Pitts v. United States

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1410

W. DOUGLAS PITTS AND GLORIA MARTINEZ,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA, ET AL.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and DiClerico,* District Judge.

Lisa R. Daugherty, with whom Thomas E. Scott and Davis,

Scott, Weber & Edwards were on brief for appellants.

Robert D. Kamenshine, Attorney, Appellate Staff, Civil

Division, Department of Justice, with whom Frank W. Hunger,

Assistant Attorney General, Guillermo Gil, United States

Attorney, and Barbara L. Herwig, Attorney, Appellate Staff, were

on brief for appellees.

April 8, 1997

* Of the District of New Hampshire, sitting by designation.

TORRUELLA, Chief Judge. Plaintiffs-appellants were
TORRUELLA, Chief Judge.

mistakenly arrested by federal drug enforcement agents at the

airport in San Juan, P.R. in April 1993. They filed actions for

tort damages against four individual federal agents pursuant to

Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and against the United States

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 1346(b),

2671 et seq. On February 13, 1996, the district court dismissed

plaintiffs-appellants' complaint in its entirety as time-barred

under the applicable federal and Puerto Rico statutes of

limitations. We affirm.

BACKGROUND
BACKGROUND

On April 21, 1993, appellants W. Douglas Pitts and

Gloria Mart nez were approached by defendant Jefferson Moran, a

plain-clothed Drug Enforcement Agency ("DEA") agent, in the

airport in San Juan and informed that they were under arrest.

Three other DEA agents surrounded them, handcuffed them, and

transported them to DEA headquarters. Only after being

fingerprinted and photographed, appellants claim, did co-

defendant DEA agent Edward Hern ndez inform them of the reason

for their arrest. Apparently two witnesses identified Pitts as

the man who had given them a package of heroin earlier that day.

Pitts was questioned and his briefcase was searched; Mart nez was

allegedly strip-searched. Appellants were released from

detention approximately six hours after being arrested.

Appellants' complaint alleged that they were physically and

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verbally abused and sought damages on a number of legal grounds.1

Because the issue on appeal is whether the suit was time-barred,

however, we review the details concerning the timing and contents

of communications between appellants and governmental agencies

after the incident just described.

The mistaken arrest occurred on April 23, 1993. The

complaint was filed in district court on November 23, 1994. On

July 19, 1993, however, appellants' counsel sent a letter to the

DEA stating appellants' intent to pursue a claim "against the

United States" arising from the actions of DEA agents, and

requesting damages and "an apology from your office as well as a

reprimand of the agents involved." A response letter from the

DEA dated August 6, 1993 stated that the appellants' July 19,

1993 letter did not satisfy the procedural requirements for a

claim against the United States under the FTCA.

On August 18, 1993, appellants' counsel sent a second

letter to the DEA, followed by a third letter on August 30, 1993,

which repeated the appellants' intention to pursue a claim

against the government, stated that counsel had been authorized

to represent the appellants, and provided the appellants'

signatures. The DEA replied to appellants' August 18 letter in a

letter dated September 9, 1993, stating that appellants' July 19

and August 18 letters also failed to satisfy the requirements of

1 Plaintiffs' complaint alleged: assault, battery, false
imprisonment, intentional infliction of emotional distress,
invasion of privacy, unconstitutional search and seizure, and
negligence.

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a "claim" under the FTCA. Appellants' counsel replied by a

letter of September 15, 1993 stating that it was the appellants'

view that the August 18 letter did indeed constitute a proper

claim under the FTCA. Finally, the DEA sent a letter on January

4, 1994 denying the claim against the United States made in

appellants' July 19, 1993 letter, and noting that the denial "may

be appealed" to a federal district court within six months. More

than six months elapsed between January 4, 1994 and the date the

complaint was filed, November 23, 1994.2

The district court granted the appellees' motion to

dismiss the complaint as untimely under both Puerto Rico's one-

year statute of limitations (with regard to the tort claims

against the officers) and the FTCA's six-month statute of

limitations that runs from the time of the final denial of a

claim by the pertinent governmental agency. These letters are at

the heart of this appeal because the appellants contend: (1) that

Puerto Rico's one-year statute of limitations governing their

Bivens action was tolled under the "extrajudicial claim

exception" by their letter of August 18, 1993, and did not begin

running at least until the Government's denial letter of January

4, 1994; and (2) that the requirement under the FTCA that they

file suit against the government within six months of the final

2 In addition, beginning in November 1993, the plaintiffs and
the DEA exchanged correspondence regarding appellants' request
for the names and identities of the DEA agents involved under the
Freedom of Information Act, a series of letters that culminated
in a letter of April 10, 1995 from the DEA formally denying
appellants' request for information concerning the identities of
the unknown agents.

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denial of their claim does not render their November 23, 1994

complaint time-barred because the government's January 4, 1994

denial letter did not trigger the six-month limitations period.

DISCUSSION
DISCUSSION

I. Claims Against the Agents
I. Claims Against the Agents

Appellants do not dispute the settled proposition that

their claims against Mor n, Hern ndez, and two other unknown DEA

agents are subject to Puerto Rico's one-year statute of

limitations governing, inter alia, personal injury torts. See

P.R. Laws Ann. tit. 31 5298(2) (1991); cf. Ram rez Morales v.

Rosa Viera, 815 F.2d 2, 4 (1st Cir. 1987). Rather, they argue

that the period, which would have barred their suit from being

brought after April 21, 1994, was tolled under the Puerto Rico

tolling statute's extrajudicial claim provision. See P.R. Laws

Ann. tit. 31 5303 (1991).3 Specifically, they argue that under

the Puerto Rico Supreme Court's interpretation of the

extrajudicial claim provision, their claim was tolled from the

time of their August 18, 1993 letter to the DEA (stating

appellants' "intent to submit a claim against the United States

government" and requesting a "reprimand" of the officers) to at

least January 4, 1994, the date of the government's letter

purportedly denying the claim, at which point, under Puerto Rico

law, the one-year period would have been restarted at zero and

3 Section 5303 provides: "Prescription of actions is interrupted
by their institution before the courts, by extrajudicial claim of
the creditor, and by any act of acknowledgment of debt by the
debtor."

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would have begun to run anew. See Rodr guez Narv ez v. Nazario,

895 F.2d 38, 45 (1st Cir. 1990).

The problem with appellants' argument is that their

August 18 letter -- like the other letters they sent to the DEA -

- did not identify any legal claim against the individual

officers, and therefore cannot be deemed to have tolled the

statute of limitations as to the suit against the officers.

Puerto Rico Supreme Court decisions applying the tolling

provision of section 5303 indicate that one of the necessary

requirements of an extrajudicial claim for the purposes of

tolling is the requirement of "identity." See Galib-Frangie v.

El Vocero de Puerto Rico, 95 JTS 71 at 922 (P.R. 1995); see also

Kery v. American Airlines, Inc., 931 F. Supp. 947, 951-53 (D.P.R.

1995) (summarizing Puerto Rico Supreme Court interpretation of

section 5303). The identity requirement means that the same

right and the same relief affected by the statute of limitations

must appear in the extrajudicial claim. See Nazario, 895 F.2d at

44; Kery, 931 F. Supp. at 954. To satisfy this requirement, the

extrajudicial claim must be made against the same debtor or

passive subject of the right in question, and not against a third

party. Nazario, 895 F.2d at 44 (citing Velilla v. Pueblo

Supermarkets, Inc., 111 P.R.R. 732, 734-35 (P.R. 1981)).

Appellants' August 18 letter, addressed to the associate chief

counsel of the DEA, states an intent to make a "claim against the

United States government" and also requests an official

"reprimand" of the officers involved. It does not assert any

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legal claims directly against the officers. The letter,

therefore, fails to satisfy the requirement of identity for the

purposes of the extrajudicial claim doctrine. Appellants, citing

the Galib-Frangie decision, argue that the Puerto Rico Supreme

Court has recently ruled that the extrajudicial claim doctrine

should be applied liberally. We are not persuaded by this

argument, because nowhere in the Galib-Frangie opinion, or, to

our knowledge, in any other recent decision of the Puerto Rico

Supreme Court, is there any support for a departure from the

well-established rule that an extrajudicial claim must request

the same type of relief against the same defendants.4 In fact,

in Galib-Frangie, the case relied on by the appellants, the court

iterated that the identity requirement is a necessary condition

of an extrajudicial claim under section 5303. Galib-Frangie, 95

JTS 71 at 922. Moreover, the learned commentary on this civil

code provision suggests that an extrajudicial claim must serve as

a notice or demand to the "passive subject of said right," here

the DEA agents. See Nazario, 895 F.2d at 44 (quoting Spanish

civil code commentator Diez Picazo).5 The DEA agents plainly

4 In the case of Zambrana-Maldonado v. Commonwealth, 92 JTS 12

(P.R. 1992), for example, the court stated specifically that
extrajudicial claims must be read in their totality and in a
liberal fashion, and yet also held that the claim must be
received by the same debtor of the right who is the defendant in
the subsequent lawsuit. Id. at 9171-74.

5 According to Diez Picazo:

In principle, claim stands for demand or
notice. That is: it is an act for which the
holder of a substantive right, addresses the
passive subject of said right, demanding that

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could not be apprised of a damages suit against them as

individuals by a letter stating an intention to bring a claim

against the government.

In the alternative, appellants argue that summary

judgment was improper because a question of material fact exists

as to whether the individual DEA agents received copies of, or

were otherwise informed of, the letters. This argument fails

because, even assuming they received copies of the letters, the

content of the letters would not put them on notice as to the

possibility of being sued individually for damages.

These considerations lead us to conclude that the

district court properly applied Puerto Rico law in finding the

suit against the DEA agents to be time-barred.

II. The Claim under the FTCA
II. The Claim under the FTCA

FTCA claimants must file suit in federal court within

six months of the date on which the federal agency to which the

claim has been addressed mails notice of final denial of their

claim. See 28 U.S.C. 2401(b). Here, it is not disputed that

the DEA sent a letter on January 4, 1994 to appellants' counsel

stating that, in response to appellants' July 19, 1993 letter,

"[t]o the extent that this correspondence can be construed as

he adopt the required conduct. The claim,
then, is a pretension in a technical sense.

Nazario, 895 F.2d at 44 (quoting Diez Picazo). We note as well

that the commentary of Diez Picazo, unfavorable to appellants
here, was cited as an authority regarding the requirements of an
extrajudicial claim in the Galib-Frangie decision, the very

decision appellants argue harkens a change in the extrajudicial
claim doctrine. See Galib-Frangie, 95 JTS 71 at 923.

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claim [sic] against the United States of America pursuant to the

Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., such

claim is denied." Appellants filed their suit under the FTCA in

November 1994, more than six months after the DEA denial letter

was mailed, and thus their FTCA claim was properly found to be

time-barred.

On appeal, two meritless arguments have been proffered.

The first is that the January 4 letter cannot be deemed a final

denial because it did not specifically address appellants'

August 18, 1993 letter. We find, however, that the language of

the letter was unambiguous in denying appellants' claim, which

was made in both the July 19, 1993 and the August 18, 1993

letters.6

Second, appellants argue that the January 4 letter

failed to satisfy regulations governing the content of an FTCA

claim denial letter, see 28 C.F.R. 14.9(a), because it did not

state that the claimant may "file suit" in a United States

District Court within six months.7 We are unmoved by appellants'

6 The August 18 letter was merely a follow-up letter that
repeated the allegations and claims made in the July 19 letter,
and only added the signatures of appellants Pitts and Mart nez.

7 The regulation at 28 C.F.R. 14.9(a) provides, in pertinent
part:

The notification of final denial . . . shall
include a statement that, if the claimant is
dissatisfied with the agency action, he may
file suit in an appropriate U.S. District
Court not later than six months after the
date of mailing of the notification.

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argument that the DEA's failure to use the words "file suit"

created any confusion. We find that the DEA's statement that

"[t]his denial may be appealed to the appropriate United States

District Court within six months of this letter," while not

using the words "may file suit," adequately satisfied the

requirements of regulation 14.9(a) by giving sufficient notice of

the six-month limitations period applicable to their right to

file suit in district court. Cf. Hatchell v. United States, 776

F.2d 244, 245-46 (9th Cir. 1985) ("We decline to require any

specific verbal formulation to ensure compliance with the

regulations governing denial of claims.").

CONCLUSION
CONCLUSION

For the reasons stated in this opinion, the district

court's grant of summary judgment to the defendants is affirmed.

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