USCA1 Opinion
October 12, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1059
ANGEL LUIS FIGUEROA,
Plaintiff, Appellant,
v.
U.S. DRUG ENFORCEMENT ADMINISTRATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Angel Luis Figueroa on brief pro se.
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A. John Pappalardo, United States Attorney, and Suzanne E.
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Durrell, Assistant United States Attorney, on Memorandum in Support of
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Motion for Summary Disposition, for appellees.
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October 12, 1993
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Per Curiam. This case is an example of the adage
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that haste makes waste. Angel Luis Figueroa ("Figueroa")
brought a suit under 42 U.S.C. 1983 against the Drug
Enforcement Administration (DEA) and two of its special
agents, alleging that the individual defendants knowingly
relied on false information in affidavits used to obtain
forfeitures of funds belonging to Figueroa. In granting IFP
status to Figueroa, the district court noted that although
the action was brought pursuant to section 1983, "it must be
construed as a Bivens-type action . . . because the
defendants are federal, not state, agents" (citing to Bivens
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v. Six Unknown Named Agents, 403 U.S. 388 (1971)).
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The government then moved for judgment on the
pleadings or for summary judgment, urging as its first ground
for dismissal that the DEA agents were not alleged to have
acted under state law so that no claim had been stated. The
district court allowed the motion for judgment on the
pleadings, noting in the margin order that " 1983 does not
apply to D.E.A. Agents" and citing precedent to that effect.
A motion for leave to amend, admittedly not mentioning Bivens
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but referring to the jurisdictional statute for asserting a
Bivens claim, was denied. On appeal by Figueroa, the
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government offers other defenses.
There is no way to avoid a remand. The district
court may well have been misled by the government's motion;
but having told Figueroa that his claim would be construed as
a Bivens action, the district court could not then dismiss on
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the ground that Figueroa had called it a section 1983 action
in the complaint. If the district court wanted a formal
amendment, it could have insisted on that, but an outright
dismissal in this situation without leave to amend will not
wash.
The government appears to be correct that the
action against the DEA itself is a suit against the United
States, no waiver of sovereign immunity has been shown, and
accordingly the dismissal as to it can be affirmed on that
ground. But despite the government's claims to the contrary,
sovereign immunity does not appear to shield the agents in
their personal capacities, see, e.g., Butz v. Economou, 438
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U.S. 478, 501 (1978) (Bivens actions would be "drained of
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meaning if federal officials were entitled to absolute
immunity for their constitutional transgressions") (internal
quotation omitted), nor is it likely that qualified immunity
would do so if the agents were engaged in fraud or knowing
falsehood, see, e.g., Malley v. Briggs, 475 U.S. 335, 341
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(1986) (qualified immunity does not protect "those who
knowingly violate the law"). Of course, we have no reason to
think that they were so engaged -- Figueroa's complaint and
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sparse subsequent filings are utterly devoid of detail -- but
the complaint's allegations must be taken as true for the
limited purpose of this appeal.
The government's remaining alternative ground is
res judicata, based on Figueroa's failure to pursue his
present objections in the forfeiture proceedings. If we were
dealing with clear law and clear facts we would give serious
attention to this issue in order possibly to avoid further
proceedings in a busy district court. But we know relatively
little about the details of the forfeiture proceeding or
Figueroa's role in it, and in rem forfeitures are a peculiar
legal animal whose res judicata implications are more
difficult to determine without a better record. See
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generally Restatement (Second) of Judgments 22, 30 (1982).
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Accordingly, we affirm the judgment in dismissing
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the complaint against the DEA and vacate the dismissal as to
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the named agents in their individual capacities and remand
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the case against them to the district court for further
proceedings consistent with this opinion.
It is so ordered.
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