United States Court of Appeals
For the First Circuit
No. 99-1398
ANGEL RUIZ RIVERA, ET AL.,
Plaintiffs, Appellants,
v.
RICHARD W. RILEY, SECRETARY, UNITED STATES
DEPARTMENT OF EDUCATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Roger Juan Maldonado, with whom Balber Pickard Battistoni
Maldonado & Van Der Tuin, PC and Frank D. Inserni were on brief,
for appellants.
Angel Ruiz Rivera, pro se ipso.
Anthony A. Yang, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, Guillermo Gil, United States
Attorney, and Barbara C. Biddle, Attorney, Appellate Staff, were
on brief, for appellees.
April 12, 2000
SELYA, Circuit Judge. The appellants, Angel Ruiz
Rivera (Ruiz), Instituto de Educacion Universal (the Institute),
and five other individuals who, like Ruiz, are affiliated with
the Institute, brought this action against the United States
Department of Education (DOE) and various DOE hierarchs
(including the Secretary), seeking money damages and other
relief pursuant to the doctrine of Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
"Bivens is the case establishing, as a general proposition, that
victims of a constitutional violation perpetrated by a federal
actor may sue the offender for damages in federal court despite
the absence of explicit statutory authorization for such suits."
Wright v. Park, 5 F.3d 586, 589 n.4 (1st Cir. 1993). To lend
perspective, we begin by summarizing certain uncontroversial
background facts.
The Institute is a private, not-for-profit, post-
secondary educational institution founded by Ruiz and based in
Puerto Rico. Historically, its recruitment efforts have
depended heavily on the availability of federal student
financial assistance programs. In 1994, DOE's Inspector General
undertook an audit that led to various determinations adverse to
the Institute. As a result of the auditors' preliminary
findings, DOE placed the Institute in "reimbursement only"
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status (a status that barred the Institute from receiving
student aid payments prospectively, as is usually the case).
Five months later, DOE levied a substantial fine and announced
its intention to terminate the Institute's eligibility for
participation in federal student aid programs altogether. In
June 1996, DOE issued the final audit report and instituted
collection proceedings to recover upwards of $2,600,000 in
alleged overcharges, unpaid refunds, and the like.
Asserting that DOE had botched the audit and acted
fecklessly, the appellants filed this Bivens action in Puerto
Rico's federal district court. Their complaint attributed
sundry due process violations to the appellees, implicating the
handling of the audit, the denial of eligibility for student
financial assistance programs in respect to a newly constructed
branch campus, and the "reimbursement only" determination. In
time, the appellees moved for summary judgment. In response to
that motion, the district court disposed of many facets of the
case,1 but left intact the appellants' Bivens claims. See
1
The court ruled, inter alia, that certain audit-related
challenges were not ripe for adjudication because the appellants
still were pursuing the administrative review process. See
Instituto de Educacion Universal Corp. v. Riley, 973 F. Supp.
95, 98 (D.P.R. 1997). As to other claims, it granted the
appellees' prayer for brevis disposition. See id.
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Instituto de Educacion Universal Corp. v. Riley, 973 F. Supp.
95, 98 (D.P.R. 1997).
After a considerable interval (during which the
administrative review was completed), the appellees moved to
amend the judgment nunc pro tunc to include the Bivens claims.
Ruiz, then proceeding pro se, opposed the motion and cross-moved
to revoke the earlier grant of partial summary judgment,
attaching a plethora of papers that he termed "new evidence."
The district court reconsidered its earlier ruling but declined
to modify it in the manner that Ruiz had requested. See
Instituto de Educacion Universal Corp. v. Riley, Civ. No. 96-
1893, slip op. at 9-13 (D.P.R. Jan. 21, 1999). The court then
proceeded to treat the appellees' nunc pro tunc motion as a
renewed request for summary judgment on the Bivens claims, and
granted it. See id. at 13-19.
This appeal ensued. For argument purposes, we
consolidated it with another appeal (No. 99-1628) involving
essentially the same cast of characters. We have elected,
however, to decide the two appeals separately. This is the
second of the two opinions, and we presume the reader's
familiarity with the first.
We have remarked before — and today reaffirm — that
when a nisi prius court produces a well-reasoned exposition that
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touches all the necessary bases, a reviewing court may do well
not to wax longiloquent. See, e.g., Cruz-Ramos v. Puerto Rico
Sun Oil Co., 202 F.3d 381, 383 (1st Cir. 2000); Ayala v. Union
de Tronquistas, 74 F.3d 344, 345 (1st Cir. 1996); In re San Juan
Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993).
This case fits that familiar specification: after careful study
of the voluminous record, the parties' briefs, and the arguments
presented orally, we find no basis for disturbing the district
court's clearly expressed rulings. Accordingly, we affirm the
judgment below for substantially the reasons articulated in
Judge Fusté's serial opinions. We add only four sets of
comments.
First: Because the appellants' previous counsel had
withdrawn from the case, only Ruiz (a non-lawyer) signed the
notice of appeal. The appellees argue that this circumstance
deprives us of appellate jurisdiction. This is true as to the
individual plaintiffs other then Ruiz. Generally speaking, a
notice of appeal that is not signed either by the appealing
party or by that party's attorney is a nullity. See, e.g.,
Talley-Bey v. Knebl, 168 F.3d 884, 885 (6th Cir. 1999); Carter
v. Stalder, 60 F.3d 238, 239 (5th Cir. 1995); United States v.
Johnson, 43 F.3d 1308, 1310 n.1 (9th Cir. 1995); Lewis v. Lenc-
Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir. 1986); Covington
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v. Allsbrook, 636 F.2d 63, 63-64 (4th Cir. 1980); Scarrella v.
Midwest Fed. Sav. & Loan, 536 F.2d 1207, 1209 (8th Cir. 1976).
It is a closer question as to whether the notice of
appeal signed by Ruiz has force as to the Institute. We have
held today, in the companion case alluded to earlier, that it
does. See Instituto de Educacion Universal Corp. v. United
States Dep't of Educ., No 99-1628, slip op. at 8 (1st Cir.
2000). Consequently, this appeal is properly before us as to
the claims of Ruiz and the Institute.
Second: Like the district court, we construe the
appellants' so-called "Request to Revoke Summary Judgment" as a
motion for reconsideration. The district court, in its own
words, "spen[t] numerous hours foraging" through, and
"painstakingly cull[ing]," the amplitudinous exhibits that the
appellants submitted. After inspecting these submissions, the
court adhered to its original decision and concluded that no
showing had been made sufficient to warrant a change in
direction.
This determination deserves appreciable deference. An
appellate court ought not to overturn a trial court's denial of
a motion for reconsideration unless a miscarriage of justice is
in prospect or the record otherwise reveals a manifest abuse of
discretion. See Aybar v. Crispin-Reyes, 118 F.3d 10, 13 (1st
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Cir. 1997); In re Sun Pipe Line Co., 831 F.2d 22, 25 (1st Cir.
1987). The materials on which the appellants rely are, at best,
vaguely suggestive; they are "scarcely the kind of overwhelming
proof that might make a [refusal to revoke summary judgment] a
miscarriage of justice." Minh Tu v. Mutual Life Ins. Co., 136
F.3d 77, 82 (1st Cir. 1998). Thus, they are insufficient to
demonstrate that the district court abused its discretion in
declining to reopen issues previously laid to rest.
Third: The district court granted summary judgment on
the Bivens claims because it spied no genuine issue of material
fact and believed that the appellees were entitled to judgment
as a matter of law. We agree with that determination. Wholly
apart from the merits, however, the district court would have
been well within its authority to enter judgment based on the
appellants' blatant disregard of D.P.R.R. 311.12 (providing in
relevant part that a party opposing a motion for summary
judgment shall include in her opposition "a separate, short, and
concise statement of the material facts as to which it is
contended that there exists a genuine issue to be tried,
properly supported by specific reference to the record"). The
appellants did not make the slightest effort to comply with this
requirement. Consequently, they must bear the onus of that
neglect.
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Rules such as Local Rule 311.12 were developed by the
district courts in this circuit in response to this court's
concern that, absent such rules, summary judgment practice could
too easily become a game of cat-and-mouse, giving rise to the
"specter of district court judges being unfairly sandbagged by
unadvertised factual issues." Stepanischen v. Merchants
Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir. 1983). Such
rules are a distinct improvement — and parties ignore them at
their peril.
In that spirit, we have held that noncompliance with
such a rule, as manifested by a failure to present a statement
of disputed facts, embroidered with specific citations to the
record, justifies the court's deeming the facts presented in the
movant's statement of undisputed facts admitted and ruling
accordingly. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95
F.3d 86, 95 (1st Cir. 1996); Rivas v. Federacion de Asociaciones
Pecuarias, 929 F.2d 814, 816 n.2 (1st Cir. 1991); Laracuente v.
Chase Manhattan Bank, 891 F.2d 17, 19 (1st Cir. 1989). We
believe that such a disposition would have been wholly
appropriate here.2 Viewed in that light, the appellants' brazen
2The fact that Ruiz was proceeding pro se at the point the
appellees filed the nunc pro tunc motion does not alter this
conclusion. We have held consistently that pro se status does
not free a litigant in a civil case of the obligation to comply
with procedural rules. See Eagle Eye Fishing Corp. v. United
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disregard of Local Rule 311.12 constitutes an independently
sufficient ground for affirmance of the judgment below.
Fourth: There is one final, decisive point: to the
extent that the appellants' factual proffer might conceivably be
thought to support Bivens liability — and we, like the lower
court, do not believe that it does — their suit names the wrong
defendants. It is well settled that a Bivens action will not
lie against an agency of the federal government. See FDIC v.
Meyer, 510 U.S. 471, 486 (1994). The same holds true as to
federal officials sued in their official capacities. See
Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d
282, 286 (5th Cir. 1999); Buford v. Runyon, 160 F.3d 1199, 1203
(8th Cir. 1998); Sanchez-Mariani v. Ellingwood, 691 F.2d 592,
596 (1st Cir. 1982). A Bivens action only may be brought
against federal officials in their individual capacities. Even
then, the plaintiff must state a claim for direct rather than
vicarious liability; respondeat superior is not a viable theory
of Bivens liability. See Bibeau v. Pacific Northwest Research
States Dep't of Commerce, 20 F.3d 503, 506 (1st Cir. 1994)
(explaining that "the right of self-representation is not a
license not to comply with relevant rules" (citation and
internal quotation marks omitted)); FDIC v. Anchor Props., 13
F.3d 27, 31 (1st Cir. 1994) ("We have consistently held that a
litigant's pro se status [does not] absolve him from compliance
with [either] the Federal Rules of Civil Procedure [or] a
district court's procedural rules." (citation and internal
quotation marks omitted)).
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Found., 188 F.3d 1105, 1114 (9th Cir. 1998); Buford, 160 F.3d at
1203 n.7; Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.
1998); Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369
(D.C. Cir. 1997); cf. Aponte Matos v. Toledo-Dávila, 135 F.3d
182, 192 (1st Cir. 1998) (reaching identical conclusion in suit
brought against state actors under 42 U.S.C. § 1983); Gutierrez-
Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989)
(same).
To be sure, supervisors sometimes may be held liable
for failures in carrying out their supervisory responsibilities.
See, e.g., Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st Cir.
1999). Be that as it may, supervisory liability exists only
where "(1) there is subordinate liability, and (2) the
supervisor's action or inaction was 'affirmatively linked' to
the constitutional violation caused by the subordinate." Aponte
Matos, 135 F.3d at 192. Here, the appellants' claims of
malfeasance and misfeasance principally involve two relatively
low-level DOE staffers, Náter and Rios — yet neither man is
named as a defendant. Assuming arguendo subordinate liability
on Náter's and/or Rios's part, the record contains no
significantly probative evidence establishing any affirmative
link, sufficient to support a finding of culpability, between
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the actions of which the appellants complain and the persons
whom they elected to sue.
We need go no further. With these modest
augmentations, we uphold the judgment below for substantially
the reasons stated at greater length by the lower court in its
serial opinions.
Affirmed.
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