Acevedo-Perez v. United States, 1st Cir. (2014)

United States Court of Appeals
For the First Circuit

No. 12-2351
SANTIAGO ACEVEDO-PREZ; ELIZABETH PRNCIPE-TRINIDAD,
Plaintiffs, Appellants,
CONJUGAL PARTNERSHIP ACEVEDO-PRNCIPE
(Legal Society of Earnings),
Plaintiff,
v.
UNITED STATES; DEPARTMENT OF HOMELAND SECURITY; IMMIGRATION AND
CUSTOMS ENFORCEMENT; JANET NAPOLITANO; LYDIA ST. JOHN-MELLADO;
JOHN DOE; RICHARD ROE, and their respective insurance companies,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domnguez, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Gelp,* District Judge.
Juan R. Rodrguez, with whom Rodrguez Lpez Law Offices,

P.S.C. was on brief, for appellants.
Ginette L. Milans, Assistant United States Attorney, with
whom Rosa Emilia Rodrguez-Vlez, United States Attorney, and
Nelson Prez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
October 6, 2014
Of the District of Puerto Rico, sitting by designation.
LIPEZ,
Acevedo-Prez
Circuit
Judge.
("Acevedo")
was
Plaintiff-appellant
an
employee
with
Santiago
United
States
Immigration and Customs Enforcement ("ICE") in the Department of

Homeland
Security
("DHS").
Following
the
denial
of
his
administrative claim for employment discrimination on the basis of

age and national origin, he filed a lawsuit claiming liability
under the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964, Section 1983, the Federal Torts Claims
Act, and Puerto Rico law.
The district court awarded summary
judgment to the defendants on the grounds that the plaintiff did

not present an FTCA claim in his administrative complaint and that
the other claims were time-barred.
I.
We affirm.
Background
Acevedo was stationed in the San Juan office. In July of

2005, DHS headquarters in Washington, D.C., was short of personnel
and "sought special agent volunteers [at least two volunteers from
the San Juan office] for lateral transfers."
The Special Agent in Charge of the San Juan office asked
for volunteers to transfer.
At least one employee, Edward Owens,
volunteered and his transfer was approved.
In order to fill the
other transfer slot, the Special Agent in Charge prepared a list of

four agents based on seniority.
On or about September 7, 2005,
Acevedo received a letter from the Director of ICE informing him of
-2-
his
reassignment
to
DHS
headquarters.
Acevedo
accepted
the
reassignment on September 22, 2005.

Due to family problems, Acevedo requested two extensions
of time to relocate, which were granted by DHS.
for an extension of time was denied.
His third request
On March 3, 2006, Acevedo
decided to retire rather than transfer.

On June 1, 2006, Acevedo filed a complaint of employment
discrimination with the Office of Equal Employment Opportunity and
Diversity
Division
of
DHS
("EEO")
alleging
that
he
was
constructively discharged on the basis of his age or national

origin.
The EEO ultimately denied Acevedo's claim in 2009.
It
sent him a letter explaining the decision as well as a "Notice of

Appeal Rights" (also called the "Right to Sue Letter"), which he
received on July 1, 2009.
Acevedo commenced this action on September 30, 2009. His
complaint alleges that he was "forced to resign (constructive
discharge)" and that he was "humiliated, retaliated, discriminated,
harassed, [and] persecuted" by his supervisors and his peers.
He
asserts claims under the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. 621-634, and Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. 2000e-2.
Acevedo also
asserts a claim under 42 U.S.C. 1983 that his constitutional

right to due process has been violated, as well as claims under the
Federal Torts Claims Act ("FTCA"), 28 U.S.C. 2671-2680, and
-3-
Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31, 5141-5142.
Defendants moved for summary judgment.
Finding the
record incomplete on the issue of whether the action was timely

filed, the district court ordered Acevedo to supplement it by
providing "the Right to Sue Letter and/or the final determination
of the [EEO]."
After Acevedo provided the requested documentary
evidence, the court held a hearing and found the action time-barred
by one day.
Before judgment was entered reflecting that ruling,
plaintiff filed a motion seeking an order that the remaining

claims, other than employment discrimination under the ADEA and
Title VII, were not time-barred.
The district court denied that
motion and entered judgment for the defendants on all claims.1

This appeal followed.
II.
Discussion
The decision appealed from here is the district court's

denial of plaintiff's motion seeking an order that his claims are
Acevedo filed a motion to reconsider, which the district

court ultimately denied some months later. Acevedo's notice of
appeal did not encompass that ruling as the notice was filed on the
same day that he requested reconsideration from the district court.
Acevedo neither amended his pending notice of appeal nor filed a
new notice after the district court's decision on reconsideration.
Hence, we do not consider here the denial of reconsideration. See
Fed. R. App. P. 3(c)(1)(B) (stating that the notice of appeal must
"designate the judgment, order, or part thereof being appealed");
United States v. Ortiz, 741 F.3d 288, 292 (1st Cir. 2014) ("It is
common ground that our review of a district court's order is
circumscribed by the filed notice of appeal.").
-4-
not time-barred and may proceed.
The court's ruling in effect
completed its consideration of defendants' motion for summary

judgment, and we thus treat its decision as a grant of summary
judgment for the defendants on all claims.
Accordingly, we review
the decision de novo, Dominguez-Cruz v. Suttle Caribe, Inc., 202

F.3d 424, 428 (1st Cir. 2000), and may find that summary judgment
was properly granted only if "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law," Fed. R. Civ. P. 56(a).
A.
ADEA and Title VII Claims2

Upon ruling on Acevedo's claims the EEO issued a "Notice
of Appeal Rights" to him, which he received on July 1, 2009.
The
notice stated in pertinent part:

You have the right to appeal to the Equal
Employment Opportunity Commission (EEOC) or to
file a civil action in an appropriate United
States District Court. . . .
FILING AN APPEAL WITH EEOC
You have the right to appeal this decision to
EEOC within 30 days of the day you receive
this final decision. . . .
FILING A CIVIL ACTION
You also have the right to file a civil action
in an appropriate United States District Court
within 90 days after you receive this final
2
Acevedo's EEO complaint was based on claims of age and

national origin discrimination under Title VII, 42 U.S.C. 2000e2, and age discrimination under the ADEA, 29 U.S.C. 621-634.
His complaint in this action refers generally to "Federal Labor
Laws" but makes no specific mention of the bases for his
discrimination claims.
-5-
decision if you do not appeal to EEOC, or

within 90 days after receipt of EEOC's final
decision on appeal. You may also file a civil
action after 180 days from the date of filing
an appeal with EEOC if there has been no final
decision by EEOC.
Acevedo filed his complaint in the United States District Court for
the District of Puerto Rico on September 30, 2009 -- 91 days after
receiving this notice.
Acevedo concedes on appeal, as he did
before the district court, that his complaint was not timely with
respect to the discrimination claims raised before the EEO. Hence,
we need not further address those claims.3
B.
FTCA Claims
Acevedo argues that the district court erred in finding
that the entire action was time barred because he had an addendum
to the EEO complaint that served as an administrative complaint
for the purposes of the FTCA.
Thus, he maintains that the
complaint was timely as to the alleged "FTCA claim" because, under

the FTCA, he had 180 days from receipt of the final agency decision
to file the complaint.
The FTCA explicitly provides that
An action shall not be instituted upon a claim
against the United States for money damages
for injury or loss of property or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of
In ruling on Acevedo's motion for reconsideration, the

district court considered whether he was entitled to equitable
tolling of those claims and concluded that the doctrine was
inapplicable. As noted above, that decision is not before us.
-6-
the Government while acting within the scope

of his office or employment, unless the
claimant shall have first presented the claim
to the appropriate Federal agency and his
claim shall have been finally denied by the
agency in writing and sent by certified or
registered mail.
28 U.S.C. 2675(a) (emphasis added).
Acevedo submitted his EEO complaint, accompanied by the
addendum at issue, on June 1, 2006. The complaint itself indicated
that he was alleging discrimination on the bases of national origin
and age.
The addendum discusses only those discrimination claims.
In the context of describing the national origin discrimination

claim, Acevedo makes a seemingly out-of-place allegation about the
improper use of funds that he maintains should have been used only
in Puerto Rico rather than for the relocation of employees to the
DHS main office.
Acevedo links the funding issue to national
origin discrimination, rather than raising an independent tort

claim based on it.
After Acevedo submitted his EEO complaint, he received a
letter, dated June 30, 2006, formally acknowledging the complaint.
The letter stated, in pertinent part:
Your complaint has been assigned number HS-06ICE-001210 and has been accepted on the bases
of age (53) and national origin (Puerto
Rico/Hispanic). . . . Please be advised that
all other references contained in the formal
complaint
will
be
used
as
background
information to support the issues as stated.
If you wish to report additional allegations
or incidents, they must be submitted to the
Director, EEO, in writing.
-7-
Acevedo submitted no document attempting to report additional

allegations to the Director.
denying
Acevedo's
The EEO issued its final decision
discrimination
claims
without
making
any
reference to a potential FTCA claim.

Based on the above-described documentation, which is all
uncontested evidence in this matter, there can be no dispute that
Acevedo failed to present an FTCA claim to the EEO.
Accordingly,
Acevedo has not exhausted his claim as required under 28 U.S.C.

2675(a) and, hence, he is not permitted to pursue an FTCA claim
in this action.
We thus agree with the district court that, to the
extent that the complaint asserts an FTCA claim, it must be

dismissed.
C.
Constitutional Claims
Acevedo
also
argues
that
his
complaint
states
constitutional tort claim under 42 U.S.C. 1983 for violation of

the Due Process Clause.
Specifically, he argues that he was
deprived of a property interest -- his position at DHS -- without

due process of law.
However, it is well-established that 1983 claims borrow
the forum state's statute of limitations. See City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 123 n.5 (2005).4
the applicable limitations period is one year.
In Puerto Rico,
See Rodriguez
For this purpose, Puerto Rico is the functional equivalent

of a state. See Santiago v. Puerto Rico, 655 F.3d 61, 69 (1st Cir.
2011).
-8-
Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir. 1990) ("Ever since
the days of the Spanish-American [W]ar it has been the law of
Puerto Rico that the limitations period for tort actions . . . is
the one year limitations period provided by [P.R. Laws Ann. tit.
31, 5298(2)]."); Olmo v. Young & Rubicam of P.R., Inc., 10 P.R.
Offic. Trans. 965, 969-70 (P.R. 1981) (wherein the Puerto Rico
Supreme Court set forth the actions for which the applicable
statute of limitations is one year).
Though 1983 borrows the limitations period itself from
local law, the accrual date for a 1983 claim is set by federal
law.
See Morn Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir.
2008). Under federal law, such a cause of action accrues "when the
plaintiff knows, or has reason to know of the injury on which the
action is based."
Id. (internal quotation marks omitted).
Here,
Acevedo retired, allegedly because he was forced to, on March 3,

2006.
This action was commenced on September 30, 2009, some three
years later.
Acevedo has failed to create a genuine issue of
material fact as to that timeline or as to any circumstance that

may have tolled that period.
Accordingly, to the extent that the
complaint states a claim under 1983, it is time-barred.

district court was thus correct in dismissing any such claim.
-9-
The
D. Pendent Claims Under Puerto Rico Law

Acevedo's remaining claims are based on Articles 1802 and
1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31,
5141-5142.
A district court has "broad discretion" to exercise
pendent jurisdiction over state law claims after it has dismissed

federal law claims.
Cir. 2000).
Lares Group II v. Tobin, 221 F.3d 41, 45 (1st
Here, the district court invoked that discretion,
deciding that "Acevedo cannot have a cause of action under local

law when plaintiff's federal cause of action fails."
The district
court did not err in dismissing Acevedo's claims under Puerto Rico
law on that basis.5
Affirmed.
We also note, as the district court did, that Acevedo's

claims under Puerto Rico law would be subject to the same statute
of limitations period (one year) as the 1983 claim. Hence, those
Puerto Rico law claims are time-barred for the same reasons as the
1983 claim described above.
-10-

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Juan R. Rodrguez, with whom Rodrguez Lpez Law Offices,

Of the District of Puerto Rico, sitting by designation.

Immigration and Customs Enforcement ("ICE") in the Department of

administrative claim for employment discrimination on the basis of

The district court awarded summary

judgment to the defendants on the grounds that the plaintiff did

Acevedo was stationed in the San Juan office. In July of

At least one employee, Edward Owens,

volunteered and his transfer was approved.

In order to fill the

other transfer slot, the Special Agent in Charge prepared a list of

On or about September 7, 2005,

Acevedo received a letter from the Director of ICE informing him of

reassignment on September 22, 2005.

His third request

On March 3, 2006, Acevedo

decided to retire rather than transfer.

constructively discharged on the basis of his age or national

The EEO ultimately denied Acevedo's claim in 2009.

sent him a letter explaining the decision as well as a "Notice of

asserts claims under the Age Discrimination in Employment Act

asserts a claim under 42 U.S.C. 1983 that his constitutional

record incomplete on the issue of whether the action was timely

After Acevedo provided the requested documentary

Before judgment was entered reflecting that ruling,

plaintiff filed a motion seeking an order that the remaining

The district court denied that

motion and entered judgment for the defendants on all claims.1

The decision appealed from here is the district court's

Acevedo filed a motion to reconsider, which the district

not time-barred and may proceed.

The court's ruling in effect

completed its consideration of defendants' motion for summary

the decision de novo, Dominguez-Cruz v. Suttle Caribe, Inc., 202

ADEA and Title VII Claims2

of Appeal Rights" to him, which he received on July 1, 2009.

notice stated in pertinent part:

Acevedo's EEO complaint was based on claims of age and

decision if you do not appeal to EEOC, or

Acevedo concedes on appeal, as he did

Thus, he maintains that the

complaint was timely as to the alleged "FTCA claim" because, under

In ruling on Acevedo's motion for reconsideration, the

the Government while acting within the scope

The addendum discusses only those discrimination claims.

In the context of describing the national origin discrimination

Acevedo links the funding issue to national

origin discrimination, rather than raising an independent tort

Acevedo submitted no document attempting to report additional

The EEO issued its final decision

reference to a potential FTCA claim.

Acevedo has not exhausted his claim as required under 28 U.S.C.

We thus agree with the district court that, to the

extent that the complaint asserts an FTCA claim, it must be

constitutional tort claim under 42 U.S.C. 1983 for violation of

Specifically, he argues that he was