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2d 315
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.
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
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 threeyear limitations period applies. Section 136 sets forth no specific limitations
period, and plaintiff concedes that one must be found in the general provisions
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:
10
"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."
11
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.
12
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 therefore toll the
statute of limitations. The court held, in particular, that an action of mandamus
in the Commonwealth court to gain reinstatement constituted a diligent pursuit
of the constitutional right sought in plaintiff's 1983 suit and accordingly tolled
the statute of limitations.
13
14
To the extent the district court grounded its ruling on its sense of developments
in the common rather than civil law, it is important to note that in the American
common law generally, prior judicial actions do not toll the statute of
limitations, no matter how close their relationship to the one at bar. See, e. g.,
UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 708, 86 S.Ct. 1107, 16 L.Ed.2d
192 (1966); Falsetti v. Local No. 2026, UMW, 355 F.2d 658, 662 & n. 15 (3d
Cir. 1966).3 Federal courts have applied to 1983 suits in particular a rule that
prior actions in the state courts do not toll the applicable state statute of
limitations. Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977); Meyer v. Frank,
550 F.2d 726 (2d Cir.), cert. denied, --- U.S. ----, 98 S.Ct. 112, 54 L.Ed.2d 90
(1977); Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974).4
15
In sum, the rule advanced by the court below not only lacks any direct support
in Commonwealth precedent and conflicts with an earlier district court
interpretation, but is contrary to settled principles prevalent elsewhere in the
United States. Moreover, the more specific Spanish civil law interpretation is
also to the contrary. In light of these factors, we are unwilling to depart from
the interpretation of 5303 announced in Graffals, viz., that to toll the statute,
the action must be the case at bar, and not merely a somewhat related action
arising from the same facts. Because the mandamus action brought by plaintiff
in the Commonwealth courts did not toll the one year statute of limitations, her
claim was time barred and should have been dismissed.
16
17
Both judges are permanent members of the district court of Puerto Rico and, of
course, members of the bar of Puerto Rico
The other three-year statute of limitations cited to us, P.R.Laws Ann. tit. 29,
246d, applies only to causes of action under Puerto Rico's minimum wage law
An exception to this rule exists for prior actions that bar the bringing of a
subsequent suit during their pendency. See 54 C.J.S. Limitations of Actions
247. The filing of plaintiff's mandamus suit, however, could not have acted as a
One federal court, although conceding that state law did not provide a rule
allowing related actions to toll a 1983 suit, has suggested that federal policies
underlying 1983 might require the fashioning of a federal tolling rule to that
effect. See Mizell v. North Broward Hospital Dist., 427 F.2d 468 (5th Cir.
1970). Subsequent decisions of that circuit have refused to follow Mizell's
dicta, see Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815 (5th Cir.
1972), and the reasoning underlying those remarks was rejected by the
Supreme Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95
S.Ct. 1716, 44 L.Ed.2d 295 (1975). Every court of appeals that has since
considered the issue has refused to follow Mizell, Meyer v. Frank, supra at 729;
Ammlung v. City of Chester, supra at 816
The district court ruled that the letter gave plaintiff inadequate notice to permit
her to take advantage of the Personnel Board proceeding. It is difficult to
understand the basis for this ruling, unless the district court believed that
something equivalent to a fully reasoned judicial opinion as to plaintiff's rights
and responsibilities was necessary to meet the notice requirement. The letter
indicated that plaintiff had lost her tenure because her service under contract
had been improperly credited toward the mandatory probation period. She was
put on notice that in order to regain her status, she had to demonstrate either that
her position did not require a probationary period or that her prior work under
contract should have been credited toward this period. Nothing more was
required