Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 96-2254
Plaintiff, Appellant,
v.
Defendants, Appellees.
____________________
____________________
Before
_____________________
Vargas & Ram rez Law Office were on brief for appellant.
___________________________
Roberto Ruiz-Comas
__________________
Gaztambide
and
C rdova and
with
whom
Cherie K.
___________________
_____________________________
_________
____________________
DICLERICO,
DICLERICO,
District
District
Judge.
Judge.
After
administrative
________________
proceedings
resulted
brokerage license,
filed
motion
Commissioner
in
the
revocation
of
plaintiff-appellant Jos
for
reconsideration
of Financial Institutions
his
securities
with
the Office
(OCFI), which
of
the
issued an
No
the
agency
plaintiff
and the
plaintiff
then filed
engaged
complaint
in
in negotiations.
federal
court
The
alleging
connection with
the revocation of
grounds
that
limitations.
the
The
claims
were
barred
by
the
statute
of
Background1
Background
__________
The
plaintiff,
Jos
Rafael
other
became
securities
brokers.
president
Corporation
and
(FCC),
now
at
FCC,
the
defunct
was
April 1988,
majority
brokers
In
Ben tez-Pons,
owner
of
he
co-founded and
First
securities
Continental
brokerage firm.
plaintiff filed
complaint
of the
with OCFI.
____________________
The
are either
not in dispute
or are
-2-
On January
27, 1992,
OCFI issued
a cease
and desist
order to FCC, and ordered the plaintiff to show cause why further
supervisory and
The consent
administrative functions
at FCC
for one
year,
that FCC
would
administrative
name another
functions
at
person
to supervise
FCC, that
FCC
would
and
perform
comply with
certain filing requirements, that the plaintiff and FCC would pay
certain fines,
of a
decree.
On March 13,
employees
or agents
of
OCFI
entered
FCC's
other governmental
premises.
They
part,
downloading
programs
and disks,
computer
information
accounting books,
and
seizing
a registry,
computer
shareholder
On
the
plaintiff and
FCC
order against
that the
consent
decree
had not
engaged in
other
concluded that
securities
suspended
been complied
with and
misconduct.
the situation
industry
in
that the
In
the order,
at FCC
placed
Puerto
Rico
plaintiff had
OCFI
ultimately
investors and
at risk.
It
the
summarily
further actions should not be taken against him, and informed him
-3-
of his right
The plaintiff
On
administrative hearing
license.
There
is no
claims
OCFI
on
the issue
of the
evidence that
resolution and
permanently revoked.
timely motion
procedural
ordered
On January
for reconsideration
prerequisite
plaintiff's motion
to
revocation of
the plaintiff
issued a
afforded an
his
raised any
illegal detention
the plaintiff's
license
with OCFI.
seeking judicial
for reconsideration,
This step
was a
review.
In the
the plaintiff
asserted
____________________
both broking
as follows:
constitutional and
Defendant.
the
penal
of the
charges made to
character
that
entail
of a
fines,
as
For
this
reason
Commissioner
was
evidence first
the
Defendant
violations
he
Office
obliged
to
and convince
of
committed
was
being
the
present
the judge
had
Nevertheless, despite
Defendant,
the
its
that
tha
[sic]
charged
with.
the opposition
of the
in this case
-4-
an
interlocutory
section 3.15
order
issued January
2165
(1994)
(hereinafter
____________________
2165).
section
28,
1992,
with
pursuant to
Administrative Procedures
2165).4
The
tit. 3,
plaintiff's
prove
that he
charges.
rights
is
innocent
of the
alleged
Constitution
of
to
an
"accused" by
the Commonwealth
which adulterates
with absolute
of
the
P.R.,
nullity the
nullity.
Much more
and
so in
his
right
permanently.
granted
to
his
agent
is an
acquired
right,
privilege as is erroneously
Resolution and Order.
license
issued or
and
not
indicated in the
in this
case
on
Office
of
the
Commissioner.)
. . . .
. . .
Due
followed
process
in the
of
law
proceedings
has not
been
carried on
to
merely a
privilege.
Procedures Act --
in 1994.
4.
section 2165 as
Act of 1994,
The
party
resolution
within
or
adversely
affected
partial or
final
by
order may,
resolution
or
reconsider
the
order,
present a
resolution
or
motion
order.
to
The
___
-5-
That
upon
review
of
the
Motion
for
Pursuant to
of
August
12,
Administrative
1988
(Uniforme
Procedures
review
Resolution
date
in
resolving
in
which
which
the
(30)
the
period
supra,
thirty
from
day
Act)
[sic]
the
copy
Motion
to seek
of
the
for
In San
Juan, Puerto
Rico, on
January 28,
1993.
On February 10, 1993, OCFI filed its opposition to the motion for
____________________
is made
upon the
notification of the
resolving
the
If
motion, the
shall begin
of filing a copy
to
of the
motion
definitively,
which
within
was filed.
unless the
court, for
_____________________________________________
good cause shown, grants the agency
an
_____________________________________________
extension of time.
__________________
The
motion
jurisdictional in
to
reconsider
order to
shall
be
request judicial
review.
-6-
reconsideration.
OCFI
never
issued
decision
by
the
Commissioner
Following
OCFI's interlocutory
the issue.
1993, letters
this end.
The record
OCFI settlement
proposals which
The plaintiff
to
plaintiff's attorneys
were evidently
rejected.
to relinquish
evidence
were exchanged
constitutional claims in
license.
28,
his
of January
and April
sent
order
of his
were made
OCFI never
indicated
that
reconsideration.
it
was
not
In September
considering
1993, the
the
representing him.
plaintiff
motion
Commissioner and
for
the
attorney for
the
filed a
motion
"follow up"
to
"resign"
from
In March and
contacted OCFI
to inquire about the status of his case and request a copy of the
examiner's findings.
at OCFI
-7-
federal
district court of
damages pursuant
2201.
to 42
U.S.C.
1983 and
right to
be free
right to
be free from
the defendants.5
1988, and
and
28 U.S.C.
and seizures,
his
to privacy,
career, and
employment.
his liberty
He
also
Constitution, Article
interest in his
asserted
right to
claims under
II, sections
7, 8,
contract for
the
Puerto
Rico
Articles
On
July 31,
summary judgment.
The
1995, the
defendants filed a
motion for
complaint was
plaintiff failed
barred.
Furthermore, they
____________________
Defendants are
Institutions
of the
the Office of
the Commissioner
Commonwealth
of
Puerto
of Financial
Rico;
Jos
Sosa
Asdr bal
Aponte,
in
his
official
and
personal
capacity,
and
official and
his
personal
Rafael Rosario,
conjugal
capacity,
conjugal partnership;
capacity, and
in his official
partnership; John
and
his
Peter
Smith,
his conjugal
partnership;
Doe, in
his
official and
conjugal partnership;
Richard
in his
and his
personal
Doe,
in his
in his
conjugal partnership.
capacity, and
of our conclusion, we
his
need not
the plaintiff's
-8-
the
plaintiff failed
to
satisfy
the
applicable
Puerto
Rico
requested,
of relief
the defendant
neither excusable
actively misled
or prevented
ignorance nor
that
the plaintiff
from
statute of
motion for
The district
summary judgment.
statute of
then
The
limitations controlled
determined
that
September 29,
found
that
1993.
the
the last
that a
the plaintiff's
alleged
one year
claims.
It
violation
occurred on
be filed by
plaintiff
had
not
with the
tolled
the
defendants and
statute
of
limitations on either
plaintiff failed to
seek the same remedies in the district court as it had before the
agency, and
Puerto
Rico statute
limitations through
governing
requirements of the
the tolling
of
the statute
of
tolled.
neither
actively
The
court
implicitly found
excusably ignorant
misled
by
of the
OCFI.
The
that
statute
court
the
plaintiff was
of limitations
concluded
nor
that
the
the ninety
day
The
plaintiff argues
on appeal
-9-
that
review period
OCFI.
The
plaintiff
also
asserts
that
tolled by
the defendants
are
defense
in
this
summary judgment
equitable
of
is
Finally,
the
plaintiff
generally inapplicable
asserts that
in actions
raising
material fact
judgment.6
case.
in this
case precluded
the grant
of summary
We review motions
de novo.
See
___
Discussion
Discussion
__________
State
federal courts
law
statutes
of
arising under
limitations
1983.
See
___
govern
suits in
Board of Regents v.
_________________
Supreme
1983 claims.
See
___
Puerto Rico
law
The plaintiff
does not
dispute that
case.
See
___
P.R. Laws
Ann.
tit. 31,
5298 (1994);
Rodr guez
_________
The one
____________________
At
oral
summary
an
argument, the
attorney asserted
that
early
However,
stage
this
and
sufficient
argument
plaintiff's
was not
facts
could
asserted
not be
before
Rivera-Muriente v. Agosto-Alicea,
_______________
_____________
Cir. 1992).
-10-
adduced.
the district
waived.
See,
___
354 (1st
year period
begins running
which is
knew or had
injury.
See Carreras-Rosa v.
___ _____________
the date
of accrual,
reason to know
of the
1997).
The
tolling
of
the statute
of
governed by
state law.
Police, 893
______
limitations
is also
Superintendent of
_________________
Prescription
of
actions is
interrupted
by
courts, [or] by
P.R.
Laws
Ann. tit.
31,
5303
(1994).
"[T]he
tolling
is
effective with
regard only to
statute of limitations
of the
same facts
(citations
extrajudicial
claim
requested in court.
. . . ."
omitted).
must
Moreover, the
be
the same
The
relief
relief
at 43
requested
in the
that
later
is
895 F.2d at
44; Torres, 893 F.2d at 407; Hern ndez del Valle v. Santa Aponte,
______
___________________
____________
In other
Arellano
________
v. Alvarez de Choudens,
____________________
575 F.2d
315, 320
Ram rez de
__________
(1st Cir.
1978), and
the earlier
of limitations
-11-
for
the later
claim, see
___
reasons enumerated
Torres,
______
below, we find
893 F.2d
at 407.
For the
to be
-12-
The
searches
right to privacy between March 13, 1992, and March 19, 1992.
plaintiff had
these
of
causes
limitations.
action,
to file his
unless
he
complaint asserting
tolled
the
statute
no evidence
claims
of
is
The
in the
during the
record that
the plaintiff
administrative hearing.
He
There
raised these
did not
assert
these
Nor is
were
there evidence in
plaintiff
district
court
untimely, and
specific claims
In fact, from
raised these
specific constitutional
properly
concluded
in March
that
that the
claims
for the
Therefore, the
these
claims
were
statute of
The plaintiff
interests
asserts that
____________________
he was
his
property and
allegedly deprived
liberty
of his
In
facts,
his sworn
the
statement and
plaintiff
administrative
proceedings
constitutional and
complaint.
stated
in his
that
that
civil rights
statement of
he
"asserted
Defendants
complained of"
contested
in
the
violated
his
in the
is supported by
federal
evidence in
-13-
process.
We assume arguendo
________
accrued at the latest possible date, December 28th, 1992, the day
the
plaintiff's
without
license
due process.
complaint in
was
permanently
Because
revoked,
the plaintiff
allegedly
did not
file his
claims are
illegal
claims
detention,
and
his
motion
above,
the
reconsideration,
and
asserted
allegedly
for
discussed
plaintiff
proceedings
in
privacy
process.
In his motion he
argued that his license was a right and not a privilege, and that
he
was not
accorded due
proceedings because
shifted to him.
be understood
the
process of
burden
of
law in
proof
the administrative
was
inappropriately
to assert that
of his
property
and liberty
interests
without
due
process
of
law.
the Puerto
As we held in
extrajudicial
sought in
not tolled.
claim
that
is different
a judicial proceeding,
from
the
the statute of
their positions
filed
as police officers.
See 893
___
remedy in an
remedy later
limitations is
F.2d at 406.
They
-14-
seeking reinstatement.
unsuccessful,
court
seeking
photographs and
time, the
After
they filed
damages,
1983
action
reinstatement,
fingerprints
statute of
and
filed with
limitations for
in federal
the
district
expunging
the police.
their
proved
By
federal claim
of
this
had
expired.
the
plaintiffs in the
were in the
was no tolling
the
statute of limitations
by their extrajudicial
the
administrative action.
In concluding
of
assertion in
that the
1983 claim
extrajudicial
must
claim
claim
the
same
relief later
requested in the
federal suit.
The statute
of limitations for
Section 1983
claim
[sic] is
requested in
The
record
finding
not
tolled
both suits
supports
that
the
district
plaintiff
remedies. . . .
remedies
were not
the
remedy
is different. . . .
the
distinct
tolling and
if
court's
requested
Given that
identical,
the prescription
two
these
there was
no
period expired
. . . .
Id. at 407.
___
The case at
plaintiff
asserted
administrative
agency,
constitutional
which
could
claims
have
Here, the
before
functioned
the
as
an
limitations.
remedies
in
However,
the
the plaintiff
district
administrative proceedings.
sought
only
the
court
as
failed to
he
had
seek the
sought
same
in
the
reinstatement
of his
license,
while
in the
-15-
The
equitably
plaintiff
estopped
also
from
argues
raising the
that the
time
bar
defendants
are
defense.
The
both doctrines,
we will
estoppel
analyze the
equitable arguments
under
tolling is
Ram rez
_______
was
its applicability to
unclear
concealment
whether
(equitable
the
the case
at hand.
In
Torres
______
federal
doctrine
tolling) continues
to
of
fraudulent
apply to
1983
actions,
tolling.
or
whether state
law governs
the issue
of equitable
F.2d 224,
We have
Puerto
previously addressed
Rico law in
equitable tolling in a
1983 cases.
equitable tolling
(dolosamente) concealed by
___________
under
the author
of the
same.'"
wrongfully
Ram rez
_______
____________________
-16-
Morales
_______
Rivera Encarnaci n v.
___________________
Similarly,
E.L.A.,
______
2, 4 (1st
113
D.P.R.
383,
386
(1982)).
of
the defendant."
citations omitted).
Torres,
______
Equitable
893
F.2d at
tolling is
407 (quotations
unavailable where
and
are
more limited
Kelley
______
v. NLRB,
____
in
suits
79 F.3d
against
1238,
Courts
weigh five
tolling:
(1)
requirement; (2)
factors
the
lack
the lack of
the
1248 (1st
of prejudice to
reasonableness in
of limitations
government
. . . .'"
Cir. 1996)
(quoting
in
assessing
of
actual
claims
notice
of
of
constructive notice of
absence
Moreover, "[i]t is
equitable
the
filing
the filing
filing requirement.
See Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st
___ ____
_____________________________
Cir. 1988).
concealed material
facts
regarding
4 (finding equitable
the
regarding
or
tolling inappropriate in
discourage
cause
of
prevent
plaintiff's
plaintiff
1983
case under
from viewing
agency
records
-17-
argues
arguments in
Kelley, the
______
within
plaintiff
employee
relied
period
on
who informed
are similar
plaintiff failed to
the time
this case
mandated
a National
serve process on
by a
Labor
the plaintiff's
federal
Relations
attorney
to
In
the defendant
statute.
The
Board (NLRB)
that the
NLRB
would serve
so.
an NLRB regulation
serving notice
was on
NLRB was
In rejecting the
tolling
argument,
held
we
not do
that
responsibility for
The service
by the
plaintiff's equitable
although
the
employee's
of the [NLRB]."
plaintiff
had
constructive
notice of
the
part
regulation
and its
a long
id. at 1249
___
See
___
knowledge to
plaintiffs
We
-18-
the
employee's representations
1249. The
information "almost by
was unreasonable.
definition, is
See id.
___ ___
at
not nearly
as
of a regulation."
Id. at
___
1250.
OCFI indicated
and notified."
inaccurate.
issued
In this
However, the
pursuant
order
to section
3.15
the interlocutory
agency
order.
fails to take
expressly stated
of
the Puerto
which clarifies
Pursuant to
action on
was "filed
and therefore
that it
Rico
Uniform
the ambiguity
the motion
was
of
the
for reconsideration
lose jurisdiction over the same and the term in which to petition
for
ninety
(90) day
term unless
the court,
expiration of said
for good
cause shown,
2165 (1994).
OCFI's
resolution of
the motion
was issued
or until
the time
governing the
"The general rule is that 'those who deal with the Government are
expected to
know the
Government agents
law and
contrary to
may not
law.'"
-19-
rely on
Kelley,
______
the conduct
79 F.3d
of
at 1249
(quoting
Heckler v.
_______
(1984)).
filing
we say
that
the
See Kelley, 79
___ ______
plaintiff was
the plaintiff
the
of the
rights.
63
can
U.S. 51,
took to pursue
diligent
F.3d at 1249.
Nor
in pursuing
his
he approached
plaintiff's
meeting
The
was entirely
accidental.
this
period.
Given
sophisticated businessman
the
The
plaintiff initiated
fact
that
the
represented by
no
throughout
plaintiff
was
the
Uniform
Administrative
failure to
Procedure
Act that
motion, we cannot
governed
the
time
plaintiff's
of his cause of
action was
reasonable.
The
Commissioner
Rule 3.16
Act,
of the
see P.R.
___
require that
Puerto Rico
notice be
Uniform Administrative
3,
sent when
2166
(1994), both
an adjudicative
Procedure
of which
procedure is
-20-
terminated.
However,
the
plaintiff has
also
cited the
OCFI
Office of
the Commissioner
Rule
of Financial
18.1 (1989),
and
Institutions, Regulation
Rule
3.15 of
the
# 3920,
Puerto Rico
Uniform
reconsideration
within a
2165
either renders
the motion and case dismissed by the agency, or strips the agency
of its
jurisdiction over
of
the case.
In such
as to
portions
of
dismissed, was
the
reasonable.
that
selected portions
indicated
we
regulations
a situation,
his
case
be read
was
as a
the task
aggregate language.").
the
unreasonable particularly in
light of
the fact that these tolling provisions are uniform for all of the
adequate
is not an
equitable tolling
See Kelley, 79
___ ______
doctrine to
F.3d at 1250.
be inapplicable
we find the
on these
facts.
-21-
to
distinguish this
Commissioner
issued
unreasonable
in
statute under
provisions for
case from
the
interlocutory
light of
which
Kelley on
______
it was
the
the grounds
order.
order's clear
authorized, the
that the
Reliance
reference
to the
uniformity of
was
the
in the
limitations,
effect as
861
F.2d at
actions.
(7th
752.
estoppel is
available in
1983
Cir. 1992).
statute
Equitable
See Kale,
___ ____
of
Even when
limitations,
estoppel principles.
See
___
a federal court
the
court
id. at
___
applies
841.
borrows a state's
federal equitable
"(1) The
party to
be
estopped must know the facts; (2) he must intend that his conduct
shall
be acted on
or must so
must be
661
nor should it
have
known
that
its
adversary's
party
had
knowledge
conduct
was
misleading."
of the
truth,
or
. . . with
such
reasonable
have
been
misled
by
relying
upon
-22-
the
misrepresentation
or
concealment.'"
810, at 219
defendant
must
Id.
___
(quoting 3 J. Pomeroy,
be so
misleading
Equity Jurisprudence
____________________
as to
cause
the plaintiff's
-23-
The
flaw
in
the plaintiff's
interlocutory
order explicitly
which
issued.
it was
period after
also
that
"WITHOUT
as discussed
cited
The statute
the
statute pursuant
in turn indicated
indicated
considered
argument,
the motion
for
CAUSE/CASE
DISMISSED"
The
to
the time
reconsideration
without
would be
an
OCFI
resolution in 30
days.
See Commonwealth of
___
Rule
18.1
(1989).
In
the
face
of
a conflict
between
the
another
dismissed but
event of
choose
termination, it was
to rely
upon the
failure
to
diligence.
interlocutory
order.
plaintiff to
In this
case,
file
on
time
without
Nor
are
the
plaintiff's
the
plaintiff's
negotiations
v.
in the
F.2d 1067,
1071 (7th
lack
with
of
OCFI
See Bomba
___ _____
Cir. 1978)
("[I]t
disputed
is
widely
held
that
mere
negotiations
concerning
is [sic] insufficient
to warrant
The plaintiff's
authority to waive
-24-
in
fact waive
OCFI.
them, the
At the
time
of
statute of
this
limitations was
case,
tolled by
the Commissioner
had
no
and
2164 is
without
merit.9
Section
2163
months, absent
tit. 3,
or
exceptional circumstances.
2163 (1994).
resolution shall
issued
within
provides that
an
be resolved in six
See
___
be
in sections 2163
P.R. Laws
Ann.
ninety days
after
the
The
2164 (1994).
Act is,
for the
its
addresses
motions for
governs
case.
Section 2164
to
content, or notice.
reconsideration.
In
It
is not relevant
contrast,
section
2165
Section
jurisdiction if
"unless the
2165
it
provides
fails
court, for
extension of time."
to
that
an
take action
The
agency
shall
lose
within
ninety
days
grants the
agency an
affected by the
on OCFI's
conduct.
-25-
on OCFI's representations
the
statute to
meaning
that
legislature.10
(1992)
be unambiguous
directly
and decline
conflicts
with
to read
the
We find
into it
intent
of
(stating in dicta
the
JTS 13
be extended for a
reasonable
____________________________________________________________
period of time.'")
_______________
3,
2165
Municipality of Carolina, 96
_________________________
JTS 28
(1996)
that
(stating in
statute).
(quoting
dicta
P.R.
Laws
Ann.
there is
no
tit.
ambiguity in
the
The
or
equitable
tolling
issues, and
asserts
such
equitable
claims does
262
(8th
Cir.
1996)
because
there
were genuine
not
foreclose
granting a
(equitable
estoppel);
Cada
____
party
v.
F.3d
Baxter
______
Healthcare Corp.,
_________________
tolling);
(equitable
Jensen
______
920
v.
F.2d
446
(7th
Cir.
Frank,
_____
912
F.2d
517
1990)
(1st
(equitable
Cir.
1990)
____________________
10
We note that
section 2165
read into
amended,
the statute.
1684,
section 2165,
as
Pursuant to
-26-
57 (2d
Cir. 1986)
Moreover, we
they
are
(equitable estoppel
find that
discussed throughout
genuine issue of
and equitable
this
by the
opinion, fail
tolling).
plaintiff, as
to
raise a
The district
Affirmed.
Affirmed
________
-27-