Melendez-Felix v. United States

• Court: Court of Appeals for the First Circuit
• Decided: February 3, 1994
• Docket: 93-1760
• Status: Published

Opinion

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February 3, 1994        [NOT FOR PUBLICATION]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.

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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,
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        with whom  Guillermo Gil,  United States Attorney,  were on  brief for
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        appellee.

                                 ____________________

____________________

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ALDRICH,  Senior Circuit  Judge.   This $2  million
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            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."

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            1.  Some of the others  originally participated herein,  but,
            for  various reasons,  they have  fallen by  the wayside  and
            Melendez is the sole appellant.

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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.
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            United States, 615 F.2d 284, 291-92 n.15, clarified, 622 F.2d
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            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

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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

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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.
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