Nelson Afanador v. United States Postal ServiceNelson Afanador v. United States Postal Service
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
Nelson AFANADOR, et al., Plaintiffs, Appellants,
v.
UNITED STATES POSTAL SERVICE, et al., Defendants, Appellees.
No. 92-1238.
United States Court of Appeals,
First Circuit.
September 17, 1992
Appeal from the United States District Court for the District of Puerto Rico
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.
D. Puerto Rico
AFFIRMED.
Before Torruella, Cyr and Stahl, Circuit Judges.
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,
The district court has described the factual and procedural history of this case in Afanador v. U.S. Postal Service,
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,
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. 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 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.
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,
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,
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 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,
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,
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,
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,
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,
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 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,
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 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.,
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,
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 precisely stated appellants' claim against him. See Riofrio Anda v. Ralston Purina Co.,
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,
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.
Notes
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
We hereby grant the parties' joint motion to submit this case for decision without oral argument
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.,
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
There is disagreement on this issue among the district courts. See, e.g., Plourde v. USPS,
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 representationof 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,
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