            United States Court of Appeals
                        For the First Circuit
No. 12-2351

         SANTIAGO ACEVEDO-PÉREZ; ELIZABETH PRÍNCIPE-TRINIDAD,

                       Plaintiffs, Appellants,

                CONJUGAL PARTNERSHIP ACEVEDO-PRÍNCIPE
                     (Legal Society of Earnings),

                              Plaintiff,

                                  v.

 UNITED STATES; DEPARTMENT OF HOMELAND SECURITY; IMMIGRATION AND
  CUSTOMS ENFORCEMENT; JANET NAPOLITANO; LYDIA ST. JOHN-MELLADO;
JOHN DOE; RICHARD ROE, and their respective insurance companies,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO
           [Hon. Daniel R. Domínguez, U.S. District Judge]


                                Before

                 Torruella and Lipez, Circuit Judges,
                      and Gelpí,* District Judge.


     Juan R. Rodríguez, with whom Rodríguez López Law Offices,
P.S.C. was on brief, for appellants.
     Ginette L. Milanés, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                           October 6, 2014



     *
      Of the District of Puerto Rico, sitting by designation.
           LIPEZ,   Circuit    Judge.        Plaintiff-appellant      Santiago

Acevedo-Pérez   ("Acevedo")    was    an    employee    with   United    States

Immigration and Customs Enforcement ("ICE") in the Department of

Homeland   Security   ("DHS").          Following      the   denial     of   his

administrative claim for employment discrimination on the basis of

age and national origin, he filed a lawsuit claiming liability

under the Age Discrimination in Employment Act, Title VII of the

Civil Rights Act of 1964, Section 1983, the Federal Torts Claims

Act, and Puerto Rico law.          The district court awarded summary

judgment to the defendants on the grounds that the plaintiff did

not present an FTCA claim in his administrative complaint and that

the other claims were time-barred.          We affirm.

                              I.   Background

           Acevedo was stationed in the San Juan office. In July of

2005, DHS headquarters in Washington, D.C., was short of personnel

and "sought special agent volunteers [at least two volunteers from

the San Juan office] for lateral transfers."

           The Special Agent in Charge of the San Juan office asked

for volunteers to transfer.        At least one employee, Edward Owens,

volunteered and his transfer was approved.             In order to fill the

other transfer slot, the Special Agent in Charge prepared a list of

four agents based on seniority.            On or about September 7, 2005,

Acevedo received a letter from the Director of ICE informing him of




                                     -2-
his   reassignment   to   DHS   headquarters.       Acevedo   accepted    the

reassignment on September 22, 2005.

            Due to family problems, Acevedo requested two extensions

of time to relocate, which were granted by DHS.         His third request

for an extension of time was denied.            On March 3, 2006, Acevedo

decided to retire rather than transfer.

            On June 1, 2006, Acevedo filed a complaint of employment

discrimination with the Office of Equal Employment Opportunity and

Diversity    Division     of    DHS   ("EEO")    alleging     that   he   was

constructively discharged on the basis of his age or national

origin.     The EEO ultimately denied Acevedo's claim in 2009.            It

sent him a letter explaining the decision as well as a "Notice of

Appeal Rights" (also called the "Right to Sue Letter"), which he

received on July 1, 2009.

            Acevedo commenced this action on September 30, 2009. His

complaint alleges that he was "forced to resign (constructive

discharge)" and that he was "humiliated, retaliated, discriminated,

harassed, [and] persecuted" by his supervisors and his peers.             He

asserts claims under the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §§ 621-634, and Title VII of the Civil Rights

Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2.                Acevedo also

asserts a claim under 42 U.S.C. § 1983 that his constitutional

right to due process has been violated, as well as claims under the

Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, and


                                      -3-
Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws

Ann. tit. 31, §§ 5141-5142.

          Defendants moved for summary judgment.        Finding the

record incomplete on the issue of whether the action was timely

filed, the district court ordered Acevedo to supplement it by

providing "the Right to Sue Letter and/or the final determination

of the [EEO]."   After Acevedo provided the requested documentary

evidence, the court held a hearing and found the action time-barred

by one day.   Before judgment was entered reflecting that ruling,

plaintiff filed a motion seeking an order that the remaining

claims, other than employment discrimination under the ADEA and

Title VII, were not time-barred.      The district court denied that

motion and entered judgment for the defendants on all claims.1

This appeal followed.

                         II.   Discussion

          The decision appealed from here is the district court's

denial of plaintiff's motion seeking an order that his claims are



     1
       Acevedo filed a motion to reconsider, which the district
court ultimately denied some months later. Acevedo's notice of
appeal did not encompass that ruling as the notice was filed on the
same day that he requested reconsideration from the district court.
Acevedo neither amended his pending notice of appeal nor filed a
new notice after the district court's decision on reconsideration.
Hence, we do not consider here the denial of reconsideration. See
Fed. R. App. P. 3(c)(1)(B) (stating that the notice of appeal must
"designate the judgment, order, or part thereof being appealed");
United States v. Ortiz, 741 F.3d 288, 292 (1st Cir. 2014) ("It is
common ground that our review of a district court's order is
circumscribed by the filed notice of appeal.").

                                -4-
not time-barred and may proceed.        The court's ruling in effect

completed its consideration of defendants' motion for summary

judgment, and we thus treat its decision as a grant of summary

judgment for the defendants on all claims.     Accordingly, we review

the decision de novo, Dominguez-Cruz v. Suttle Caribe, Inc., 202

F.3d 424, 428 (1st Cir. 2000), and may find that summary judgment

was properly granted only if "the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law," Fed. R. Civ. P. 56(a).

A.   ADEA and Title VII Claims2

           Upon ruling on Acevedo's claims the EEO issued a "Notice

of Appeal Rights" to him, which he received on July 1, 2009.     The

notice stated in pertinent part:

           You have the right to appeal to the Equal
           Employment Opportunity Commission (EEOC) or to
           file a civil action in an appropriate United
           States District Court. . . .

           FILING AN APPEAL WITH EEOC
           You have the right to appeal this decision to
           EEOC within 30 days of the day you receive
           this final decision. . . .

           FILING A CIVIL ACTION
           You also have the right to file a civil action
           in an appropriate United States District Court
           within 90 days after you receive this final

      2
       Acevedo's EEO complaint was based on claims of age and
national origin discrimination under Title VII, 42 U.S.C. § 2000e-
2, and age discrimination under the ADEA, 29 U.S.C. §§ 621-634.
His complaint in this action refers generally to "Federal Labor
Laws" but makes no specific mention of the bases for his
discrimination claims.

                                  -5-
           decision if you do not appeal to EEOC, or
           within 90 days after receipt of EEOC's final
           decision on appeal. You may also file a civil
           action after 180 days from the date of filing
           an appeal with EEOC if there has been no final
           decision by EEOC.

Acevedo filed his complaint in the United States District Court for

the District of Puerto Rico on September 30, 2009 -- 91 days after

receiving this notice.    Acevedo concedes on appeal, as he did

before the district court, that his complaint was not timely with

respect to the discrimination claims raised before the EEO. Hence,

we need not further address those claims.3

B.   FTCA Claims

           Acevedo argues that the district court erred in finding

that the entire action was time barred because he had an addendum

to the EEO complaint that served as an administrative complaint

for the purposes of the FTCA.         Thus, he maintains that the

complaint was timely as to the alleged "FTCA claim" because, under

the FTCA, he had 180 days from receipt of the final agency decision

to file the complaint.

           The FTCA explicitly provides that

           An action shall not be instituted upon a claim
           against the United States for money damages
           for injury or loss of property or personal
           injury or death caused by the negligent or
           wrongful act or omission of any employee of


      3
       In ruling on Acevedo's motion for reconsideration, the
district court considered whether he was entitled to equitable
tolling of those claims and concluded that the doctrine was
inapplicable. As noted above, that decision is not before us.

                                -6-
           the Government while acting within the scope
           of his office or employment, unless the
           claimant shall have first presented the claim
           to the appropriate Federal agency and his
           claim shall have been finally denied by the
           agency in writing and sent by certified or
           registered mail.

28 U.S.C. § 2675(a) (emphasis added).

           Acevedo submitted his EEO complaint, accompanied by the

addendum at issue, on June 1, 2006. The complaint itself indicated

that he was alleging discrimination on the bases of national origin

and age.   The addendum discusses only those discrimination claims.

In the context of describing the national origin discrimination

claim, Acevedo makes a seemingly out-of-place allegation about the

improper use of funds that he maintains should have been used only

in Puerto Rico rather than for the relocation of employees to the

DHS main office.     Acevedo links the funding issue to national

origin discrimination, rather than raising an independent tort

claim based on it.

           After Acevedo submitted his EEO complaint, he received a

letter, dated June 30, 2006, formally acknowledging the complaint.

The letter stated, in pertinent part:

           Your complaint has been assigned number HS-06-
           ICE-001210 and has been accepted on the bases
           of age (53) and national origin (Puerto
           Rico/Hispanic). . . . Please be advised that
           all other references contained in the formal
           complaint   will   be   used   as   background
           information to support the issues as stated.
           If you wish to report additional allegations
           or incidents, they must be submitted to the
           Director, EEO, in writing.

                                -7-
Acevedo submitted no document attempting to report additional

allegations to the Director.       The EEO issued its final decision

denying   Acevedo's     discrimination    claims    without     making     any

reference to a potential FTCA claim.

             Based on the above-described documentation, which is all

uncontested evidence in this matter, there can be no dispute that

Acevedo failed to present an FTCA claim to the EEO.           Accordingly,

Acevedo has not exhausted his claim as required under 28 U.S.C.

§ 2675(a) and, hence, he is not permitted to pursue an FTCA claim

in this action.    We thus agree with the district court that, to the

extent that the complaint asserts an FTCA claim, it must be

dismissed.

C.   Constitutional Claims

             Acevedo   also   argues   that   his   complaint     states    a

constitutional tort claim under 42 U.S.C. § 1983 for violation of

the Due Process Clause.         Specifically, he argues that he was

deprived of a property interest -- his position at DHS -- without

due process of law.

             However, it is well-established that § 1983 claims borrow

the forum state's statute of limitations. See City of Rancho Palos

Verdes v. Abrams, 544 U.S. 113, 123 n.5 (2005).4         In Puerto Rico,

the applicable limitations period is one year.            See Rodriguez


      4
       For this purpose, Puerto Rico is the functional equivalent
of a state. See Santiago v. Puerto Rico, 655 F.3d 61, 69 (1st Cir.
2011).

                                   -8-
Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir. 1990) ("Ever since

the days of the Spanish-American [W]ar it has been the law of

Puerto Rico that the limitations period for tort actions . . . is

the one year limitations period provided by [P.R. Laws Ann. tit.

31, § 5298(2)]."); Olmo v. Young & Rubicam of P.R., Inc., 10 P.R.

Offic. Trans. 965, 969-70 (P.R. 1981) (wherein the Puerto Rico

Supreme Court set forth the actions for which the applicable

statute of limitations is one year).

           Though § 1983 borrows the limitations period itself from

local law, the accrual date for a § 1983 claim is set by federal

law.    See Morán Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir.

2008). Under federal law, such a cause of action accrues "when the

plaintiff knows, or has reason to know of the injury on which the

action is based."   Id. (internal quotation marks omitted).   Here,

Acevedo retired, allegedly because he was forced to, on March 3,

2006.   This action was commenced on September 30, 2009, some three

years later.    Acevedo has failed to create a genuine issue of

material fact as to that timeline or as to any circumstance that

may have tolled that period.   Accordingly, to the extent that the

complaint states a claim under § 1983, it is time-barred.       The

district court was thus correct in dismissing any such claim.




                                -9-
D. Pendent Claims Under Puerto Rico Law

          Acevedo's remaining claims are based on Articles 1802 and

1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§

5141-5142.    A district court has "broad discretion" to exercise

pendent jurisdiction over state law claims after it has dismissed

federal law claims.   Lares Group II v. Tobin, 221 F.3d 41, 45 (1st

Cir. 2000).    Here, the district court invoked that discretion,

deciding that "Acevedo cannot have a cause of action under local

law when plaintiff's federal cause of action fails."   The district

court did not err in dismissing Acevedo's claims under Puerto Rico

law on that basis.5

          Affirmed.




     5
       We also note, as the district court did, that Acevedo's
claims under Puerto Rico law would be subject to the same statute
of limitations period (one year) as the § 1983 claim. Hence, those
Puerto Rico law claims are time-barred for the same reasons as the
§ 1983 claim described above.

                               -10-
