575 F.2d 315 (1st Cir. 1978), 77-1274, Ramirez de Arellano v. Alvarez de Choudens

Docket Nº:77-1274.
Citation:575 F.2d 315
Party Name:Matilde R. RAMIREZ de ARELLANO, Plaintiff, Appellee, v. Jose A. ALVAREZ de CHOUDENS, etc., Defendant, Appellant.
Case Date:May 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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575 F.2d 315 (1st Cir. 1978)

Matilde R. RAMIREZ de ARELLANO, Plaintiff, Appellee,


Jose A. ALVAREZ de CHOUDENS, etc., Defendant, Appellant.

No. 77-1274.

United States Court of Appeals, First Circuit

May 10, 1978

Argued Feb. 9, 1978.

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Candita R. Orlandi, Asst. Sol. Gen., San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for defendant, appellant.

Alfonso M. Christian, San Juan, P. R., with whom Jose Ramon Perez Hernandez, San Juan, P. R., was on brief, for plaintiff, appellee.

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Before CAMPBELL, BOWNES and MOORE, [*] Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal in an action brought under 42 U.S.C. § 1983 raises the question of what statute of limitations applies in Puerto Rico to a commonwealth employee's claim to have been discharged in violation of constitutional rights. Because we believe the district court misapplied the tolling provisions of the relevant statute, we reverse its judgment in favor of plaintiff and order the suit dismissed.

Matilde R. Ramirez de Arellano filed her complaint on November 15, 1974, charging Jose A. Alvarez de Choudens, Secretary of Health for Puerto Rico, and various other officials with conspiring to alter her employment status from permanent to probationary for political reasons and in violation of due process. She also charged the officials with infringing her constitutional rights by subsequently discharging her from her post. Defendants raised the statute of limitations as an affirmative defense in their answer. After a bench trial, the district court on March 25, 1977 entered judgment for all the defendants except Alvarez de Choudens, ordered the reinstatement of Ramirez de Arellano in the Puerto Rico Civil Service, denied damages, but ordered the payment of $5,000 attorneys' fees to Ramirez de Arellano. Alvarez de Choudens appeals from the judgment for reinstatement and attorneys' fees. The judgment has been stayed pending appeal.

Plaintiff was appointed to a permanent position as an executive in the Puerto Rico Department of Health on December 1, 1972. In order to avoid the probationary period required for such appointments by Puerto Rico law, the Department obtained a ruling from the Commonwealth's Office of Personnel that plaintiff could be credited with time worked in a previous position where she had served under contract rather than as a regular civil service employee. On January 1, 1973, defendant became Secretary of Health. On February 6 he requested a ruling from the Office of Personnel as to the legality of the waiver of plaintiff's probationary period, and on April 6 was advised that the credit was improper and should be disallowed. An official in the Department wrote plaintiff on April 13, informing her of her change in status and placing her on probation until November 30. Plaintiff filed an appeal of that decision with the Commonwealth's Personnel Board on May 4. The Board on the basis of written submissions but without holding a face-to-face hearing upheld the change in plaintiff's status in a decision issued June 27. No direct judicial review of the Board's action was available. P.R.Laws Ann. tit. 3, § 646(a)(6).

Apparently in anticipation of adverse action, plaintiff on September 6, 1973, filed suit in the superior court seeking a writ of mandamus compelling the department not to dismiss her. On November 16 she was informed her services were unsatisfactory and she would not be hired permanently. She appealed that decision to the Personnel Board on November 26. The Personnel Board dismissed the appeal on February 12, 1974, and plaintiff obtained a voluntary dismissal of her suit in the superior court on May 21. The complaint in the present suit was filed in federal district court on November 15, 1974.

The district court ruled that plaintiff had not made out a claim of political harassment and dismissed her suit against all the defendants except Alvarez de Choudens. It held that her dismissal by itself was proper, inasmuch as a probationary employee had no constitutionally cognizable property interest in his employment; accordingly her only claim for relief rested on the change in her tenure status on April 13, 1973. Although the federal suit was brought more than a year after this event, the court ruled that her mandamus suit in the superior court had tolled the statute of limitations. On the merits, the court ruled that the Commonwealth's failure to accord plaintiff a hearing before the change in her status

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violated the fourteenth amendment. The court ordered plaintiff's...

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