Alamo-Hornedo v. Puig

United States Court of Appeals
For the First Circuit

No. 12-2177

MARITZA ÁLAMO-HORNEDO,

Plaintiff, Appellant,

v.

JUAN CARLOS PUIG and JOSÉ PÉREZ-RIERA, Members,
Junta de Reestructuración y Estabilización Económica y Fiscal,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Howard, Selya and Lipez,

Circuit Judges.

Dennis B. Parces Enriquez, with whom Luis G. Salas González
was on brief, for appellant.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, with
whom Margarita Mercado-Echegaray, Solicitor General, was on brief,
for appellees.

March 17, 2014
 SELYA, Circuit Judge. A leading lexicographer defines a

statute of limitations as "a statute establishing a time limit for

suing in a civil case, based on the date when the claim accrued (as

when the injury occurred or was discovered)." Black's Law

Dictionary 1546 (9th ed. 2009). The main reason for establishing

a limitations period is to ensure the diligent presentation of

known claims by promoting the "elimination of stale claims, and

certainty about a plaintiff's opportunity for recovery and a

defendant's potential liabilities." Rotella v. Wood, 528 U.S. 549,

555 (2000). When — as in the case at hand — a plaintiff dawdles,

bad things often happen. So it is here: because plaintiff-

appellant Maritza Álamo-Hornedo failed to commence her action

within the time prescribed by the applicable statute of

limitations, we affirm the district court's order of dismissal.1

Inasmuch as this appeal follows the grant of a motion to

dismiss, we glean the relevant facts from the complaint. See A.G.

ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 79 (1st Cir. 2013);

SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc).

In 2009, the plaintiff worked for the Parole Board of

Puerto Rico, but economic forces placed her employment in jeopardy.

That spring, the Puerto Rico legislature enacted a series of

1
Originally, this action was brought by three plaintiffs.
One voluntarily dismissed her claims. Another went to judgment in
the district court, but did not appeal. Consequently, we treat
Álamo-Hornedo as the sole plaintiff and appellant.

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austerity measures, collectively known as "Law 7," designed to

improve the island's dire financial straits. The measures included

a brute-force reduction in the size of the government: Commonwealth

employees with less than 13.5 years of service were to be

terminated.

Despite its harshness, Law 7 had a few oases of job

security. For example, it spared certain public safety sectors

(e.g., police and fire). An amendment to the law created

additional oases. These newly created oases included an exemption

for employees of the Parole Board. See P.R. Laws Ann. tit. 3,

§ 8797(m).

In light of this amendment, the plaintiff believed that

she would be shielded from the adverse effects of Law 7. Her hopes

were dashed when, less than four months later, she received a

letter from the body charged with implementing Law 7 (the Junta de

Reestructuración y Estabilización Económica y Fiscal (JREF))

notifying her that she would be terminated pursuant to that law.

The wheels, once set in motion, continued to turn despite the

plaintiff's protests. The process culminated in a final

termination letter received by the plaintiff on February 26, 2010.

As provided in that letter, her employment was ended on March 5,

2010.

That summer, the union to which the plaintiff belonged

filed suit in the local Court of First Instance. The union's suit

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sought to reinstate the plaintiff and other unionized Parole Board

employees who were similarly situated, and to recover back pay for

them. The union prevailed and a judgment entered in its favor on

February 3, 2011.

Although the plaintiff was reinstated to her position,

the pot continued to boil. Eight months after the Court of First

Instance entered its judgment, the plaintiff repaired to the

federal district court. She invoked federal question jurisdiction,

see 28 U.S.C. § 1331, and alleged that the JREF's members,

including defendants-appellees José Pérez-Riera and Juan Carlos

Puig,2 had deprived her of due process of law in violation of 42

U.S.C. § 1983. She also asserted supplemental claims arising under

Puerto Rico law. All of these claims sought compensatory and

punitive damages.

The defendants moved to dismiss the complaint, arguing

that the plaintiff's section 1983 claim was time-barred. The

district court agreed and dismissed the section 1983 claim with

prejudice. At the same time, it declined to exercise supplemental

jurisdiction over the plaintiff's remaining claims, dismissing them

without prejudice. See 28 U.S.C. § 1367(c)(3). This timely appeal

followed.

2
The remaining members of the JREF, originally named in the
suit, were voluntarily dismissed below and are not parties to this
appeal. The record is tenebrous as to whether this voluntary
dismissal included Puig. Since nothing turns on that datum, we do
not pause to resolve Puig's status.

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 The plaintiff assigns error to the district court's

application of the statute of limitations. Section 1983 claims

borrow the forum state's statute of limitations for personal-injury

actions. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,

123 n.5 (2005). For this purpose, Puerto Rico is the functional

equivalent of a state. See Santiago v. Puerto Rico, 655 F.3d 61,

69 (1st Cir. 2011).

Although section 1983 borrows its limitations period from

state law, the accrual date for a section 1983 claim is measured by

federal law. See Morán Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st

Cir. 2008). Under federal law, such a cause of action accrues

"when the plaintiff knows, or has reason to know of the injury on

which the action is based." Id. (internal quotation marks

omitted).

In Puerto Rico, the borrowed limitations period is one

year. See Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.

1990) (citing P.R. Laws Ann. tit. 31, § 5298(2)). The court below

held that the plaintiff's section 1983 claim accrued no later than

February of 2010, when the plaintiff received the final termination

letter. Her federal complaint, which was not filed until October

20, 2011, therefore came too late.

The plaintiff argues that the district court started with

the wrong date. In her view, the section 1983 claim did not accrue

until February of 2011, when the Court of First Instance entered a

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judgment vindicating her position. Without that judgment, she

posits, her injury was too ethereal to be the stuff of a concrete

cause of action and, thus, too ethereal to trigger accrual.

This argument will not wash. By the time that she

received formal notice of her imminent termination (February 26,

2010), the plaintiff knew of her injury and of its cause (the

defendants' actions). No more was exigible.

To be sure, the plaintiff laments that she did not then

have judicial confirmation of the unlawfulness of her firing. But

to our knowledge, no court has ever been so vain as to deem

judicial evaluation of an adverse employment decision the sine qua

non of the accrual of a section 1983 claim based on that decision.

Rather, the case law is consentient that such a claim accrues when

the employee is given notice of the adverse employment decision.

See, e.g., Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam);

López-González v. Municipality of Comerío, 404 F.3d 548, 551 (1st

Cir. 2005); Morris v. Gov't Dev. Bank, 27 F.3d 746, 749 (1st Cir.

1994). This makes perfect sense: in, say, a case in which an

employee's underlying claim is one of wrongful termination of

employment, the injury of which the plaintiff complains is her

ouster, not judicial recognition that her ouster was illegal.

The plaintiff also suggests that her prior suit in the

Court of First Instance somehow tolled the statute of limitations.

This suggestion is fanciful.

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 To begin, exhaustion of state remedies is not a condition

precedent to the maintenance of a section 1983 action. See Patsy

v. Bd. of Regents, 457 U.S. 496, 516 (1982); Rogers v. Okin, 738

F.2d 1, 5 (1st Cir. 1984). Thus, the commencement and pendency of

a state proceeding ordinarily does not toll the limitations period

for a parallel action under section 1983. See, e.g., Rodríguez-

García v. Municipality of Caguas, 354 F.3d 91, 93 (1st Cir. 2004);

Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 319 (1st

Cir. 1978). The plaintiff attempts to parry this thrust by noting

that, under Puerto Rico law, the statute of limitations can be

"interrupted" by, among other things, suing on the relevant claim.

P.R. Laws Ann. tit. 31, § 5303. Once the court action "comes to a

definite end," the "statute of limitations begins to run anew."

Rodríguez-García, 354 F.3d at 97 (internal quotation marks

omitted).

The plaintiff's reliance on this principle elevates hope

over reason. In order to have the tolling effect desired by the

plaintiff, the complaint in the first action "must assert causes of

action identical to" those asserted in the second action. Id.

(internal quotation marks omitted).

This identicality requirement has three facets. The two

actions "must seek the same form of relief"; they "must be based on

the same substantive claims"; and they "must be asserted against

the same defendants in the same capacities." Id. at 98. The

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plaintiff offers no developed argumentation sufficient to show that

she satisfies these conditions.

In all events, it is readily apparent that the plaintiff

has not satisfied the identicality requirement. The first action,

brought in the Court of First Instance, sought the equitable

remedies of reinstatement and back pay; the second action, brought

in the federal district court, sought the legal remedies of

compensatory and punitive damages. Thus, it is nose-on-the-face

plain that the two actions did not seek the "same form of relief."

We hasten to add that this conclusion breaks no new

ground. This court has held, squarely and repeatedly, that under

Puerto Rico law, "seeking only equitable relief does not toll the

statute of limitations where the subsequent complaint . . . seeks

damages." Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134, 137 (1st

Cir. 2006) (collecting cases).

In view of the plaintiff's failure to satisfy the first

facet of the identicality requirement, we need not inquire into the

other two facets. Puerto Rico law is pellucid that a plaintiff who

seeks to interrupt the running of a statute of limitations on this

basis must satisfy all three facets of the identicality

requirement. See, e.g., Santana-Castro v. Toledo-Dávila, 579 F.3d

109, 116 (1st Cir. 2009); Nieves-Vega, 443 F.3d at 137-38.

That ends this aspect of the matter. When all is said

and done, the plaintiff's decision to sit idly by while the

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proceedings in the Court of First Instance unfolded dooms her tardy

attempt to assert a federal claim. Although waiting for the

Commonwealth court's ruling may have served to strengthen the

plaintiff's belief that her firing was illegal, there is no

requirement that a person who wishes to pursue a section 1983 claim

premised on an allegedly wrongful termination of employment await

an independent finding that her dismissal was unlawful.

Consequently, the plaintiff's election to await a ruling by the

Court of First Instance does not justify her failure to bring her

federal claim within the time allotted by statute.

There is one loose end. The plaintiff ruminates that

because the union's suit resulted in the issuance of an injunction,

the instant action should be deemed timely. It is hard to follow

the logic of these musings, but no useful purpose would be served

by probing the point. It suffices to explain that the plaintiff

advanced this theory for the first time in her reply brief. Black-

letter law holds that, in the absence of exceptional circumstances,

arguments presented for the first time in an appellant's reply

brief are deemed waived. See Sandstrom v. ChemLawn Corp., 904 F.2d

83, 87 (1st Cir. 1990). There are no exceptional circumstances

here.

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 We need go no further.3 This case is a shining example

of the oft-stated precept that "[t]he law ministers to the vigilant

not to those who sleep upon perceptible rights." Puleio v. Vose,

830 F.2d 1197, 1203 (1st Cir. 1987). It follows that, for the

reasons elucidated above, the district court did not err in

dismissing the plaintiff's action.

Affirmed.

3
The defendants have offered a salmagundi of other arguments
as alternative grounds for the dismissal of the action. Given our
view of the operation of the statute of limitations, we need not
address any of these arguments.

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