
USCA1 Opinion

	




        September 17, 1992      [NOT FOR PUBLICATION]                                 ____________________        No. 92-1238                                NELSON AFANADOR, ET AL.,                               Plaintiffs, Appellants,                                          v.                        UNITED STATES POSTAL SERVICE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            William  Santiago-Sastre and Melendez  Perez, Moran  & Santiago on            ________________________     __________________________________        brief for appellants.            Daniel  F.  Lopez  Romo, United  States  Attorney,  and  Fidel  A.            _______________________                                  _________        Sevillano Del  Rio,  Assistant United  States Attorney,  on brief  for        __________________        appellees.                                 ____________________                                 ____________________                      Per Curiam.    In  this  case  appellants appeal  a                      __________            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                                                         ______            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            _______                                            ____________________            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.                                       ______            2.  We  hereby grant the parties' joint motion to submit this            case for decision without oral argument.                                         -2-            additional significant facts  as necessary  in the  following            discussion.                                     DISCUSSION                                     __________                      I.  Application of Rule 15(c)(3)                          ____________________________                      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               _______            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.               _________                                         ___                                         -3-            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.            _____________            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                                         -4-            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.                                                            __________            Fleetwood  Enterprises,  Inc. 956  F.2d  354,  363 (1st  Cir.            _____________________________            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                       _________            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                                _________            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.,                                                               __________            Skoczylas v.  Federal Bureau of  Prisons, 961  F.2d 543,  546            _________     __________________________            (5th Cir. 1992); Hill  v. U.S. Postal Service, 961  F.2d 153,                             ____     ___________________                                         -5-            155-56  (11th  Cir.  1992);   Bayer  v.  U.S.  Department  of                                          _____      ____________________            Treasury, 956  F.2d 330,  334-35 (D.C. Cir.  1992) (dictum).3            ________            Nevertheless,  we  find  that  it   would  not  be  just  and                                            ____________________            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                                                           _________            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                                                          _________            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                         ___            applying the amended rule would  work a manifest injustice in            Freund.   First, the jury  case that plaintiff  had just lost            ______            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            ___            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.                                                             ___                                         -6-            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                          _____   ______            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                                      _________   _____________            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                       ___            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                                            ____________________            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.                                         -7-            critics  of  Schiavone.   For example,  in  an FTCA  case not                         _________            tainted by reliance on  Schiavone, the Seventh Circuit denied                                    _________            that  it was  a simple  "misnomer" to  sue the  Department of            Justice and the FBI rather than the United States.  Hughes v.                                                                ______            United States, 701  F.2d 56, 58 (7th  Cir. 1982).   The court            _____________            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 &            ___   ______ ________    ______________            n.6 (6th  Cir. 1990);  Allen v. Veterans  Administration, 749                                   _____    ________________________            F.2d 1386, 1389 (9th Cir. 1984).5                                            ____________________            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.                                                                      __                                         -8-                      Second, in these circumstances  relation-back under            the amended rule  would effect  a de facto  extension of  the                                              __ _____            six-month limitations  period, see 28 U.S.C.    2401(b) (six-                                           ___            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.                                                     ___ _____________            Kubrik,  444 U.S. 111, 117-18 (1979) ("We should also have in            ______            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.").                                            ____________________            Murray v. USPS, 550 F. Supp.  1211, 1212 (D. Mass. 1982)  (if            ______    ____            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                                     ______            referenced  in Section  1502 in  Wright and  Miller's Federal                                                                  _______            Practice  and  Procedure.    The  abuses  described  in  that            ________________________            article, and deplored by  the Murray court, were  intended to                                          ______            be  corrected by the 1966 amendment to Rule 15(c), adding the                                 ____            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            ______            United  States is  dictum, unsupported  by any  discussion or            reference to case law.                                         -9-                      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,                                                 ___            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                ___            only relevant notice under  Rule 15(c).  See Cooper  v. USPS,                                                     ___ ______     ____            740 F.2d 714,  717 (9th  Cir. 1984), cert.  denied, 471  U.S.                                                 _____  ______            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                                            ____________________            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                 ______            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.                                         -10-            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            _________            defendant and  the defendant  to be  added is  different here            than  it was in Schiavone.   As discussed  above, all circuit                            _________            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                                                 _________            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                                             _________            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.,                   _____________________            dissenting) (denying  that  Schiavone involved  an  amendment                                        _________            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                                         -11-            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.                         _____________    _______________________            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                                         -12-            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                                             ________            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.                                                  ____________________            Dartmouth College, 889 F.2d 13,  22 (1st Cir. 1989)  (quoting            _________________            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                                            ____________________            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.                                         -13-            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),               _______________            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                                                    ______            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                                                                      ___            Afanador, 787 F. Supp. at 267.            ________                      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                                         -14-            precisely stated appellants' claim  against him.  See Riofrio                                                              ___ _______            Anda v. Ralston  Purina Co.,  959 F.2d 1149,  1153 (1st  Cir.            ____    ___________________            1992).    Appellants'  argument  is  deficient  for   obvious            reasons.   Appellants' speculation that Tanner received their            letter stating a Bivens claim  does not constitute proof that                             ______            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            ______________________            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                                        ______            did  not argue that interpretation  to the district court, we                                         -15-            do not  consider it on  appeal.  United States  v. Curzi, 867                                             _____________     _____            F.2d 36, 44 (1st Cir. 1989).                                      CONCLUSION                                      __________                      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                                                        ______            untimeliness is affirmed.                            ________                                         -16-
