USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-2254
JOSE RAFAEL BENITEZ-PONS,
Plaintiff, Appellant,
v.
THE COMMONWEALTH OF PUERTO RICO, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Lynch, Circuit Judge,
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Cyr, Senior Circuit Judge,
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and DiClerico, Jr.,* District Judge.
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William Ram rez-Hern ndez, with whom Nora Vargas-Acosta and
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Vargas & Ram rez Law Office were on brief for appellant.
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Roberto Ruiz-Comas and Edgardo Col n-Arrar s, with whom
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Gaztambide & Plaza, Goldman Antonetti & C rdova and Cherie K.
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Durand were on brief for appellees.
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February 12, 1998
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* Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. After administrative
DICLERICO, District Judge.
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proceedings resulted in the revocation of his securities
brokerage license, plaintiff-appellant Jos Rafael Ben tez-Pons
filed a motion for reconsideration with the Office of the
Commissioner of Financial Institutions (OCFI), which issued an
interlocutory order tolling the period for judicial review. No
resolution of the motion for reconsideration was issued, although
the agency and the plaintiff engaged in negotiations. The
plaintiff then filed a complaint in federal court alleging
violations of the Federal and State Constitutions and statutes in
connection with the revocation of his securities license. The
district court granted summary judgment to the defendants on the
grounds that the claims were barred by the statute of
limitations. We affirm the grant of summary judgment.
Background1
Background
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The plaintiff, Jos Rafael Ben tez-Pons, was a
practicing licensed securities broker and licensed supervisor of
other securities brokers. In April 1988, he co-founded and
became president and majority owner of First Continental
Corporation (FCC), a now defunct securities brokerage firm.
After suspecting improper securities transactions by two of the
brokers at FCC, the plaintiff filed a complaint with OCFI.
OCFI's investigation eventually included the plaintiff himself.
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1 The facts recited herein are either not in dispute or are
alleged by the plaintiff.
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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. On January 30, 1992, the
plaintiff entered into a consent decree with OCFI. The consent
decree provided, inter alia, that the plaintiff was to cease all
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supervisory and administrative functions at FCC for one year,
that FCC would name another person to supervise and perform
administrative functions at FCC, that FCC would 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, 1992, Peter Smith and other governmental
employees or agents of OCFI entered FCC's premises. They
conducted a warrantless search of the premises which included, in
part, downloading computer information and seizing computer
programs and disks, accounting books, a registry, shareholder
contracts, and security boxes.
On March 19, 1992, OCFI issued another order against
the plaintiff and FCC finding, inter alia, that the consent
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decree had not been complied with and that the plaintiff had
engaged in other misconduct. In the order, OCFI ultimately
concluded that the situation at FCC placed investors and the
securities industry in Puerto Rico at risk. It summarily
suspended the plaintiff's license, ordered him to show cause why
further actions should not be taken against him, and informed him
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of his right to seek an administrative hearing.2 The plaintiff
exercised his right to an administrative hearing.
On September 28, 1992, the plaintiff was afforded an
administrative hearing on the issue of the revocation of his
license. There is no evidence that the plaintiff raised any
search and seizure claims, privacy claims, or illegal detention
claims during the administrative hearing. On December 28, 1992,
OCFI issued a resolution and ordered the plaintiff's license
permanently revoked. On January 19, 1993, the plaintiff filed a
timely motion for reconsideration with OCFI. This step was a
procedural prerequisite to seeking judicial review. In the
plaintiff's motion for reconsideration, the plaintiff asserted
that the proceedings had violated his constitutional rights.3
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2 The record does not make clear whether the plaintiff in fact
held multiple licenses, or one license authorizing both broking
securities and supervising other securities brokers.
3 The motion for reconsideration asserted constitutional claims
as follows:
The proceedings carried in this case led to
a violation of the due process of law and of
the constitutional and civil rights of the
Defendant. This is so because all or some of
the charges made to the Defendant are of a
penal character that entail fines, as
expressed in the Order and Resolution, which
clearly reveals that the burden of proof fell
on the Office of the Commissioner.
For this reason the Office of the
Commissioner was obliged to present its
evidence first and convince the judge that
the Defendant had committed tha [sic]
violations he was being charged with.
Nevertheless, despite the opposition of the
Defendant, in this case the burden of proof
was inverted and the Defendant was obliged to
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OCFI responded to the motion for reconsideration with
an interlocutory order issued January 28, 1992, pursuant to
section 3.15 of Puerto Rico's Uniform Administrative Procedures
Act (codified at 3 L.P.R.A. 2165). See P.R. Laws Ann. tit. 3,
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2165 (1994) (hereinafter section 2165).4 The plaintiff's
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prove that he is innocent of the alleged
charges. This is clearly a violation of the
rights recognized to an "accused" by the
Constitution of the Commonwealth of P.R.,
which adulterates with absolute nullity the
whole proceeding and converts the Order and
Resolution into a nullity. Much more so in
this case, by which the Defendant is deprived
of his right to his agent license
permanently. The license already issued or
granted is an acquired right, and not a
privilege as is erroneously indicated in the
Resolution and Order. (See Article 402(d) of
the Securities Law about the burden of proof,
which clearly shows that the burden of proof
fell in this case on the Office of the
Commissioner.)
. . . .
. . . Due process of law has not been
followed in the proceedings carried on to
deprive him permanently of his agent license,
which is an acquired right and not merely a
privilege.
4 Section 2165 was amended in 1994. See Uniform Administrative
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Procedures Act -- Judicature Act of 1994, 1995 Puerto Rico Laws
Act No. 247 (H.B. No. 1684) 4. 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 adversely affected by a
resolution or partial or final order may,
within twenty (20) days of the filing of the
resolution or order, present a motion to
reconsider the resolution or order. The
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agency shall consider the motion within
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fifteen (15) days of its filing. If it
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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 section 3.15 of Law Number 170
of August 12, 1988 (Uniforme [sic]
Administrative Procedures Act) supra, the
thirty (30) day period in which to seek
review is tolled and will begin to run again
from the date in which a copy of the
Resolution resolving the Motion 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
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rejects the motion or fails to act upon it
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within said fifteen (15) days, the term to
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petition for review shall commence to run
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anew as of the notification of said denial or
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as of the expiration of the fifteen (15) day
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term, whichever may be the case. If a
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determination is made upon the motion, the
term to petition for review shall begin to
run as of the date of filing a copy of the
notification of the resolution of the agency
resolving the motion definitively, which
resolution should be issued and filed within
ninety (90) days after the motion was filed.
If the agency fails to take action on the
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motion for reconsideration within the ninety
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(90) days of the filing of the motion it
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shall lose jurisdiction over the same and the
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term in which to petition for judicial review
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shall commence upon the expiration of said
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ninety (90) day term unless the court, for
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good cause shown, grants the agency an
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extension of time.
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The motion to reconsider shall be
jurisdictional in order to request judicial
review.
See P.R. Laws Ann. tit. 3, 2165 (1994) (emphasis added).
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reconsideration. OCFI never issued a decision by the
Commissioner on the motion for reconsideration within the ninety
day period as required by section 2165.
Following OCFI's interlocutory order of January 28,
1993, attorneys for OCFI and the plaintiff met to try to resolve
the issue. The plaintiff asserts that during the months of March
and April 1993, letters and telephone calls were exchanged to
this end. The record indicates that the plaintiff's attorneys
sent OCFI settlement proposals which were evidently rejected.
The plaintiff's intention in the negotiations was to relinquish
his constitutional claims in exchange for reinstatement of his
license. The plaintiff asserts that representations were made
that the statute of limitations was tolled, although there is no
evidence in the record that substantiates this allegation beyond
the interlocutory order. During these interactions, OCFI never
indicated that it was not considering the motion for
reconsideration. In September 1993, the Commissioner and the
plaintiff accidentally met, and in response to an inquiry by the
plaintiff, the Commissioner indicated that he would "follow up"
on the plaintiff's motion for reconsideration. In June 1994, the
attorney for the plaintiff filed a motion to "resign" from
representing him. 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. The plaintiff was told that no one at OCFI
had any knowledge regarding his case, and that no one could help
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him with his inquiry.
On May 2, 1995, the plaintiff filed a complaint in the
federal district court of Puerto Rico against the defendants.5
The plaintiff sought declaratory relief, injunctive relief, and
damages pursuant to 42 U.S.C. 1983 and 1988, and 28 U.S.C.
2201. The plaintiff asserted that the defendants violated his
right to be free from unreasonable searches and seizures, his
right to be free from illegal detention, his right to privacy,
his property interest in his license, his liberty interest in his
career, and his liberty interest in his right to contract for
employment. He also asserted claims under the Puerto Rico
Constitution, Article II, sections 7, 8, and 10, and Articles
1802 and 1803 of the Puerto Rico Civil Code.
On July 31, 1995, the defendants filed a motion for
summary judgment. The defendants argued that the complaint was
not filed within one year of the constitutional deprivations, and
was therefore time barred. Furthermore, they asserted that the
plaintiff failed to toll the statute of limitations because (1)
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5 Defendants are the Office of the Commissioner of Financial
Institutions of the Commonwealth of Puerto Rico; Jos Sosa
Llor ns, in his official and personal capacity, and his conjugal
partnership; Asdr bal Aponte, in his official and personal
capacity, and his conjugal partnership; Peter Smith, in his
official and personal capacity, and his conjugal partnership;
Rafael Rosario, in his official and personal capacity, and his
conjugal partnership; John Doe, in his official and personal
capacity, and his conjugal partnership; Richard Doe, in his
official and personal capacity, and his conjugal partnership; and
Virgilio Vega, in his official and personal capacity, and his
conjugal partnership. In light of our conclusion, we need not
distinguish between the defendants in addressing the plaintiff's
claims and arguments.
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the plaintiff failed to satisfy the applicable Puerto Rico
tolling statute, which requires that there be identity of relief
requested, and (2) equitable tolling was unavailable because the
plaintiff could establish neither excusable ignorance nor that
the defendant actively misled or prevented the plaintiff from
asserting his rights. Finally, the defendants argued that OCFI's
determination was final and unappealable because the statute of
limitations had expired.
The district court granted the defendants' motion for
summary judgment. The court first determined that a one year
statute of limitations controlled the plaintiff's claims. It
then determined that the last alleged violation occurred on
September 28, 1992. The complaint therefore had to be filed by
September 29, 1993. The court agreed with the defendants and
found that the plaintiff had not tolled the 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 therefore failed to satisfy the requirements of the
Puerto Rico statute governing the tolling of the statute of
limitations through extrajudicial claims, and (2) the plaintiff
failed to establish that the statute of limitations was equitably
tolled. The court implicitly found that the plaintiff was
neither excusably ignorant of the statute of limitations nor
actively misled by OCFI. The court concluded that the
administrative order was final and unappealable.
The plaintiff argues on appeal that the ninety day
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review period under section 2165 is waivable and was tolled by
OCFI. The plaintiff also asserts that the defendants are
equitably estopped from asserting the statute of limitations as a
defense in this case. Finally, the plaintiff asserts that
summary judgment is generally inapplicable in actions raising
equitable tolling or estoppel arguments, and that genuine issues
of material fact in this case precluded the grant of summary
judgment.6
We review motions for summary judgment de novo. See
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Associated Fisheries of Maine, Inc. v. Daley, No. 97-1327, 1997
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WL 563584, at *3 (1st Cir. Sept. 16, 1997).
Discussion
Discussion
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State law statutes of limitations govern suits in
federal courts arising under 1983. See Board of Regents v.
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Tomanio, 446 U.S. 478 (1980). In Wilson v. Garc a, the Supreme
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Court determined that the state statute of limitations applicable
in tort actions for personal injuries governs 1983 claims. See
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471 U.S. 261, 276-80 (1985).
The plaintiff does not dispute that Puerto Rico law
establishes a one year prescription period for the claims in this
case. See P.R. Laws Ann. tit. 31, 5298 (1994); Rodr guez
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Narv ez v. Nazario, 895 F.2d 38, 41-42 (1st Cir. 1990). The one
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6 At oral argument, the plaintiff's attorney asserted that
summary judgment was also inappropriate because discovery was at
an early stage and sufficient facts could not be adduced.
However, this argument was not asserted before the district
court, nor in the briefs submitted, and is deemed waived. See,
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e.g., Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st
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Cir. 1992).
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year period begins running one day after the date of accrual,
which is the date plaintiff knew or had reason to know of the
injury. See Carreras-Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir.
___ _____________ __________
1997).
The tolling of the statute of limitations is also
governed by state law. See, e.g., Torres v. Superintendent of
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Police, 893 F.2d 404, 407 (1st Cir. 1990). Article 1873 of the
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Civil Code of Puerto Rico provides that extrajudicial claims will
toll the one-year statute of limitations:
Prescription of actions is interrupted by
their institution before the 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 identical causes of action. The
statute of limitations is not tolled for all claims arising out
of the same facts . . . ." Rodr guez Narv ez, 895 F.2d at 43
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(citations omitted). Moreover, the relief requested in the
extrajudicial claim must be the same relief that is later
requested in court. See Riofrio Anda v. Ralston Purina, Co., 959
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F.2d 1149, 1154 (1st Cir. 1992); Rodr guez Narv ez, 895 F.2d at
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44; Torres, 893 F.2d at 407; Hern ndez del Valle v. Santa Aponte,
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575 F.2d 321, 323-24 (1st Cir. 1978). In other words, "to toll
the statute the action must be the case at bar, and not merely a
somewhat related action arising from the same facts," Ram rez de
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Arellano v. Alvarez de Choudens, 575 F.2d 315, 320 (1st Cir.
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1978), and if the remedies in both the claims are not the same,
the earlier claim will fail to toll the statute of limitations
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for the later claim, see Torres, 893 F.2d at 407. For the
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reasons enumerated below, we find the plaintiff's claims to be
barred by the statute of limitations.
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I. Fourth Amendment, Illegal Detention and Privacy Claims
I. Fourth Amendment, Illegal Detention and Privacy Claims
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The plaintiff alleges that he was subjected to illegal
searches and seizures, illegal detentions, and violations of his
right to privacy between March 13, 1992, and March 19, 1992. The
plaintiff had until March 1993 to file his complaint asserting
these causes of action, unless he tolled the statute of
limitations. As indicated above, the plaintiff waited until May
1995 to file his federal complaint asserting these claims. There
is no evidence in the record that the plaintiff raised these
claims during the administrative hearing. He did not assert
these claims in his motion for reconsideration filed with OCFI.
Nor is there evidence in the record that these specific claims
were asserted during the negotiations that transpired in March
and April 1993.7 In fact, from the record it appears that the
plaintiff raised these specific constitutional claims for the
first time when he filed his federal complaint. Therefore, the
district court properly concluded that these claims were
untimely, and that the plaintiff had not tolled the statute of
limitations under the Puerto Rico tolling statute.
II. Federal and State Due Process Claims
II. Federal and State Due Process Claims
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The plaintiff asserts that his property and liberty
interests were violated when he was allegedly deprived of his
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7 In his sworn statement and in his statement of contested
facts, the plaintiff stated that he "asserted in the
administrative proceedings that Defendants violated his
constitutional and civil rights complained of" in the federal
complaint. This general statement is supported by evidence in
the record, but only as to the due process claims.
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license without due process. We assume arguendo that his claim
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accrued at the latest possible date, December 28th, 1992, the day
the plaintiff's license was permanently revoked, allegedly
without due process. Because the plaintiff did not file his
complaint in federal court until May 2, 1995, these 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 detention, and privacy claims discussed above, the
plaintiff asserted in his motion for reconsideration, and
allegedly in his negotiations with OCFI, that the administrative
proceedings failed to afford him due process. In his motion he
argued that his license was a right and not a privilege, and that
he was not accorded due process of law in the administrative
proceedings because the burden of proof was inappropriately
shifted to him. The plaintiff's argument can, if read liberally,
be understood 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 Torres, if a party seeks a remedy in an
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extrajudicial claim that is different from the remedy later
sought in a judicial proceeding, the statute of limitations is
not tolled. In Torres, the plaintiffs had been discharged from
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their positions as police officers. See 893 F.2d at 406. They
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filed an administrative action within the statute of limitations
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seeking reinstatement. After their administrative claim proved
unsuccessful, they filed a 1983 action in federal district
court seeking damages, reinstatement, and the expunging of
photographs and fingerprints filed with the police. By this
time, the statute of limitations for their federal claim had
expired.
In Torres, we found that because the remedies sought by
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the plaintiffs in the district court were not the same as they
were in the administrative proceeding, there was no tolling of
the statute of limitations by their extrajudicial assertion in
the administrative action. In concluding that the 1983 claim
was time barred, we stated in Torres:
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[T]he district court correctly held that the
extrajudicial claim must claim the same
relief later requested in the federal suit.
The statute of limitations for Section 1983
claim [sic] is not tolled if the remedy
requested in both suits is different. . . .
The record supports the district court's
finding that the plaintiff requested two
distinct remedies. . . . Given that these
remedies were not identical, there was no
tolling and the prescription period expired
. . . .
Id. at 407. The case at hand presents similar facts. Here, the
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plaintiff asserted constitutional claims before the
administrative agency, which could have functioned as an
extrajudicial claim under Puerto Rico law, tolling the statute of
limitations. However, the plaintiff failed to seek the same
remedies in the district court as he had sought in the
administrative proceedings. In the administrative proceedings he
sought only the reinstatement of his license, while in the
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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
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The plaintiff also argues that the defendants are
equitably estopped from raising the time bar defense. The
plaintiff's argument muddles the doctrines of equitable estoppel
and equitable tolling. Because the plaintiff asserts elements of
both doctrines, we will analyze the equitable arguments under
both estoppel and tolling theories.
The first issue to be determined in analyzing equitable
tolling is its applicability to the case at hand. In Torres
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Ram rez v. Berm dez Garc a, we noted without resolution that it
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was unclear whether the federal doctrine of fraudulent
concealment (equitable tolling) continues to apply to 1983
actions, or whether state law governs the issue of equitable
tolling. See Torres Ram rez v. Berm dez Garc a, 898 F.2d 224,
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229 & n.2 (1st Cir. 1990). We need not decide the issue here, as
we find that under either the federal or the state doctrine, the
plaintiff has failed to establish that the statute of limitations
should be equitably tolled.
We have previously addressed equitable tolling under
Puerto Rico law in 1983 cases. "Puerto Rico law provides for
equitable tolling in a case of 'damage willfully and wrongfully
(dolosamente) concealed by the author of the same.'" Ram rez
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8 For the same reasons, the plaintiff's claims asserting Puerto
Rico causes of action are time barred.
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Morales v. Rosa Viera, 815 F.2d 2, 4 (1st Cir. 1987) (quoting
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Rivera Encarnaci n v. E.L.A., 113 D.P.R. 383, 386 (1982)).
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Similarly, under federal law, the plaintiff must show "excusable
ignorance of the statute of limitations caused by some misconduct
of the defendant." Torres, 893 F.2d at 407 (quotations and
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citations omitted). Equitable tolling is unavailable where a
party fails to exercise reasonable diligence. Moreover, "[i]t is
axiomatic that 'the grounds for tolling statutes of limitations
are more limited in suits against the government . . . .'"
Kelley v. NLRB, 79 F.3d 1238, 1248 (1st Cir. 1996) (quoting
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Swietlik v. United States, 779 F.2d 1306, 1311 (7th Cir. 1985)).
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Courts weigh five factors in assessing claims of equitable
tolling: (1) the lack of actual notice of the filing
requirement; (2) the lack of constructive notice of the filing
requirement; (3) the diligence in pursuing one's rights; (4) the
absence of prejudice to the defendant; and (5) the plaintiff's
reasonableness in remaining ignorant of the filing requirement.
See Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st
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Cir. 1988).
Here, the plaintiff does not allege that the defendants
concealed material facts regarding the plaintiff's cause of
action or the damages incurred. See Ram rez Morales, 815 F.2d at
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4 (finding equitable tolling inappropriate in 1983 case under
either federal or Puerto Rico doctrines where defendants did not
prevent or discourage plaintiff from viewing agency records
regarding unlawful police shooting, and there was no concealment
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of material facts) overruled on other grounds by Carreras-Rosa v.
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Alves-Cruz, 127 F.3d 172 (1st Cir. 1997). Instead, the plaintiff
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argues 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 this case are similar to
those presented by Kelley. See 79 F.3d at 1242-43, 1247-50. In
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Kelley, the plaintiff failed to serve process on the defendant
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within the time period mandated by a federal statute. The
plaintiff relied on a National Labor Relations Board (NLRB)
employee who informed the plaintiff's attorney that the NLRB
would serve the defendant and that the plaintiff should not do
so. The employee neglected to inform the plaintiff, however, of
an NLRB regulation stating that the ultimate responsibility for
serving notice was on the charging party. The service by the
NLRB was one day late. In rejecting the plaintiff's equitable
tolling argument, we held that although the employee's
information was "incomplete and perhaps misleading," the delay in
service could not "be wholly attributed to an error on the part
of the [NLRB]." See Kelley, 79 F.3d at 1249. We found that the
___ ______
plaintiff had constructive notice of the regulation and its
requirements because the plaintiff was represented by counsel for
a long duration, and counsel had access to the regulations. See
___
id. at 1249 ("Courts generally impute constructive knowledge to
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plaintiffs who, like appellant, consult with an attorney."). We
also determined that it was plain that the attorney's reliance on
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the employee's representations was unreasonable. See id. at
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1249. The information "almost by definition, is not nearly as
reliable as simply looking up the text 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 motion for reconsideration was "filed
and notified." In this regard it was incomplete and therefore
inaccurate. However, the order expressly stated that it was
issued pursuant to section 3.15 of the Puerto Rico Uniform
Administrative Procedure Act, which clarifies the ambiguity of
the interlocutory order. Pursuant to section 3.15, "[i]f 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." P.R. Laws Ann. tit. 3,
2165 (1994). In short, the statute was tolled either until the
OCFI's 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 law and may not rely on the conduct of
Government agents contrary to law.'" Kelley, 79 F.3d at 1249
______
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(quoting Heckler v. Community Health Servs., 467 U.S. 51, 63
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(1984)). Moreover, the plaintiff had constructive notice of the
filing requirement; he was represented by counsel throughout his
dealings with OCFI; and he had access to the Puerto Rico Uniform
Administrative Procedure Act. See Kelley, 79 F.3d at 1249. Nor
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can we say that the plaintiff was diligent in pursuing his
rights. Between June 21, 1993, and March 1995, the only action
the plaintiff took to pursue his rights was when he approached
the Commissioner at an unidentified meeting and the Commissioner
indicated he would "follow up" on the plaintiff's petition. The
plaintiff's counsel acknowledged in oral argument that even this
meeting was entirely accidental. The plaintiff initiated no
other contact with the agency to resolve his dispute throughout
this period. Given the fact that the plaintiff was a
sophisticated businessman represented by counsel, and that the
plaintiff was directed to the specific section of the Puerto Rico
Uniform Administrative Procedure Act that governed the time
limitations for his motion, we cannot say that the plaintiff's
failure to ascertain the timeliness 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
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of Financial Institutions, Regulation # 3920, Rule 19 (1989), and
Rule 3.16 of the Puerto Rico Uniform Administrative Procedure
Act, see P.R. Laws Ann. tit. 3, 2166 (1994), both of which
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require that notice be sent when an adjudicative procedure is
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terminated. However, the plaintiff has also cited the OCFI
Regulation Rule 18.1, see Commonwealth of Puerto Rico, Office of
___
the Commissioner of Financial Institutions, Regulation # 3920,
Rule 18.1 (1989), and Rule 3.15 of the Puerto Rico Uniform
Administrative Procedure Act, see P.R. Laws Ann. tit. 3, 2165
___
(1994), which provide that OCFI's failure to decide a motion for
reconsideration within a designated time period either renders
the motion and case dismissed by the agency, or strips the agency
of its jurisdiction over the case. In such a situation, we
cannot agree that the plaintiff's reliance on selected portions
of the regulations (i.e. OCFI's failure to notify the plaintiff
as to the termination of his case) and his disregard for other
portions of the regulations that indicated his case was
dismissed, was reasonable. The regulations must be read as a
whole, and cannot be read selectively. See O'Connell v. Shalala,
___ _________ _______
79 F.3d 170, 176 (1st Cir. 1996) ("[A] court engaged in the task
of statutory interpretation must examine the statute as a whole,
giving due weight to design, structure, and purpose as well as to
aggregate language."). Furthermore, the plaintiff's ignorance of
the time limitations was unreasonable particularly in light of
the fact that these tolling provisions are uniform for all of the
Puerto Rico agencies. Because lack of prejudice alone is not an
adequate basis for invoking equitable tolling, and the plaintiff
has not met the other requirements of the doctrine, we find the
equitable tolling doctrine to be inapplicable on these facts.
See Kelley, 79 F.3d at 1250. The plaintiff fails in his attempt
___ ______
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to distinguish this case from Kelley on the grounds that the
______
Commissioner issued the interlocutory order. Reliance was
unreasonable in light of the order's clear reference to the
statute under which it was authorized, the uniformity of the
provisions for all Puerto Rico agencies, and the notice in the
regulations and statute indicating the pending time limitations,
among other factors.
Equitable estoppel has a similar origin and effect as
equitable tolling, although it is a distinct doctrine. See Kale,
___ ____
861 F.2d at 752. Equitable estoppel is available in 1983
actions. See Smith v. City of Chicago Heights, 951 F.2d 834, 839
___ _____ _______________________
(7th Cir. 1992). Even when a federal court borrows a state's
statute of limitations, the court applies federal equitable
estoppel principles. See id. at 841. "(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 (4) he must rely on the
former's conduct to his injury." Clauson v. Smith, 823 F.2d 660,
_______ _____
661 (1st Cir. 1987). The "reliance must have been reasonable in
that the party claiming the estoppel did not know nor should it
have known that its adversary's conduct was misleading."
Heckler, 467 U.S. at 59. "'If, at the time when he acted, such
_______
party had knowledge of the truth, or . . . with reasonable
diligence he could acquire the knowledge . . . he cannot claim to
have been misled by relying upon the misrepresentation or
-22-
concealment.'" Id. (quoting 3 J. Pomeroy, Equity Jurisprudence
___ ____________________
810, at 219 (S. Symons ed. 1941). Indeed, "the conduct of the
defendant must be so misleading as to cause the plaintiff's
failure to file suit." S nchez v. Loffland Bros., 626 F.2d 1228,
_______ ______________
1231 (5th Cir. 1980) (footnote omitted).
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The flaw in the plaintiff's argument, as discussed
above, is that the plaintiff's reliance was not reasonable. The
interlocutory order explicitly cited the statute pursuant to
which it was issued. The statute in turn indicated the time
period after which OCFI lost jurisdiction. The OCFI regulations
also indicated that the motion for reconsideration would be
considered "WITHOUT CAUSE/CASE DISMISSED" without 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 that also indicated notice would be given in the
event of termination, it was unreasonable for the plaintiff to
choose to rely upon the interlocutory order. In this case,
OCFI's conduct was not so misleading as to cause the plaintiff's
failure to file on time without the plaintiff's lack of
diligence. Nor are the plaintiff's negotiations with OCFI
adequate to equitably toll the statute of limitations. See Bomba
___ _____
v. W.L. Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir. 1978)
_____________________
("[I]t is widely held that mere negotiations concerning a
disputed claim, without more, is [sic] insufficient to warrant
the application of equitable estoppel . . . ."). 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 them, the statute of limitations was tolled by
OCFI. At the time of this case, the Commissioner had no
authority to waive the time periods of section 2165.
The plaintiff's reference to language in sections 2163
and 2164 is without merit.9 Section 2163 provides that an
adjudicatory procedure before an agency shall be resolved in six
months, absent exceptional circumstances. See P.R. Laws Ann.
___
tit. 3, 2163 (1994). Section 2164 provides that a final order
or resolution shall be issued within ninety days after the
conclusion of a hearing, unless waived in writing by the parties,
or for just cause. See P.R. Laws Ann. tit. 3, 2164 (1994).
___
The Uniform Administrative Procedure Act is, for the
most part, arranged chronologically. Section 2163 deals in its
entirety with the procedure of the actual hearing. Section 2164
addresses only issues pertaining to final orders or resolutions,
including their timing, content, or notice. It is not relevant
to motions for reconsideration. In contrast, section 2165
governs reconsideration and the applicable timing issues in this
case. Section 2165 provides that an agency shall lose
jurisdiction if it fails to take action within ninety days
"unless the court, for good cause shown, grants the agency an
extension of time." The agency therefore lacks the authority to
waive this requirement. The requirement is not affected by the
discretion afforded the agency in other sections, nor by reliance
____________________
9 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 or conduct by the plaintiff. We find
the statute to be unambiguous and decline to read into it a
meaning that directly conflicts with the intent of the
legislature.10 See Pag n Ramos v. State Ins. Fund, 92 JTS 13
___ ____________ ________________
(1992) (stating in dicta "[o]nly through judicial authorization
and 'for just cause can that term be extended for a reasonable
____________________________________________________________
period of time.'") (quoting P.R. Laws Ann. tit. 3, 2165
_______________
(1994)); Rivera Rivera v. Municipality of Carolina, 96 JTS 28
______________ _________________________
(1996) (stating in dicta that there is no ambiguity in the
statute). 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 because there were genuine
issues of material fact unresolved. The mere fact that a party
asserts such equitable claims does not foreclose granting a
motion for summary judgment. See, e.g., Bell v. Fowler, 99 F.3d
___ ____ ____ ______
262 (8th Cir. 1996) (equitable estoppel); Cada v. Baxter
____ ______
Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) (equitable
_________________
tolling); Jensen v. Frank, 912 F.2d 517 (1st Cir. 1990)
______ _____
(equitable 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 the statute. Pursuant to section 2165, as
amended, the agency loses jurisdiction after ninety days "unless
the agency, for just cause and within those ninety days, extends
the term" for at most another thirty days. Act No. 27, H.B. No.
1684, Uniform Administrative Procedures Act -- Judicature Act of
1994 (West 1997).
-26-
57 (2d Cir. 1986) (equitable estoppel and equitable tolling).
Moreover, we find that the facts alleged by the plaintiff, as
they are discussed throughout this opinion, fail to raise a
genuine issue of material fact requiring a trial. The district
court's grant of summary judgment is therefore appropriate.
Affirmed. Parties shall bear their own costs.
Affirmed
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