Roman v. Townsend

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

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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

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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).

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 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.

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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

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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.

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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

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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.

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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

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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.

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