Afanador v. Postal Service

USCA1 Opinion




September 17, 1992 [NOT FOR PUBLICATION]






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No. 92-1238

NELSON AFANADOR, ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES POSTAL SERVICE, ET AL.,

Defendants, Appellees.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO


[Hon. Jaime Pieras, Jr., U.S. District Judge]
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____________________

Before

Torruella, Cyr and Stahl,
Circuit Judges.
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William Santiago-Sastre and Melendez Perez, Moran & Santiago on
________________________ __________________________________
brief for appellants.
Daniel F. Lopez Romo, United States Attorney, and Fidel A.
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Sevillano Del Rio, Assistant United States Attorney, on brief for
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appellees.


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Per Curiam. In this case appellants appeal a
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judgment dismissing their claims against the United States

Postal Service (USPS) and the Postmaster General under the

Federal Tort Claims Act (FTCA), 28 U.S.C. 2672 et seq., and

against a postal inspector, D. H. Tanner, under Bivens v. Six
______ ___

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
___________________________________________________

388 (1971). Appellants ask this court to find that Fed. R.

Civ. P. 15(c)(3), effective December 1, 1991, applies to

their second amended complaint, adding the United States as

defendant, and to remand the case to the district court with

instructions to apply that rule. They also ask this court to

overrule that portion of the decision below that held that

the one-year statute of limitations on their Bivens claim had
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not been tolled by their May 1988 letter to the USPS and

others demanding administrative resolution of their claims.1

We affirm the rulings below.2

The district court has described the factual and

procedural history of this case in Afanador v. U.S. Postal
________ ___________

Service, 787 F. Supp. 261 (D.P.R. 1991). We describe
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1. Appellants also brought a Title VII claim which the
district court dismissed. Appellants do not contest the
court's dismissal of their Title VII claim on appeal, thereby
waiving their right to do so. Accordingly, we confine our
discussion to the FTCA and Bivens issues.
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2. We hereby grant the parties' joint motion to submit this
case for decision without oral argument.

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additional significant facts as necessary in the following

discussion.

DISCUSSION
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I. Application of Rule 15(c)(3)
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Before its amendment in 1991, Fed. R. Civ. P. 15(c)

provided, in relevant part, that an amendment changing a

party related back to the date of the original pleading if,

"within the period provided by law for commencing the action

against the party to be brought in by amendment," that party

received notice of the action such that its defense would not

be prejudiced, and knew or should have known that the action

would have been brought against it but for the other party's

mistake as to the identity of the proper party. In Schiavone
_________

v. Fortune, 477 U.S. 21, 30 (1986), the Supreme Court found
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that the plain language of Rule 15(c) precluded relation back

when notice of the suit was not given the defendant to be

added until after the limitations period had expired, even if

the complaint had been served on the proposed defendant

within the appropriate period for service of process.

On April 30, 1991, the Supreme Court published a

proposed amendment of Rule 15(c). The amendment was intended

to prevent defendants "from taking unjust advantage of

otherwise inconsequential pleading errors to sustain a

limitations defense" and, specifically, to change the result

in Schiavone with respect to "misnamed" defendants. See Fed.
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R. Civ. P. 15 advisory committee notes. In relevant part,

Rule 15(c)(3) now provides that an amendment that "changes

the party or the naming of the party against whom a claim is

asserted" relates back to the date of the original pleading

if, "within the period provided by Rule 4[j] for service of

the summons and complaint," the party to be added has

received such notice of the action that its defense would not

be prejudiced, and knew or should have known that the action

would have been brought against it but for the other party's

mistake as to the identity of the proper party. Under the

new rule appellants' amended complaint would relate back to

the date of their original, timely complaint since they

served process on the appropriate parties during the time

period required by Rule 4(j).

The Supreme Court stated that the new rules would

take effect on December 1, 1991, and "govern all proceedings

in civil actions thereafter commenced and, insofar as just

and practicable, all proceedings in civil actions then

pending." Order of April 30, 1991, Amending Civil Rules,

reprinted in 12 Wright & Miller, Appendix at 135-36 (Supp.
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1992). The district court in the instant case dismissed

appellants' FTCA claims on February 28, 1990, and entered

partial judgment thereon. The case continued in the district

court thereafter with the remaining claims disposed of and

final judgment entering on January 7, 1992. Thus, on the



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date the new Rule 15(c)(3) became effective, the instant

action was still "pending". In addition, on appeal we apply

the law in effect at the time we render a decision, unless

doing so would work a "manifest injustice". See Freund v.
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Fleetwood Enterprises, Inc. 956 F.2d 354, 363 (1st Cir.
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1992). Consequently, we may apply the new rule to this case

as appellants request if it is "just and practicable" to do

so and does not otherwise work a "manifest injustice".

Appellants urge us to apply the new rule because it

was intended to prevent a defendant from taking "unjust

advantage of otherwise inconsequential pleading errors to

sustain [a] limitations defense." They further argue that

the court below was "forced" to dismiss their FTCA action

under the Schiavone case, which was at odds with the liberal
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pleading philosophy of the Federal Rules of Civil Procedure

and has since been superseded by the rule change.

We recognize the surface appeal of appellants'

argument that the new rule should be applied because the

court below was required to dismiss their FTCA claims under

the now discredited Schiavone decision. We also acknowledge
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that other courts of appeals have found this reasoning to be

persuasive, and have applied the new rule upon appeal to

reinstate already dismissed causes of action. See, e.g.,
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Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546
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(5th Cir. 1992); Hill v. U.S. Postal Service, 961 F.2d 153,
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155-56 (11th Cir. 1992); Bayer v. U.S. Department of
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Treasury, 956 F.2d 330, 334-35 (D.C. Cir. 1992) (dictum).3
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Nevertheless, we find that it would not be just and









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3. In a case not directly applicable here because it
involved a cause of action already found by a jury to be
without substantive merit, this court declined to apply
amended Rule 15(c) to permit relation back in Schiavone-type
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circumstances. In Freund v. Fleetwood Enterprises, Inc., 956
______ ___________________________
F.2d 354 (1st Cir. 1992), the plaintiff had sued, among other
defendants, an internal division of a company, not realizing
that the division had no separate legal existence. After the
statute of limitations had expired, but during the period for
service of process, plaintiff sought to amend his complaint
to include the company, but the judge dismissed the complaint
on statute of limitations grounds. After plaintiff lost his
jury trial against different defendants, he appealed the
earlier dismissal against the company. Under Schiavone, this
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court ruled that there was no relation back. On our own
motion, however, we considered the effect of amended Rule
15(c). We did not refer to the "just and practicable"
language in the Supreme Court's amending order in determining
whether to apply the new rule. Rather, we used a "manifest
injustice" standard since we apply the law in effect at the
time of appeal if doing so does not work a manifest
injustice. Id. at 363. For two reasons we concluded that
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applying the amended rule would work a manifest injustice in
Freund. First, the jury case that plaintiff had just lost
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was "the very case" he sought to bring against the newly-
added defendant. We found no reason to believe that a second
trial would end differently than the first. Nor did we see
any reason to "force [the company], who 'played by the rules'
in effect at the time, to endure the expense and
inconvenience of a trial likely to produce that outcome."
Id. Second, the plaintiff's brief on appeal had been so
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deficient that we had had to untangle and reconstruct
plaintiff's arguments. If we had not had to do so, we would
likely have affirmed the case on appeal before the new rules
had become effective. Applying the new rule would have given
plaintiff an "otherwise unattainable windfall." Id.
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practicable and that it would work a manifest injustice to

apply amended Rule 15(c)to permit relation back inthis case.4

First, the circuit court cases which have applied

the amended rule retroactively are distinguishable. In those

cases the plaintiffs had sued an agency under Title VII

rather than the head of the agency, as required in such

suits. Since the head of an agency is practically

indistinguishable from the agency itself, see, e.g., Johnson
___ _____ _______

v. USPS, 861 F.2d 1475, 1488 (10th Cir. 1988) (McKay, J.,
____

dissenting), cert. denied, 493 U.S. 811 (1989), the
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defendants truly were trying to avail themselves of a "now-

obsolete procedural loophole" in asserting their statute of

limitations defense under Schiavone. See Skoczylas, 961 F.2d
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at 546.

In contrast, in this FTCA case appellants sought to

add the United States and not merely the head of an

improperly named agency. The FTCA states clearly that the

defendant in an FTCA action is the United States, and not its

agencies. See 28 U.S.C. 1346(b), 2674, 2679. Although we
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have not ruled on this precise issue, other circuit courts

have found this distinction to be a real one, and not just an

"inconsequential pleading error" of the type decried by



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4. In light of this conclusion, we need not consider the
government's argument that appellants' complaint adding the
United States as defendant is deficient in other respects and
should be dismissed.

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critics of Schiavone. For example, in an FTCA case not
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tainted by reliance on Schiavone, the Seventh Circuit denied
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that it was a simple "misnomer" to sue the Department of

Justice and the FBI rather than the United States. Hughes v.
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United States, 701 F.2d 56, 58 (7th Cir. 1982). The court
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noted that the FTCA specifically made the United States,

rather than the governmental agency, the suable entity.

Moreover, "[g]overnment agencies do not merge into a

monolith; the United States is an altogether different party

from either the F.B.I. or the Department of Justice." Id.
___

Even though the United States Attorney might represent both

the United States and its agencies, that did not make an

agency the "functional equivalent" of the United States.

Id.; accord Allgeier v. United States, 909 F.2d 869, 874 &
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n.6 (6th Cir. 1990); Allen v. Veterans Administration, 749
_____ ________________________

F.2d 1386, 1389 (9th Cir. 1984).5


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5. There is disagreement on this issue among the district
courts. See, e.g., Plourde v. USPS, 721 F. Supp. 218, 221-23
___ ____ _______ ____
(D. Minn. 1989) ("[T]he United States government and the
United States Postal Service are not sufficiently related to
permit notice to the agency to be imputed to the United
States government. While the head of an agency can be
expected to be on notice of a claim presented to his own
agency, the United States government cannot be expected to be
on notice of every claim presented against the United States
Postal Service."); but see Murray v. USPS, 569 F. Supp. 794,
___ ___ ______ ____
797 (N.D.N.Y. 1983) (the court found that the FTCA's
requirement that the United States and not the agency be sued
was a "trap for the unwary" and consequently applied Second
Circuit precedent in a non-FTCA case to permit relation back
in this FTCA case to add the United States as defendant where
the USPS had been sued in a timely fashion and service had
been effected within a reasonable time thereafter); cf.
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Second, in these circumstances relation-back under

the amended rule would effect a de facto extension of the
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six-month limitations period, see 28 U.S.C. 2401(b) (six-
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month limitations period for FTCA suits against the United

States is measured from date of mailing of agency denial of

administrative claim), thereby retroactively enlarging by

mere operation of the procedural rule the United States'

waiver of sovereign immunity from suit. See United States v.
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Kubrik, 444 U.S. 111, 117-18 (1979) ("We should also have in
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mind that the [FTCA] waives the immunity of the United States

and that in construing the statute of limitations, which is a

condition of waiver, we should not take it upon ourselves to

extend the waiver beyond that which Congress intended.").


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Murray v. USPS, 550 F. Supp. 1211, 1212 (D. Mass. 1982) (if
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the original complaint is served on the USPS or the U.S.
Attorney within the limitations period, the United States "is
assumed to have the requisite knowledge under [Rule 15(c)]"
to permit relation back to add the United States as
defendant). In calling the FTCA requirement -- that the
United States and not the agency be sued -- a "trap for the
unwary", the New York Murray court cited a 1963 article
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referenced in Section 1502 in Wright and Miller's Federal
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Practice and Procedure. The abuses described in that
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article, and deplored by the Murray court, were intended to
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be corrected by the 1966 amendment to Rule 15(c), adding the
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so-called governmental notice provisions of the Rule's final
paragraph. Because the court failed to consider the effect
of the 1966 amendment -- in characterizing the FTCA
requirement that the United States be sued a "trap for the
unwary" -- we are inclined to view it as unpersuasive
precedent. This is especially so in light of the clear
language in the FTCA as to who the proper defendant is in
FTCA cases. Likewise, the comment in the Massachusetts
Murray decision about imputing the agency's notice to the
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United States is dictum, unsupported by any discussion or
reference to case law.

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More basically, appellants sued the USPS within the

six-month limitations period, but not the United States,

affording the United States a valid limitations defense which

it has raised.6 The government, qua the United States,
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received no notice of appellants' suit until well after the

limitations period had expired. Receipt of appellants'

letter demanding administrative resolution of their claims

was not notice that appellants had instituted an action, the
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only relevant notice under Rule 15(c). See Cooper v. USPS,
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740 F.2d 714, 717 (9th Cir. 1984), cert. denied, 471 U.S.
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1022 (1985). Furthermore, at the time the USPS defended

against this action Rule 15(c) had not yet been amended.

Compare Boliden Metech, Inc. v. United States, 140 F.R.D. 254
____________________________ _____________

(D.R.I. 1991) (alternative holding) (in light of the

extensive notice of plaintiff's FTCA claim that the United

States had received prior to expiration of the limitations

period, the court found that it would be "inequitable" not to


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6. Although the USPS asserted appellants' failure to sue the
United States within the limitations period to obtain
dismissal of appellants' suit against the USPS, the
government's brief on appeal makes clear that the United
States Attorney is also asserting the limitations defense on
behalf of the United States to prevent its addition as
defendant. We recognize that some courts might conclude that
the simultaneous representation of an agency and the United
States by the United States Attorney undercuts the claim that
the two are not functional equivalents. Nevertheless, as did
the Hughes court, 701 F.2d at 58, we believe that
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distinguishing between the United States and its agencies is
appropriate in FTCA cases, especially since Congress
distinguished so clearly between the two in determining who
was the proper defendant in FTCA actions.

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apply amended Rule 15(c), which would be effective in one

month's time).

Furthermore, although the district court relied on

Schiavone, the relationship between the improperly named
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defendant and the defendant to be added is different here

than it was in Schiavone. As discussed above, all circuit
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courts that have considered the relationship between the

United States and its agencies for purposes of suit under the

FTCA have found that the United States and its agencies are

distinct parties. In contrast, in Schiavone the plaintiffs
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originally had sued a nonsuable internal division of the

suable corporate entity it later sought to add. Therefore,

the defendant to be added in Schiavone had a very close
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identity of interest with the defendant originally sued, much

like the identity of interest between an agency and the head

of the agency in the Title VII cases discussed above. It was

the perceived pettiness of faulting the plaintiff for this

kind of error at which the Rule 15(c) amendment was aimed in

part. See, e.g., Schiavone, 477 U.S. at 36 (Stevens, J.,
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dissenting) (denying that Schiavone involved an amendment
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changing the party against whom the claim was asserted;

changing the description of the defendant from Fortune

magazine to the corporate publisher of Fortune was a

"technical correction [that] added absolutely nothing to any





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party's understanding of 'the party against whom' the claims

were asserted . . . .").

For these reasons, we find that the government

legitimately relied on its statute of limitations defense in

the proceedings below, and did not profit unfairly from a

"now-obsolete procedural loophole" in Rule 15(c). In light

of the Supreme Court's caution that we not extend the period

of governmental liability beyond the time to which the

government has consented, we find that applying the rule here

would be unjust. It would, in fact, extend the period during

which the sovereign immunity of the United States has been

waived, without notice to the United States, qua FTCA
___

defendant. See also Hunt v. Department of Air Force, 787 F.
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Supp. 200 (M.D. Fla. 1992) (refusing to apply amended Rule

15(c) to permit relation back in an FTCA case since waivers

of sovereign immunity should be read strictly).

Finally, the general equities appear to lie with

the government rather than appellants. Appellants were

represented by counsel early on. Even before litigation was

begun, appellants' attorney knew that the United States was

the proper defendant. Not only did his May 25, 1988, letter

demanding administrative USPS action threaten to sue the

United States under the FTCA, but the USPS's denial of the

administrative claim, which was addressed to appellants'

counsel, specifically stated that appellants should sue the



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United States if dissatisfied with the final action on their

claim. Incomprehensible as it may seem, appellants' attorney

even appears to have initially disputed the fact that the
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United States was the only proper defendant under the FTCA.7

Furthermore, appellants failed to ask the district

court to reconsider its dismissal of their FTCA claims after

the new rule was amended. At the time Rule 15(c)(3) became

effective, the district court had not yet entered its final

judgment. Nor did appellants ask the court to amend its

judgment under Fed. R. Civ. P. 59(e) once final judgment had

entered, though on appeal they seek remand so that the

district court may reconsider its earlier dismissal in light

of the new rule. In this circuit, as we have stated before,

it is "a party's first obligation to seek any relief that

might fairly have been thought available in the district

court before seeking it on appeal." The Dartmouth Review v.
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Dartmouth College, 889 F.2d 13, 22 (1st Cir. 1989) (quoting
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Beaulieu v. United States International Revenue Service, 865
________ ___________________________________________

F.2d 1351, 1352 (1st Cir. 1989)).

Reluctant as we are to permit dismissal of a claim

that may be valid, it is more equitable that appellants, and

not the government, be made to bear the consequences of their



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7. An Initial Conference Scheduling Order, dated December
15, 1989, lists as the only controverted issue between the
parties the question whether the USPS was the proper
defendant in an FTCA action.

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attorney's failures here. This is especially so because

appellants have made no effort to explain their failure to

sue an obvious defendant, see Quaker State Oil Refining Corp.
___ _______________________________

v. Garrity Oil Co., 884 F.2d 1510, 1517-18 (1st Cir. 1989),
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and because applying the new rule would deprive the

government of a validly asserted limitations defense,

effectively extending its period of liability without prior

notice.

II. Tolling of the Bivens Limitation Period
_______________________________________

We see no error in the district court's ruling that

appellants' letter demanding administrative action did not

toll the limitations period on their Bivens claim against
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Postal Inspector Tanner. As the district court stated,

appellants did not address their claim to Tanner as required

under Puerto Rico law, nor did they send him a copy. See
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Afanador, 787 F. Supp. at 267.
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It is not clear, however, whether the district

court specifically considered and rejected appellants'

argument that Tanner "in all likelihood" received a copy of

their letter from his USPS superiors. Nevertheless, we have

considered their argument, and we reject it. We have

assumed, without deciding, that receipt by Tanner of

appellants' claim addressed to the USPS and other parties

would satisfy the Puerto Rico tolling requirements as long as

it expressed appellants' intention to sue Tanner and



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precisely stated appellants' claim against him. See Riofrio
___ _______

Anda v. Ralston Purina Co., 959 F.2d 1149, 1153 (1st Cir.
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1992). Appellants' argument is deficient for obvious

reasons. Appellants' speculation that Tanner received their

letter stating a Bivens claim does not constitute proof that
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the letter in fact reached him. Appellants have not met

their burden of proof on that issue. See Diaz de Diana v.
___ ______________

A.J.A.S. Insurance Co., 10 T.P.R. 602 (P.R. 1980) (the party
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seeking the benefit of a tolling provision has the burden of

proving that tolling has occurred).

We also affirm the district court's ruling that

there was no tolling under 31 P.R. Laws Ann. 5304, which

essentially provides that tolling the limitations period as

to one of several jointly liable defendants tolls it as to

all defendants. The district court correctly found, 787 F.

Supp. at 267, that the parties to whom appellants' letter was

addressed were not jointly and severally liable with Tanner

on the Bivens claim. Id.; cf. Rivera v. United States, 924
______ ___ ___ ______ _____________

F.2d 948, 951 (9th Cir. 1991) (affirming lower court

dismissal of Bivens claims because the United States has not
______

waived its sovereign immunity with respect to such claims).

On appeal, appellants suggest a novel interpretation of

Section 5304, which, they claim, would permit tolling of the

limitations period on their Bivens claim. Because appellants
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did not argue that interpretation to the district court, we



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do not consider it on appeal. United States v. Curzi, 867
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F.2d 36, 44 (1st Cir. 1989).

CONCLUSION
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We deny appellants' request to remand their FTCA

claims to the district court. The district court judgment

dismissing appellants' FTCA claims for failure to sue the

United States and dismissing appellants' Bivens claim for
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untimeliness is affirmed.
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