USCA1 Opinion

February 3, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No.

93-1760
JORGE MELENDEZ-FELIX,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________

and Cyr, Circuit Judge.

_____________
____________________
Antonio Bauza Torres for appellant.
____________________
Maria Hortensia Rios Gandara, Assistant United States
_____________________________
with whom Guillermo Gil, United States Attorney, were on
_____________
appellee.
____________________
____________________

Attorn
brief

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ALDRICH,
plus

Senior Circuit Judge.

_____________________

This $2

million

lawsuit against the United States and several employees

thereof

stems

from

an

Roosevelt Roads Navy

July

9, 1990.

others1 were
were

This

1993.

We affirm.
We

action was
on motion

consider first the

United States.

28 U.S.C.

Form

stating in

by

95

naming

the

commenced on

of defendants, on

A single

plaintiff

and

on

claim on

another

February

21, 1991.

blank forms with

necessary requirements.

as having clients (plural),

was

a letter

The

letter

and stated,
(Emphasis

However, no response was made, and the agency, by

of October

Melendez-Felix and
The

June 25,

F.T.C.A. action against the

proper agency

detail the

February 25,

"Each claimant has to fill [sic] a separate form."

____

letter

the

the night of

2671-2680.

immediately sent new

referred to counsel

in orig.)

of

arrested and, allegedly, mistreated before they

and dismissed,

Counsel was

Gate

Station in Puerto Rico on

1992,

acknowledged

outside

Plaintiff Jorge Melendez-Felix (Melendez) and

released.

Standard

incident

1, 1991,

stated,

Idalia Robles

letter concluded

"[T]he claim

of Jorge

Suarez is hereby

denied."

"they may file

suit . . .

within six

months."

____________________
1. Some of the others originally participated herein, but,
for various reasons, they have fallen by the wayside and
Melendez is the sole appellant.
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Plaintiffs'
timely

filed

mention of

action against

with Melendez

Miss Robles

as

Suarez.

the United

States was

plaintiff, but

In

granting the

with

no

motion to

dismiss Melendez's action the court accepted the government's

contention

that it had no jurisdiction because of Melendez's

failure to specify a sum certain on his claim.

long settled law.
States, 949
______

28 C.F.R.

This followed

14.2(a); Corte Real v. United

__________
______

F.2d 484, 485-86

(1st Cir. 1981); see

___

Adams v.
_____

United States, 615 F.2d 284, 291-92 n.15, clarified, 622 F.2d
_____________
_________
197 (5th Cir. 1980).
to

evaluate the

This

claim for

requirement is to aid the

settlement purposes.

United States,
______________

614 F.2d

important is it

considered that if a figure

the court lacks

jurisdiction.

86.

812,

See Lopez v. United States,

___ _____
_____________

814

(1st

agency

Swift
_____

Cir. 1980).

v.
So

is not supplied

Corte Real, 949

__________

F.2d at 485-

758 F.2d 806, 808 (1st Cir.

1985).
The
dollar

figure.

form 95

submitted by

counsel

gave a

single

Melendez's position is that this represented

his

personal

claim

claimant; if Idalia
also, it

only

address of

submitted,

he

a clerical error."

was

named

as

be a claimant
There

are two

The first is that it did not appear to be a

mere clerical error.

"Name,

only

Robles Suarez appeared to

"was obviously

answers to this.

because

Question 2 as printed on the form read,

claimant."

there was added

To the

the letter

word

claimant, when

"s", and

the answer

-4-

given

was

SUAREZ."

"JORGE
This

MELENDEZ-FELIX

agency.

acknowledgement
with an "s".
counsel
single

MISS

was more than a typographical

if there was an error,

to the

AND

IDALIA

ROBLES

slip.

Second,

the error was conspicuously not clear

In addition to

"Each claimant,"
____

ante, the
____

letter to counsel twice spoke of his clients

Reading this form and this

letter together, no

could reasonably think he had submitted an "obvious"

claim.

Nor

should he

overlook

the agency

letter

specifying the need for a "specific dollar amount," which was

already done, had there been but one claimant.

When counsel failed to respond

of the letter's

saying, "We cannot

importance of accurate and

ultimately denied the
assert

waiver

could not

be waived.

Plaintiff, properly,

plaintiff's

individual claim figure.

stress too strongly

thorough completion," the

claim.

of

in any way in spite

failure

to

agency
does not

supply

It being jurisdictional,
We would be bucking

the

an

ante, it
____

established, and

important, government procedure if we were to hold otherwise.

The

other defendants remaining in the case are the

individual government
incident.

Here

employees who participated in the July

plaintiff's claim is predicated

v. Six Unknown Federal Agents, 403 U.S.

___________________________
this the action was brought
limitations would normally

upon Bivens
______

388 (1971).

As

to

after the Puerto Rico statute of

have run.

Under Puerto Rico law,

the statute of limitations is tolled if plaintiff has, before

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the time

expired, expressed

claim, DeJesus

his intention

v. Chardon, 116

of pursuing

D.P.R. 238, 116

his

D.P.R. 290,

_______
301 (1985)

_______

(translation), or

"extrajudicial
31

toll

5303.

Further, under

such an expression
it

has asserted

an

claim" within Article 1873 of the Civil Code.

P.R.L.A.

making

if plaintiff

as to

others.

District Court, 73 D.P.R.

______________
(translation).

certain circumstances,

to one obligee
31

P.R.L.A.

may automatically
5304;

Fuentes
_______

959, 73 D.P.R. 893, 907-08

v.

(1952)

On this theory plaintiff says that filing the

95 form with

the government tolled the statute

with respect

to the other

defendants.

Even in

context of
regard

a single

only to

Narvaez
_______

v.

We

defendant, "tolling

identical

Nazario,
_______

895

causes
F.2d

Fernandez v. Chardon, 681 F.2d

_________
_______
sub nom
_______

hold otherwise.

of
38,

action."
43

(1st

with

Rodriguez
_________
Cir.

1990);

42, 49 (1st Cir. 1982), aff'd

_____

Chardon v. Fumero Soto, 462

_______
____________

U.S. 650 (1983).

rule can be no broader for co-defendants.

United States under the Federal

is effective

the

The

Plaintiff sued the

Tort Claims Act for a common

law tort.

Under Bivens he sued the individual defendants for

______

violation

of

his

different claims.

constitutional rights.

are very

The fact that the same facts were involved

is not determinative.
Affirmed.
________

These

Cf. Fernandez, 681 F.2d at 49.

__ _________

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