Ramirez de Arellano v. Alvarez de Choudens

• Decision Date: 10 May 1978
• Docket Number: No. 77-1274,77-1274
• Citation: 575 F.2d 315
• Parties: Matilde R. RAMIREZ de ARELLANO, Plaintiff, Appellee, v. Jose A. ALVAREZ de CHOUDENS, etc., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 315

575 F.2d 315

Matilde R. RAMIREZ de ARELLANO, Plaintiff, Appellee, v. Jose A. ALVAREZ de CHOUDENS, etc., Defendant, Appellant.

No. 77-1274.

United States Court of Appeals, First Circuit.

Argued Feb. 9, 1978.

Decided May 10, 1978.

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.

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 violated the fourteenth amendment. The court ordered plaintiff's reinstatement in the Department of Health but refused to award damages in view of what it found to be defendant's good faith throughout the dispute. It taxed the Commonwealth with $5,000 in attorneys' fees, however, because of what it found to be the "obdurate obstinacy" with which Alvarez de Choudens had defended the suit.

In Graffals v. Garcia, 550 F.2d 687 (1st Cir. 1977), this court affirmed the determination of the United States District Court for Puerto Rico, 415 F.Supp. 19 (1976), that the analogous state statute of limitations for § 1983 suits grounded on a claim of unconstitutional discharge was that found in P.R.Laws Ann. tit. 31, § 5298(2), governing tort actions. This court further held that the one year period provided by § 5298(2) would not be tolled by an administrative appeal of the dismissal, inasmuch as P.R.Laws Ann. tit. 31, § 5303, the analogous state tolling statute, required an intervening suit to be the same as the suit later filed in order for the earlier suit to have a tolling effect.

On the first of the two above questions the duration of the applicable limitations period the district judge who acted in the present case agreed with his colleague in Graffals (whom we, in turn, had affirmed) that one year was the proper limit. ¹ However, plaintiff-appellee, in urging us to support the judgment in her favor, argues that under Puerto Rican law a three-year statute of limitations is appropriate. If so, there would be no need to confront the troublesome tolling issue, infra. Since it is important to settle the matter and since the possibility of a three-year statute was not raised in Graffals, see 550 F.2d at 688, we shall explore plaintiff's claim notwithstanding the stare decisis effect of Graffals.

Federal courts ordinarily look to the period of limitations applicable to the most closely analogous state cause of action to determine when a § 1983 suit is time barred. Johnson v. Railway Express Agency, Inc.,421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); O'Sullivan v. Felix,233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). In Graffals we held that as § 1983 suits sound in tort, P.R.Laws Ann. tit. 31, § 5298(2), the general one-year statute of limitations for tort actions under the law of the Commonwealth, would apply. Plaintiff bases her argument for a three-year statute upon the fact that Puerto Rico has its own statute for political discharge of an employee, i. e. P.R.Laws Ann. tit. 29, § 136, which plaintiff contends is the most analogous cause of action to the one she has brought. Plaintiff further argues that the limitations period for this cause of action is three years. But even assuming that plaintiff's action were for a "political" firing, it does not appear that she is correct in claiming that a three-year limitations period applies. Section 136 sets forth no specific limitations period, and plaintiff concedes that one must be found in the general provisions of the Commonwealth's code. The apparent source of the three-year period claimed by plaintiff is P.R.Laws Ann. tit. 31, § 5297(3), which governs "the payment of mechanics, servants, and laborers the amounts due for their services, and for the supplies or disbursements they may have incurred with regard to the same." ² A literal reading of this provision would suggest that it is meant to cover claims based on contract or quasi-contract, not those grounded on tortious dismissals. Case law buttresses this interpretation. In Cortes v. Valdes, 43 P.R.R. 184 (1932), the Supreme Court of Puerto Rico held that the predecessor of § 5298(2), governing suits sounding in the civil law equivalent of tort, applied to an action for damages caused by an illegal dismissal. This result confirms the analysis in Graffals v. Garcia, supra, that § 1983 actions based on a violation by a governmental employer of the duty not to discharge an employee unconstitutionally sound in tort, not contract, id. at 688, and that the one year statute provided by § 5298(2) should apply. The district court was therefore correct when it made a like assumption in this case.

We face a more difficult question when it comes to the tolling issue. Here the district judge who decided the instant case is at odds with his colleague who ruled in Graffals. The tolling of the one year period provided by § 5298(2) is governed by P.R.Laws Ann. tit. 31, § 5303, which states:

"Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgment of the debt by the debtor."

In interpreting the phrase "their institution before the courts," the district judge in Graffals v. Garcia, supra, ruled "that said action be the one exercised, not another one that is more or less analogous." 415 F.Supp. at 20 (italics in original). This court, in approving that holding, noted that the opposing party did not "seriously quarrel with this conclusion." 550 F.2d at 688.

But the district judge here, although aware of our decision in Graffals, was persuaded to interpret § 5303 differently. Believing that the combined common and civil law system of Puerto Rico requires a more flexible approach than that of the Spanish Civil Code, the judge held that the institution of any action between the same parties that constituted a diligent pursuit of the right claimed in the later action would come within § 5303 and would...