claims against the federal
defendants as Bivens claims, they would still succumb.
The amended complaint's only allegation against the
federal defendants is that "[HUD] was fully aware of [PRPHA's]
absolute disregard of award procedures, and did not correct nor
adequately supervise the wrongdoing . . . that it was funding."
These bald assertions are fundamentally insufficient to support a
Bivens claim. Most importantly, the plaintiffs have failed to
connect the federal defendants to the actions central to this case,
that is, the alleged debarment, PRPHA's "nonresponsible bidder"
determination, and the 2002 rescission of the Lirios del Sur bid
award. Although the amended complaint indicates that HUD may have
had some general duty of oversight vis-à-vis PRPHA, it does not
allege any legally enforceable connection between HUD and the
supposed deprivation of due process on which the plaintiffs' claims
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depend. Without such a connection, no colorable section 1983 claim
exists.2
In all events, the language of the amended complaint
indicates that, as to the federal defendants, the plaintiffs are
attempting to raise a claim of negligent supervision. Such a
claim, if stated, would constitute a tort action within the purview
of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-
2680, not a Bivens action. See, e.g., Bolduc v. United States, 402
F.3d 50, 59-62 (1st Cir. 2005). Yet the plaintiffs have not sued
the United States in tort, nor have they alleged compliance with
the administrative prerequisites for an FTCA action. See Cotto v.
United States, 993 F.2d 274, 280 (1st Cir. 1993) (describing
administrative scheme and explaining that "[e]xhaustion of
plaintiffs' administrative remedies is a jurisdictional
prerequisite to the prosecution of their FTCA claims"). This
omission reinforces our conclusion that the allegations of the
amended complaint engender no viable theory of liability against
the federal defendants.
2
The plaintiffs made additional allegations against the
federal defendants in other submissions to the district court (such
as their memorandum in opposition to the motions to dismiss).
These additional allegations are not properly before us. See
Centro Medico, 406 F.3d at 5; Colonial Mortg. Bankers, 324 F.3d at
15-16. We add, moreover, that even were we to take them into
account, the plaintiffs would still fail to state a valid
constitutional claim against the federal defendants. None of these
allegations links the federal defendants to any alleged
constitutional violation.
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D. Section 1983 Claims Against Commonwealth Defendants.
In the district court, the plaintiffs effectively
conceded that Eleventh Amendment immunity bars a federal court from
awarding monetary damages against the commonwealth defendants in
their official capacities. Celta Constr., 337 F. Supp. 2d at 401.
Yet Eleventh Amendment immunity does not bar prospective injunctive
relief against official-capacity defendants. See Rosie D. v.
Swift, 310 F.3d 230, 234 (1st Cir. 2002); Fred v. Roque, 916 F.2d
37, 39 (1st Cir. 1990) (per curiam). Nor does that doctrine bar
relief (whether in the form of money damages or an injunction)
against the commonwealth defendants in their individual capacities.
See Ex Parte Young, 209 U.S. 123, 159 (1908); Rosie D., 310 F.3d at
234. We proceed to examine these asserted claims.
"Section 1983 supplies a private right of action against
a person who, under color of state law, deprives another of rights
secured by the Constitution or by federal law." Evans v. Avery,
100 F.3d 1033, 1036 (1st Cir. 1996). The first condition of a
viable section 1983 claim — that the act in question occur "under
color of state law" — is satisfied here. Puerto Rico is considered
a state for section 1983 purposes, see Deniz v. Municipality of
Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002), and the amended
complaint challenges actions attributed to PRPHA (an agency of the
Puerto Rican government) and its functionaries (the individual
commonwealth defendants). Thus, we focus the lens of our inquiry
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on the second condition of a viable section 1983 claim — whether
there has been a deprivation of rights secured to the plaintiffs
either by the Constitution or by federal law.
In this instance, the plaintiffs claim that they have
been deprived of their Fourteenth Amendment right to procedural due
process. For that claim to succeed, the plaintiffs must identify
a protected property or liberty interest. Centro Medico, 406 F.3d
at 7 (citing Board of Regents v. Roth, 408 U.S. 564, 569 (1972)).
Because the plaintiffs invoke no liberty interest, we confine our
discussion to the existence vel non of a constitutionally protected
property interest.3
3
These plaintiffs have not argued a claim premised on a
liberty interest. Had they done so and had they alleged sufficient
facts to support it, this case might have taken a different turn.
See, e.g., Smith & Wesson v. United States, 782 F.2d 1074, 1081
(1st Cir. 1986) ("While the deprivation of the right to bid on
government contracts is not a property interest . . ., the bidder's
liberty interest is affected when that denial is based on charges
of fraud and dishonesty." (quoting Transco Security, Inc. v.
Freeman, 639 F.2d 318, 321 (6th Cir. 1981))); Old Dominion Dairy
Prods. v. Sec'y of Def., 631 F.2d 953, 962-63 (D.C. Cir. 1980)
(holding that the government deprived disappointed bidder of a
constitutionally protected liberty interest when it made
stigmatizing charges that "effectively foreclosed [the disappointed
bidder's] freedom to take advantage of other Government employment
opportunities, and barred [it] from all public employment"). But
see Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) (holding that
statements that "would undoubtedly damage the reputation of one in
[plaintiff's] position, and impair his future employment prospects"
nevertheless did not amount to a deprivation of a constitutionally
protected liberty interest).
Here, however, even if the plaintiffs had advanced a liberty
interest argument in their brief, the outcome of our analysis would
remain unchanged. The cases that support the existence of a
protected liberty interest are relevant only to the plaintiffs'
effective debarment claim, which, no matter the interest raised,
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To establish a constitutionally protected property
interest, a plaintiff "must have more than an abstract need or
desire for [a thing] . . . [and] more than a unilateral expectation
of it." Roth, 408 U.S. at 577. A plaintiff instead must "have a
legitimate claim of entitlement to it." Id. Here, however, we are
unable to find any clear statement of the precise property interest
that the plaintiffs contend is at stake.
After combing the amended complaint and conducting the
robed equivalent of an archeological dig, we conclude that, in a
best-case scenario, the plaintiffs can be said to allege three
property interests: (i) a property interest associated with their
seven-year effective debarment from PRPHA contracting; (ii) a
property interest associated with PRPHA's "nonresponsible bidder"
determination; and (iii) a property interest associated with the
rescission of the Lirios del Sur bid award.4 We discuss these
three possibilities in sequence.
1. Effective Debarment. The plaintiffs allege that
PRPHA has effectively debarred them from government contracting for
has been pleaded without the necessary factual underpinnings.
4
The plaintiffs seem to have adopted a semantic strategy in
which they consistently refer to the Lirios del Sur bid award as
"the contract" (as if the bid award were a full-fledged contract).
That word choice leads to some confusion. Insofar as we can tell,
what PRPHA allegedly breached was not a full-fledged construction
contract (no such contract is alleged to have been entered into
between Celta and PRPHA), but, rather, the antecedent bid award.
The contract rescission to which we refer, therefore, is the
annulment of the bid award and nothing more.
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the last seven years without ever promulgating an explicit
debarment order.5 It is unnecessary for us to reach the issue of
whether there is a constitutionally protected property interest
associated with effective debarment because the plaintiffs have not
alleged sufficient facts to establish the underlying debarment. We
explain briefly.
The amended complaint does little more than describe what
the plaintiffs call a suspension. Although it does not embellish
this bare conclusory allegation, we assume, favorably to the
plaintiffs, that by suspension they mean effective debarment or
even blacklisting. See supra note 5. Still, the amended complaint
does not anchor this pejorative term in any supporting facts. In
particular, the plaintiffs have not averred that they have bid on
any PRPHA contracts other than Lirios del Sur since 1998. A single
incident is insufficient to establish a pattern or practice of
exclusion (and, thus, to establish even a de facto debarment). Cf.
Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990) (noting, in the
Title VII context, that "[a] single instance of favoritism, even if
proved, falls considerably short of showing an ongoing pattern and
practice").
5
The plaintiffs use the term "effective debarment" for the
first time in their appellate brief. At oral argument in this
court, they substituted the term "blacklisting." Neither of these
dysphemisms appear in the amended complaint.
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The fact that notice pleading governs at the Rule
12(b)(6) stage does not save the plaintiffs' conclusory allegation.
"[I]n a civil rights action as in any other action subject to
notice pleading standards, the complaint should at least set forth
minimal facts as to who did what to whom, when, where, and why . .
. ." Educadores, 367 F.3d at 68. Notice pleading requirements may
be minimal — but "minimal requirements are not tantamount to
nonexistent requirements." Gooley v. Mobil Oil Corp., 851 F.2d
513, 514 (1st Cir. 1988). Even within the generous confines of
notice pleading, courts must continue to "eschew . . . reliance on
bald assertions [and] unsupportable conclusions." Chongris v. Bd.
of Appeals, 811 F.2d 36, 37 (1st Cir. 1987).
The plaintiffs' omissions are especially telling here.
Elsewhere in the record, the plaintiffs flatly contradict their
conclusory claim of effective debarment. For example, in a
memorandum filed in the district court, they asserted that Redondo-
Borges, through Celta, "had bid in other PRPHA bids" and added that
"it was never argued by the agency that [Redondo-Borges] was a non-
responsible contractor." We thus reject the naked mention of an
undocumented suspension as a possible source of a constitutionally
protected property interest.
2. The "Nonresponsible Bidder" Determination. The
plaintiffs allege that, as the rationale for its rescission of the
Lirios del Sur bid award, PRPHA determined that Redondo-Borges was
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nonresponsible and imputed his failings to Celta. To the extent
that the plaintiffs' due process claims revolve around a supposed
property interest in their "responsible bidder" status, we are
unable to perceive how such an interest amounts to anything greater
than a unilateral expectation.
A property interest does not vest simply because a
government agency has developed a responsibility-determination
scheme to aid in bid award decisions. See generally Smith & Wesson
v. United States, 782 F.2d 1074, 1081 (1st Cir. 1986) ("Award
procedures are not designed to establish private entitlements to
public contracts but to produce the best possible contracts for the
government."). Thus, a would-be bidder cannot claim a property
interest in the responsibility-determination procedure alone. Cf.
Navas v. Gonzalez Vales, 752 F.2d 765, 768 (1st Cir. 1985) ("[T]he
mere fact that the [government] has promulgated procedural rules by
which to make retention decisions does not by itself create a
constitutionally cognizable property interest in continued
employment . . . .").
By the same token, the plaintiffs' dashed hopes of
receiving future government work, without more, cannot yield a
constitutionally protected property interest. That is true even if
those dashed hopes stem from PRPHA's nonresponsibility declaration.
See Walentas v. Lipper, 862 F.2d 414, 419 (2d Cir. 1988) (finding
no property interest in a frustrated expectation of future
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employment). The short of it is that the plaintiffs do not have a
strong enough claim of entitlement to a "responsible bidder"
designation to create a constitutionally protected property
interest.
3. The Rescission of the Bid Award. Last but not least,
the plaintiffs claim a property interest in the Lirios del Sur bid
award — an award that PRPHA bestowed on them in 2001 and then
revoked in 2002. A recurrent theme in this court's jurisprudence
illuminates the path to our holding that the plaintiffs' interest
in the bid award does not rise to the level of a constitutionally
protected property interest.
We have held with a regularity bordering on the echolalic
that a simple breach of contract does not amount to an
unconstitutional deprivation of property. See, e.g., Lee v. Life
Ins. Co. of N. Am., 23 F.3d 14, 20 n.11 (1st Cir. 1994); Boston
Envtl. Sanit. Inspectors Ass'n v. City of Boston, 794 F.2d 12, 13
(1st Cir. 1986) (per curiam); Casey v. DePetrillo, 697 F.2d 22, 23
(1st Cir. 1983) (per curiam); Jimenez v. Almodovar, 650 F.2d 363,
370 (1st Cir. 1981). Many of our sister circuits have adopted a
similar stance. See, e.g., S & D Maint. Co. v. Goldin, 844 F.2d
962, 966 (2d Cir. 1988) ("An interest in enforcement of an ordinary
commercial contract with a state is qualitatively different from
the interests the Supreme Court has thus far viewed as 'property'
entitled to procedural due process protection."); San Bernardino
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Physicians' Servs. Med. Group v. County of San Bernardino, 825 F.2d
1404, 1410 (9th Cir. 1987) (concluding that a contract that "cannot
sensibly be distinguished from construction contracts or even
purely material supply contracts . . . presents no federal case"
under section 1983).6
This view of the law makes eminently good sense. To hold
otherwise would run the risk of transmogrifying virtually every
dispute involving an alleged breach of contract by a state or a
state agency into a constitutional case. We eschew so rash a
course and hold, consistent with our prior precedents, that the
existence of a state contract, simpliciter, does not confer upon
the contracting parties a constitutionally protected property
interest. See Boston Envtl., 794 F.2d at 13; see also Wehran-P.R.,
Inc. v. Municipality of Arecibo, 106 F. Supp. 2d 276, 287 (D.P.R.
2000) (observing correctly that this court has been reluctant to
equate mere breaches of contract with due process violations).
6
To be sure, one court of appeals appears to have adopted the
opposite position. See Enertach Elec., Inc. v. Mahoning County
Comm'rs, 85 F.3d 257, 260 (6th Cir. 1996) ("A constitutionally
protected property interest in a publicly bid contract can be
demonstrated . . . [when a bidder shows] that it actually was
awarded the contract and then deprived of it . . . ."). We not
only reject this minority view, but also acknowledge that we are
bound to do so by the prior (contrary) decisions of this court.
See Eulitt v. Me., Dep't of Educ., 386 F.3d 344, 349 (1st Cir.
2004) (explaining that "newly constituted panels in a multi-panel
circuit [ordinarily] should consider themselves bound by prior
panel decisions").
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Thus, an alleged breach of such a contract is not per se actionable
under section 1983.
There are no special circumstances in this case that
might justify a departure from this settled position. See, e.g.,
Linan-Faye Constr. Co. v. Hous. Auth., 49 F.3d 915, 932 (3d Cir.
1995) (holding that two categories of state contracts can give rise
to a constitutionally protected property interest: those that
"confer[] a protected status" and those that "include[] a provision
that the state entity can terminate the contract only for cause").
Indeed, the only special circumstances that might be gleaned from
the amended complaint are the suspension and the related
"nonresponsible bidder" determination, both of which already have
been deemed insufficient to ground a constitutionally protected
property interest. See supra Part III(D)(1)-(2). This is not a
situation in which the whole is greater than the sum of the parts.
The amended complaint, stripped of rhetorical flourishes,
tells a simple tale: PRPHA anointed Celta as the successful bidder
for a construction project and then, upon its discovery of new
information, reversed direction and rescinded the earlier award.
Taking the well-pleaded facts in the amended complaint in the light
most favorable to the plaintiffs, this story may suffice to state
a breach of contract claim. When cast as a putative constitutional
claim, however, the story rings hollow. Given the paucity of
facts, allowing a section 1983 claim in a case like this one would
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lead us down a slippery slope to an untenable result: the
constitutionalization of all contract law in cases in which a state
actor is a party. We decline to take so precipitous a step.
That ends the matter. Because the plaintiffs identify no
constitutionally protected property interest, it is unnecessary to
delve any deeper into the section 1983 inquiry. By the same token,
we need not reach either the issue of qualified immunity or the
issue of whether the post-deprivation process available to Celta
after the revocation of the bid award satisfied any applicable due
process requirement. Without a constitutionally protected interest
— and there is none here — the plaintiffs have no hope of stating
a viable section 1983 claim.
IV. CONCLUSION
We need go no further. If the plaintiffs have alleged
any valid claim, it is a breach of contract claim. The district
court dismissed that claim without prejudice to a refiling in the
commonwealth courts — and the plaintiffs have not challenged the
propriety of that ruling. None of the plaintiffs' other
(preserved) claims states a cognizable basis on which relief can be
granted. Accordingly, we uphold the district court's order of
dismissal.
Affirmed.
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Redondo-Borges v. United States Department of Housing & Urban Development
Court: Court of Appeals for the First Circuit
Date filed: 2005-08-26
Citations: 421 F.3d 1
Copy Citations