
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-2254                              JOSE RAFAEL BENITEZ-PONS,                                Plaintiff, Appellant,                                          v.                       THE COMMONWEALTH OF PUERTO RICO, 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,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               William Ram rez-Hern ndez, with  whom Nora Vargas-Acosta and               _________________________             __________________          Vargas & Ram rez Law Office were on brief for appellant.          ___________________________               Roberto Ruiz-Comas  and  Edgardo  Col n-Arrar s,  with  whom               __________________       ______________________          Gaztambide  & Plaza, Goldman  Antonetti &  C rdova and  Cherie K.          ___________________  _____________________________      _________          Durand were on brief for appellees.          ______                                 ____________________                                  February 12, 1998                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    DICLERICO,  District   Judge.     After  administrative                    DICLERICO,  District   Judge.                                ________________          proceedings  resulted   in  the  revocation  of   his  securities          brokerage license,  plaintiff-appellant Jos   Rafael Ben tez-Pons          filed  a  motion  for  reconsideration  with  the Office  of  the          Commissioner  of Financial Institutions  (OCFI), which  issued an          interlocutory order tolling the  period for judicial review.   No          resolution of the motion for reconsideration was issued, although          the  agency  and the  plaintiff  engaged  in negotiations.    The          plaintiff  then filed  a  complaint  in  federal  court  alleging          violations of the Federal and State Constitutions and statutes in          connection with  the revocation of  his securities license.   The          district court granted  summary judgment to the defendants on the          grounds   that  the  claims   were  barred  by   the  statute  of          limitations.  We affirm the grant of summary judgment.                                     Background1                                     Background                                     __________                    The   plaintiff,  Jos    Rafael  Ben tez-Pons,   was  a          practicing licensed securities broker  and licensed supervisor of          other  securities  brokers.   In  April 1988,  he  co-founded and          became   president  and  majority   owner  of  First  Continental          Corporation  (FCC),  a  now  defunct  securities  brokerage firm.          After suspecting improper  securities transactions by two  of the          brokers  at  FCC,  the  plaintiff filed  a  complaint  with OCFI.          OCFI's investigation eventually included the plaintiff himself.                                        ____________________          1   The  facts recited herein  are either  not in dispute  or are          alleged by the plaintiff.                                         -2-                    On January  27, 1992,  OCFI issued  a cease  and desist          order to FCC, and ordered the plaintiff to show cause why further          action should not be taken against him.  On January 30, 1992, the          plaintiff entered into  a consent decree with OCFI.   The consent          decree provided, inter alia, that  the plaintiff was to cease all                           __________          supervisory and  administrative functions  at FCC  for one  year,          that FCC  would  name another  person  to supervise  and  perform          administrative  functions  at  FCC, that  FCC  would  comply with          certain filing requirements, that the plaintiff and FCC would pay          certain fines,  and that the plaintiff  would supply a copy  of a          resolution of the FCC Board of Directors ratifying such measures.                    The plaintiff and FCC failed to comply with the consent          decree.   On March 13,  1992, Peter Smith and  other governmental          employees  or agents  of  OCFI  entered  FCC's  premises.    They          conducted a warrantless search of the premises which included, in          part,  downloading  computer  information  and  seizing  computer          programs  and disks,  accounting books,  a registry,  shareholder          contracts, and security boxes.                      On  March 19, 1992,  OCFI issued another  order against          the  plaintiff and  FCC  finding, inter  alia,  that the  consent                                            ___________          decree  had not  been complied  with and  that the  plaintiff had          engaged in  other  misconduct.   In  the order,  OCFI  ultimately          concluded that  the situation  at FCC  placed  investors and  the          securities  industry  in  Puerto  Rico  at risk.    It  summarily          suspended  the plaintiff's license, ordered him to show cause why          further actions should not be taken against him, and informed him                                         -3-          of his right  to seek an administrative hearing.2   The plaintiff          exercised his right to an administrative hearing.                    On  September 28, 1992,  the plaintiff was  afforded an          administrative hearing  on  the issue  of the  revocation of  his          license.   There  is no  evidence that  the plaintiff  raised any          search and seizure  claims, privacy claims, or  illegal detention          claims  during the administrative hearing.  On December 28, 1992,          OCFI  issued a  resolution and  ordered  the plaintiff's  license          permanently revoked.  On January  19, 1993, the plaintiff filed a          timely motion  for reconsideration  with OCFI.   This step  was a          procedural  prerequisite  to  seeking judicial  review.    In the          plaintiff's motion  for reconsideration,  the plaintiff  asserted          that the proceedings had violated his constitutional rights.3                                         ____________________          2   The record does not make clear  whether the plaintiff in fact          held multiple licenses,  or one license authorizing  both broking          securities and supervising other securities brokers.             3   The motion for reconsideration asserted constitutional claims          as follows:                      The proceedings carried in this case led to                    a violation  of the due process of law and of                    the  constitutional and  civil rights  of the                    Defendant.  This is so because all or some of                    the  charges made to  the Defendant are  of a                    penal   character  that   entail  fines,   as                    expressed in the Order  and Resolution, which                    clearly reveals that the burden of proof fell                    on the Office of the Commissioner.                      For   this  reason   the   Office  of   the                    Commissioner  was  obliged   to  present  its                    evidence first  and convince  the judge  that                    the   Defendant  had   committed  tha   [sic]                    violations   he  was   being  charged   with.                    Nevertheless, despite  the opposition  of the                    Defendant,  in this case  the burden of proof                    was inverted and the Defendant was obliged to                                         -4-                    OCFI responded to the  motion for reconsideration  with          an  interlocutory  order  issued January  28,  1992,  pursuant to          section 3.15  of Puerto Rico's Uniform  Administrative Procedures          Act (codified at 3 L.P.R.A.   2165).  See P.R. Laws Ann.  tit. 3,                                                ___            2165  (1994)  (hereinafter  section  2165).4   The  plaintiff's                                        ____________________                    prove  that he  is  innocent  of the  alleged                    charges.   This is clearly a violation of the                    rights  recognized  to  an  "accused" by  the                    Constitution  of  the Commonwealth  of  P.R.,                    which adulterates  with absolute  nullity the                    whole proceeding and  converts the Order  and                    Resolution into a  nullity.  Much more  so in                    this case, by which the Defendant is deprived                    of   his   right   to   his   agent   license                    permanently.   The license already  issued or                    granted  is an  acquired  right,  and  not  a                    privilege as is erroneously  indicated in the                    Resolution and Order.  (See Article 402(d) of                    the Securities Law about the burden of proof,                    which clearly shows that  the burden of proof                    fell  in this  case  on  the  Office  of  the                    Commissioner.)                      . . . .                      . . .  Due  process  of  law  has not  been                    followed  in the  proceedings  carried on  to                    deprive him permanently of his agent license,                    which is an  acquired right and not  merely a                    privilege.          4  Section 2165 was amended  in 1994.  See Uniform Administrative                                                 ___          Procedures Act --  Judicature Act of 1994, 1995  Puerto Rico Laws          Act No. 247 (H.B. No. 1684)   4.   The amendments do not directly          affect our analysis as they are not applicable to the plaintiffs'          case.  All references to section 2165 are therefore references to          section 2165 as  it existed prior to the Judicature  Act of 1994,          unless otherwise noted.           Section 2165 provided that:                      The   party   adversely   affected   by   a                    resolution  or  partial or  final  order may,                    within  twenty (20) days of the filing of the                    resolution  or  order,  present a  motion  to                    reconsider  the  resolution  or  order.   The                                                              ___                    agency  shall  consider   the  motion  within                    _____________________________________________                    fifteen  (15)  days  of its  filing.    If it                    _____________________________________________                                         -5-          translation of OCFI's interlocutory order states:                      That  upon   review  of   the  Motion   for                    Reconsideration of January 19, 1993, filed by                    the Respondant [sic], the Commissioner orders                    that it be considered and resolved.                      Pursuant to  section 3.15 of Law Number 170                    of   August   12,    1988   (Uniforme   [sic]                    Administrative  Procedures  Act)  supra,  the                    thirty  (30)  day  period  in  which  to seek                    review  is tolled and will begin to run again                    from   the  date  in  which  a  copy  of  the                    Resolution   resolving    the   Motion    for                    Reconsideration is filed and notified.                      Docket and Notify.                      In San  Juan, Puerto  Rico, on  January 28,                    1993.          On February 10, 1993, OCFI filed its opposition to the motion for                                        ____________________                    rejects  the motion or  fails to act  upon it                    _____________________________________________                    within said  fifteen (15)  days, the  term to                    _____________________________________________                    petition  for review  shall  commence to  run                    _____________________________________________                    anew as of the notification of said denial or                    _____________________________________________                    as  of the expiration of the fifteen (15) day                    _____________________________________________                    term,  whichever may  be  the  case.    If  a                    ____________________________________                    determination  is made  upon the  motion, the                    term to  petition for review  shall begin  to                    run as  of the date  of filing a copy  of the                    notification of the  resolution of the agency                    resolving  the  motion   definitively,  which                    resolution should be issued and filed  within                    ninety (90) days after the motion  was filed.                    If the  agency fails  to take  action on  the                    _____________________________________________                    motion for reconsideration  within the ninety                    _____________________________________________                    (90)  days of  the filing  of  the motion  it                    _____________________________________________                    shall lose jurisdiction over the same and the                    _____________________________________________                    term in which to petition for judicial review                    _____________________________________________                    shall  commence upon  the expiration  of said                    _____________________________________________                    ninety  (90) day term  unless the  court, for                    _____________________________________________                    good  cause  shown,  grants  the  agency   an                    _____________________________________________                    extension of time.                    __________________                      The   motion   to   reconsider   shall   be                    jurisdictional in  order to  request judicial                    review.          See P.R. Laws Ann. tit. 3,   2165 (1994) (emphasis added).          ___                                         -6-          reconsideration.     OCFI  never   issued  a   decision  by   the          Commissioner  on the motion for reconsideration within the ninety          day period as required by section 2165.                      Following  OCFI's interlocutory  order  of January  28,          1993, attorneys for OCFI and the plaintiff  met to try to resolve          the issue.  The plaintiff asserts that during the months of March          and April  1993, letters  and telephone calls  were exchanged  to          this end.   The record  indicates that the  plaintiff's attorneys          sent  OCFI settlement  proposals which  were evidently  rejected.          The plaintiff's intention  in the negotiations was  to relinquish          his  constitutional claims in  exchange for reinstatement  of his          license.   The plaintiff  asserts that representations  were made          that the statute of limitations  was tolled, although there is no          evidence  in the record that substantiates this allegation beyond          the interlocutory order.   During these interactions,  OCFI never          indicated   that  it   was  not   considering   the  motion   for          reconsideration.   In September  1993, the  Commissioner and  the          plaintiff accidentally met, and in  response to an inquiry by the          plaintiff, the Commissioner  indicated that he would  "follow up"          on the plaintiff's motion for reconsideration.  In June 1994, the          attorney for  the  plaintiff  filed a  motion  to  "resign"  from          representing him.  OCFI never responded to the motion.                    In March and  April 1995, the plaintiff  contacted OCFI          to inquire about the status of his case and request a copy of the          examiner's findings.  The plaintiff was told that no one  at OCFI          had any knowledge  regarding his case, and that no one could help                                         -7-          him with his inquiry.                       On May 2, 1995, the  plaintiff filed a complaint in the          federal  district court of  Puerto Rico against  the defendants.5          The plaintiff sought  declaratory relief, injunctive relief,  and          damages pursuant  to 42  U.S.C.    1983 and  1988, and  28 U.S.C.            2201.  The plaintiff asserted that  the defendants violated his          right to  be free  from unreasonable searches  and seizures,  his          right to  be free from  illegal detention, his right  to privacy,          his property interest in his license, his liberty interest in his          career, and  his liberty  interest in his  right to  contract for          employment.   He  also  asserted  claims under  the  Puerto  Rico          Constitution, Article  II, sections  7, 8,  and 10, and  Articles          1802 and 1803 of the Puerto Rico Civil Code.                      On  July 31,  1995, the  defendants filed a  motion for          summary judgment.  The  defendants argued that the  complaint was          not filed within one year of the constitutional deprivations, and          was therefore time  barred.  Furthermore, they  asserted that the          plaintiff failed  to toll the statute of  limitations because (1)                                        ____________________          5   Defendants are  the Office of  the Commissioner  of Financial          Institutions  of the  Commonwealth  of  Puerto  Rico;  Jos   Sosa          Llor ns, in his  official and personal capacity, and his conjugal          partnership;  Asdr bal  Aponte,  in  his  official  and  personal          capacity,  and  his  conjugal partnership;  Peter  Smith,  in his          official and  personal  capacity, and  his conjugal  partnership;          Rafael Rosario,  in his official  and personal capacity,  and his          conjugal  partnership; John  Doe, in  his  official and  personal          capacity,  and  his  conjugal partnership;  Richard  Doe,  in his          official and personal capacity, and his conjugal partnership; and          Virgilio Vega,  in his  official and personal  capacity, and  his          conjugal partnership.   In light  of our conclusion, we  need not          distinguish between the defendants in addressing  the plaintiff's          claims and arguments.                                          -8-          the  plaintiff failed  to  satisfy  the  applicable  Puerto  Rico          tolling statute, which requires that there be identity  of relief          requested,  and (2) equitable tolling was unavailable because the          plaintiff could establish  neither excusable  ignorance nor  that          the defendant  actively misled  or prevented  the plaintiff  from          asserting his rights.  Finally, the defendants argued that OCFI's          determination was final  and unappealable because the  statute of          limitations had expired.                    The district  court granted the defendants'  motion for          summary judgment.   The  court first determined  that a  one year          statute of  limitations controlled  the plaintiff's  claims.   It          then  determined  that  the last  alleged  violation  occurred on          September 28, 1992.   The complaint therefore had to  be filed by          September 29,  1993.   The court agreed  with the  defendants and          found  that  the  plaintiff   had  not  tolled  the   statute  of          limitations on either  of two bases: (1) the  plaintiff failed to          seek the same remedies in the district court as it had before the          agency, and  therefore failed to satisfy the  requirements of the          Puerto  Rico statute  governing  the tolling  of  the statute  of          limitations through  extrajudicial claims, and  (2) the plaintiff          failed to establish that the statute of limitations was equitably          tolled.    The  court  implicitly found  that  the  plaintiff was          neither  excusably ignorant  of the  statute  of limitations  nor          actively  misled  by  OCFI.     The  court  concluded   that  the          administrative order was final and unappealable.                    The  plaintiff argues  on appeal  that  the ninety  day                                         -9-          review period  under section 2165 is  waivable and was  tolled by          OCFI.    The  plaintiff  also  asserts  that  the defendants  are          equitably estopped from asserting the statute of limitations as a          defense  in  this  case.   Finally,  the  plaintiff  asserts that          summary judgment  is  generally inapplicable  in actions  raising          equitable  tolling or estoppel arguments, and that genuine issues          of  material fact  in this  case precluded  the grant  of summary          judgment.6                      We review motions  for summary judgment  de novo.   See                                                                        ___          Associated Fisheries of  Maine, Inc. v. Daley,  No. 97-1327, 1997          ____________________________________    _____          WL 563584, at *3 (1st Cir. Sept. 16, 1997).                                      Discussion                                      Discussion                                      __________                    State  law  statutes  of  limitations  govern  suits in          federal courts  arising under    1983.  See  Board of  Regents v.                                                  ___  _________________          Tomanio, 446 U.S. 478 (1980).   In Wilson v. Garc a, the  Supreme          _______                            ______    ______          Court determined that the state statute of limitations applicable          in tort actions for personal injuries governs   1983 claims.  See                                                                        ___          471 U.S. 261, 276-80 (1985).                      The plaintiff  does not  dispute that  Puerto Rico  law          establishes a one year prescription period for the claims in this          case.   See  P.R. Laws  Ann.  tit. 31,    5298 (1994);  Rodr guez                  ___                                             _________          Narv ez v. Nazario, 895 F.2d 38, 41-42 (1st Cir. 1990).   The one          _______    _______                                        ____________________          6   At  oral  argument, the  plaintiff's  attorney asserted  that          summary  judgment was also inappropriate because discovery was at          an  early  stage  and  sufficient  facts  could  not be  adduced.          However,  this  argument  was not  asserted  before  the district          court, nor in the  briefs submitted, and is deemed  waived.  See,                                                                       ___          e.g.,  Rivera-Muriente v. Agosto-Alicea,  959 F.2d 349,  354 (1st          ____   _______________    _____________          Cir. 1992).                                         -10-          year period  begins running  one day after  the date  of accrual,          which is  the date plaintiff  knew or had  reason to know  of the          injury.  See Carreras-Rosa v.  Alves-Cruz, 127 F.3d 172 (1st Cir.                   ___ _____________     __________          1997).                      The  tolling  of  the statute  of  limitations  is also          governed by  state law.   See, e.g., Torres v.  Superintendent of                                    ___  ____  ______     _________________          Police, 893  F.2d 404, 407 (1st Cir. 1990).   Article 1873 of the          ______          Civil Code of Puerto Rico provides that extrajudicial claims will          toll the one-year statute of limitations:                    Prescription  of  actions is  interrupted  by                    their institution before the  courts, [or] by                    extrajudicial claims of the creditor . . . .          P.R.  Laws  Ann. tit.  31,    5303  (1994).   "[T]he  tolling  is          effective with  regard only to  identical causes of action.   The          statute of limitations  is not tolled for all  claims arising out          of the  same facts  . . . ."  Rodr guez  Narv ez, 895 F.2d  at 43                                        __________________          (citations  omitted).    Moreover, the  relief  requested  in the          extrajudicial  claim  must  be  the same  relief  that  is  later          requested in court.  See Riofrio Anda v. Ralston Purina, Co., 959                               ___ ____________    ___________________          F.2d 1149, 1154  (1st Cir. 1992); Rodr guez Narv ez,  895 F.2d at                                            _________________          44; Torres, 893 F.2d at 407; Hern ndez del Valle v. Santa Aponte,              ______                   ___________________    ____________          575 F.2d 321, 323-24  (1st Cir. 1978).  In other  words, "to toll          the statute the action must be the  case at bar, and not merely a          somewhat related action arising from the same facts,"  Ram rez de                                                                 __________          Arellano  v. Alvarez  de Choudens,  575 F.2d  315, 320  (1st Cir.          ________     ____________________          1978), and  if the remedies in both the  claims are not the same,          the earlier  claim will fail  to toll the statute  of limitations                                         -11-          for  the later  claim, see  Torres,  893 F.2d  at 407.    For the                                 ___  ______          reasons enumerated  below, we find  the plaintiff's claims  to be          barred by the statute of limitations.                                         -12-              I.  Fourth Amendment, Illegal Detention and Privacy Claims              I.  Fourth Amendment, Illegal Detention and Privacy Claims              __________________________________________________________                    The  plaintiff alleges that he was subjected to illegal          searches  and seizures, illegal detentions, and violations of his          right to privacy between March 13, 1992, and March 19, 1992.  The          plaintiff had  until March 1993  to file his  complaint asserting          these  causes  of  action,  unless  he   tolled  the  statute  of          limitations.   As indicated above, the plaintiff waited until May          1995 to file his federal complaint asserting these claims.  There          is  no evidence  in the  record that  the plaintiff  raised these          claims  during the  administrative hearing.   He  did not  assert          these  claims in his motion for  reconsideration filed with OCFI.          Nor is  there evidence in  the record that these  specific claims          were  asserted during the  negotiations that transpired  in March          and April 1993.7   In fact, from  the record it appears  that the          plaintiff  raised these  specific constitutional  claims  for the          first time when  he filed his federal complaint.   Therefore, the          district  court   properly  concluded  that  these   claims  were          untimely, and  that the plaintiff  had not tolled the  statute of          limitations under the Puerto Rico tolling statute.                      II.  Federal and State Due Process Claims                      II.  Federal and State Due Process Claims                      _________________________________________                    The plaintiff  asserts that  his  property and  liberty          interests  were violated when  he was  allegedly deprived  of his                                        ____________________          7   In  his sworn  statement and  in his  statement of  contested          facts,   the  plaintiff   stated  that   he   "asserted  in   the          administrative   proceedings   that   Defendants   violated   his          constitutional and  civil rights  complained of"  in the  federal          complaint.   This general statement  is supported by  evidence in          the record, but only as to the due process claims.                                           -13-          license without due  process.  We assume arguendo  that his claim                                                   ________          accrued at the latest possible date, December 28th, 1992, the day          the  plaintiff's  license  was   permanently  revoked,  allegedly          without  due process.   Because  the plaintiff  did not  file his          complaint in  federal court until  May 2, 1995, these  claims are          also time barred by the statute of limitations unless the statute          was tolled under Puerto Rico law.  Unlike the search and seizure,          illegal  detention,  and  privacy  claims  discussed  above,  the          plaintiff  asserted  in  his   motion  for  reconsideration,  and          allegedly  in his negotiations with OCFI, that the administrative          proceedings  failed to afford him due  process.  In his motion he          argued that his license was a right and not a privilege, and that          he  was not  accorded due  process of  law in  the administrative          proceedings because  the  burden  of  proof  was  inappropriately          shifted to him.  The plaintiff's argument can, if read liberally,          be understood  to assert that  the plaintiff was deprived  of his          property  and liberty  interests  without  due  process  of  law.          However, despite the plaintiff's assertion of these claims in the          administrative proceeding, they  are not preserved by  the Puerto          Rico tolling statute.                    As we held in  Torres, if a party seeks a  remedy in an                                   ______          extrajudicial  claim  that  is different  from  the  remedy later          sought in  a judicial proceeding,  the statute of  limitations is          not tolled.   In Torres, the plaintiffs had  been discharged from                           ______          their positions  as police officers.  See 893  F.2d at 406.  They                                                ___          filed  an administrative action within the statute of limitations                                         -14-          seeking reinstatement.  After  their administrative claim  proved          unsuccessful,  they filed  a   1983  action  in federal  district          court  seeking  damages,  reinstatement,  and  the  expunging  of          photographs and  fingerprints  filed with  the police.   By  this          time, the  statute of  limitations for  their  federal claim  had          expired.                    In Torres, we found that because the remedies sought by                       ______          the  plaintiffs in the  district court were not  the same as they          were in the  administrative proceeding, there  was no tolling  of          the  statute of limitations  by their extrajudicial  assertion in          the  administrative action.  In concluding  that the   1983 claim          was time barred, we stated in Torres:                                         ______                    [T]he district court  correctly held that the                    extrajudicial  claim  must   claim  the  same                    relief later  requested in the  federal suit.                    The statute  of limitations for  Section 1983                    claim  [sic] is  not  tolled  if  the  remedy                    requested in  both suits  is different. . . .                    The  record  supports  the  district  court's                    finding  that  the  plaintiff  requested  two                    distinct  remedies. . . .   Given that  these                    remedies  were not  identical,  there was  no                    tolling and  the prescription  period expired                    . . . .          Id. at 407.  The case at  hand presents similar facts.  Here, the          ___          plaintiff    asserted    constitutional   claims    before    the          administrative  agency,  which   could  have  functioned  as   an          extrajudicial claim under Puerto Rico law, tolling the statute of          limitations.   However,  the plaintiff  failed to  seek the  same          remedies  in  the  district  court   as  he  had  sought  in  the          administrative proceedings.  In the administrative proceedings he          sought  only  the  reinstatement  of his  license,  while  in the                                         -15-          district court he sought declaratory and monetary relief, as well          as the reinstatement of his license.8                         III.  Equitable Estoppel and Tolling                         III.  Equitable Estoppel and Tolling                         ____________________________________                    The  plaintiff  also  argues  that the  defendants  are          equitably  estopped  from  raising the  time  bar  defense.   The          plaintiff's argument muddles the doctrines of equitable  estoppel          and equitable tolling.  Because the plaintiff asserts elements of          both doctrines,  we will  analyze the  equitable arguments  under          both estoppel and tolling theories.                    The first issue to be determined in analyzing equitable          tolling is  its applicability to  the case  at hand.   In  Torres                                                                     ______          Ram rez  v. Berm dez Garc a, we  noted without resolution that it          _______     _______________          was   unclear  whether   the   federal  doctrine   of  fraudulent          concealment  (equitable  tolling) continues  to  apply to    1983          actions,  or  whether state  law governs  the issue  of equitable          tolling.   See Torres Ram rez  v. Berm dez Garc a, 898  F.2d 224,                     ___ ______________     _______________          229 & n.2 (1st Cir. 1990).  We need not decide the issue here, as          we find that under  either the federal or the state doctrine, the          plaintiff has failed to establish that the statute of limitations          should be equitably tolled.                      We have  previously addressed  equitable tolling  under          Puerto  Rico law in   1983 cases.   "Puerto Rico law provides for          equitable tolling in a  case of 'damage willfully and  wrongfully          (dolosamente) concealed by  the author  of the  same.'"   Ram rez           ___________                                              _______                                        ____________________          8  For the same  reasons, the plaintiff's claims asserting Puerto          Rico causes of action are time barred.                                          -16-          Morales  v. Rosa  Viera, 815 F.2d  2, 4 (1st  Cir. 1987) (quoting          _______     ___________          Rivera  Encarnaci n v.  E.L.A.,  113  D.P.R.  383,  386  (1982)).          ___________________     ______          Similarly,  under federal law, the plaintiff must show "excusable          ignorance of the statute of limitations caused by some misconduct          of  the defendant."   Torres,  893  F.2d at  407 (quotations  and                                ______          citations omitted).   Equitable  tolling is  unavailable where  a          party fails to exercise reasonable diligence.  Moreover, "[i]t is          axiomatic that 'the  grounds for tolling statutes  of limitations          are  more limited  in  suits  against  the  government  . . . .'"          Kelley  v. NLRB,  79 F.3d  1238,  1248 (1st  Cir. 1996)  (quoting          ______     ____          Swietlik v. United States, 779  F.2d 1306, 1311 (7th Cir. 1985)).          ________    _____________          Courts  weigh five  factors  in  assessing  claims  of  equitable          tolling:    (1)   the  lack  of  actual  notice   of  the  filing          requirement; (2)  the lack of  constructive notice of  the filing          requirement; (3) the diligence in pursuing  one's rights; (4) the          absence  of prejudice to  the defendant; and  (5) the plaintiff's          reasonableness in  remaining ignorant of the  filing requirement.          See Kale v. Combined Ins. Co. of  America, 861 F.2d 746, 752 (1st          ___ ____    _____________________________          Cir. 1988).                    Here, the plaintiff does not allege that the defendants          concealed material  facts  regarding  the  plaintiff's  cause  of          action or the damages incurred.  See Ram rez Morales, 815 F.2d at                                           ___ _______________          4 (finding equitable  tolling inappropriate in   1983  case under          either federal or Puerto Rico doctrines  where defendants did not          prevent  or  discourage  plaintiff  from viewing  agency  records          regarding  unlawful police shooting, and there was no concealment                                         -17-          of material facts) overruled on other grounds by Carreras-Rosa v.                             _____________________________ _____________          Alves-Cruz, 127 F.3d 172 (1st Cir. 1997).  Instead, the plaintiff          __________          argues  that equitable tolling is appropriate because OCFI misled          him regarding the tolling of the statute of limitations under the          Puerto Rico Uniform Administrative Procedure Act.                      The facts and  arguments in  this case  are similar  to          those presented by Kelley.  See 79 F.3d at 1242-43, 1247-50.   In                             ______   ___          Kelley, the  plaintiff failed to  serve process on  the defendant          ______          within  the time  period  mandated  by a  federal  statute.   The          plaintiff  relied  on  a National  Labor  Relations  Board (NLRB)          employee  who informed  the plaintiff's  attorney  that the  NLRB          would serve  the defendant and  that the plaintiff should  not do          so.  The employee neglected  to inform the plaintiff, however, of          an NLRB regulation  stating that the ultimate  responsibility for          serving notice  was on  the charging party.   The service  by the          NLRB was  one day late.   In rejecting the  plaintiff's equitable          tolling   argument,  we   held  that   although  the   employee's          information was "incomplete and perhaps misleading," the delay in          service could not "be wholly  attributed to an error on the  part          of the [NLRB]."  See Kelley, 79 F.3d at 1249.   We found that the                           ___ ______          plaintiff  had  constructive  notice of  the  regulation  and its          requirements because the plaintiff was represented by counsel for          a long  duration, and counsel had access to the regulations.  See                                                                        ___          id. at 1249  ("Courts generally impute constructive  knowledge to          ___          plaintiffs  who, like appellant, consult with an attorney.").  We          also determined that it was plain that the attorney's reliance on                                         -18-          the  employee's representations  was unreasonable.    See id.  at                                                                ___ ___          1249. The  information "almost by  definition, is  not nearly  as          reliable as simply looking up the text  of a regulation."  Id. at                                                                     ___          1250.                       Here, the interlocutory order issued by  OCFI indicated          that the statute of limitations was tolled until a copy of OCFI's          resolution addressing the  motion for reconsideration  was "filed          and notified."   In this  regard it was incomplete  and therefore          inaccurate.   However, the  order  expressly stated  that it  was          issued  pursuant  to section  3.15  of  the Puerto  Rico  Uniform          Administrative Procedure Act,  which clarifies  the ambiguity  of          the interlocutory  order.   Pursuant to  section 3.15, "[i]f  the          agency  fails to take  action on  the motion  for reconsideration          within the ninety  (90) days of the filing of the motion it shall          lose jurisdiction over the same and the term in which to petition          for  judicial review shall  commence upon the  expiration of said          ninety  (90) day  term unless  the court,  for good  cause shown,          grants the agency an extension of time."   P.R. Laws Ann. tit. 3,            2165 (1994).  In short, the statute was tolled either until the          OCFI's  resolution of  the motion  was issued  or until  the time          period in which to issue the resolution expired.                     The plaintiff had  notice of the statute  governing the          time limitations but relied on the agency's summation of the law.          "The general rule is that 'those who deal with the Government are          expected to  know the  law and  may not  rely on  the conduct  of          Government agents  contrary to  law.'"  Kelley,  79 F.3d  at 1249                                                  ______                                         -19-          (quoting  Heckler v.  Community Health  Servs., 467  U.S. 51,  63                    _______     ________________________          (1984)).  Moreover, the plaintiff had constructive notice  of the          filing  requirement; he was represented by counsel throughout his          dealings with OCFI;  and he had access to the Puerto Rico Uniform          Administrative Procedure Act.  See Kelley, 79  F.3d at 1249.  Nor                                         ___ ______          can  we say  that  the  plaintiff was  diligent  in pursuing  his          rights.   Between June 21, 1993, and  March 1995, the only action          the plaintiff  took to pursue  his rights was when  he approached          the  Commissioner at an unidentified meeting and the Commissioner          indicated he would "follow up"  on the plaintiff's petition.  The          plaintiff's  counsel acknowledged in oral argument that even this          meeting  was entirely  accidental.   The  plaintiff initiated  no          other contact with the agency  to resolve his dispute  throughout          this  period.     Given  the  fact  that  the   plaintiff  was  a          sophisticated businessman  represented by  counsel, and that  the          plaintiff was directed to the specific section of the Puerto Rico          Uniform  Administrative  Procedure  Act that  governed  the  time          limitations for his  motion, we cannot  say that the  plaintiff's          failure to  ascertain the timeliness  of his cause of  action was          reasonable.                    The  plaintiff has referred to the OCFI Regulation Rule          19, see Commonwealth of Puerto  Rico, Office of the  Commissioner              ___          of Financial Institutions, Regulation # 3920, Rule 19 (1989), and          Rule 3.16  of the  Puerto Rico  Uniform Administrative  Procedure          Act,  see P.R.  Laws Ann. tit.  3,   2166  (1994), both  of which                ___          require that  notice be  sent when  an adjudicative  procedure is                                         -20-          terminated.   However,  the  plaintiff has  also  cited the  OCFI          Regulation Rule 18.1, see Commonwealth of Puerto Rico,  Office of                                ___          the Commissioner  of Financial  Institutions, Regulation  # 3920,          Rule  18.1 (1989),  and  Rule  3.15 of  the  Puerto Rico  Uniform          Administrative Procedure Act, see  P.R. Laws Ann. tit. 3,    2165                                        ___          (1994), which provide that OCFI's  failure to decide a motion for          reconsideration  within a  designated time period  either renders          the motion and case dismissed by the agency, or strips the agency          of its  jurisdiction over  the case.    In such  a situation,  we          cannot agree that  the plaintiff's reliance on  selected portions          of  the regulations (i.e. OCFI's failure  to notify the plaintiff          as to  the termination of his  case) and his  disregard for other          portions  of  the   regulations  that  indicated  his   case  was          dismissed, was  reasonable.   The regulations must  be read  as a          whole, and cannot be read selectively.  See O'Connell v. Shalala,                                                  ___ _________    _______          79 F.3d 170, 176 (1st Cir. 1996) ("[A] court engaged in  the task          of statutory interpretation must examine  the statute as a whole,          giving due weight to design, structure, and purpose as well as to          aggregate language.").  Furthermore, the plaintiff's ignorance of          the  time limitations was  unreasonable particularly in  light of          the fact that these tolling provisions are uniform for all of the          Puerto Rico agencies.  Because lack of prejudice alone  is not an          adequate  basis for invoking equitable tolling, and the plaintiff          has not met  the other requirements of the doctrine,  we find the          equitable tolling  doctrine to  be inapplicable  on these  facts.          See Kelley, 79  F.3d at 1250.  The plaintiff fails in his attempt          ___ ______                                         -21-          to  distinguish this  case from  Kelley on  the grounds  that the                                           ______          Commissioner  issued  the  interlocutory  order.    Reliance  was          unreasonable  in  light of  the  order's clear  reference  to the          statute under  which  it was  authorized, the  uniformity of  the          provisions for  all Puerto Rico  agencies, and the notice  in the          regulations and statute indicating the pending time  limitations,          among other factors.                     Equitable estoppel has  a similar origin and  effect as          equitable tolling, although it is a distinct doctrine.  See Kale,                                                                  ___ ____          861  F.2d at  752.   Equitable  estoppel is  available in    1983          actions.  See Smith v. City of Chicago Heights, 951 F.2d 834, 839                    ___ _____    _______________________          (7th  Cir. 1992).   Even when  a federal court  borrows a state's          statute  of  limitations,  the  court  applies  federal equitable          estoppel principles.   See  id. at  841.   "(1) The  party to  be                                 ___  ___          estopped must know the facts; (2) he must intend that his conduct          shall  be acted on  or must so  act that the  party asserting the          estoppel has a right to believe it is so intended; (3) the latter          must be  ignorant of the true facts; and  (4) he must rely on the          former's conduct to his injury."  Clauson v. Smith, 823 F.2d 660,                                            _______    _____          661  (1st Cir. 1987).  The "reliance must have been reasonable in          that the party  claiming the estoppel did not know  nor should it          have  known  that  its   adversary's  conduct  was   misleading."          Heckler, 467 U.S. at 59.   "'If, at the time when he acted,  such          _______          party  had  knowledge  of the  truth,  or  . . . with  reasonable          diligence he could acquire the knowledge . . . he cannot claim to          have  been  misled  by  relying  upon  the  misrepresentation  or                                         -22-          concealment.'"  Id.  (quoting 3 J. Pomeroy,  Equity Jurisprudence                          ___                          ____________________            810, at 219  (S. Symons ed. 1941).  Indeed, "the conduct of the          defendant  must  be so  misleading  as to  cause  the plaintiff's          failure to file suit."  S nchez v. Loffland Bros., 626 F.2d 1228,                                  _______    ______________          1231 (5th Cir. 1980) (footnote omitted).                                         -23-                    The  flaw  in  the plaintiff's  argument,  as discussed          above, is that the plaintiff's  reliance was not reasonable.  The          interlocutory  order explicitly  cited  the  statute pursuant  to          which  it was  issued.   The statute  in turn indicated  the time          period after  which OCFI lost jurisdiction.  The OCFI regulations          also  indicated  that  the motion  for  reconsideration  would be          considered  "WITHOUT   CAUSE/CASE  DISMISSED"  without   an  OCFI          resolution in 30  days.  See Commonwealth of  Puerto Rico, Office                                   ___          of the Commissioner of Financial Institutions, Regulation # 3920,          Rule  18.1  (1989).   In  the  face  of  a conflict  between  the          interlocutory order and the statute it expressly referred to, and          another  conflict between regulations that indicated the case was          dismissed but  that also indicated  notice would be given  in the          event of  termination, it was  unreasonable for the  plaintiff to          choose  to rely  upon the  interlocutory  order.   In this  case,          OCFI's conduct was not so  misleading as to cause the plaintiff's          failure  to  file  on  time   without  the  plaintiff's  lack  of          diligence.   Nor  are  the  plaintiff's  negotiations  with  OCFI          adequate to equitably toll the statute of limitations.  See Bomba                                                                  ___ _____          v.  W.L. Belvidere,  Inc., 579  F.2d 1067,  1071 (7th  Cir. 1978)              _____________________          ("[I]t  is  widely  held  that  mere  negotiations  concerning  a          disputed  claim, without more,  is [sic] insufficient  to warrant          the application of equitable estoppel . . . .").  The plaintiff's          equitable estoppel argument must therefore fail.                    The plaintiff also argues that the Commissioner had the          authority to waive  the time periods at issue, and because he did                                         -24-          in  fact waive  them, the  statute of  limitations was  tolled by          OCFI.    At the  time  of  this  case,  the Commissioner  had  no          authority to waive the time periods of section 2165.                      The plaintiff's reference to language  in sections 2163          and  2164 is  without  merit.9   Section  2163  provides that  an          adjudicatory procedure before an agency shall  be resolved in six          months, absent  exceptional circumstances.   See  P.R. Laws  Ann.                                                       ___          tit. 3,   2163 (1994).  Section 2164 provides  that a final order          or  resolution shall  be  issued  within  ninety days  after  the          conclusion of a hearing, unless waived in writing by the parties,          or for just cause.  See P.R. Laws Ann. tit. 3,   2164 (1994).                                  ___                    The  Uniform Administrative Procedure  Act is,  for the          most part, arranged chronologically.   Section 2163 deals in  its          entirety with the procedure of  the actual hearing.  Section 2164          addresses  only issues pertaining to final orders or resolutions,          including their timing,  content, or notice.  It  is not relevant          to  motions for  reconsideration.    In  contrast,  section  2165          governs  reconsideration and the applicable timing issues in this          case.  Section   2165  provides   that  an   agency  shall   lose          jurisdiction if  it  fails  to  take action  within  ninety  days          "unless the  court, for  good cause shown,  grants the  agency an          extension of time."  The  agency therefore lacks the authority to          waive this requirement.   The requirement is not  affected by the          discretion afforded the agency in other sections, nor by reliance                                        ____________________          9  We also reject plaintiff's arguments premised on public policy          favoring economical, fair,  and rapid proceedings, and  on OCFI's          conduct.                                         -25-          on OCFI's representations  or conduct by the plaintiff.   We find          the  statute to  be unambiguous  and decline  to read  into it  a          meaning   that  directly  conflicts   with  the  intent   of  the          legislature.10   See Pag n  Ramos v. State  Ins. Fund, 92  JTS 13                           ___ ____________    ________________          (1992)  (stating in dicta  "[o]nly through judicial authorization          and 'for just cause  can that term  be extended for a  reasonable               ____________________________________________________________          period of  time.'")  (quoting  P.R.  Laws  Ann.  tit.  3,    2165          _______________          (1994)); Rivera  Rivera v.  Municipality of  Carolina, 96  JTS 28                   ______________     _________________________          (1996)  (stating in  dicta  that  there is  no  ambiguity in  the          statute).  OCFI's administrative order is therefore final, and as          timely review was not sought, unappealable.                    The  plaintiff finally argues  that summary judgment is          inappropriate in this case because it involves equitable estoppel          or  equitable  tolling  issues, and  because  there  were genuine          issues of material fact unresolved.   The mere fact that a  party          asserts  such  equitable  claims does  not  foreclose  granting a          motion for summary judgment.  See, e.g., Bell v. Fowler, 99  F.3d                                        ___  ____  ____    ______          262   (8th  Cir.  1996)  (equitable  estoppel);  Cada  v.  Baxter                                                           ____      ______          Healthcare  Corp.,  920  F.2d  446  (7th  Cir.  1990)  (equitable          _________________          tolling);  Jensen  v.  Frank,  912  F.2d  517  (1st   Cir.  1990)                     ______      _____          (equitable  tolling); Dillman v. Combustion Eng'g, Inc., 784 F.2d                                _______    ______________________                                        ____________________          10  We note that  the legislature has since amended  section 2165          to provide for the agency discretion that the plaintiff argues we          should  read into  the statute.    Pursuant to  section 2165,  as          amended,  the agency loses jurisdiction after ninety days "unless          the agency, for just cause  and within those ninety days, extends          the term"  for at most another thirty days.  Act No. 27, H.B. No.          1684,  Uniform Administrative Procedures Act -- Judicature Act of          1994 (West 1997).                                         -26-          57 (2d  Cir. 1986)  (equitable estoppel  and equitable  tolling).          Moreover, we  find that  the facts alleged  by the  plaintiff, as          they  are  discussed throughout  this  opinion, fail  to  raise a          genuine issue of  material fact requiring a trial.   The district          court's grant of summary judgment is therefore appropriate.                    Affirmed.  Parties shall bear their own costs.                      Affirmed                    ________                                         -27-
