-
USCA1 Opinion
September 17, 1992 [NOT FOR PUBLICATION]
____________________
No. 92-1238
NELSON AFANADOR, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES POSTAL SERVICE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
____________________
William Santiago-Sastre and Melendez Perez, Moran & Santiago on
________________________ __________________________________
brief for appellants.
Daniel F. Lopez Romo, United States Attorney, and Fidel A.
_______________________ _________
Sevillano Del Rio, Assistant United States Attorney, on brief for
__________________
appellees.
____________________
____________________
Per Curiam. In this case appellants appeal a
__________
judgment dismissing their claims against the United States
Postal Service (USPS) and the Postmaster General under the
Federal Tort Claims Act (FTCA), 28 U.S.C. 2672 et seq., and
against a postal inspector, D. H. Tanner, under Bivens v. Six
______ ___
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
___________________________________________________
388 (1971). Appellants ask this court to find that Fed. R.
Civ. P. 15(c)(3), effective December 1, 1991, applies to
their second amended complaint, adding the United States as
defendant, and to remand the case to the district court with
instructions to apply that rule. They also ask this court to
overrule that portion of the decision below that held that
the one-year statute of limitations on their Bivens claim had
______
not been tolled by their May 1988 letter to the USPS and
others demanding administrative resolution of their claims.1
We affirm the rulings below.2
The district court has described the factual and
procedural history of this case in Afanador v. U.S. Postal
________ ___________
Service, 787 F. Supp. 261 (D.P.R. 1991). We describe
_______
____________________
1. Appellants also brought a Title VII claim which the
district court dismissed. Appellants do not contest the
court's dismissal of their Title VII claim on appeal, thereby
waiving their right to do so. Accordingly, we confine our
discussion to the FTCA and Bivens issues.
______
2. We hereby grant the parties' joint motion to submit this
case for decision without oral argument.
-2-
additional significant facts as necessary in the following
discussion.
DISCUSSION
__________
I. Application of Rule 15(c)(3)
____________________________
Before its amendment in 1991, Fed. R. Civ. P. 15(c)
provided, in relevant part, that an amendment changing a
party related back to the date of the original pleading if,
"within the period provided by law for commencing the action
against the party to be brought in by amendment," that party
received notice of the action such that its defense would not
be prejudiced, and knew or should have known that the action
would have been brought against it but for the other party's
mistake as to the identity of the proper party. In Schiavone
_________
v. Fortune, 477 U.S. 21, 30 (1986), the Supreme Court found
_______
that the plain language of Rule 15(c) precluded relation back
when notice of the suit was not given the defendant to be
added until after the limitations period had expired, even if
the complaint had been served on the proposed defendant
within the appropriate period for service of process.
On April 30, 1991, the Supreme Court published a
proposed amendment of Rule 15(c). The amendment was intended
to prevent defendants "from taking unjust advantage of
otherwise inconsequential pleading errors to sustain a
limitations defense" and, specifically, to change the result
in Schiavone with respect to "misnamed" defendants. See Fed.
_________ ___
-3-
R. Civ. P. 15 advisory committee notes. In relevant part,
Rule 15(c)(3) now provides that an amendment that "changes
the party or the naming of the party against whom a claim is
asserted" relates back to the date of the original pleading
if, "within the period provided by Rule 4[j] for service of
the summons and complaint," the party to be added has
received such notice of the action that its defense would not
be prejudiced, and knew or should have known that the action
would have been brought against it but for the other party's
mistake as to the identity of the proper party. Under the
new rule appellants' amended complaint would relate back to
the date of their original, timely complaint since they
served process on the appropriate parties during the time
period required by Rule 4(j).
The Supreme Court stated that the new rules would
take effect on December 1, 1991, and "govern all proceedings
in civil actions thereafter commenced and, insofar as just
and practicable, all proceedings in civil actions then
pending." Order of April 30, 1991, Amending Civil Rules,
reprinted in 12 Wright & Miller, Appendix at 135-36 (Supp.
_____________
1992). The district court in the instant case dismissed
appellants' FTCA claims on February 28, 1990, and entered
partial judgment thereon. The case continued in the district
court thereafter with the remaining claims disposed of and
final judgment entering on January 7, 1992. Thus, on the
-4-
date the new Rule 15(c)(3) became effective, the instant
action was still "pending". In addition, on appeal we apply
the law in effect at the time we render a decision, unless
doing so would work a "manifest injustice". See Freund v.
__________
Fleetwood Enterprises, Inc. 956 F.2d 354, 363 (1st Cir.
_____________________________
1992). Consequently, we may apply the new rule to this case
as appellants request if it is "just and practicable" to do
so and does not otherwise work a "manifest injustice".
Appellants urge us to apply the new rule because it
was intended to prevent a defendant from taking "unjust
advantage of otherwise inconsequential pleading errors to
sustain [a] limitations defense." They further argue that
the court below was "forced" to dismiss their FTCA action
under the Schiavone case, which was at odds with the liberal
_________
pleading philosophy of the Federal Rules of Civil Procedure
and has since been superseded by the rule change.
We recognize the surface appeal of appellants'
argument that the new rule should be applied because the
court below was required to dismiss their FTCA claims under
the now discredited Schiavone decision. We also acknowledge
_________
that other courts of appeals have found this reasoning to be
persuasive, and have applied the new rule upon appeal to
reinstate already dismissed causes of action. See, e.g.,
__________
Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546
_________ __________________________
(5th Cir. 1992); Hill v. U.S. Postal Service, 961 F.2d 153,
____ ___________________
-5-
155-56 (11th Cir. 1992); Bayer v. U.S. Department of
_____ ____________________
Treasury, 956 F.2d 330, 334-35 (D.C. Cir. 1992) (dictum).3
________
Nevertheless, we find that it would not be just and
____________________
3. In a case not directly applicable here because it
involved a cause of action already found by a jury to be
without substantive merit, this court declined to apply
amended Rule 15(c) to permit relation back in Schiavone-type
_________
circumstances. In Freund v. Fleetwood Enterprises, Inc., 956
______ ___________________________
F.2d 354 (1st Cir. 1992), the plaintiff had sued, among other
defendants, an internal division of a company, not realizing
that the division had no separate legal existence. After the
statute of limitations had expired, but during the period for
service of process, plaintiff sought to amend his complaint
to include the company, but the judge dismissed the complaint
on statute of limitations grounds. After plaintiff lost his
jury trial against different defendants, he appealed the
earlier dismissal against the company. Under Schiavone, this
_________
court ruled that there was no relation back. On our own
motion, however, we considered the effect of amended Rule
15(c). We did not refer to the "just and practicable"
language in the Supreme Court's amending order in determining
whether to apply the new rule. Rather, we used a "manifest
injustice" standard since we apply the law in effect at the
time of appeal if doing so does not work a manifest
injustice. Id. at 363. For two reasons we concluded that
___
applying the amended rule would work a manifest injustice in
Freund. First, the jury case that plaintiff had just lost
______
was "the very case" he sought to bring against the newly-
added defendant. We found no reason to believe that a second
trial would end differently than the first. Nor did we see
any reason to "force [the company], who 'played by the rules'
in effect at the time, to endure the expense and
inconvenience of a trial likely to produce that outcome."
Id. Second, the plaintiff's brief on appeal had been so
___
deficient that we had had to untangle and reconstruct
plaintiff's arguments. If we had not had to do so, we would
likely have affirmed the case on appeal before the new rules
had become effective. Applying the new rule would have given
plaintiff an "otherwise unattainable windfall." Id.
___
-6-
practicable and that it would work a manifest injustice to
apply amended Rule 15(c)to permit relation back inthis case.4
First, the circuit court cases which have applied
the amended rule retroactively are distinguishable. In those
cases the plaintiffs had sued an agency under Title VII
rather than the head of the agency, as required in such
suits. Since the head of an agency is practically
indistinguishable from the agency itself, see, e.g., Johnson
___ _____ _______
v. USPS, 861 F.2d 1475, 1488 (10th Cir. 1988) (McKay, J.,
____
dissenting), cert. denied, 493 U.S. 811 (1989), the
_____ ______
defendants truly were trying to avail themselves of a "now-
obsolete procedural loophole" in asserting their statute of
limitations defense under Schiavone. See Skoczylas, 961 F.2d
_________ _____________
at 546.
In contrast, in this FTCA case appellants sought to
add the United States and not merely the head of an
improperly named agency. The FTCA states clearly that the
defendant in an FTCA action is the United States, and not its
agencies. See 28 U.S.C. 1346(b), 2674, 2679. Although we
___
have not ruled on this precise issue, other circuit courts
have found this distinction to be a real one, and not just an
"inconsequential pleading error" of the type decried by
____________________
4. In light of this conclusion, we need not consider the
government's argument that appellants' complaint adding the
United States as defendant is deficient in other respects and
should be dismissed.
-7-
critics of Schiavone. For example, in an FTCA case not
_________
tainted by reliance on Schiavone, the Seventh Circuit denied
_________
that it was a simple "misnomer" to sue the Department of
Justice and the FBI rather than the United States. Hughes v.
______
United States, 701 F.2d 56, 58 (7th Cir. 1982). The court
_____________
noted that the FTCA specifically made the United States,
rather than the governmental agency, the suable entity.
Moreover, "[g]overnment agencies do not merge into a
monolith; the United States is an altogether different party
from either the F.B.I. or the Department of Justice." Id.
___
Even though the United States Attorney might represent both
the United States and its agencies, that did not make an
agency the "functional equivalent" of the United States.
Id.; accord Allgeier v. United States, 909 F.2d 869, 874 &
___ ______ ________ ______________
n.6 (6th Cir. 1990); Allen v. Veterans Administration, 749
_____ ________________________
F.2d 1386, 1389 (9th Cir. 1984).5
____________________
5. There is disagreement on this issue among the district
courts. See, e.g., Plourde v. USPS, 721 F. Supp. 218, 221-23
___ ____ _______ ____
(D. Minn. 1989) ("[T]he United States government and the
United States Postal Service are not sufficiently related to
permit notice to the agency to be imputed to the United
States government. While the head of an agency can be
expected to be on notice of a claim presented to his own
agency, the United States government cannot be expected to be
on notice of every claim presented against the United States
Postal Service."); but see Murray v. USPS, 569 F. Supp. 794,
___ ___ ______ ____
797 (N.D.N.Y. 1983) (the court found that the FTCA's
requirement that the United States and not the agency be sued
was a "trap for the unwary" and consequently applied Second
Circuit precedent in a non-FTCA case to permit relation back
in this FTCA case to add the United States as defendant where
the USPS had been sued in a timely fashion and service had
been effected within a reasonable time thereafter); cf.
__
-8-
Second, in these circumstances relation-back under
the amended rule would effect a de facto extension of the
__ _____
six-month limitations period, see 28 U.S.C. 2401(b) (six-
___
month limitations period for FTCA suits against the United
States is measured from date of mailing of agency denial of
administrative claim), thereby retroactively enlarging by
mere operation of the procedural rule the United States'
waiver of sovereign immunity from suit. See United States v.
___ _____________
Kubrik, 444 U.S. 111, 117-18 (1979) ("We should also have in
______
mind that the [FTCA] waives the immunity of the United States
and that in construing the statute of limitations, which is a
condition of waiver, we should not take it upon ourselves to
extend the waiver beyond that which Congress intended.").
____________________
Murray v. USPS, 550 F. Supp. 1211, 1212 (D. Mass. 1982) (if
______ ____
the original complaint is served on the USPS or the U.S.
Attorney within the limitations period, the United States "is
assumed to have the requisite knowledge under [Rule 15(c)]"
to permit relation back to add the United States as
defendant). In calling the FTCA requirement -- that the
United States and not the agency be sued -- a "trap for the
unwary", the New York Murray court cited a 1963 article
______
referenced in Section 1502 in Wright and Miller's Federal
_______
Practice and Procedure. The abuses described in that
________________________
article, and deplored by the Murray court, were intended to
______
be corrected by the 1966 amendment to Rule 15(c), adding the
____
so-called governmental notice provisions of the Rule's final
paragraph. Because the court failed to consider the effect
of the 1966 amendment -- in characterizing the FTCA
requirement that the United States be sued a "trap for the
unwary" -- we are inclined to view it as unpersuasive
precedent. This is especially so in light of the clear
language in the FTCA as to who the proper defendant is in
FTCA cases. Likewise, the comment in the Massachusetts
Murray decision about imputing the agency's notice to the
______
United States is dictum, unsupported by any discussion or
reference to case law.
-9-
More basically, appellants sued the USPS within the
six-month limitations period, but not the United States,
affording the United States a valid limitations defense which
it has raised.6 The government, qua the United States,
___
received no notice of appellants' suit until well after the
limitations period had expired. Receipt of appellants'
letter demanding administrative resolution of their claims
was not notice that appellants had instituted an action, the
___
only relevant notice under Rule 15(c). See Cooper v. USPS,
___ ______ ____
740 F.2d 714, 717 (9th Cir. 1984), cert. denied, 471 U.S.
_____ ______
1022 (1985). Furthermore, at the time the USPS defended
against this action Rule 15(c) had not yet been amended.
Compare Boliden Metech, Inc. v. United States, 140 F.R.D. 254
____________________________ _____________
(D.R.I. 1991) (alternative holding) (in light of the
extensive notice of plaintiff's FTCA claim that the United
States had received prior to expiration of the limitations
period, the court found that it would be "inequitable" not to
____________________
6. Although the USPS asserted appellants' failure to sue the
United States within the limitations period to obtain
dismissal of appellants' suit against the USPS, the
government's brief on appeal makes clear that the United
States Attorney is also asserting the limitations defense on
behalf of the United States to prevent its addition as
defendant. We recognize that some courts might conclude that
the simultaneous representation of an agency and the United
States by the United States Attorney undercuts the claim that
the two are not functional equivalents. Nevertheless, as did
the Hughes court, 701 F.2d at 58, we believe that
______
distinguishing between the United States and its agencies is
appropriate in FTCA cases, especially since Congress
distinguished so clearly between the two in determining who
was the proper defendant in FTCA actions.
-10-
apply amended Rule 15(c), which would be effective in one
month's time).
Furthermore, although the district court relied on
Schiavone, the relationship between the improperly named
_________
defendant and the defendant to be added is different here
than it was in Schiavone. As discussed above, all circuit
_________
courts that have considered the relationship between the
United States and its agencies for purposes of suit under the
FTCA have found that the United States and its agencies are
distinct parties. In contrast, in Schiavone the plaintiffs
_________
originally had sued a nonsuable internal division of the
suable corporate entity it later sought to add. Therefore,
the defendant to be added in Schiavone had a very close
_________
identity of interest with the defendant originally sued, much
like the identity of interest between an agency and the head
of the agency in the Title VII cases discussed above. It was
the perceived pettiness of faulting the plaintiff for this
kind of error at which the Rule 15(c) amendment was aimed in
part. See, e.g., Schiavone, 477 U.S. at 36 (Stevens, J.,
_____________________
dissenting) (denying that Schiavone involved an amendment
_________
changing the party against whom the claim was asserted;
changing the description of the defendant from Fortune
magazine to the corporate publisher of Fortune was a
"technical correction [that] added absolutely nothing to any
-11-
party's understanding of 'the party against whom' the claims
were asserted . . . .").
For these reasons, we find that the government
legitimately relied on its statute of limitations defense in
the proceedings below, and did not profit unfairly from a
"now-obsolete procedural loophole" in Rule 15(c). In light
of the Supreme Court's caution that we not extend the period
of governmental liability beyond the time to which the
government has consented, we find that applying the rule here
would be unjust. It would, in fact, extend the period during
which the sovereign immunity of the United States has been
waived, without notice to the United States, qua FTCA
___
defendant. See also Hunt v. Department of Air Force, 787 F.
_____________ _______________________
Supp. 200 (M.D. Fla. 1992) (refusing to apply amended Rule
15(c) to permit relation back in an FTCA case since waivers
of sovereign immunity should be read strictly).
Finally, the general equities appear to lie with
the government rather than appellants. Appellants were
represented by counsel early on. Even before litigation was
begun, appellants' attorney knew that the United States was
the proper defendant. Not only did his May 25, 1988, letter
demanding administrative USPS action threaten to sue the
United States under the FTCA, but the USPS's denial of the
administrative claim, which was addressed to appellants'
counsel, specifically stated that appellants should sue the
-12-
United States if dissatisfied with the final action on their
claim. Incomprehensible as it may seem, appellants' attorney
even appears to have initially disputed the fact that the
________
United States was the only proper defendant under the FTCA.7
Furthermore, appellants failed to ask the district
court to reconsider its dismissal of their FTCA claims after
the new rule was amended. At the time Rule 15(c)(3) became
effective, the district court had not yet entered its final
judgment. Nor did appellants ask the court to amend its
judgment under Fed. R. Civ. P. 59(e) once final judgment had
entered, though on appeal they seek remand so that the
district court may reconsider its earlier dismissal in light
of the new rule. In this circuit, as we have stated before,
it is "a party's first obligation to seek any relief that
might fairly have been thought available in the district
court before seeking it on appeal." The Dartmouth Review v.
____________________
Dartmouth College, 889 F.2d 13, 22 (1st Cir. 1989) (quoting
_________________
Beaulieu v. United States International Revenue Service, 865
________ ___________________________________________
F.2d 1351, 1352 (1st Cir. 1989)).
Reluctant as we are to permit dismissal of a claim
that may be valid, it is more equitable that appellants, and
not the government, be made to bear the consequences of their
____________________
7. An Initial Conference Scheduling Order, dated December
15, 1989, lists as the only controverted issue between the
parties the question whether the USPS was the proper
defendant in an FTCA action.
-13-
attorney's failures here. This is especially so because
appellants have made no effort to explain their failure to
sue an obvious defendant, see Quaker State Oil Refining Corp.
___ _______________________________
v. Garrity Oil Co., 884 F.2d 1510, 1517-18 (1st Cir. 1989),
_______________
and because applying the new rule would deprive the
government of a validly asserted limitations defense,
effectively extending its period of liability without prior
notice.
II. Tolling of the Bivens Limitation Period
_______________________________________
We see no error in the district court's ruling that
appellants' letter demanding administrative action did not
toll the limitations period on their Bivens claim against
______
Postal Inspector Tanner. As the district court stated,
appellants did not address their claim to Tanner as required
under Puerto Rico law, nor did they send him a copy. See
___
Afanador, 787 F. Supp. at 267.
________
It is not clear, however, whether the district
court specifically considered and rejected appellants'
argument that Tanner "in all likelihood" received a copy of
their letter from his USPS superiors. Nevertheless, we have
considered their argument, and we reject it. We have
assumed, without deciding, that receipt by Tanner of
appellants' claim addressed to the USPS and other parties
would satisfy the Puerto Rico tolling requirements as long as
it expressed appellants' intention to sue Tanner and
-14-
precisely stated appellants' claim against him. See Riofrio
___ _______
Anda v. Ralston Purina Co., 959 F.2d 1149, 1153 (1st Cir.
____ ___________________
1992). Appellants' argument is deficient for obvious
reasons. Appellants' speculation that Tanner received their
letter stating a Bivens claim does not constitute proof that
______
the letter in fact reached him. Appellants have not met
their burden of proof on that issue. See Diaz de Diana v.
___ ______________
A.J.A.S. Insurance Co., 10 T.P.R. 602 (P.R. 1980) (the party
______________________
seeking the benefit of a tolling provision has the burden of
proving that tolling has occurred).
We also affirm the district court's ruling that
there was no tolling under 31 P.R. Laws Ann. 5304, which
essentially provides that tolling the limitations period as
to one of several jointly liable defendants tolls it as to
all defendants. The district court correctly found, 787 F.
Supp. at 267, that the parties to whom appellants' letter was
addressed were not jointly and severally liable with Tanner
on the Bivens claim. Id.; cf. Rivera v. United States, 924
______ ___ ___ ______ _____________
F.2d 948, 951 (9th Cir. 1991) (affirming lower court
dismissal of Bivens claims because the United States has not
______
waived its sovereign immunity with respect to such claims).
On appeal, appellants suggest a novel interpretation of
Section 5304, which, they claim, would permit tolling of the
limitations period on their Bivens claim. Because appellants
______
did not argue that interpretation to the district court, we
-15-
do not consider it on appeal. United States v. Curzi, 867
_____________ _____
F.2d 36, 44 (1st Cir. 1989).
CONCLUSION
__________
We deny appellants' request to remand their FTCA
claims to the district court. The district court judgment
dismissing appellants' FTCA claims for failure to sue the
United States and dismissing appellants' Bivens claim for
______
untimeliness is affirmed.
________
-16-
Document Info
Docket Number： 92-1238
Filed Date： 9/17/1992
Precedential Status： Precedential
Modified Date： 9/21/2015