Ocasio-Aponte v. Nazario ( 1995 )

USCA1 Opinion

          November 20, 1995     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-1365



                                 EDWIN OCASIO-APONTE,



                                Plaintiff, Appellant,



                                          v.



                             JOSE ARIEL NAZARIO, ET AL.,



                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO





                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Lynch, Circuit Judge,
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                              Watson,* Senior Judge, and
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                           Campbell, Senior Circuit Judge.
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            Francisco J. Rodriguez Juarbe on brief for appellant.
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            Carlos  Lugo-Fiol,  Solicitor  General,  Jacqueline  Novas-Debien,
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        Deputy Solicitor General,  Lorraine J.  Riefkohl, Assistant  Solicitor
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        General, Department of Justice, Jose  Carlos  Garcia-Selva and  Sigrid
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        Lopez-Gonzalez Law Offices, on brief for appellees.
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        *Of the  United  States  Court  of  International  Trade,  sitting  by

        designation.































                 Per  Curiam.     Appellant  Ocasio-Aponte  appeals   the
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            dismissal of his action, pursuant to 42 U.S.C.   1983, by the



            United States District Court for the District of Puerto Rico,



            on the ground that  his complaint was time barred  because it



            had  not been filed within the applicable one year statute of



            limitations period.  We affirm.



                 Ocasio-Aponte's action arising out of the termination of



            his government employment was filed in federal court on April



            23, 1992.   Although his alleged injury occurred in 1988, the



            parties agree that the statute of limitations had been tolled



            by an action filed in the Commonwealth Supreme Court in 1989.



            This action was dismissed  by the Commonwealth Superior Court



            for failure to exhaust  administrative remedies.  The Supreme



            Court  of  Puerto  Rico  subsequently  denied Aponte-Ocasio's



            petition  for review  and  motion for  reconsideration.   The



            parties were notified of the court's denial of the motion for



            reconsideration on  April  22, 1991.   The  Supreme Court  of



            Puerto Rico issued its  mandate to the Superior Court  on May



            1, 1991.



                 The sole  question  in this  case  is when  the  tolling



            period ended.  According  to Ocasio-Aponte the tolling period



            lasted  until  mandate issued;  according  to  appellees, the



            period lasted only  until the parties were  notified on April



            22, 1992, of the court's denial of Aponte-Ocasio's motion for



            reconsideration.  Both parties  agree that the instant action



































            is  time barred if, but only  if, the tolling period ended on



            or before April 22, 1991.



                 State law,  here the  law of  Puerto Rico,  controls the



            question  of the duration of  the tolling period.   Wilson v.
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            Garcia, 471  U.S. 261,  269 (1985);  Gonsalves v.  Flynn, 981
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            F.2d 45, 47  (1st Cir. 1992).   As  the district court  held,



            under Puerto Rico law, the tolling period ends when the court



            enters a final judgment.  Duran Cepeda v. Morales Lebron, 112
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            D.P.R. 623, 12 Official  Translations 776, 785 (1982); Fresh-
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            O-Baking Co. v. Molinos  de Puerto Rico, 103 P.R.R.  707, 717
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            (1975).  A judgment is final, at the latest, when it has been



            "rendered  and  notified  with the  proper  legal formality,"



            Sanchez v. Municipality  of Cayey, 94  P.R.R. 89, 96  (1967).
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            Finality is not dependent on the date on which mandate issues



            to the lower court.  See Dominguez v. Fabian, 36  P.R.R. 509,
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            511 (1927)  (judgment final,  for purposes of  taking appeal,



            from  date rendered  and filed  with court  not from  date on



            which mandate issues).



                 Under Puerto Rico law,  a final judgment in  the instant



            case was rendered, at the latest, on April  22, 1991; for, on



            that date, the parties  received formal notification from the



            Puerto  Rico  Supreme Court  that Ocasio-Aponte's  motion for



            reconsideration  had been  denied.   As  of  April 22,  1991,



            therefore, the tolling period  was at an end and  the statute



            of  limitations  began to  run  anew.   Rodriguez  Narvaez v.
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                                         -3-



























            Nazario, 895 F.2d 38, 43 (1st Cir. 1990).   Since the present
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            action  was  filed more  than one  year  from this  date, the



            district court was correct in finding it time barred.



                 Affirmed.
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