United States Court of Appeals
For the First Circuit
No. 99-2216
MIGUEL A. ANDINO-PASTRANA,
Plaintiff, Appellant,
v.
MUNICIPIO DE SAN JUAN, SILA MARIA CALDERON, AS MAYOR OF SAN
JUAN, EDUARDO RIVERO-ALBINO, AS AN OFFICER OF SAID MUNICIPALITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Stahl, Circuit Judge,
Lynch, Circuit Judge,
and Gorton,* U.S. District Judge.
Godwin Aldarondo-Girald and Aldarondo-Girald Law Office on
brief for appellant.
Carlos M. Sanchez La Costa and William Vazquez Irizarry on
brief for appellees.
June 22, 2000
____________________
* Of the District of Massachusetts, sitting by designation.
STAHL, Circuit Judge. On August 7, 1998, plaintiff-
appellant Miguel A. Andino-Pastrana, a career employee of the
Municipality of San Juan, Puerto Rico ("Municipality"), brought
this damages action under a number of federal and Commonwealth
civil rights and tort statutes. Plaintiff alleged that his
former supervisor, defendant-appellee Eduardo Rivero-Albino,
transferred him and took additional adverse employment actions
against him because of his race and his political beliefs.
Plaintiff also named as defendants the Municipality itself and
Mayor Sila Maria Calderon, who was in office at all relevant
times. But because plaintiff sued the individual defendants in
their official capacities only, the suit was and is for all
practical purposes solely against the Municipality. See Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
Defendants moved to dismiss the action as time-barred
because plaintiff was aware of his allegedly discriminatory
transfer no later than July 10, 1997, yet waited more than a
year from the date of transfer to file his complaint. See,
e.g., Wilson v. Garcia, 471 U.S. 261, 275-80 (1985) (directing
federal courts to borrow and apply state personal injury
limitations statutes in 42 U.S.C. § 1983 actions); Guzman-Rivera
-2-
v. Rivera-Cruz, 29 F.3d 3, 4-5 (1st Cir. 1994) (applying Puerto
Rico's one-year personal injury statute of limitations in a
civil rights damages action brought in the District of Puerto
Rico). In his opposition papers, plaintiff agreed that his
cause of action accrued no later than July 10, 1997, and that he
was required to file suit within one year of its accrual. But
plaintiff argued that an administrative appeal filed less than
a month after his transfer with the Commonwealth's Merit Systems
Protection Board ("JASAP" is the Spanish acronym for the Board)
should be regarded as an "extrajudicial claim" sufficient to
toll the running of the limitations period. 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"). In a carefully
reasoned opinion and order, the district court rejected
plaintiff's argument and entered judgment for defendants. We
affirm.
Although "an extrajudicial claim is subject to only a
few requirements," Tokyo Marine & Fire Ins. Co., Ltd. v. Perez
& Cia., 142 F.3d 1, 4 (1st Cir. 1998) (noting that such a claim
"must be made by the holder of the substantive right (or his
legal representative), . . . be addressed to the debtor or
-3-
passive subject of the right, not to a third party, and . . .
require or demand the same conduct or relief ultimately sought
in the subsequent lawsuit") (citation, internal quotation marks,
and ellipses omitted), the Supreme Court of Puerto Rico has
insisted on strict enforcement of the requirement that there be
"a certain identity between the action instituted and the action
tolled," Cintron v. Commonwealth of Puerto Rico, No. CE-88-761,
slip op., translation, at 8 (P.R. Supreme Court Dec. 7, 1990)
(citation omitted); see also Benitez-Pons v. Commonwealth of
Puerto Rico, 136 F.3d 54, 59 (1st Cir. 1998) (applying Puerto
Rico law in deciding whether to toll as an extrajudicial claim
the limitations period for the filing of a 42 U.S.C. § 1983
action). 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. Ramos Baez v. Bossolo Lopez, 54 F. Supp.2d
121, 125 (D. Puerto Rico 1999) (quoting Jiminez v. District
Court, 65 P.R.R. 35, 42 (1945)); see also Fernandez v. Chardon,
681 F.2d 42, 53 (1st Cir. 1982).
Here, the identity between plaintiff's administrative
appeal and this lawsuit is insufficiently precise and specific
for the appeal to constitute an extrajudical claim. In the
lawsuit, plaintiff has alleged that defendant Municipality,
-4-
through the official acts of its agents, violated rights secured
him under the First, Fourth and Fourteenth Amendments to the
United States Constitution; Article II, §§ 1, 6, and 7 of the
Puerto Rico Constitution; 42 U.S.C. §§ 1981, 1983, and 1985; and
31 P.R. Laws Ann. tit. 31, §§ 5141 and 5142. In his appeal
before the JASAP, however, plaintiff asserted only that he
suffered a discriminatory transfer and sundry other work related
persecution "in violation of the Merit Principle and . . .
current Personnel Regulations." There is not even an indirect
suggestion, for example, that the defendants to this suit
invaded plaintiff's Fourth Amendment rights or conspired to deny
him his equal protection rights within the meaning of 42 U.S.C.
§ 1985(3), as plaintiff has alleged in his amended complaint.
Moreover, in this lawsuit, plaintiff seeks from
defendant Municipality, presumably under a theory of respondeat
superior (as no unlawful municipal custom or policy is alleged),
"compensatory damages, damages for pain and suffering and
liquidated damages, which are estimated at $1,000,000," as well
as "costs, interests and attorney's fees." In the
administrative appeal, however, plaintiff focused on equitable
relief, asking that his transfer be set aside and that an
unspecified "defendant" be directed "to cease and desist from
persecuting and harassing him." To be sure, plaintiff did
-5-
follow up this prayer for an injunction with a request for
compensation in the amount of $1,000,000 "for suffering and
mental anguish" – a request that the JASAP clearly lacked the
authority to grant. See P.R. Laws Ann. tit. 3, § 1397
(authorizing the JASAP only to issue orders of reinstatement and
awarding back pay); Cintron, No. CE-88-761, slip op.,
translation, at 10. But it is not at all clear that plaintiff
expected the Municipality to pay the compensatory damages, as
the text of the appeal complains almost exclusively about the
conduct of Rivero-Albino. In any event, the lack of precise and
specific identity between the claims put forth in the
administrative appeal and the relief sought in this lawsuit
precludes recognition of the administrative appeal as an
extrajudicial claim. See, e.g., Benitez-Pons, 136 F.3d at 59-
61.
In their brief, defendants invite us to hold that an
appeal to the JASAP with a request for an ultra vires damages
award will never constitute an extrajudicial claim sufficient to
toll the running of a limitations period in a civil rights
damages action. But there is no need for us to rule so broadly,
and we decline to do so.
Affirmed. No costs.
-6-