
USCA1 Opinion

	




        February 3, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No.  93-1760                                JORGE MELENDEZ-FELIX,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Antonio Bauza Torres for appellant.            ____________________            Maria Hortensia  Rios Gandara, Assistant  United States  Attorney,            _____________________________        with whom  Guillermo Gil,  United States Attorney,  were on  brief for                   _____________        appellee.                                 ____________________                                 ____________________                                         -2-                      ALDRICH,  Senior Circuit  Judge.   This $2  million                                _____________________            plus  lawsuit against the United States and several employees            thereof  stems  from  an  incident  outside  Gate  1  of  the            Roosevelt Roads Navy  Station in Puerto Rico on  the night of            July  9, 1990.  Plaintiff Jorge Melendez-Felix (Melendez) and            others1 were  arrested and, allegedly, mistreated before they            were  released.  This  action was  commenced on  February 25,            1992,  and dismissed,  on motion  of defendants, on  June 25,            1993.  We affirm.                      We  consider first the  F.T.C.A. action against the            United States.   28 U.S.C.     2671-2680.  A single  claim on            Standard   Form   95  naming   plaintiff   and  another   was            acknowledged  by  the  proper agency  on  February  21, 1991.            Counsel was  immediately sent new  blank forms with  a letter            stating in  detail the  necessary requirements.   The  letter            referred to counsel  as having clients (plural),  and stated,            "Each claimant has to fill [sic] a separate form."  (Emphasis             ____            in orig.)   However, no response was made, and the agency, by            letter  of October  1, 1991,  stated,  "[T]he claim  of Jorge            Melendez-Felix and  Idalia Robles  Suarez is hereby  denied."            The  letter concluded  "they may file  suit . . .  within six            months."                                            ____________________            1.  Some of the others  originally participated herein,  but,            for  various reasons,  they have  fallen by  the wayside  and            Melendez is the sole appellant.                                         -3-                      Plaintiffs'  action against  the United  States was            timely  filed  with Melendez  as  a  plaintiff, but  with  no            mention of  Miss Robles  Suarez.  In  granting the  motion to            dismiss Melendez's action the court accepted the government's            contention  that it had no jurisdiction because of Melendez's            failure to specify a sum certain on his claim.  This followed            long settled law.  28 C.F.R.    14.2(a); Corte Real v. United                                                     __________    ______            States, 949  F.2d 484, 485-86  (1st Cir. 1981); see  Adams v.            ______                                          ___  _____            United States, 615 F.2d 284, 291-92 n.15, clarified, 622 F.2d            _____________                             _________            197 (5th Cir. 1980).  This  requirement is to aid the  agency            to  evaluate the  claim for  settlement purposes.   Swift  v.                                                                _____            United  States,  614 F.2d  812,  814  (1st  Cir. 1980).    So            ______________            important is it  considered that if a figure  is not supplied            the court lacks  jurisdiction.  Corte Real, 949  F.2d at 485-                                            __________            86.  See Lopez v. United States,  758 F.2d 806, 808 (1st Cir.                 ___ _____    _____________            1985).                      The  form 95  submitted by  counsel  gave a  single            dollar  figure.  Melendez's position is that this represented            his  personal  claim  only  because  only  he  was  named  as            claimant; if Idalia  Robles Suarez appeared to  be a claimant            also, it  "was obviously  a clerical error."   There  are two            answers to this.  The first is that it did not appear to be a            mere clerical error.  Question 2 as printed on the form read,            "Name,  address of  claimant."   To the  word  claimant, when            submitted,  there was added  the letter  "s", and  the answer                                         -4-            given  was  "JORGE  MELENDEZ-FELIX  AND  MISS  IDALIA  ROBLES            SUAREZ."  This  was more than a typographical  slip.  Second,            if there was an error,  the error was conspicuously not clear            to the  agency.   In addition to  "Each claimant,"  ante, the                                               ____             ____            acknowledgement  letter to counsel twice spoke of his clients            with an "s".  Reading this form and this  letter together, no            counsel  could reasonably think he had submitted an "obvious"            single  claim.   Nor  should he  overlook  the agency  letter            specifying the need for a "specific dollar amount," which was            already done, had there been but one claimant.                      When counsel failed to respond  in any way in spite            of the letter's  saying, "We cannot  stress too strongly  the            importance of accurate and  thorough completion," the  agency            ultimately denied the  claim.  Plaintiff, properly,  does not            assert  a  waiver   of  plaintiff's  failure  to   supply  an            individual claim figure.   It being jurisdictional,  ante, it                                                                 ____            could not  be waived.   We would be bucking  established, and            important, government procedure if we were to hold otherwise.                      The  other defendants remaining in the case are the            individual government  employees who participated in the July            incident.  Here  plaintiff's claim is predicated  upon Bivens                                                                   ______            v. Six Unknown  Federal Agents, 403 U.S.  388 (1971).  As  to               ___________________________            this the action was brought  after the Puerto Rico statute of            limitations would normally  have run.  Under Puerto Rico law,            the statute of limitations is tolled if plaintiff has, before                                         -5-            the time  expired, expressed  his intention  of pursuing  his            claim, DeJesus  v. Chardon, 116  D.P.R. 238, 116  D.P.R. 290,                   _______     _______            301 (1985)  (translation), or  if plaintiff  has asserted  an            "extrajudicial  claim" within Article 1873 of the Civil Code.            31  P.R.L.A.   5303.   Further, under  certain circumstances,            making  such an expression  to one obligee  may automatically            toll  it  as to  others.    31  P.R.L.A.   5304;  Fuentes  v.                                                              _______            District Court, 73 D.P.R.  959, 73 D.P.R. 893, 907-08  (1952)            ______________            (translation).  On this theory plaintiff says that filing the            95 form with  the government tolled the statute  with respect            to the other  defendants.  We  hold otherwise.   Even in  the            context of  a single  defendant, "tolling  is effective  with            regard  only to  identical  causes  of  action."    Rodriguez                                                                _________            Narvaez  v.  Nazario,  895  F.2d  38,  43  (1st  Cir.  1990);            _______      _______            Fernandez v. Chardon, 681 F.2d  42, 49 (1st Cir. 1982), aff'd            _________    _______                                    _____            sub nom  Chardon v. Fumero  Soto, 462  U.S. 650 (1983).   The            _______  _______    ____________            rule can be no broader for co-defendants.  Plaintiff sued the            United States under the Federal  Tort Claims Act for a common            law tort.  Under Bivens he sued the individual defendants for                             ______            violation  of  his  constitutional rights.    These  are very            different claims.  The fact that the same facts were involved            is not determinative.  Cf. Fernandez, 681 F.2d at 49.                                   __  _________                      Affirmed.                      ________                                         -6-
