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Afanador v. Postal Service, 1st Cir. (1992)
Afanador v. Postal Service, 1st Cir. (1992)
Afanador v. Postal Service, 1st Cir. (1992)
____________________
No. 92-1238
NELSON AFANADOR, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES POSTAL SERVICE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
____________________
Assistant United
States Attorney,
on brief
____________________
____________________
Per Curiam.
__________
judgment
In
this
Postal Service
(USPS) and
case
appellants appeal
against the
United States
under the
P. 15(c)(3),
their second
defendant,
effective
December 1,
to
United States as
portion of the
held that
tolled by
their May
1988 letter
to the
USPS and
787
F.
of this case
Supp.
261
the factual
in Afanador v.
________
(D.P.R. 1991).
and
U.S. Postal
___________
We
describe
____________________
1. Appellants also brought a Title VII claim which the
district court dismissed.
Appellants do not contest the
court's dismissal of their Title VII claim on appeal, thereby
waiving their right to do so. Accordingly, we confine our
discussion to the FTCA and Bivens issues.
______
2. We hereby grant the parties' joint motion to submit this
case for decision without oral argument.
-2-
as necessary
in the
following
discussion.
DISCUSSION
__________
I.
in relevant
part,
that an
amendment changing
pleading if,
received notice of the action such that its defense would not
be
would
In Schiavone
_________
Court found
of the
to be
complaint
had been
served
on
the proposed
defendant
30, 1991,
prevent
otherwise
defendants
"from
inconsequential
published a
taking
pleading
unjust
errors
advantage
to
sustain
of
a
result
See Fed.
___
-3-
R.
Civ. P. 15 advisory
Rule 15(c)(3)
committee notes.
now provides
the
summons
and
that an amendment
that "changes
In relevant part,
complaint,"
the
party
to
service of
be added
has
received such notice of the action that its defense would not
be
would
mistake
as to the identity
new rule
the
party.
date
served
of the proper
of their
process on
original,
timely
the appropriate
Under the
relate back to
complaint since
parties during
they
the time
actions thereafter
practicable,
all
proceedings
in
civil
as just
actions
then
pending."
Order
of April
reprinted in 12 Wright
_____________
1992).
The
appellants'
30, 1991,
district court
FTCA claims
in the
28, 1990,
dismissed
and entered
with the
Rules,
at 135-36 (Supp.
instant case
on February
Amending Civil
on January
7, 1992.
of and
Thus, on
the
-4-
date
the new
action
the law
doing
Rule
15(c)(3) became
time we render a
"manifest injustice".
F.2d
as appellants request if
instant
effective, the
354,
decision, unless
See Freund v.
__________
363 (1st
Cir.
to do
intended
to prevent
defendant
from taking
"unjust
advantage of
sustain [a]
the
under
otherwise
inconsequential pleading
limitations defense."
court below
was "forced" to
errors
They further
to
argue that
dismiss their
FTCA action
pleading philosophy
of Civil Procedure
recognize
argument that
the
the new
rule should
appeal
be
of appellants'
applied because
surface
decision.
the
claims under
We also acknowledge
persuasive, and
reinstate
have applied
already dismissed
Skoczylas v.
_________
the
new rule
causes of
action.
upon appeal
-5-
See, e.g.,
__________
F.2d 543,
to
546
F.2d 153,
155-56
(11th
Cir.
1992);
Treasury, 956
________
F.2d 330,
Nevertheless,
we
find
Bayer
_____
v.
U.S. Department of
____________________
it
would
1992) (dictum).3
not
be
just
and
____________________
3. In a case not directly applicable here because it
involved a cause of action already found by a jury to be
without substantive merit, this court declined to apply
amended Rule 15(c) to permit relation back in Schiavone-type
_________
circumstances. In Freund v. Fleetwood Enterprises, Inc., 956
______
___________________________
F.2d 354 (1st Cir. 1992), the plaintiff had sued, among other
defendants, an internal division of a company, not realizing
that the division had no separate legal existence. After the
statute of limitations had expired, but during the period for
service of process, plaintiff sought to amend his complaint
to include the company, but the judge dismissed the complaint
on statute of limitations grounds. After plaintiff lost his
jury trial against different defendants, he appealed the
earlier dismissal against the company. Under Schiavone, this
_________
court ruled that there was no relation back.
On our own
motion, however, we considered the effect of amended Rule
15(c).
We did not refer to the "just and practicable"
language in the Supreme Court's amending order in determining
whether to apply the new rule. Rather, we used a "manifest
injustice" standard since we apply the law in effect at the
time of appeal if doing so does not work a manifest
injustice.
Id. at 363. For two reasons we concluded that
___
applying the amended rule would work a manifest injustice in
Freund.
First, the jury case that plaintiff had just lost
______
was "the very case" he sought to bring against the newlyadded defendant. We found no reason to believe that a second
trial would end differently than the first. Nor did we see
any reason to "force [the company], who 'played by the rules'
in
effect at the
time, to
endure the
expense and
inconvenience of a trial likely to produce that outcome."
Id.
Second, the plaintiff's brief on appeal had been so
___
deficient that we had had to untangle and reconstruct
plaintiff's arguments. If we had not had to do so, we would
likely have affirmed the case on appeal before the new rules
had become effective. Applying the new rule would have given
plaintiff an "otherwise unattainable windfall." Id.
___
-6-
it would work
a manifest injustice
to
the plaintiffs
than
had
the head
Since
the
sued an
of the
head
agency
under Title
agency,
as required
an
is
of
In those
agency
VII
in such
practically
v. USPS, 861
____
F.2d 1475,
1988) (McKay,
J.,
dissenting),
cert.
_____
811
the
denied,
______
493
U.S.
(1989),
a "now-
of
at 546.
In contrast, in this FTCA case appellants sought to
add
the
United
improperly
States
and
named agency.
not
merely
the
head
of
an
See 28 U.S.C.
___
not ruled on
Although we
pleading
error"
of
the type
decried
by
____________________
4. In light of this conclusion, we need not consider the
government's argument that appellants' complaint adding the
United States as defendant is deficient in other respects and
should be dismissed.
-7-
critics
of
Schiavone.
_________
For example,
in
an FTCA
case not
tainted by reliance on
that
"misnomer" to
it was
a simple
sue the
Department of
Hughes v.
______
that the
rather
than
Moreover,
FTCA
the
specifically made
governmental agency,
"[g]overnment
agencies
Even though
the
Id.;
___
do
and its
the "functional
the United
the
suable
not
merge
the Department of
Cir. 1990);
States,
entity.
into
of
Id.
___
agencies, that
equivalent"
Justice."
did not
make an
the United
States.
n.6 (6th
The court
United States
agency
Cir. 1982).
would effect
six-month limitations
month limitations
relation-back under
a de facto
__ _____
extension of
period for
2401(b) (six-
administrative
thereby
mere
claim),
operation of
the
the United
denial of
retroactively enlarging
procedural rule
the
the United
by
States'
mind that the [FTCA] waives the immunity of the United States
and that in construing the statute of limitations, which is a
condition
defendant).
In calling the FTCA requirement -- that the
United States and not the agency be sued -- a "trap for the
unwary", the New York Murray court cited a 1963 article
______
referenced in Section 1502 in Wright and Miller's Federal
_______
Practice and Procedure.
The abuses described in that
________________________
article, and deplored by the Murray court, were intended to
______
be corrected by the 1966 amendment to Rule 15(c), adding the
____
so-called governmental notice provisions of the Rule's final
paragraph.
Because the court failed to consider the effect
of the
1966 amendment -- in
characterizing the FTCA
requirement that the United States be sued a "trap for the
unwary" -- we are inclined to view it as unpersuasive
precedent.
This is especially so in light of the clear
language in the FTCA as to who the proper defendant is in
FTCA cases.
Likewise, the comment in the Massachusetts
Murray decision about imputing the agency's notice to the
______
United States is dictum, unsupported by any discussion or
reference to case law.
-9-
period,
but not
the
United
States,
has
raised.6
received no notice
limitations
period
The
the
United States,
had
government, qua
___
expired.
Receipt
of
appellants'
letter
demanding administrative
resolution of
717 (9th
(1985).
against
Rule 15(c).
this action
the
Rule 15(c)
v. USPS,
____
denied, 471
______
time the
had not
an action, the
See Cooper
___ ______
Furthermore, at
their claims
U.S.
USPS defended
yet been
amended.
1991)
extensive notice
States had
(alternative
holding)
of plaintiff's
received prior
(in
light
to expiration of
of
the
the United
the limitations
15(c), which
would be
effective in
one
month's time).
Furthermore, although the
Schiavone,
_________
the relationship
defendant and
than
between
the defendant
to be
it was in Schiavone.
_________
courts
that have
added is
As discussed
considered
the
improperly
named
different here
relationship between
the
United States and its agencies for purposes of suit under the
FTCA have found that
distinct parties.
originally
nonsuable internal
division of
it later sought to
add.
Therefore,
had a
very close
the
had sued
agencies are
defendant
to be
added in
Schiavone
_________
the
pettiness of
It was
for this
dissenting) (denying
that
477 U.S. at
36 (Stevens,
Schiavone involved
_________
an
in
J.,
amendment
changing
the
party against
changing
the
description
magazine
to
the
whom
of
corporate
the
the
claim was
defendant
publisher
of
asserted;
from
Fortune
Fortune
was
a
any
-11-
these reasons,
find that
the
government
below, and
"now-obsolete procedural
we
did not
profit unfairly
from a
In light
of
of
governmental
liability
beyond
the time
to
which
the
defendant.
notice
to
of the United
the
United
States,
qua
___
FTCA
_____________
Supp. 200
_______________________
(refusing to apply
amended Rule
since waivers
rather
appellants.
demanding
United
USPS action
Appellants
were
administrative
administrative
with
proper defendant.
to lie
which
threaten
to
sue the
denial of the
to
appellants'
sue the
-12-
even appears
to have
initially disputed
________
the fact
that the
United States was the only proper defendant under the FTCA.7
Furthermore, appellants failed to ask
the district
was amended.
At the
Nor
did appellants
claims after
ask the
court to
final
amend its
judgment
entered,
though
on appeal
they
seek
been
the
obligation to seek
might
fairly have
court
thought available
so that
In this circuit, as we
party's first
remand
any relief
in the
that
district
(quoting
____________________
7. An Initial Conference Scheduling Order, dated December
15, 1989, lists as the only controverted issue between the
parties the question whether
the USPS was the proper
defendant in an FTCA action.
-13-
attorney's
failures here.
appellants
have made no
This is
especially so
effort to explain
because
their failure to
because
government
applying
of
the
validly
effectively extending
new
rule
asserted
would
Cir. 1989),
deprive
limitations
the
defense,
without prior
notice.
II.
letter demanding
the limitations
Inspector
administrative action
period on
Tanner.
As
their Bivens
______
the
did not
claim against
district court
stated,
him a copy.
See
___
is not
specifically
clear,
considered
however, whether
and
rejected
the
appellants'
district
copy of
Nevertheless, we have
considered
assumed,
their
argument,
without
deciding,
appellants'
and
we reject
that
claim addressed
it.
receipt
to the
by
USPS and
We
Tanner
have
of
other parties
expressed
appellants'
intention
to
sue
Tanner
and
-14-
Appellants'
argument
is
letter in
their burden
1153 (1st
deficient
for
Cir.
obvious
fact reached
of proof on that
Appellants have
issue.
not met
See Riofrio
___ _______
against him.
We also
there was
affirm the
no tolling under
essentially provides
to
all
court's ruling
that
5304, which
district
period as
it as to
948,
dismissal
waived its
On
appeal,
951
(9th
1991)
(affirming
lower
court
suggest
a novel
to such claims).
interpretation
of
Because appellants
-15-
do not
consider it on
appeal.
United States
_____________
v. Curzi, 867
_____
deny appellants'
claims to
dismissing
appellants' FTCA
United
States and
request to remand
The district
claims for
dismissing appellants'
untimeliness is affirmed.
________
-16-
their FTCA
court judgment
failure to
sue the
Bivens claim
______
for