Afanador v. US Postal Service

• Decision Date: 30 December 1991
• Docket Number: Civ. No. 89-0312 (JP).
• Citation: 787 F. Supp. 261
• Parties: Nelson AFANADOR, Maria Afanador and their Conjugal Partnership, Plaintiffs, v. UNITED STATES POSTAL SERVICE, Anthony Frank, Postmaster General, D.H. Tanner, in his official capacity and personally, and the United States of America, Defendants.
• Court: U.S. District Court — District of Puerto Rico

787 F. Supp. 261

Nelson AFANADOR, Maria Afanador and their Conjugal Partnership, Plaintiffs, v. UNITED STATES POSTAL SERVICE, Anthony Frank, Postmaster General, D.H. Tanner, in his official capacity and personally, and the United States of America, Defendants.

Civ. No. 89-0312 (JP).

United States District Court, D. Puerto Rico.

December 30, 1991.

COPYRIGHT MATERIAL OMITTED

William Santiago Sastre, Santurce, P.R., for plaintiffs.

Fidel A. Sevillano del Rio, Asst. U.S. Atty., Hato Rey, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it Defendants' Motion to Dismiss and/or for Summary Judgment on the two causes of action remaining in this case. For the reasons stated below, defendants' motion is hereby GRANTED.

I. Factual Background

The essential facts underlying this action are not in dispute. Plaintiff Nelson Afanador is at present, and was at all times pertinent to this case, a Window and Distribution Clerk with the United States Postal Service (hereinafter "Postal Service") in San Juan, Puerto Rico. The defendants are the Postal Service Postmaster General Anthony Frank, and D.H. Tanner, a postal inspector empowered by law to execute searches, seize evidence, and make arrests based on violations of federal law.

On October 5, 1986, Afanador was interrogated at the Postal Inspection Service Office in San Juan by postal inspectors Tanner and D.J. Pinto. After the interrogation, he was informed that he was the target of an investigation growing out of a complaint filed by a client of the Postal Service. On December 8, 1986, Afanador again met with Tanner. Afanador alleges that during this meeting the two agreed that if a criminal case was pursued by the Postal Service against Afanador, he would be notified in order to allow him to surrender voluntarily, thereby avoiding a public arrest at his workplace in the presence of his co-workers.

Afanador was later informed through his superior, Mr. Pedro Casas, that he could no longer work at the post office customer window or participate in any transactions involving money since he was the subject of an ongoing investigation. Afanador alleges that at this point he became the subject of rumors circulating among his co-workers. His wife, who is also a Postal Service employee and a plaintiff in this action, claims that because of her husband's situation, she suffered humiliation and mental distress.

On January 23, 1987, Tanner served Afanador with a Grand Jury subpoena at his workplace. On April 30, 1987, Tanner was informed that the Grand Jury had not returned an indictment against Afanador; however, Tanner did not inform Afanador, nor anyone else, of the results of the Grand Jury investigation. On May 20, 1987, Afanador was suspended from work for fourteen days based on the facts underlying the investigation. Upon his return, Afanador's duties were limited to clerical tasks.

On July 23, 1987, Tanner, based on an information charge filed in federal court, arrested Afanador at his workplace, thereby violating the alleged agreement they had made regarding his voluntary surrender. A Federal Magistrate released Afanador on his own recognizance; however, upon returning to work Afanador was notified that he was once again suspended. On August 24, 1987, at a status conference with the District Court Judge presiding over the case, the criminal charges were dismissed due to the government's failure to prosecute.

After exhausting the available administrative remedies,¹ Afanador brought the instant civil suit alleging that the defendants are liable to him for malicious prosecution and abuse of process, and under the authority of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Afanador originally sought compensation in the amount of $500,000.00 for lost income, $150,000.00 for mental anguish, $20,000.00 for expenses, $200,000.00 for damages to his reputation and $250,000.00 for his wife. He later added claims, under his Title VII cause of action, for an additional $20,000.00 in expenses as well as attorneys' fees and costs.

On February 28, 1990, this Court, in response to Defendants' Motion to dismiss dated January 16, 1990, dismissed plaintiff's first (malicious prosecution) and second (abuse of process) causes of action, noting that both were based on the Federal Tort Claims Act, (hereinafter "F.T.C.A."), that the proper party to an F.T.C.A. action is the United States of America, not individual agencies or officers, and that the United States had not received proper notice of the action within the required time. See Pretrial Conference Order, Civ. No. 89-0312 (February 28, 1990). The Court thereafter instructed the parties that if a settlement was not reached, the defendants should file legal memoranda discussing (i) the statute of limitations in Bivens actions, and (ii) the plaintiff's Title VII retaliation action. In compliance with that instruction, and after plaintiff declined a settlement offer, defendants submitted their Motion to Dismiss and/or for Summary Judgment, which was opposed in Plaintiff's Brief on the Bivens and Title VII Retaliation Actions.²

II. The Bivens Claim

Plaintiff's primary remaining claim is against defendant Tanner alone, in his personal capacity, under the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in which the Supreme Court held that violations of the Fourth Amendment's commands against unreasonable searches and seizures by a federal agent acting under color of federal authority give rise to a federal cause of action against the agent for damages consequent upon the agent's unconstitutional conduct. In the later case of Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court held that the liability established in Bivens also extends to violations of the rights provided under the due process clause Fifth Amendment. Plaintiff's claims are therefore predicated on alleged violations of his Fourth and Fifth Amendment rights.³

Defendants' move to dismiss plaintiff's Bivens action, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure,⁴ on the ground that it is time-barred. The issue of the appropriate statute of limitations in Bivens actions is not new to this Court, see, e.g., López v. Aran, 600 F.Supp. 323 (D.Puerto Rico 1984) (Pieras, J.), nor to other courts in this District, see, e.g., Padró v. Department of Navy, 759 F.Supp. 958 (D.Puerto Rico 1991) (Cerezo, J.), all of which have held that a one-year statute of limitations applies. This issue has not yet been decided by the Court of Appeals for the First Circuit, however, so the Court is willing to reconsider its position.

The reasoning, which is widely accepted by federal courts, that leads to the conclusion that a one-year limitations period applies in this case, proceeds as follows. Bivens actions, being creatures of federal common law, have no established statutory limitations period; however, in analogous situations involving suits against state officials based on similar conduct, adjudicated under 42 U.S.C. § 1983, it has long been settled that federal courts should apply the statute of limitations of the most closely analogous state cause of action. Accord Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Rodriguez Narváez v. Nazario, 895 F.2d 38, 41 (1st Cir.1990) (discussing three-step process dictated by 42 U.S.C. § 1988); Ramirez Morales v. Rosa Viera, 815 F.2d 2, 4 (1st Cir.1987); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir.1985). The Supreme Court has held that in actions under Section 1983 federal courts are to borrow the state law limitations period for personal injury claims. Accord Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Wilson v. Garcia, 471 U.S. 261, 278-79, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985) (citations omitted) (since Section 1983 is appropriately characterized as "conferring a general remedy for injuries to personal rights," the most analogous state limitations period will generally be the one reserved for personal torts).⁵ The First Circuit has repeatedly held that for claims arising in Puerto Rico "in cases pursuant to the Civil Rights Act including Section 1983 the analogous and relevant statute of limitations is that which is applicable to tort actions pursuant to Title 31 LPRA Section 5298(2), which establishes a period of one year `from the time the aggrieved person had knowledge thereof.'" Graffals González v. García Santiago, 550 F.2d 687 (1st Cir.1977); see also Rodríguez Narváez, 895 F.2d at 42; Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318 (1st Cir.1978); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir.1985); Ayala Serrano v. Lebrón González, 909 F.2d 8, 12 (1st Cir.1990).

The Supreme Court has further held that the body of state laws governing certain issues under Section 1983 should apply to Bivens suits as well. See, e.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (body of law governing official immunity under Section 1983 should apply to Bivens suits). The purpose of this rule is to avoid the incongruous treatment that might otherwise result, especially where federal and state officials are sued based on the same conduct. Id. at 501, 98 S.Ct. at 2908. The underlying rationale appears to be that since Bivens actions concern claims against federal official parallel to those against state officials under Section 1983, the actions should be treated in a parallel fashion. Circuits that have addressed the issue have therefore held that state statutes of limitations should be borrowed for suits under Bivens as they are is suits under Section 1983. Accord Beard v. Robinson, 563 F.2d 331 (7th...