
USCA1 Opinion

	




          November 20, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1365                                 EDWIN OCASIO-APONTE,                                Plaintiff, Appellant,                                          v.                             JOSE ARIEL NAZARIO, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                              Watson,* Senior Judge, and                                       ____________                           Campbell, Senior Circuit Judge.                                     ____________________                                 ____________________            Francisco J. Rodriguez Juarbe on brief for appellant.            _____________________________            Carlos  Lugo-Fiol,  Solicitor  General,  Jacqueline  Novas-Debien,            _________________                        ________________________        Deputy Solicitor General,  Lorraine J.  Riefkohl, Assistant  Solicitor                                   _____________________        General, Department of Justice, Jose  Carlos  Garcia-Selva and  Sigrid                                        __________________________      ______        Lopez-Gonzalez Law Offices, on brief for appellees.        __________________________                                 ____________________                                 ____________________        _______________________        *Of the  United  States  Court  of  International  Trade,  sitting  by        designation.                 Per  Curiam.     Appellant  Ocasio-Aponte  appeals   the                 ___________            dismissal of his action, pursuant to 42 U.S.C.   1983, by the            United States District Court for the District of Puerto Rico,            on the ground that  his complaint was time barred  because it            had  not been filed within the applicable one year statute of            limitations period.  We affirm.                 Ocasio-Aponte's action arising out of the termination of            his government employment was filed in federal court on April            23, 1992.   Although his alleged injury occurred in 1988, the            parties agree that the statute of limitations had been tolled            by an action filed in the Commonwealth Supreme Court in 1989.            This action was dismissed  by the Commonwealth Superior Court            for failure to exhaust  administrative remedies.  The Supreme            Court  of  Puerto  Rico  subsequently  denied Aponte-Ocasio's            petition  for review  and  motion for  reconsideration.   The            parties were notified of the court's denial of the motion for            reconsideration on  April  22, 1991.   The  Supreme Court  of            Puerto Rico issued its  mandate to the Superior Court  on May            1, 1991.                 The sole  question  in this  case  is when  the  tolling            period ended.  According  to Ocasio-Aponte the tolling period            lasted  until  mandate issued;  according  to  appellees, the            period lasted only  until the parties were  notified on April            22, 1992, of the court's denial of Aponte-Ocasio's motion for            reconsideration.  Both parties  agree that the instant action            is  time barred if, but only  if, the tolling period ended on            or before April 22, 1991.                 State law,  here the  law of  Puerto Rico,  controls the            question  of the duration of  the tolling period.   Wilson v.                                                                ______            Garcia, 471  U.S. 261,  269 (1985);  Gonsalves v.  Flynn, 981            ______                               _________     _____            F.2d 45, 47  (1st Cir. 1992).   As  the district court  held,            under Puerto Rico law, the tolling period ends when the court            enters a final judgment.  Duran Cepeda v. Morales Lebron, 112                                      ____________    ______________            D.P.R. 623, 12 Official  Translations 776, 785 (1982); Fresh-                                                                   ______            O-Baking Co. v. Molinos  de Puerto Rico, 103 P.R.R.  707, 717            ___________     _______________________            (1975).  A judgment is final, at the latest, when it has been            "rendered  and  notified  with the  proper  legal formality,"            Sanchez v. Municipality  of Cayey, 94  P.R.R. 89, 96  (1967).            _______    ______________________            Finality is not dependent on the date on which mandate issues            to the lower court.  See Dominguez v. Fabian, 36  P.R.R. 509,                                 ___ _________    ______            511 (1927)  (judgment final,  for purposes of  taking appeal,            from  date rendered  and filed  with court  not from  date on            which mandate issues).                 Under Puerto Rico law,  a final judgment in  the instant            case was rendered, at the latest, on April  22, 1991; for, on            that date, the parties  received formal notification from the            Puerto  Rico  Supreme Court  that Ocasio-Aponte's  motion for            reconsideration  had been  denied.   As  of  April 22,  1991,            therefore, the tolling period  was at an end and  the statute            of  limitations  began to  run  anew.   Rodriguez  Narvaez v.                                                    __________________                                         -3-            Nazario, 895 F.2d 38, 43 (1st Cir. 1990).   Since the present            _______            action  was  filed more  than one  year  from this  date, the            district court was correct in finding it time barred.                 Affirmed.                 ________                                         -4-
