Fernandez v. Chardon

• Citation: 681 F.2d 42
• Decision Date: 08 June 1982
• Docket Number: 81-1567 and 81-1607,Nos. 80-1237,s. 80-1237
• Parties: 5 Ed. Law Rep. 350 Rafael Rivera FERNANDEZ, et al., Plaintiffs-Appellants, v. Carlos CHARDON, Etc., et al., Defendants-Appellees. Juan Fumero SOTO, et al., Plaintiffs-Appellees-Cross-Appellants, v. Carlos CHARDON, Etc., et al., Defendants-Appellants-Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 42

681 F.2d 42

5 Ed. Law Rep. 350

Rafael Rivera FERNANDEZ, et al., Plaintiffs-Appellants, v. Carlos CHARDON, Etc., et al., Defendants-Appellees.

Juan Fumero SOTO, et al., Plaintiffs-Appellees-Cross-Appellants, v. Carlos CHARDON, Etc., et al., Defendants-Appellants-Cross-Appellees.

Nos. 80-1237, 81-1567 and 81-1607.

United States Court of Appeals First Circuit.

Argued Feb. 5, 1982.

Submitted March 17, 1982.

Decided June 8, 1982.

Sheldon H. Nahmod, Chicago, Ill., Hiram R. Cancio, Harry R. Nadal-Arcelay, Jaime R. Nadal-Arcelay, Jesus R. Rabell-Mendez, and Cancio, Nadal & Rivera, San Juan, P. R., on brief for appellants.

K. Martin Worthy, John G. DeGooyer, Stephen L. Humphrey, Hamel, Park, McCabe & Saunders, Washington, D. C., Hector Reichard De Cardona, Secretary of Justice, and Ines Eguia De Casanova, Atty., Dept. of Justice of Puerto Rico, San Juan, P. R., on brief for appellees.

Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.

Before COFFIN, Chief Judge, GIBSON, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Before us in the instant action are two groups of consolidated cases that represent fifty-five and thirty-six cases, respectively. All ninety-one cases are actions based on 42 U.S.C. § 1983 charging illegal acts of political discrimination. The first group of consolidated cases, Fumero Soto v. Chardon, is an appeal from a jury verdict that defendants are liable to plaintiffs in the fifty-five cases and from the relief ordered by the court in its equitable power. The second group of consolidated cases, Rivera Fernandez v. Chardon, is on remand from the Supreme Court, which, in Chardon v. Rivera Fernandez, --- U.S. ----, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), reversed our decision on the statute of limitations issue in these cases, Rivera Fernandez v. Chardon, 648 F.2d 765 (1st Cir. 1981). ¹ The Rivera Fernandez cases had been dismissed by the district court and were not tried on the merits. We deal with these two sets of cases together because they both present questions concerning the tolling of the statute of limitations that are not foreclosed by the prior decisions in Rivera Fernandez. In addition, the defendants in Fumero Soto argue that the jury verdict was not supported by the evidence and that the damages award against the Puerto Rico Department of Education violated the eleventh amendment; plaintiffs in Fumero Soto contend that the individual defendants enjoy no immunity.

The Facts and Case Histories

All the Fumero Soto and Rivera Fernandez cases arose out of essentially the same facts. The plaintiffs in all cases held nontenured administrative positions in the Commonwealth of Puerto Rico Department of Education during the school year 1976-77. The defendants are Carlos Chardon, then Secretary of Education for the Commonwealth, Oscar Ramos, then and now Assistant Secretary for Personnel in the same department, and Maria Socorro Lacot, now the Secretary of Education, who was substituted for Chardon in his official capacity. Chardon and Ramos were originally sued in both their official and individual capacities. The events leading up to the instant actions began in January, 1977, when Carlos Romero Barcelo of the New Progressive Party (NPP) replaced Rafael Hernandez Colon of the Popular Democratic Party (PDP) as governor. Chardon and Ramos, members of the NPP, soon assumed positions in the Department of Education under the new regime. Chardon and Ramos, according to plaintiffs' complaints, then determined to remove nonpermanent administrative personnel who were active in the PDP or parties other than the NPP.

All the plaintiffs received letters-most of them in May and June 1977-from Julio Cintron Lopez, Director of the Teaching Personnel Division, informing them that they would not be reappointed to the administrative positions they currently held for the school year 1977-78 and that they would instead be required to return to the lower-paying, tenured teaching positions that they had held before. Three of the Rivera Fernandez plaintiffs had not previously held tenured teaching posts, so they were discharged. Most, if not all, of the plaintiffs sent letters of protest to Chardon, objecting to their demotion or termination and informing him that they were referring the matter to the Teachers Association of Puerto Rico for appropriate legal action. ²

On June 19, 1978, one demoted employee, Jose Ortiz Rivera, filed a class action against Chardon and Ramos in their individual and official capacities on behalf of all persons discharged or demoted by Chardon and Ramos for political reasons, claiming a violation of first and fourteenth amendment rights protected by 42 U.S.C. § 1983 ³ and P.R. Laws Ann. tit. 18, §§ 214, 249a, 249e. ⁴ Class certification was denied on August 21, 1978, because the class was not so numerous that joinder was impracticable. Fed.R.Civ.P. 23(a) (1). Plaintiffs then filed complaints individually in January, 1979, the earliest filings occurring on January 10. The individual complaints repeated the claims of Ortiz Rivera's class suit.

The history of the Rivera Fernandez cases is as follows. The district court dismissed the cases on the ground that they were barred by Puerto Rico's one-year statute of limitations. E.g., Aviles Navarro v. Chardon, 506 F.Supp. 229 (D.P.R.1980). We reversed, holding that the letter notifications did not trigger the statute, but that the actual demotions and discharges did and that suit was filed within one year of these events. Rivera Fernandez v. Chardon, 648 F.2d 765 (1st Cir. 1981). The Supreme Court reversed, finding that Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), controlled and that the letter notifications started the statute running. Chardon v. Rivera Fernandez, --- U.S. ----, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981).

Meanwhile, decision was reserved on the statute of limitations question in the remaining fifty-five cases (Fumero Soto). These cases were consolidated for trial, and the trial was bifurcated into liability and damages phases. After a five-day trial of the liability issues, a six-person jury returned unanimous verdicts in favor of the plaintiffs. The jury was also asked to answer special interrogatories, whether Chardon or Ramos acted with malicious intent to deprive plaintiffs of their constitutional or other rights. The jury answered these questions in the negative. The district court, 514 F.Supp. 339, then asserted its equitable power to declare a remedy and ordered the Department of Education to reinstate those plaintiffs still in its employ to the positions they had held before their demotions and to give them back pay reflecting the difference in salary between their former positions and the positions to which they were demoted. Plaintiffs who had left the Department were held not entitled to reinstatement and were to receive back pay only for the period from the time of demotion to the time they left. On the basis of the jury's findings of no malicious intent, the court refused to award damages against Chardon and Ramos in their individual capacities or to award punitive damages. Defendants appealed; on August 14, 1981, we stayed that portion of the order requiring back pay because of "significant questions" as to its validity.

The Issues

The general issue is whether claims by any or all of the Rivera Fernandez and Fumero Soto plaintiffs were barred by the statute of limitations. ⁵ Before discussing the separate arguments raised, it is useful to mark a few recognized principles. In the absence of a federal statute of limitations, the analogous state statute is applied to the federal cause of action. E.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); O'Sullivan v. Felix, 233 U.S. 318, 322, 34 S.Ct. 596, 597, 58 L.Ed. 980 (1914). In Puerto Rico, the limitations period applicable to a § 1983 claim alleging violation of first amendment rights is one year. P.R. Laws Ann. tit. 31, § 5298(2); Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687, 688 (1st Cir. 1977) (per curiam). At least as a matter of federal law, the filing of a class action will toll the statute of limitations for named and unnamed members of the class, and the statute will resume running when class certification is denied. American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 561, 94 S.Ct. 756, 770, 38 L.Ed.2d 713 (1974).

Under American Pipe, the one-year statute of limitations would have been tolled on June 19, 1978, when Ortiz Rivera filed his class action. The tolling would have ended, and the remaining portion of the limitations period would have recommenced running on August 21, 1978, when the district court declined to certify the class. Over half of the plaintiffs in both sets of cases had received notice of demotion more than one year before Ortiz Rivera filed suit, so their claims would already have been time-barred. The remaining plaintiffs would have had from one to one hundred and thirty-eight days to file individual complaints after August 21, 1978. The earliest individual complaints were not filed, however, until January 10, 1979, after expiration of the remaining one hundred and thirty-eight day period.

Plaintiffs mount three attacks on the statute of limitations: that Ricks should not be applied retroactively; that the letters of protest tolled the statute of limitations; ⁶ and that the denial of class action certification in Ortiz Rivera's suit did not merely reactivate the statute of limitations, the American Pipe rule, but instead caused it to run anew. It is important to determine at the outset the relationships between these three contentions. The critical dates must be kept in mind: May-June 1977, notification by letters; August 31, 1977, plaintiffs vacate their positions; June 19, 1978, class action filed; August 21, 1978, class action dismissed; and January 10, 1979, first individual complaint...