United States Court of Appeals
For the First Circuit
____________________
No. 99-1977
CARMEN ROMAN; JAIME ECHEVARRIA;
CONJUGAL PARTNERSHIP, ECHEVARRIA-ROMAN;
JAIME ECHEVARRIA-ROMAN (MINOR);
YAIKA ALEXANDRA ECHEVARRIA-ROMAN (MINOR);
RAISA MICHELLE ECHEVARRIA-ROMAN (MINOR);
Plaintiffs, Appellants,
v.
BRIAN KEITH TOWNSEND; ANTHONY SHOPE;
JOHN DOE; PETER ROE;
TOGO D. WEST, SECRETARY OF THE U.S. ARMY;
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
____________________
Before
Stahl and Lynch, Circuit Judges,
and Gorton,* District Judge.
_____________________
Frank D. Inserni for appellants.
Fidel A. Sevillano-Del Río, Assistant United States Attorney, with w
States Attorney, was on brief, for appellees.
____________________
August 23, 2000
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
GORTON, U.S. District Judge. Plaintiffs-appellants challenge
the district court's dismissal of their amended complaint. After
examining the record and the law, we affirm.
I. Background and Prior Proceedings
On November 29, 1994, Carmen Roman (“Roman”), with a car
borrowed from a friend, proceeded to pick up her child from the
Antilles Intermediate School located inside Fort Buchanan, a United
States Army base. Because Roman and her husband, Jaime Echevarria
(“Echevarria”), are employed by the federal government, they are able
to send their children to Antilles School free-of-charge.
Upon entering the base, Roman presented the military police
officer, Brian Townsend (“Townsend”) with identification. Because her
driver's license had expired, Townsend detained Roman at the entrance.
After Roman became upset, frustrated and vocal, Townsend arrested her
for breach of the peace and took her to the military police station.
Anthony Shope (“Shope”), Townsend's supervising officer,
picked up Roman's daughter, who had been waiting outside the school,
told her that her mother had been arrested and took her to the police
station where her mother was detained. Roman alleges that while
2
detained at the police station and in her daughter's presence, she was
verbally, physically and emotionally abused by Townsend and Shope.
Echevarria came to pick up his wife and daughter but was not allowed to
enter the police station. Roman was charged with a federal
misdemeanor, of which she was later acquitted, and was banned from
entering Fort Buchanan.
On November 28, 1995, one day short of one year after the
incident, Roman submitted a Form 95 Administrative Claim (“the
Administrative Claim”) to the Claims Division of the Office of the
Staff Judge Advocate (“SJA”) at Fort Buchanan seeking redress in the
amount of $2,000,000. Attached to the claim was a six-page recital of
the events which occurred on November 29, 1994 (“the Incident”). On
May 17, 1996, the SJA mailed a letter to Roman notifying her that it
had denied her claim and that if she was dissatisfied with that
decision, she was entitled to file suit in a United States District
Court no later than six months from that date.
On November 15, 1996, two days less than six months
thereafter, plaintiffs filed an action in the United States District
Court for the District of Puerto Rico against the two military
policemen involved in the Incident. The complaint also named as
defendants the unknown supervisors of the Policemen, identified in the
3
caption as John Doe and Peter Roe.1 Plaintiffs alleged sexual
harassment, intentional tort claims for breach of peace, assault and
battery and infliction of emotional distress upon Roman and her family
and gross negligence by the supervising officers. Plaintiffs brought
their action pursuant to 42 U.S.C. §§ 1983 and 1988, the Fourth, Fifth
and Fourteenth Amendments to the United States Constitution and the
Constitution and laws of the Commonwealth of Puerto Rico.2
More than one year later, on December 9, 1997, plaintiffs
filed an amended complaint adding Togo D. West, Secretary of the Army
(“the Secretary”), as a defendant and, for the first time, asserted
jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§2671 et
seq. (“the FTCA”). Plaintiffs also, for the first time, asserted
claims pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 1981,
as well as P.R. Laws Ann. tit. 31, §5141 and tit. 29, §155 et seq. and
for false imprisonment and arrest, abuse of process and malicious
prosecution.
1
In the body of the complaint, plaintiffs list John Doe and
Richard Roe as the supervisors and later include Peter Roe as an
additional supervisor of the “three named defendants.” It is unclear
whether the plaintiffs intended to sue two or three unnamed defendants.
Although our disposition of the case would remain the same in any
event, we read the complaint to include two unnamed supervisors as
defendants and proceed to refer to them as “John Doe” and “Peter Roe”.
2
The district court correctly construed plaintiffs' §1983 claim
as a Bivens claim because the defendants were federal, not state,
agents. See Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
4
A copy of the summons, the amended complaint and discovery
requests were served upon the Secretary in February 1998 via certified
return receipt mail to the Chief of Army Litigation in Arlington,
Virginia and the Assistant Judge Advocate General's Office in the
Pentagon. Defendant Townsend was served on March 18, 1998. His
default was entered on April 28, 1998, but default judgment was never
applied for or entered against him and he was treated as a party-
defendant for the duration of the case. Shope was served on July 6,
1998 and the United States Attorney filed an appearance on his behalf.
On August 18, 1998, the United States filed a notice of
substitution and certificate by the United States Attorney that the
individual defendants were acting within the scope of their federal
employment in connection with the Incident. That notice informed the
district court that the United States was substituted for Townsend,
Shope, John Doe and Peter Roe pursuant to the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (“the Westfall
Act”), Pub. L. No. 100-694, 102 Stat. 4564 (1988).3
3
The FTCA, as amended by the Westfall Act, provides that “[u]pon
certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the
incident out of which the claim arose, any civil action or proceeding
commenced upon [a common law tort against a federal employee] in a
United States district court shall be deemed an action against the
United States ... and the United States shall be substituted as the
party defendant.” 28 U.S.C. §2679(d).
5
Along with that notice, the United States and the individual
co-defendants filed a motion to dismiss the amended complaint as to all
plaintiffs except Roman. They argued that because only Roman filed the
Administrative Claim, the other plaintiffs failed to exhaust their
administrative remedies as required under the FTCA. That motion was
not decided but was rendered moot by the district court's disposition
of a subsequent motion of the United States to dismiss and/or for
summary judgment on the grounds that plaintiffs' FTCA claim failed to
satisfy the requirements of that statute and that their Bivens claim
was time-barred.
On May 4, 1999, the district court dismissed the FTCA claim
because it found that the plaintiffs had failed 1) to bring the action
within six months of the denial of their Administrative Claim and 2) to
name the United States as the proper party defendant.4 The district
court agreed with the United States that plaintiffs' Bivens claim was
time-barred because more than one year had elapsed between the Incident
on November 29, 1994 and the filing of plaintiffs' complaint on
November 15, 1996, and, therefore, dismissed that claim as well.
Plaintiffs' motion to reconsider the dismissal order was
denied by the district court by endorsement on June 30, 1999. We
4
Although the district court purportedly dismissed the FTCA claim
on both grounds, the plaintiffs did, in fact, file their complaint
within the six-month period. They failed, however, at that or any
subsequent time, to assert a tort claim against the United States.
6
review plaintiffs' appeal from the district court's order of dismissal
de novo. See Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1,4 (1st
Cir. 1998).
II. FTCA Claim
The FTCA waives the sovereign immunity of the United States
with respect to tort claims, see 28 U.S.C. §2674, and provides the
exclusive remedy to compensate for a federal employee's tortious acts
committed within his or her scope of employment. See 28 U.S.C. §2679.
In order to bring a tort claim against the United States under the
FTCA, a claimant must first file an Administrative Claim with the
appropriate federal agency within two years of the accrual of the claim
and then file a tort claim against the United States within six months
after a denial of (or failure to act upon) that claim by the
administrative agency. See 28 U.S.C. §§ 2401(b), 2675. In addition,
the FTCA requires that the named defendant in an FTCA action be the
United States and only the United States. 28 U.S.C. §§ 1346(b), 2674,
2679(a).
In this case, the plaintiffs never timely named the United
States as the defendant in an FTCA suit and that fact alone is fatal to
their cause. Roman's Administrative Claim was denied on May 17, 1996
and thus plaintiffs had until November 17, 1996 to initiate a tort
claim against the United States. They filed a complaint two days
before the deadline but only asserted tort claims against the military
7
policemen involved in the Incident and their supervisors. The
plaintiffs did not assert an FTCA claim nor did they name the United
States as the defendant. Although the United States became a party to
this action when it filed a notice of substitution on August 18, 1998,
it did so well after the six-month limitation period expired.
Appellants argue that by substituting itself for the
individual defendants, the United States voluntarily submitted to the
jurisdiction of the district court, thereby waiving any objection to
the plaintiffs' initial failure to commence the suit under the FTCA or
to name the proper party defendant. It is clear, however, that the
requirement that a plaintiff sue the United States within the period of
limitations in an action brought under the FTCA is jurisdictional in
nature and thus non-waivable. See Allgeier v. United States, 909 F.2d
869, 871 (6th Cir. 1990) (“Failure to name the United States as
defendant in an FTCA suit results in a fatal lack of jurisdiction.”)
(citations omitted); see also Wolf v. Reliance Std. Life Ins. Co., 71
F.3d 444, 448 (1st Cir. 1995) (stating that lack of subject matter
jurisdiction is a non-waivable defense) (citation omitted).
An action against a federal employee is “deemed” to be a FTCA
action against the United States once it substitutes itself for the
employee, see 28 U.S.C. §2679(d), but that transformation does not
excuse plaintiffs' failure to bring a tort claim against the United
States within six months of the denial of Roman's Administrative Claim.
8
The limitations and exceptions of the FTCA apply to an action after
the United States substitutes itself for the individual defendants, see
28 U.S.C. §2679(d)(4), including the requirement that a tort claim
against the United States be filed within six months of a denial of an
Administrative Claim filed with a federal agency. See 28 U.S.C.
§2401(b).
The purpose of the Westfall Act, which permits the United
States to substitute itself for a federal employee, is to protect that
employee from personal tort liability yet provide the injured person
with a remedy for such conduct. See Pub. L. No. 100-694, §2(b). The
Westfall Act was not intended to revive the claim of a neglectful
plaintiff who attempts to bring an FTCA claim but utterly fails to
comply with the clear (and strict) procedural requirements of that
statute.
Thus, the district court did not have jurisdiction to hear
plaintiffs' claim unless the United States' substitution in 1998
related back to the date of the original suit in 1996. That
substitution had the same legal effect as an amendment to the complaint
adding the United States as a party, except that here the United
States, rather than the plaintiffs, was the movant. See Ezenwa v.
Gallen, 906 F.Supp. 978, 985 (M.D.Pa. 1995). An amendment adding (or
changing) a party against whom a claim is asserted relates back to the
date of the original pleading only if, inter alia, the added party had
9
sufficient notice of the institution of the action. See Fed.R.Civ.P.
15(c)(3).5 When the party to be added (or substituted) is the United
States, it is deemed to have been properly notified (and the claim to
relate back under Rule 15(c)) where, within the period provided by
Fed.R.Civ.P. 4(m) for service of the summons and complaint, i.e., 120
days after the filing of the original complaint, delivery or mailing of
process has been made to either 1) the United States Attorney or 2) the
Attorney General of the United States. See Fed.R.Civ.P. 15(c).
Plaintiffs mailed process to the Chief of Army Litigation and
the Assistant Judge Advocate General's Office on February 2, 1998.
Plaintiffs claim that, during that same month, they also sent to
Assistant United States Attorney, Fidel Sevillano (“AUSA Sevillano”),
a copy of the amended complaint, the summons for the Secretary of the
Army and a set of discovery requests. There is no proof in the record,
however, of any such service. In fact, in the notice of substitution
submitted by AUSA Sevillano on behalf of the United States, it is noted
that “the United States of America has still to be served with process
pursuant to F.R.C.P. 4i(1).”
Even if 1) service had been made upon AUSA Sevillano in
February 1998 or 2) service on the Secretary of the Army provided
sufficient notice to the United States, such service of process was
5
The purpose of Fed.R.Civ.P. 15(c)(3) is to correct a formal
defect such as a misnomer or misidentification. Fed.R.Civ.P. 15(c)
Advisory Committee Notes.
10
made well beyond the time limit required under Fed.R.Civ.P. 4(m). The
United States received insufficient notice for relation back purposes
under Fed.R.Civ.P. 15(c)(3) and any claim against it, even by way of
substitution, did not relate back to the date that the original
complaint was filed. The district court did not, therefore, acquire
jurisdiction over plaintiffs' FTCA claim nor did it err in dismissing
that claim.
III. Bivens Claim
Appellants do not dispute the settled proposition that their
Bivens claim against Townsend, Shope and two unknown Army agents is
subject to a one-year statute of limitations period. Rather, they
argue that the district court erred in dismissing their claim because
the statute of limitations, which would have barred their suit from
being brought after November 29, 1995, was tolled under the
extrajudicial claim provision of the Puerto Rican tolling statute. See
P.R. Laws Ann. tit. 31, §5303 (providing that the “[p]rescription of
actions is interrupted by their institution before the courts, by
extrajudicial claim of the creditor, and by any act of acknowledgment
of the debt by the debtor”). Specifically, Appellants claim that the
statute of limitations period was tolled when Echevarria personally
delivered the Administrative Claim to the SJA and mailed the same to
the individual defendants on November 28, 1995.
We recently outlined the characteristics of an extrajudicial
11
claim as defined by the law of the Commonwealth of Puerto Rico in
Andino-Pastrana v. Municipio de San Juan, 215 F.3d 179 (1st Cir. 2000).
In that case, we noted that an “extrajudicial claim,” is one in which
there is “a certain identity between the action instituted and the
action tolled.” Id. at 180-81 (quoting Cintron v. Commonwealth of
Puerto Rico, No. CE-88-761, slip. op., translation, at 8 (P.R. Supreme
Court Dec. 7, 1990)). We specified that:
Even substantial overlap between the putative
extrajudicial claim and the subsequent lawsuit
is not enough; rather, there must be a precise
and specific identity between the two.
Id. at 181 (internal quotation marks and citations omitted).
Here, the Administrative Claim does not share a precise and
specific identity with plaintiffs' lawsuit. In their complaint, the
several plaintiffs alleged that defendants violated rights granted to
them under the Fourth, Fifth, Ninth and Fourteenth Amendments to the
United States Constitution, the Constitution and laws of the
Commonwealth of Puerto Rico and 42 U.S.C. §§ 1983 and 1988. In her
individual Administrative Claim, a detailed, six-page recital of the
Incident, Roman fails to assert any legal claim and makes no mention of
any alleged violation of constitutional rights or statutory provisions.
Due to the clear absence of a precise and specific identity
between the Administrative Claim and plaintiffs' lawsuit, the former
cannot be characterized as an extrajudicial claim and thus did not toll
12
the statute of limitations. The district court did not err in
dismissing Appellants' Bivens claim as time-barred.
IV. Conclusion
For the foregoing reasons, the district court's order of
dismissal is affirmed.
13