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
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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, postsecondary 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"
1The 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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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
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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. LencSmith 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.
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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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
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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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
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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); GutierrezRodriguez 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.