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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 96-2254

JOSE RAFAEL BENITEZ-PONS,

Plaintiff, Appellant,

v.

THE COMMONWEALTH OF PUERTO RICO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]


___________________

____________________

Before

Lynch, Circuit Judge,


_____________

Cyr, Senior Circuit Judge,


____________________

and DiClerico, Jr.,* District Judge.


______________

_____________________

William Ram rez-Hern ndez, with


_________________________

whom Nora Vargas-Acosta and


__________________

Vargas & Ram rez Law Office were on brief for appellant.
___________________________
Roberto Ruiz-Comas
__________________
Gaztambide

and

& Plaza, Goldman

Edgardo Col n-Arrar s,


______________________
Antonetti &

C rdova and

with

whom

Cherie K.

___________________

_____________________________

_________

Durand were on brief for appellees.


______

____________________

February 12, 1998


____________________
____________________

Of the District of New Hampshire, sitting by designation.

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

interlocutory order tolling the

his

securities

Rafael Ben tez-Pons

with

the Office

(OCFI), which

of

the

issued an

period for judicial review.

No

resolution of the motion for reconsideration was issued, although

the

agency

plaintiff

and the

plaintiff

then filed

engaged

complaint

in

in negotiations.

federal

court

The

alleging

violations of the Federal and State Constitutions and statutes in

connection with

the revocation of

district court granted

grounds

that

limitations.

the

his securities license.

The

summary judgment to the defendants on the

claims

were

barred

by

the

We affirm the grant of summary judgment.

statute

of

Background1
Background
__________

The

plaintiff,

Jos

Rafael

practicing licensed securities broker

other

became

securities

brokers.

president

Corporation

and

(FCC),

now

at

FCC,

the

defunct

was

and licensed supervisor of

April 1988,

majority

After suspecting improper

brokers

In

Ben tez-Pons,

owner

of

he

co-founded and

First

securities

Continental

brokerage firm.

securities transactions by two

plaintiff filed

complaint

of the

with OCFI.

OCFI's investigation eventually included the plaintiff himself.

____________________

The

facts recited herein

alleged by the plaintiff.

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

action should not be taken against him.

plaintiff entered into

a consent decree with OCFI.

decree provided, inter alia, that


__________

supervisory and

On January 30, 1992, the

The consent

the plaintiff was to cease all

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,

and that the plaintiff

would supply a copy

of a

resolution of the FCC Board of Directors ratifying such measures.

The plaintiff and FCC failed to comply with the consent

decree.

On March 13,

employees

or agents

1992, Peter Smith and

of

OCFI

entered

FCC's

other governmental

premises.

They

conducted a warrantless search of the premises which included, in

part,

downloading

programs

and disks,

computer

information

accounting books,

and

seizing

a registry,

computer

shareholder

contracts, and security boxes.

On

the

March 19, 1992,

plaintiff and

FCC

OCFI issued another

finding, inter alia,


___________

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

the plaintiff's license, ordered him to show cause why

further actions should not be taken against him, and informed him

-3-

of his right

to seek an administrative hearing.2

The plaintiff

exercised his right to an administrative hearing.

On

September 28, 1992,

administrative hearing

license.

There

is no

search and seizure

claims

OCFI

on

the plaintiff was

the issue

of the

evidence that

claims, privacy claims, or

resolution and

permanently revoked.

timely motion

procedural

ordered

On January

for reconsideration

prerequisite

plaintiff's motion

to

revocation of

the plaintiff

during the administrative hearing.

issued a

afforded an

his

raised any

illegal detention

On December 28, 1992,

the plaintiff's

license

19, 1993, the plaintiff filed a

with OCFI.

seeking judicial

for reconsideration,

This step

was a

review.

In the

the plaintiff

asserted

that the proceedings had violated his constitutional rights.3

____________________

The record does not make clear

held multiple licenses,

whether the plaintiff in fact

or one license authorizing

both broking

securities and supervising other securities brokers.

The motion for reconsideration asserted constitutional claims

as follows:

The proceedings carried in this case led to


a violation
the

constitutional and

Defendant.
the
penal

of the due process of law and of


civil rights

of the

This is so because all or some of

charges made to
character

the Defendant are

that

entail

expressed in the Order

of a

fines,

as

and Resolution, which

clearly reveals that the burden of proof fell


on the Office of the Commissioner.

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

the burden of proof

was inverted and the Defendant was obliged to

-4-

OCFI responded to the

an

interlocutory

section 3.15

order

issued January

of Puerto Rico's Uniform

Act (codified at 3 L.P.R.A.

2165

(1994)

motion for reconsideration

(hereinafter

____________________

2165).

section

28,

1992,

with

pursuant to

Administrative Procedures

See P.R. Laws Ann.


___

2165).4

The

tit. 3,

plaintiff's

prove

that he

charges.
rights

is

innocent

of the

alleged

This is clearly a violation of the


recognized

Constitution

of

to

an

"accused" by

the Commonwealth

which adulterates

with absolute

whole proceeding and


Resolution into a

of

the
P.R.,

nullity the

converts the Order

nullity.

Much more

and
so in

this case, by which the Defendant is deprived


of

his

right

permanently.
granted

to

his

agent

The license already

is an

acquired

right,

privilege as is erroneously
Resolution and Order.

license
issued or

and

not

indicated in the

(See Article 402(d) of

the Securities Law about the burden of proof,


which clearly shows that
fell

in this

case

on

the burden of proof


the

Office

of

the

Commissioner.)
. . . .
. . .

Due

followed

process

in the

of

law

proceedings

has not

been

carried on

to

deprive him permanently of his agent license,


which is an

acquired right and not

merely a

privilege.

Section 2165 was amended

Procedures Act --

in 1994.

See Uniform Administrative


___

Judicature Act of 1994, 1995

Act No. 247 (H.B. No. 1684)

4.

Puerto Rico Laws

The amendments do not directly

affect our analysis as they are not applicable to the plaintiffs'


case.

All references to section 2165 are therefore references to

section 2165 as

it existed prior to the Judicature

Act of 1994,

unless otherwise noted.

Section 2165 provided that:

The

party

resolution
within

or

adversely

affected

partial or

final

by

order may,

twenty (20) days of the filing of the

resolution

or

reconsider

the

order,

present a

resolution

or

motion
order.

to
The
___

agency shall consider


the motion within
_____________________________________________
fifteen (15) days of its filing.
If it
_____________________________________________

-5-

translation of OCFI's interlocutory order states:

That

upon

review

of

the

Motion

for

Reconsideration of January 19, 1993, filed by


the Respondant [sic], the Commissioner orders
that it be considered and resolved.

Pursuant to
of

section 3.15 of Law Number 170

August

12,

Administrative

1988

(Uniforme

Procedures

review

is tolled and will begin to run again

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

Reconsideration is filed and notified.

Docket and Notify.

In San

Juan, Puerto

Rico, on

January 28,

1993.

On February 10, 1993, OCFI filed its opposition to the motion for
____________________

rejects the motion or fails to act upon it


_____________________________________________
within said fifteen (15) days, the term to
_____________________________________________
petition for review shall commence to run
_____________________________________________
anew as of the notification of said denial or
_____________________________________________
as of the expiration of the fifteen (15) day
_____________________________________________
term, whichever may be the case.
____________________________________
determination
term to
run as

is made

upon the

petition for review


of the date

notification of the
resolving

the

If

motion, the

shall begin

of filing a copy

to

of the

resolution of the agency

motion

definitively,

resolution should be issued and filed


ninety (90) days after the motion

which
within

was filed.

If the agency fails to take action on the


_____________________________________________
motion for reconsideration within the ninety
_____________________________________________
(90) days of the filing of the motion it
_____________________________________________
shall lose jurisdiction over the same and the
_____________________________________________
term in which to petition for judicial review
_____________________________________________
shall commence upon the expiration of said
_____________________________________________
ninety

(90) day term

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.

See P.R. Laws Ann. tit. 3,


___

2165 (1994) (emphasis added).

-6-

reconsideration.

OCFI

never

issued

decision

by

the

Commissioner

on the motion for reconsideration within the ninety

day period as required by section 2165.

Following

OCFI's interlocutory

1993, attorneys for OCFI and the plaintiff

the issue.

1993, letters

this end.

The record

OCFI settlement

indicates that the

proposals which

The plaintiff

to

plaintiff's attorneys

were evidently

rejected.

to relinquish

exchange for reinstatement

asserts that representations

that the statute of limitations

evidence

were exchanged

in the negotiations was

constitutional claims in

license.

28,

met to try to resolve

and telephone calls

The plaintiff's intention

his

of January

The plaintiff asserts that during the months of March

and April

sent

order

of his

were made

was tolled, although there is no

in the record that substantiates this allegation beyond

the interlocutory order.

During these interactions,

OCFI never

indicated

that

reconsideration.

it

was

not

In September

considering

1993, the

plaintiff accidentally met, and in

plaintiff, the Commissioner

the

representing him.

plaintiff

motion

Commissioner and

for

the

response to an inquiry by the

indicated that he would

on the plaintiff's motion for reconsideration.

attorney for

the

filed a

motion

"follow up"

In June 1994, the

to

"resign"

from

OCFI never responded to the motion.

In March and

April 1995, the plaintiff

contacted OCFI

to inquire about the status of his case and request a copy of the

examiner's findings.

had any knowledge

The plaintiff was told that no one

at OCFI

regarding his case, and that no one could help

-7-

him with his inquiry.

On May 2, 1995, the

federal

district court of

The plaintiff sought

damages pursuant

2201.

plaintiff filed a complaint in the

Puerto Rico against

declaratory relief, injunctive relief,

to 42

U.S.C.

1983 and

The plaintiff asserted that

right to

be free

right to

be free from

the defendants.5

1988, and

and

28 U.S.C.

the defendants violated his

from unreasonable searches

and seizures,

illegal detention, his right

his

to privacy,

his property interest in his license, his liberty interest in his

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

and 10, and

Rico

Articles

1802 and 1803 of the Puerto Rico Civil Code.

On

July 31,

summary judgment.

The

1995, the

defendants filed a

defendants argued that the

motion for

complaint was

not filed within one year of the constitutional deprivations, and

was therefore time

plaintiff failed

barred.

Furthermore, they

to toll the statute of

asserted that the

limitations because (1)

____________________

Defendants are

Institutions

of the

Llor ns, in his


partnership;

the Office of

the Commissioner

Commonwealth

of

Puerto

of Financial

Rico;

Jos

Sosa

official and personal capacity, and his conjugal

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;

and personal capacity,

Doe, in

his

official and

conjugal partnership;

Richard

in his

and his

personal

Doe,

in his

official and personal capacity, and his conjugal partnership; and


Virgilio Vega,

in his

conjugal partnership.

official and personal


In light

capacity, and

of our conclusion, we

distinguish between the defendants in addressing

his

need not

the plaintiff's

claims and arguments.

-8-

the

plaintiff failed

to

satisfy

the

applicable

Puerto

Rico

tolling statute, which requires that there be identity

requested,

of relief

and (2) equitable tolling was unavailable because the

plaintiff could establish

the defendant

neither excusable

actively misled

asserting his rights.

or prevented

ignorance nor

that

the plaintiff

from

Finally, the defendants argued that OCFI's

determination was final

and unappealable because the

statute of

court granted the defendants'

motion for

limitations had expired.

The district

summary judgment.

statute of

then

The

limitations controlled

determined

that

September 28, 1992.

September 29,

found

that

court first determined

1993.

the

the last

that a

the plaintiff's

alleged

one year

claims.

It

violation

occurred on

The complaint therefore had to

be filed by

The court agreed

plaintiff

had

not

with the

tolled

the

defendants and

statute

of

limitations on either

of two bases: (1) the

plaintiff failed to

seek the same remedies in the district court as it had before the

agency, and

Puerto

therefore failed to satisfy the

Rico statute

limitations through

governing

requirements of the

the tolling

of

extrajudicial claims, and

the statute

of

(2) the plaintiff

failed to establish that the statute of limitations was equitably

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

administrative order was final and unappealable.

The

plaintiff argues

on appeal

-9-

that

review period

OCFI.

The

under section 2165 is

plaintiff

also

waivable and was

asserts

that

tolled by

the defendants

are

equitably estopped from asserting the statute of limitations as a

defense

in

this

summary judgment

equitable

of

is

Finally,

the

plaintiff

generally inapplicable

asserts that

in actions

raising

tolling or estoppel arguments, and that genuine issues

material fact

judgment.6

case.

in this

case precluded

the grant

of summary

We review motions

for summary judgment

Associated Fisheries of Maine, Inc. v. Daley,


____________________________________
_____

de novo.

See
___

No. 97-1327, 1997

WL 563584, at *3 (1st Cir. Sept. 16, 1997).

Discussion
Discussion
__________

State

federal courts

law

statutes

of

arising under

Tomanio, 446 U.S. 478 (1980).


_______

limitations

1983.

See
___

govern

suits in

Board of Regents v.
_________________

In Wilson v. Garc a, the


______
______

Supreme

Court determined that the state statute of limitations applicable

in tort actions for personal injuries governs

1983 claims.

See
___

Puerto Rico

law

471 U.S. 261, 276-80 (1985).

The plaintiff

does not

dispute that

establishes a one year prescription period for the claims in this

case.

See
___

P.R. Laws

Ann.

tit. 31,

5298 (1994);

Narv ez v. Nazario, 895 F.2d 38, 41-42 (1st Cir. 1990).


_______
_______

Rodr guez
_________

The one

____________________

At

oral

summary
an

argument, the

attorney asserted

that

judgment was also inappropriate because discovery was at

early

However,

stage
this

and

sufficient

argument

court, nor in the


e.g.,
____

plaintiff's

was not

facts

could

asserted

not be

before

briefs submitted, and is deemed

Rivera-Muriente v. Agosto-Alicea,
_______________
_____________

Cir. 1992).

-10-

adduced.

the district
waived.

959 F.2d 349,

See,
___

354 (1st

year period

begins running

one day after

which is

the date plaintiff

knew or had

injury.

See Carreras-Rosa v.
___ _____________

the date

of accrual,

reason to know

of the

Alves-Cruz, 127 F.3d 172 (1st Cir.


__________

1997).

The

tolling

of

the statute

of

governed by

state law.

Police, 893
______

F.2d 404, 407 (1st Cir. 1990).

limitations

See, e.g., Torres v.


___ ____ ______

is also

Superintendent of
_________________

Article 1873 of the

Civil Code of Puerto Rico provides that extrajudicial claims will

toll the one-year statute of limitations:

Prescription

of

actions is

their institution before the

interrupted

by

courts, [or] by

extrajudicial claims of the creditor . . . .

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.

F.2d 1149, 1154

is not tolled for all

. . . ."

omitted).

identical causes of action.

must

claims arising out

Rodr guez Narv ez, 895 F.2d


__________________

Moreover, the

be

the same

The

relief

relief

at 43

requested

in the

that

later

is

See Riofrio Anda v. Ralston Purina, Co., 959


___ ____________
___________________

(1st Cir. 1992); Rodr guez Narv ez,


_________________

895 F.2d at

44; Torres, 893 F.2d at 407; Hern ndez del Valle v. Santa Aponte,
______
___________________
____________

575 F.2d 321, 323-24

(1st Cir. 1978).

the statute the action must be the

In other

words, "to toll

case at bar, and not merely a

somewhat related action arising from the same facts,"

Arellano
________

v. Alvarez de Choudens,
____________________

575 F.2d

315, 320

Ram rez de
__________

(1st Cir.

1978), and

the earlier

if the remedies in both the

claim will fail

claims are not the same,

to toll the statute

of limitations

-11-

for

the later

claim, see
___

reasons enumerated

Torres,
______

below, we find

893 F.2d

at 407.

the plaintiff's claims

barred by the statute of limitations.

For the

to be

-12-

I. Fourth Amendment, Illegal Detention and Privacy Claims


I. Fourth Amendment, Illegal Detention and Privacy Claims
__________________________________________________________

The

searches

plaintiff alleges that he was subjected to illegal

and seizures, illegal detentions, and violations of his

right to privacy between March 13, 1992, and March 19, 1992.

plaintiff had

until March 1993

these

of

causes

limitations.

action,

to file his

unless

he

complaint asserting

tolled

the

statute

no evidence

claims

of

As indicated above, the plaintiff waited until May

1995 to file his federal complaint asserting these claims.

is

The

in the

during the

record that

the plaintiff

administrative hearing.

He

There

raised these

did not

assert

these

claims in his motion for

Nor is

were

there evidence in

the record that these

asserted during the

and April 1993.7

plaintiff

district

court

untimely, and

specific claims

negotiations that transpired

In fact, from

raised these

first time when

reconsideration filed with OCFI.

the record it appears

specific constitutional

he filed his federal complaint.

properly

concluded

that the plaintiff

in March

that

that the

claims

for the

Therefore, the

these

had not tolled the

claims

were

statute of

limitations under the Puerto Rico tolling statute.

II. Federal and State Due Process Claims


II. Federal and State Due Process Claims
_________________________________________

The plaintiff

interests

asserts that

were violated when

____________________

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"

This general statement

contested
in

the

violated

his

in the

is supported by

federal

evidence in

the record, but only as to the due process claims.

-13-

license without due

process.

We assume arguendo
________

that his claim

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

federal court until

allegedly

did not

May 2, 1995, these

file his

claims are

also time barred by the statute of limitations unless the statute

was tolled under Puerto Rico law.

Unlike the search and seizure,

illegal

claims

detention,

and

his

motion

above,

the

reconsideration,

and

asserted

allegedly

in his negotiations with OCFI, that the administrative

failed to afford him due

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

The plaintiff's argument can, if read liberally,

to assert that

the plaintiff was deprived

of his

property

and liberty

interests

without

due

process

of

law.

However, despite the plaintiff's assertion of these claims in the

administrative proceeding, they

are not preserved by

the Puerto

Rico tolling statute.

As we held in

extrajudicial

sought in

not tolled.

claim

that

is different

a judicial proceeding,

from

the

the statute of

In Torres, the plaintiffs had


______

their positions

filed

Torres, if a party seeks a


______

as police officers.

See 893
___

remedy in an

remedy later

limitations is

been discharged from

F.2d at 406.

They

an administrative action within the statute of limitations

-14-

seeking reinstatement.

unsuccessful,

court

seeking

photographs and

time, the

After

they filed

damages,

1983

action

reinstatement,

fingerprints

statute of

their administrative claim

and

filed with

limitations for

in federal

the

district

expunging

the police.

their

proved

By

federal claim

of

this

had

expired.

In Torres, we found that because the remedies sought by


______

the

plaintiffs in the

district court were not

the same as they

were in the

administrative proceeding, there

was no tolling

the

statute of limitations

by their extrajudicial

the

administrative action.

In concluding

of

assertion in

that the

1983 claim

was time barred, we stated in Torres:


______

[T]he district court

correctly held that the

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,

hand presents similar facts.

constitutional

which

could

claims

have

Here, the

before

functioned

the

as

an

extrajudicial claim under Puerto Rico law, tolling the statute of

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

In the administrative proceedings he

reinstatement

of his

license,

while

in the

-15-

district court he sought declaratory and monetary relief, as well

as the reinstatement of his license.8

III. Equitable Estoppel and Tolling


III. Equitable Estoppel and Tolling
____________________________________

The

equitably

plaintiff

estopped

also

from

argues

raising the

that the

time

bar

defendants

are

defense.

The

plaintiff's argument muddles the doctrines of equitable

and equitable tolling.

both doctrines,

we will

estoppel

Because the plaintiff asserts elements of

analyze the

equitable arguments

under

both estoppel and tolling theories.

The first issue to be determined in analyzing equitable

tolling is

Ram rez
_______

was

its applicability to

v. Berm dez Garc a, we


_______________

unclear

concealment

whether

(equitable

the

the case

at hand.

In

Torres
______

noted without resolution that it

federal

doctrine

tolling) continues

to

of

fraudulent

apply to

1983

actions,

tolling.

or

whether state

law governs

See Torres Ram rez


___ ______________

229 & n.2 (1st Cir. 1990).

we find that under

the issue

of equitable

v. Berm dez Garc a, 898


_______________

F.2d 224,

We need not decide the issue here, as

either the federal or the state doctrine, the

plaintiff has failed to establish that the statute of limitations

should be equitably tolled.

We have

Puerto

previously addressed

Rico law in

equitable tolling in a

1983 cases.

equitable tolling

"Puerto Rico law provides for

case of 'damage willfully and

(dolosamente) concealed by
___________

under

the author

of the

same.'"

wrongfully

Ram rez
_______

____________________

For the same

reasons, the plaintiff's claims asserting Puerto

Rico causes of action are time barred.

-16-

Morales
_______

v. Rosa Viera, 815 F.2d


___________

Rivera Encarnaci n v.
___________________

Similarly,

E.L.A.,
______

2, 4 (1st

113

D.P.R.

Cir. 1987) (quoting

383,

386

(1982)).

under federal law, the plaintiff must show "excusable

ignorance of the statute of limitations caused by some misconduct

of

the defendant."

citations omitted).

Torres,
______

Equitable

893

F.2d at

tolling is

407 (quotations

unavailable where

and

party fails to exercise reasonable diligence.

axiomatic that 'the

are

more limited

Kelley
______

v. NLRB,
____

grounds for tolling statutes

in

suits

79 F.3d

against

1238,

Swietlik v. United States, 779


________
_____________

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

F.2d 1306, 1311 (7th Cir. 1985)).

in

assessing

of

actual

claims

notice

of

of

constructive notice of

requirement; (3) the diligence in pursuing

absence

Moreover, "[i]t is

equitable

the

filing

the filing

one's rights; (4) the

the defendant; and

(5) the plaintiff's

remaining ignorant of the

filing requirement.

See Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st
___ ____
_____________________________

Cir. 1988).

Here, the plaintiff does not allege that the defendants

concealed material

facts

regarding

action or the damages incurred.

4 (finding equitable

the

regarding

or

tolling inappropriate in

discourage

cause

of

See Ram rez Morales, 815 F.2d at


___ _______________

either federal or Puerto Rico doctrines

prevent

plaintiff's

plaintiff

1983

case under

where defendants did not

from viewing

agency

records

unlawful police shooting, and there was no concealment

-17-

of material facts) overruled on other grounds by Carreras-Rosa v.


_____________________________ _____________

Alves-Cruz, 127 F.3d 172 (1st Cir. 1997).


__________

argues

Instead, the plaintiff

that equitable tolling is appropriate because OCFI misled

him regarding the tolling of the statute of limitations under the

Puerto Rico Uniform Administrative Procedure Act.

The facts and

arguments in

those presented by Kelley.


______

Kelley, the
______

within

plaintiff

employee

relied

period

on

who informed

are similar

See 79 F.3d at 1242-43, 1247-50.


___

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.

the defendant and

The employee neglected

an NLRB regulation

serving notice

that the plaintiff should

to inform the plaintiff, however, of

stating that the ultimate

was on

the charging party.

NLRB was

one day late.

In rejecting the

tolling

argument,

held

we

not do

that

responsibility for

The service

by the

plaintiff's equitable

although

the

employee's

information was "incomplete and perhaps misleading," the delay in

service could not "be wholly

of the [NLRB]."

plaintiff

had

attributed to an error on the

See Kelley, 79 F.3d at 1249.


___ ______

constructive

notice of

the

part

We found that the

regulation

and its

requirements because the plaintiff was represented by counsel for

a long

duration, and counsel had access to the regulations.

id. at 1249
___

("Courts generally impute constructive

See
___

knowledge to

plaintiffs

who, like appellant, consult with an attorney.").

We

also determined that it was plain that the attorney's reliance on

-18-

the

employee's representations

1249. The

information "almost by

was unreasonable.

definition, is

reliable as simply looking up the text

See id.
___ ___

at

not nearly

as

of a regulation."

Id. at
___

1250.

Here, the interlocutory order issued by

OCFI indicated

that the statute of limitations was tolled until a copy of OCFI's

resolution addressing the

and notified."

inaccurate.

issued

In this

motion for reconsideration

regard it was incomplete

However, the

pursuant

order

to section

3.15

Administrative Procedure Act,

the interlocutory

agency

order.

fails to take

within the ninety

expressly stated

of

the Puerto

which clarifies

Pursuant to

action on

was "filed

and therefore

that it

Rico

Uniform

the ambiguity

section 3.15, "[i]f

the motion

was

of

the

for reconsideration

(90) days of the filing of the motion it shall

lose jurisdiction over the same and the term in which to petition

for

judicial review shall

ninety

(90) day

commence upon the

term unless

the court,

expiration of said

for good

cause shown,

grants the agency an extension of time."

2165 (1994).

OCFI's

P.R. Laws Ann. tit. 3,

In short, the statute was tolled either until the

resolution of

the motion

was issued

or until

the time

period in which to issue the resolution expired.

The plaintiff had

notice of the statute

governing the

time limitations but relied on the agency's summation of the law.

"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)).

Moreover, the plaintiff had constructive notice

filing

Community Health Servs., 467


________________________

we say

that

the

See Kelley, 79
___ ______

plaintiff was

Between June 21, 1993, and

the plaintiff

the

of the

and he had access to the Puerto Rico Uniform

Administrative Procedure Act.

rights.

63

requirement; he was represented by counsel throughout his

dealings with OCFI;

can

U.S. 51,

took to pursue

diligent

F.3d at 1249.

Nor

in pursuing

his

March 1995, the only action

his rights was when

he approached

Commissioner at an unidentified meeting and the Commissioner

indicated he would "follow up"

plaintiff's

meeting

The

counsel acknowledged in oral argument that even this

was entirely

accidental.

other contact with the agency

this

on the plaintiff's petition.

period.

Given

sophisticated businessman

the

The

plaintiff initiated

to resolve his dispute

fact

that

the

represented by

no

throughout

plaintiff

was

counsel, and that

the

plaintiff was directed to the specific section of the Puerto Rico

Uniform

Administrative

limitations for his

failure to

Procedure

Act that

motion, we cannot

ascertain the timeliness

governed

the

time

say that the

plaintiff's

of his cause of

action was

reasonable.

The

plaintiff has referred to the OCFI Regulation Rule

19, see Commonwealth of Puerto


___

Rico, Office of the

Commissioner

of Financial Institutions, Regulation # 3920, Rule 19 (1989), and

Rule 3.16

Act,

of the

see P.R.
___

require that

Puerto Rico

Laws Ann. tit.

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

Regulation Rule 18.1, see Commonwealth of Puerto Rico,


___

OCFI

Office of

the Commissioner

Rule

of Financial

18.1 (1989),

and

Institutions, Regulation

Rule

3.15 of

the

# 3920,

Puerto Rico

Uniform

Administrative Procedure Act, see


___

P.R. Laws Ann. tit. 3,

(1994), which provide that OCFI's

failure to decide a motion for

reconsideration

within a

designated time period

2165

either renders

the motion and case dismissed by the agency, or strips the agency

of its

jurisdiction over

cannot agree that

of

the case.

In such

the plaintiff's reliance on

the regulations (i.e. OCFI's failure

as to

the termination of his

portions

of

dismissed, was

the

reasonable.

that

selected portions

disregard for other

indicated

The regulations must

whole, and cannot be read selectively.

we

to notify the plaintiff

case) and his

regulations

a situation,

his

case

be read

was

as a

See O'Connell v. Shalala,


___ _________
_______

79 F.3d 170, 176 (1st Cir. 1996) ("[A] court engaged in

of statutory interpretation must examine

the task

the statute as a whole,

giving due weight to design, structure, and purpose as well as to

aggregate language.").

the

Furthermore, the plaintiff's ignorance of

time limitations was

unreasonable particularly in

light of

the fact that these tolling provisions are uniform for all of the

Puerto Rico agencies.

adequate

Because lack of prejudice alone

is not an

basis for invoking equitable tolling, and the plaintiff

has not met

the other requirements of the doctrine,

equitable tolling

See Kelley, 79
___ ______

doctrine to

F.3d at 1250.

be inapplicable

we find the

on these

facts.

The plaintiff fails in his attempt

-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

all Puerto Rico

that the

Reliance

reference

to the

uniformity of

agencies, and the notice

regulations and statute indicating the pending time

was

the

in the

limitations,

among other factors.

Equitable estoppel has

a similar origin and

effect as

equitable tolling, although it is a distinct doctrine.

861

F.2d at

actions.

(7th

752.

estoppel is

available in

1983

See Smith v. City of Chicago Heights, 951 F.2d 834, 839


___ _____
_______________________

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

act that the

party asserting the

estoppel has a right to believe it is so intended; (3) the latter

must be

ignorant of the true facts; and

former's conduct to his injury."

661

(1st Cir. 1987).

that the party

(4) he must rely on the

Clauson v. Smith, 823 F.2d 660,


_______
_____

The "reliance must have been reasonable in

claiming the estoppel did not know

nor should it

have

known

that

its

adversary's

Heckler, 467 U.S. at 59.


_______

party

had

knowledge

conduct

was

misleading."

"'If, at the time when he acted,

of the

truth,

or

. . . with

such

reasonable

diligence he could acquire the knowledge . . . he cannot claim to

have

been

misled

by

relying

upon

-22-

the

misrepresentation

or

concealment.'"

810, at 219

defendant

must

Id.
___

(quoting 3 J. Pomeroy,

(S. Symons ed. 1941).

be so

failure to file suit."

misleading

Equity Jurisprudence
____________________

Indeed, "the conduct of the

as to

cause

the plaintiff's

S nchez v. Loffland Bros., 626 F.2d 1228,


_______
______________

1231 (5th Cir. 1980) (footnote omitted).

-23-

The

flaw

in

the plaintiff's

above, is that the plaintiff's

interlocutory

order explicitly

which

issued.

it was

period after

also

that

"WITHOUT

as discussed

reliance was not reasonable.

cited

The statute

the

statute pursuant

in turn indicated

which OCFI lost jurisdiction.

indicated

considered

argument,

the motion

for

CAUSE/CASE

DISMISSED"

The

to

the time

The OCFI regulations

reconsideration

without

would be

an

OCFI

resolution in 30

days.

See Commonwealth of
___

Puerto Rico, Office

of the Commissioner of Financial Institutions, Regulation # 3920,

Rule

18.1

(1989).

In

the

face

of

a conflict

between

the

interlocutory order and the statute it expressly referred to, and

another

conflict between regulations that indicated the case was

dismissed but

event of

choose

that also indicated

termination, it was

to rely

upon the

OCFI's conduct was not so

failure

to

diligence.

notice would be given

unreasonable for the

interlocutory

order.

plaintiff to

In this

case,

misleading as to cause the plaintiff's

file

on

time

without

Nor

are

the

plaintiff's

the

plaintiff's

negotiations

adequate to equitably toll the statute of limitations.

v.

in the

W.L. Belvidere, Inc., 579


_____________________

F.2d 1067,

1071 (7th

lack

with

of

OCFI

See Bomba
___ _____

Cir. 1978)

("[I]t

disputed

is

widely

held

that

claim, without more,

mere

negotiations

concerning

is [sic] insufficient

the application of equitable estoppel . . . .").

to warrant

The plaintiff's

equitable estoppel argument must therefore fail.

The plaintiff also argues that the Commissioner had the

authority to waive

the time periods at issue, and because he did

-24-

in

fact waive

OCFI.

them, the

At the

time

of

statute of

this

limitations was

case,

tolled by

the Commissioner

had

no

authority to waive the time periods of section 2165.

The plaintiff's reference to language

and

2164 is

without

merit.9

Section

2163

adjudicatory procedure before an agency shall

months, absent

tit. 3,

or

exceptional circumstances.

2163 (1994).

resolution shall

issued

within

provides that

an

be resolved in six

See
___

Section 2164 provides

be

in sections 2163

P.R. Laws

Ann.

that a final order

ninety days

after

the

conclusion of a hearing, unless waived in writing by the parties,

or for just cause.

The

See P.R. Laws Ann. tit. 3,


___

Uniform Administrative Procedure

most part, arranged chronologically.

2164 (1994).

Act is,

for the

Section 2163 deals in

its

entirety with the procedure of

addresses

motions for

governs

case.

Section 2164

only issues pertaining to final orders or resolutions,

including their timing,

to

the actual hearing.

content, or notice.

reconsideration.

In

It

is not relevant

contrast,

section

2165

reconsideration and the applicable timing issues in this

Section

jurisdiction if

"unless the

2165

it

provides

fails

court, for

extension of time."

to

that

an

take action

good cause shown,

The

waive this requirement.

agency

shall

lose

within

ninety

days

grants the

agency an

agency therefore lacks the authority to

The requirement is not

affected by the

discretion afforded the agency in other sections, nor by reliance


____________________

We also reject plaintiff's arguments premised on public policy

favoring economical, fair,

and rapid proceedings, and

on OCFI's

conduct.

-25-

on OCFI's representations

the

statute to

meaning

that

legislature.10

(1992)

or conduct by the plaintiff.

be unambiguous

directly

and decline

conflicts

with

to read

the

We find

into it

intent

of

See Pag n Ramos v. State Ins. Fund, 92


___ ____________
________________

(stating in dicta

and 'for just cause

the

JTS 13

"[o]nly through judicial authorization

can that term

be extended for a

reasonable

____________________________________________________________

period of time.'")
_______________

3,

2165

(1994)); Rivera Rivera v.


______________

Municipality of Carolina, 96
_________________________

JTS 28

(1996)

that

(stating in

statute).

(quoting

dicta

P.R.

Laws

Ann.

there is

no

tit.

ambiguity in

the

OCFI's administrative order is therefore final, and as

timely review was not sought, unappealable.

The

plaintiff finally argues

that summary judgment is

inappropriate in this case because it involves equitable estoppel

or

equitable

tolling

issues, and

issues of material fact unresolved.

asserts

such

equitable

claims does

motion for summary judgment.

262

(8th

Cir.

1996)

because

there

were genuine

The mere fact that a

not

foreclose

granting a

See, e.g., Bell v. Fowler, 99


___ ____ ____
______

(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)

tolling); Dillman v. Combustion Eng'g, Inc., 784 F.2d


_______
______________________

____________________

10

We note that

the legislature has since amended

section 2165

to provide for the agency discretion that the plaintiff argues we


should

read into

amended,

the statute.

1684,

section 2165,

as

the agency loses jurisdiction after ninety days "unless

the agency, for just cause


the term"

Pursuant to

and within those ninety days, extends

for at most another thirty days.

Act No. 27, H.B. No.

Uniform Administrative Procedures Act -- Judicature Act of

1994 (West 1997).

-26-

57 (2d

Cir. 1986)

Moreover, we

they

are

(equitable estoppel

find that

the facts alleged

discussed throughout

genuine issue of

and equitable

this

by the

opinion, fail

material fact requiring a trial.

tolling).

plaintiff, as

to

raise a

The district

court's grant of summary judgment is therefore appropriate.

Affirmed.
Affirmed
________

Parties shall bear their own costs.

-27-