
USCA1 Opinion

	




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