February 3, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1760
JORGE MELENDEZ-FELIX,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Cyr, Circuit Judge.
Antonio Bauza Torres for appellant.
Maria Hortensia Rios Gandara, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, were on brief for
appellee.
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ALDRICH, Senior Circuit Judge. This $2 million
plus lawsuit against the United States and several employees
thereof stems from an incident outside Gate 1 of the
Roosevelt Roads Navy Station in Puerto Rico on the night of
July 9, 1990. Plaintiff Jorge Melendez-Felix (Melendez) and
others1 were arrested and, allegedly, mistreated before they
were released. This action was commenced on February 25,
1992, and dismissed, on motion of defendants, on June 25,
1993. We affirm.
We consider first the F.T.C.A. action against the
United States. 28 U.S.C. 2671-2680. A single claim on
Standard Form 95 naming plaintiff and another was
acknowledged by the proper agency on February 21, 1991.
Counsel was immediately sent new blank forms with a letter
stating in detail the necessary requirements. The letter
referred to counsel as having clients (plural), and stated,
"Each claimant has to fill [sic] a separate form." (Emphasis
in orig.) However, no response was made, and the agency, by
letter of October 1, 1991, stated, "[T]he claim of Jorge
Melendez-Felix and Idalia Robles Suarez is hereby denied."
The letter concluded "they may file suit . . . within six
months."
1. Some of the others originally participated herein, but,
for various reasons, they have fallen by the wayside and
Melendez is the sole appellant.
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Plaintiffs' action against the United States was
timely filed with Melendez as a plaintiff, but with no
mention of Miss Robles Suarez. In granting the motion to
dismiss Melendez's action the court accepted the government's
contention that it had no jurisdiction because of Melendez's
failure to specify a sum certain on his claim. This followed
long settled law. 28 C.F.R. 14.2(a); Corte Real v. United
States, 949 F.2d 484, 485-86 (1st Cir. 1981); see Adams v.
United States, 615 F.2d 284, 291-92 n.15, clarified, 622 F.2d
197 (5th Cir. 1980). This requirement is to aid the agency
to evaluate the claim for settlement purposes. Swift v.
United States, 614 F.2d 812, 814 (1st Cir. 1980). So
important is it considered that if a figure is not supplied
the court lacks jurisdiction. Corte Real, 949 F.2d at 485-
86. See Lopez v. United States, 758 F.2d 806, 808 (1st Cir.
1985).
The form 95 submitted by counsel gave a single
dollar figure. Melendez's position is that this represented
his personal claim only because only he was named as
claimant; if Idalia Robles Suarez appeared to be a claimant
also, it "was obviously a clerical error." There are two
answers to this. The first is that it did not appear to be a
mere clerical error. Question 2 as printed on the form read,
"Name, address of claimant." To the word claimant, when
submitted, there was added the letter "s", and the answer
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given was "JORGE MELENDEZ-FELIX AND MISS IDALIA ROBLES
SUAREZ." This was more than a typographical slip. Second,
if there was an error, the error was conspicuously not clear
to the agency. In addition to "Each claimant," ante, the
acknowledgement letter to counsel twice spoke of his clients
with an "s". Reading this form and this letter together, no
counsel could reasonably think he had submitted an "obvious"
single claim. Nor should he overlook the agency letter
specifying the need for a "specific dollar amount," which was
already done, had there been but one claimant.
When counsel failed to respond in any way in spite
of the letter's saying, "We cannot stress too strongly the
importance of accurate and thorough completion," the agency
ultimately denied the claim. Plaintiff, properly, does not
assert a waiver of plaintiff's failure to supply an
individual claim figure. It being jurisdictional, ante, it
could not be waived. We would be bucking established, and
important, government procedure if we were to hold otherwise.
The other defendants remaining in the case are the
individual government employees who participated in the July
incident. Here plaintiff's claim is predicated upon Bivens
v. Six Unknown Federal Agents, 403 U.S. 388 (1971). As to
this the action was brought after the Puerto Rico statute of
limitations would normally have run. Under Puerto Rico law,
the statute of limitations is tolled if plaintiff has, before
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the time expired, expressed his intention of pursuing his
claim, DeJesus v. Chardon, 116 D.P.R. 238, 116 D.P.R. 290,
301 (1985) (translation), or if plaintiff has asserted an
"extrajudicial claim" within Article 1873 of the Civil Code.
31 P.R.L.A. 5303. Further, under certain circumstances,
making such an expression to one obligee may automatically
toll it as to others. 31 P.R.L.A. 5304; Fuentes v.
District Court, 73 D.P.R. 959, 73 D.P.R. 893, 907-08 (1952)
(translation). On this theory plaintiff says that filing the
95 form with the government tolled the statute with respect
to the other defendants. We hold otherwise. Even in the
context of a single defendant, "tolling is effective with
regard only to identical causes of action." Rodriguez
Narvaez v. Nazario, 895 F.2d 38, 43 (1st Cir. 1990);
Fernandez v. Chardon, 681 F.2d 42, 49 (1st Cir. 1982), aff'd
sub nom Chardon v. Fumero Soto, 462 U.S. 650 (1983). The
rule can be no broader for co-defendants. Plaintiff sued the
United States under the Federal Tort Claims Act for a common
law tort. Under Bivens he sued the individual defendants for
violation of his constitutional rights. These are very
different claims. The fact that the same facts were involved
is not determinative. Cf. Fernandez, 681 F.2d at 49.
Affirmed.
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