UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1410
W. DOUGLAS PITTS AND GLORIA MARTINEZ,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and DiClerico,* District Judge. ______________
_____________________
Lisa R. Daugherty, with whom Thomas E. Scott and Davis, __________________ ________________ ______
Scott, Weber & Edwards were on brief for appellants. ______________________
Robert D. Kamenshine, Attorney, Appellate Staff, Civil ______________________
Division, Department of Justice, with whom Frank W. Hunger, ________________
Assistant Attorney General, Guillermo Gil, United States ______________
Attorney, and Barbara L. Herwig, Attorney, Appellate Staff, were __________________
on brief for appellees.
____________________
April 8, 1997
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Plaintiffs-appellants were TORRUELLA, Chief Judge. ___________
mistakenly arrested by federal drug enforcement agents at the
airport in San Juan, P.R. in April 1993. They filed actions for
tort damages against four individual federal agents pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of ______ _____________________________________________________
Narcotics, 403 U.S. 388 (1971), and against the United States _________
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 1346(b),
2671 et seq. On February 13, 1996, the district court dismissed _______
plaintiffs-appellants' complaint in its entirety as time-barred
under the applicable federal and Puerto Rico statutes of
limitations. We affirm.
BACKGROUND BACKGROUND
On April 21, 1993, appellants W. Douglas Pitts and
Gloria Mart nez were approached by defendant Jefferson Moran, a
plain-clothed Drug Enforcement Agency ("DEA") agent, in the
airport in San Juan and informed that they were under arrest.
Three other DEA agents surrounded them, handcuffed them, and
transported them to DEA headquarters. Only after being
fingerprinted and photographed, appellants claim, did co-
defendant DEA agent Edward Hern ndez inform them of the reason
for their arrest. Apparently two witnesses identified Pitts as
the man who had given them a package of heroin earlier that day.
Pitts was questioned and his briefcase was searched; Mart nez was
allegedly strip-searched. Appellants were released from
detention approximately six hours after being arrested.
Appellants' complaint alleged that they were physically and
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verbally abused and sought damages on a number of legal grounds.1
Because the issue on appeal is whether the suit was time-barred,
however, we review the details concerning the timing and contents
of communications between appellants and governmental agencies
after the incident just described.
The mistaken arrest occurred on April 23, 1993. The
complaint was filed in district court on November 23, 1994. On
July 19, 1993, however, appellants' counsel sent a letter to the
DEA stating appellants' intent to pursue a claim "against the
United States" arising from the actions of DEA agents, and
requesting damages and "an apology from your office as well as a
reprimand of the agents involved." A response letter from the
DEA dated August 6, 1993 stated that the appellants' July 19,
1993 letter did not satisfy the procedural requirements for a
claim against the United States under the FTCA.
On August 18, 1993, appellants' counsel sent a second
letter to the DEA, followed by a third letter on August 30, 1993,
which repeated the appellants' intention to pursue a claim
against the government, stated that counsel had been authorized
to represent the appellants, and provided the appellants'
signatures. The DEA replied to appellants' August 18 letter in a
letter dated September 9, 1993, stating that appellants' July 19
and August 18 letters also failed to satisfy the requirements of
____________________
1 Plaintiffs' complaint alleged: assault, battery, false
imprisonment, intentional infliction of emotional distress,
invasion of privacy, unconstitutional search and seizure, and
negligence.
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a "claim" under the FTCA. Appellants' counsel replied by a
letter of September 15, 1993 stating that it was the appellants'
view that the August 18 letter did indeed constitute a proper
claim under the FTCA. Finally, the DEA sent a letter on January
4, 1994 denying the claim against the United States made in
appellants' July 19, 1993 letter, and noting that the denial "may
be appealed" to a federal district court within six months. More
than six months elapsed between January 4, 1994 and the date the
complaint was filed, November 23, 1994.2
The district court granted the appellees' motion to
dismiss the complaint as untimely under both Puerto Rico's one-
year statute of limitations (with regard to the tort claims
against the officers) and the FTCA's six-month statute of
limitations that runs from the time of the final denial of a
claim by the pertinent governmental agency. These letters are at
the heart of this appeal because the appellants contend: (1) that
Puerto Rico's one-year statute of limitations governing their
Bivens action was tolled under the "extrajudicial claim ______
exception" by their letter of August 18, 1993, and did not begin
running at least until the Government's denial letter of January
4, 1994; and (2) that the requirement under the FTCA that they
file suit against the government within six months of the final
____________________
2 In addition, beginning in November 1993, the plaintiffs and
the DEA exchanged correspondence regarding appellants' request
for the names and identities of the DEA agents involved under the
Freedom of Information Act, a series of letters that culminated
in a letter of April 10, 1995 from the DEA formally denying
appellants' request for information concerning the identities of
the unknown agents.
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denial of their claim does not render their November 23, 1994
complaint time-barred because the government's January 4, 1994
denial letter did not trigger the six-month limitations period.
DISCUSSION DISCUSSION
I. Claims Against the Agents I. Claims Against the Agents
Appellants do not dispute the settled proposition that
their claims against Mor n, Hern ndez, and two other unknown DEA
agents are subject to Puerto Rico's one-year statute of
limitations governing, inter alia, personal injury torts. See __________ ___
P.R. Laws Ann. tit. 31 5298(2) (1991); cf. Ram rez Morales v. ___ _______________
Rosa Viera, 815 F.2d 2, 4 (1st Cir. 1987). Rather, they argue __________
that the period, which would have barred their suit from being
brought after April 21, 1994, was tolled under the Puerto Rico
tolling statute's extrajudicial claim provision. See P.R. Laws ___
Ann. tit. 31 5303 (1991).3 Specifically, they argue that under
the Puerto Rico Supreme Court's interpretation of the
extrajudicial claim provision, their claim was tolled from the
time of their August 18, 1993 letter to the DEA (stating
appellants' "intent to submit a claim against the United States
government" and requesting a "reprimand" of the officers) to at
least January 4, 1994, the date of the government's letter
purportedly denying the claim, at which point, under Puerto Rico
law, the one-year period would have been restarted at zero and
____________________
3 Section 5303 provides: "Prescription of actions is interrupted
by their institution before the courts, by extrajudicial claim of
the creditor, and by any act of acknowledgment of debt by the
debtor."
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would have begun to run anew. See Rodr guez Narv ez v. Nazario, ___ _________________ _______
895 F.2d 38, 45 (1st Cir. 1990).
The problem with appellants' argument is that their
August 18 letter -- like the other letters they sent to the DEA -
- did not identify any legal claim against the individual
officers, and therefore cannot be deemed to have tolled the
statute of limitations as to the suit against the officers.
Puerto Rico Supreme Court decisions applying the tolling
provision of section 5303 indicate that one of the necessary
requirements of an extrajudicial claim for the purposes of
tolling is the requirement of "identity." See Galib-Frangie v. ___ _____________
El Vocero de Puerto Rico, 95 JTS 71 at 922 (P.R. 1995); see also ________________________ ________
Kery v. American Airlines, Inc., 931 F. Supp. 947, 951-53 (D.P.R. ____ _______________________
1995) (summarizing Puerto Rico Supreme Court interpretation of
section 5303). The identity requirement means that the same
right and the same relief affected by the statute of limitations
must appear in the extrajudicial claim. See Nazario, 895 F.2d at ___ _______
44; Kery, 931 F. Supp. at 954. To satisfy this requirement, the ____
extrajudicial claim must be made against the same debtor or
passive subject of the right in question, and not against a third
party. Nazario, 895 F.2d at 44 (citing Velilla v. Pueblo _______ _______ ______
Supermarkets, Inc., 111 P.R.R. 732, 734-35 (P.R. 1981)). __________________
Appellants' August 18 letter, addressed to the associate chief
counsel of the DEA, states an intent to make a "claim against the
United States government" and also requests an official
"reprimand" of the officers involved. It does not assert any
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legal claims directly against the officers. The letter,
therefore, fails to satisfy the requirement of identity for the
purposes of the extrajudicial claim doctrine. Appellants, citing
the Galib-Frangie decision, argue that the Puerto Rico Supreme _____________
Court has recently ruled that the extrajudicial claim doctrine
should be applied liberally. We are not persuaded by this
argument, because nowhere in the Galib-Frangie opinion, or, to _____________
our knowledge, in any other recent decision of the Puerto Rico
Supreme Court, is there any support for a departure from the
well-established rule that an extrajudicial claim must request
the same type of relief against the same defendants.4 In fact,
in Galib-Frangie, the case relied on by the appellants, the court _____________
iterated that the identity requirement is a necessary condition
of an extrajudicial claim under section 5303. Galib-Frangie, 95 _____________
JTS 71 at 922. Moreover, the learned commentary on this civil
code provision suggests that an extrajudicial claim must serve as
a notice or demand to the "passive subject of said right," here
the DEA agents. See Nazario, 895 F.2d at 44 (quoting Spanish ___ _______
civil code commentator Diez Picazo).5 The DEA agents plainly
____________________
4 In the case of Zambrana-Maldonado v. Commonwealth, 92 JTS 12 __________________ ____________
(P.R. 1992), for example, the court stated specifically that
extrajudicial claims must be read in their totality and in a
liberal fashion, and yet also held that the claim must be
received by the same debtor of the right who is the defendant in
the subsequent lawsuit. Id. at 9171-74. ___
5 According to Diez Picazo:
In principle, claim stands for demand or
notice. That is: it is an act for which the
holder of a substantive right, addresses the
passive subject of said right, demanding that
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could not be apprised of a damages suit against them as
individuals by a letter stating an intention to bring a claim
against the government.
In the alternative, appellants argue that summary
judgment was improper because a question of material fact exists
as to whether the individual DEA agents received copies of, or
were otherwise informed of, the letters. This argument fails
because, even assuming they received copies of the letters, the
content of the letters would not put them on notice as to the
possibility of being sued individually for damages.
These considerations lead us to conclude that the
district court properly applied Puerto Rico law in finding the
suit against the DEA agents to be time-barred.
II. The Claim under the FTCA II. The Claim under the FTCA
FTCA claimants must file suit in federal court within
six months of the date on which the federal agency to which the
claim has been addressed mails notice of final denial of their
claim. See 28 U.S.C. 2401(b). Here, it is not disputed that ___
the DEA sent a letter on January 4, 1994 to appellants' counsel
stating that, in response to appellants' July 19, 1993 letter,
"[t]o the extent that this correspondence can be construed as
____________________
he adopt the required conduct. The claim,
then, is a pretension in a technical sense.
Nazario, 895 F.2d at 44 (quoting Diez Picazo). We note as well _______
that the commentary of Diez Picazo, unfavorable to appellants
here, was cited as an authority regarding the requirements of an
extrajudicial claim in the Galib-Frangie decision, the very _____________
decision appellants argue harkens a change in the extrajudicial
claim doctrine. See Galib-Frangie, 95 JTS 71 at 923. ___ _____________
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claim [sic] against the United States of America pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., such _______
claim is denied." Appellants filed their suit under the FTCA in
November 1994, more than six months after the DEA denial letter
was mailed, and thus their FTCA claim was properly found to be
time-barred.
On appeal, two meritless arguments have been proffered.
The first is that the January 4 letter cannot be deemed a final
denial because it did not specifically address appellants'
August 18, 1993 letter. We find, however, that the language of
the letter was unambiguous in denying appellants' claim, which
was made in both the July 19, 1993 and the August 18, 1993
letters.6
Second, appellants argue that the January 4 letter
failed to satisfy regulations governing the content of an FTCA
claim denial letter, see 28 C.F.R. 14.9(a), because it did not ___
state that the claimant may "file suit" in a United States
District Court within six months.7 We are unmoved by appellants'
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6 The August 18 letter was merely a follow-up letter that
repeated the allegations and claims made in the July 19 letter,
and only added the signatures of appellants Pitts and Mart nez.
7 The regulation at 28 C.F.R. 14.9(a) provides, in pertinent
part:
The notification of final denial . . . shall
include a statement that, if the claimant is
dissatisfied with the agency action, he may
file suit in an appropriate U.S. District
Court not later than six months after the
date of mailing of the notification.
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argument that the DEA's failure to use the words "file suit"
created any confusion. We find that the DEA's statement that
"[t]his denial may be appealed to the appropriate United States
District Court within six months of this letter," while not
using the words "may file suit," adequately satisfied the
requirements of regulation 14.9(a) by giving sufficient notice of
the six-month limitations period applicable to their right to
file suit in district court. Cf. Hatchell v. United States, 776 ___ ________ _____________
F.2d 244, 245-46 (9th Cir. 1985) ("We decline to require any
specific verbal formulation to ensure compliance with the
regulations governing denial of claims.").
CONCLUSION CONCLUSION
For the reasons stated in this opinion, the district
court's grant of summary judgment to the defendants is affirmed. ________
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