Rivera-Gomez v. de Castro, RIVERA-GOMEZ

• Decision Date: 01 February 1988
• Docket Number: No. 87-1736,RIVERA-GOMEZ,87-1736
• Parties: Martin, et al., Plaintiffs, Appellants, v. Rafael Adolfo de CASTRO, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 631

843 F.2d 631

Martin RIVERA-GOMEZ, et al., Plaintiffs, Appellants, v. Rafael Adolfo de CASTRO, et al., Defendants, Appellees.

No. 87-1736.

United States Court of Appeals First Circuit.

Heard Feb. 1, 1988.

Decided April 7, 1988.

Walter H. Muniz, Old San Juan, P.R., for plaintiffs, appellants.

Anabelle Rodriguez, Asst. Sol. Gen., with whom Rafael Ortiz Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., Ponce, P.R., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Appellants, eight former employees of the Commonwealth of Puerto Rico, brought suit under 42 U.S.C. Sec. 1983 against their erstwhile agency chief, Rafael Adolfo de Castro, the Ombudsman. ¹ They claimed to have been discharged because of their political leanings in derogation of their constitutional rights. The district court granted judgment on the pleadings in the Ombudsman's favor, Fed.R.Civ.P. 12(c), and this appeal followed apace.

I

Plaintiffs filed their suit in federal district court on January 14, 1987. On February 10, 1987, before any responsive pleading had been filed, they amended their complaint as of right. The amended complaint is the critical document in the case. In it, plaintiffs alleged that, after the Popular Democratic Party (PDP) won the 1984 general elections, defendant (a PDP member) was appointed to office; that plaintiffs were members of opposition parties; and that, although political affiliation was not a suitable credential for their jobs, the new Ombudsman summarily removed them from office. This mass ouster was accomplished, they said, by the delivery of letters on January 3, 1986, eliminating their positions and categorically terminating their employment as of January 15, 1986. According to appellants, defendant also spoke to them and explained their firings on the basis of (1) an agency reorganization, and (2) budgetary constraints. He told them that when the agency received its expected jump in appropriations, they would be reinstated. The amended complaint went on to allege that these explanations were a sham. The reorganization never occurred and, though the budget was increased, plaintiffs were not rehired. They lost their jobs due solely to politics.

Defendant answered the amended complaint in due season and thereafter moved for judgment on the pleadings, contending the suit was time-barred. Defendant argued that the applicable limitations period was one year under P.R. Laws Ann. tit. 31, Sec. 5298(2) (1968), see Wilson v. Garcia, 471 U.S. 261, 276-79, 105 S.Ct. 1938, 1947-48, 85 L.Ed.2d 254 (1985) (state statute of limitations for personal injuries ordinarily governs section 1983 action); Ramirez Morales v. Rosa Viera, 632 F.Supp. 491, 492 (D.P.R. 1986) (applying section 5298(2) to civil rights action), aff'd, 815 F.2d 2 (1st Cir.1987), and that the plaintiffs' cause of action accrued on January 3, 1986 (when they received notice of the adverse employment decision). See Chardon v. Fernandez, 454 U.S. 6, 7-8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (per curiam) (cause of action for discriminatory discharge accrues when definite decision to terminate employment made and communicated).

Plaintiffs attempted to confess and avoid. As the district court noted, they disputed neither the applicability of the one year limitations period nor the fact that the statute would ordinarily run from the date the termination letters were delivered. Rivera v. Adolfo de Castro, No. 87-0065, slip op. at 2, 4 (D.P.R. June 29, 1987). Rather, they contended that in this instance the statute had remained open. In making this argument, plaintiffs emphasized that defendant's course of conduct--faking the reasons for dismissal and falsely promising reinstatement--constituted a "continuing violation" which prolonged the prescriptive period. See, e.g., Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir.1979) (if the injury and the discrimination are ongoing, limitations clock does not begin to tick until discriminatory conduct ends), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

The district court, in a well-reasoned opinion, held that plaintiffs' allegations were insufficient to "establish a continuing violation exception to the limitation period." Rivera, slip op. at 7. Accordingly, the suit was deemed time-barred, and judgment on the pleadings entered for defendant. Id. It is evident from the court's opinion that no other theory of the case was considered. See id. at 4 ("judgment must be entered in favor of defendant[ ] unless the complaint specifies some type of continuing violation") (footnote omitted). Although the district court did allude to the allegation that Adolfo de Castro "deceitfully and maliciously" misled plaintiffs, it considered defendant's motivation only for the limited purpose of "discard[ing] any implication that [defendant's] conduct constitutes a continuing violation exception." Id. at 6-7.

II

On appeal, plaintiffs seem to have changed, or at least bleached out some of, their stripes. They do not now seriously challenge the ruling that they failed to demonstrate a continuing violation. They appear to concede that, as the district court ruled, there was "only one separate and distinct discriminatory event," id. at 5, even though "the consequences of the[ ] job removals" continued thereafter. Id. at 7. Plaintiffs argue instead that the amended complaint showed they could not reasonably have been aware of the facts giving rise to their section 1983 claim until July 1986 at the earliest. ² That being so, their cause of action did not accrue (and the statute of limitations did not begin to run) until then. See, e.g., Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir.1975) (party responsible for wrongful concealment of facts underlying potential claim estopped from asserting limitations defense). The district court read the amended complaint too narrowly, plaintiffs assert, thereby overlooking this viable alternative basis for their suit. ³

As defendant points out, if this argument is a new one--that is, if it could have been, but was not, advocated below--then it is too late to hawk it now. Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (points not raised below not usually considered on appeal); United States v. Ven-Fuel, Inc., 758 F.2d 741, 760 (1st Cir.1985) (same). But having combed the record, we think that equitable tolling was advanced, although inexpertly, in the district court. To explicate that conclusion, we start with paragraph 24 of the amended complaint. It averred:

Due to [defendant's] deceitful misrepresentations, plaintiffs neither had knowledge nor reasons to believe of [defendant's] intention to violate their civil rights ... until they found out the facts alleged on [sic] paragraphs 20 to 23....

Backtracking from there, we report that paragraphs 20, 21, 22, and 23 of the amended complaint alleged, among other things, that plaintiffs did not discover (1) until July 1986 that the budgetary increase had gone into effect, (2) until October 1986 that their positions had been filled with persons sponsored by the PDP, and (3) until January 1987 that the supposed agency reorganization had never taken place.

To be sure, these allegations did not necessarily make out a case for equitable tolling. See, e.g., Reeb, 516 F.2d at 930 (statute will run if crucial facts "are apparent or should be apparent to a person with a reasonably prudent regard for his rights"). They did not commit plaintiffs unambiguously to such a theory. Their memorandum in opposition to the motion for judgment on the pleadings harped on the continuing violation approach. It is easy to see how the district judge may have been misled. Yet in fairness, that same memorandum did, albeit more obliquely than necessary, cling peripherally to the prospect of equitable tolling. It proclaimed, for example:

To sanction this [misrepresentation and deceit] would be to go against the policy so ingrained in our legal system that it needs very little allusion: the principle of good faith. It is not licit or fair for anyone to profit from making others believe what he has no intention or [sic ] fulfilling. A civilized legal system will not allow such antics. Equity will not permit a statute to be used as a cloak for fraud. It is our humble contention that the promises made by De Castro will be seen as a means of persuading the plaintiffs to believe that they would be rehired....

Record Appendix at 25-26 (citations omitted). Plaintiffs, one might argue, should have focused less on equity and more on clarity. The quoted statement, which tied back into a discussion of the supposed continuing violation, was far from explicit. Yet the two cases which plaintiffs cited in connection with this excerpt were cases holding that a defendant may be estopped by his own (mis)conduct from invoking a limitations defense. Velilla v. Pueblo Supermarkets, 111 DPR 585, 588 (1981) ("doctrine of equitable estoppel ..., as well as the general axiom of bona fides, [can] impede [a party] from successfully invoking the defense of prescription"); Berrios v. University of Puerto Rico, 116 DPR 88 (1985) (similar). ⁴ Even discounting the matter because of the confusing allusion to the continuing violation doctrine, this passage from plaintiffs' brief, coupled with the language of the amended complaint, may have been marginally sufficient to raise the equitable tolling theory.

Though the question is borderline close, we need not answer it in those terms--for there is one thing more. After briefing on the Fed.R.Civ.P. 12(c) motion, but prior to any decision thereon, plaintiffs attempted--albeit belatedly--to clarify the situation for the district court. The record reflects the following chronology: (1) following receipt of defendant's motion for judgment on the pleadings (which contained a memorandum of law), plaintiffs...