United States Court of Appeals

For the First Circuit

No. 99-2216

MIGUEL A. ANDINO-PASTRANA,

Plaintiff, Appellant,

v.

MUNICIPIO DE SAN JUAN, SILA MARIA CALDERON, AS MAYOR OF SAN

JUAN, EDUARDO RIVERO-ALBINO, AS AN OFFICER OF SAID MUNICIPALITY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

 Stahl, Circuit Judge,

Lynch, Circuit Judge,

and Gorton,* U.S. District Judge.

Godwin Aldarondo-Girald and Aldarondo-Girald Law Office on

brief for appellant.

Carlos M. Sanchez La Costa and William Vazquez Irizarry on

brief for appellees.

June 22, 2000
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____________________

* Of the District of Massachusetts, sitting by designation.

STAHL, Circuit Judge. On August 7, 1998, plaintiffappellant Miguel A. Andino-Pastrana, a career employee of the

Municipality of San Juan, Puerto Rico ("Municipality"), brought

this damages action under a number of federal and Commonwealth

civil rights and tort statutes. Plaintiff alleged that his

former supervisor, defendant-appellee Eduardo Rivero-Albino,

transferred him and took additional adverse employment actions

against him because of his race and his political beliefs.

Plaintiff also named as defendants the Municipality itself and

Mayor Sila Maria Calderon, who was in office at all relevant

times. But because plaintiff sued the individual defendants in

their official capacities only, the suit was and is for all

practical purposes solely against the Municipality. See Will v.

Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). 

Defendants moved to dismiss the action as time-barred

because plaintiff was aware of his allegedly discriminatory

transfer no later than July 10, 1997, yet waited more than a

year from the date of transfer to file his complaint. See,

e.g., Wilson v. Garcia, 471 U.S. 261, 275-80 (1985) (directing

federal courts to borrow and apply state personal injury

limitations statutes in 42 U.S.C. § 1983 actions); Guzman-Rivera
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v. Rivera-Cruz, 29 F.3d 3, 4-5 (1st Cir. 1994) (applying Puerto

Rico's one-year personal injury statute of limitations in a

civil rights damages action brought in the District of Puerto

Rico). In his opposition papers, plaintiff agreed that his

cause of action accrued no later than July 10, 1997, and that he

was required to file suit within one year of its accrual. But

plaintiff argued that an administrative appeal filed less than

a month after his transfer with the Commonwealth's Merit Systems

Protection Board ("JASAP" is the Spanish acronym for the Board)

should be regarded as an "extrajudicial claim" sufficient to

toll the running of the limitations period. See P.R. Laws Ann.

tit. 31, § 5303 (providing that the "[p]rescription of actions

is interrupted by their institution before the courts, by

extrajudicial claim of the creditor, and by any act of

acknowledgment of the debt by the debtor"). In a carefully

reasoned opinion and order, the district court rejected

plaintiff's argument and entered judgment for defendants. We

affirm.

Although "an extrajudicial claim is subject to only a

few requirements," Tokyo Marine & Fire Ins. Co., Ltd. v. Perez

& Cia., 142 F.3d 1, 4 (1st Cir. 1998) (noting that such a claim

"must be made by the holder of the substantive right (or his

legal representative), . . . be addressed to the debtor or
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passive subject of the right, not to a third party, and . . .

require or demand the same conduct or relief ultimately sought

in the subsequent lawsuit") (citation, internal quotation marks,

and ellipses omitted), the Supreme Court of Puerto Rico has

insisted on strict enforcement of the requirement that there be

"a certain identity between the action instituted and the action

tolled," Cintron v. Commonwealth of Puerto Rico, No. CE-88-761,

slip op., translation, at 8 (P.R. Supreme Court Dec. 7, 1990)

(citation omitted); see also Benitez-Pons v. Commonwealth of

Puerto Rico, 136 F.3d 54, 59 (1st Cir. 1998) (applying Puerto

Rico law in deciding whether to toll as an extrajudicial claim

the limitations period for the filing of a 42 U.S.C. § 1983

action). Even substantial overlap between the putative

extrajudicial claim and the subsequent lawsuit is not enough;

rather, there must be a "'precise and specific'" identity

between the two. Ramos Baez v. Bossolo Lopez, 54 F. Supp.2d

121, 125 (D. Puerto Rico 1999) (quoting Jiminez v. District

Court, 65 P.R.R. 35, 42 (1945)); see also Fernandez v. Chardon,

681 F.2d 42, 53 (1st Cir. 1982).

Here, the identity between plaintiff's administrative

appeal and this lawsuit is insufficiently precise and specific

for the appeal to constitute an extrajudical claim. In the

lawsuit, plaintiff has alleged that defendant Municipality,
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through the official acts of its agents, violated rights secured

him under the First, Fourth and Fourteenth Amendments to the

United States Constitution; Article II, §§ 1, 6, and 7 of the

Puerto Rico Constitution; 42 U.S.C. §§ 1981, 1983, and 1985; and

31 P.R. Laws Ann. tit. 31, §§ 5141 and 5142. In his appeal

before the JASAP, however, plaintiff asserted only that he

suffered a discriminatory transfer and sundry other work related

persecution "in violation of the Merit Principle and . . .

current Personnel Regulations." There is not even an indirect

suggestion, for example, that the defendants to this suit

invaded plaintiff's Fourth Amendment rights or conspired to deny

him his equal protection rights within the meaning of 42 U.S.C.

§ 1985(3), as plaintiff has alleged in his amended complaint. 

Moreover, in this lawsuit, plaintiff seeks from

defendant Municipality, presumably under a theory of respondeat

superior (as no unlawful municipal custom or policy is alleged),

"compensatory damages, damages for pain and suffering and

liquidated damages, which are estimated at $1,000,000," as well

as "costs, interests and attorney's fees." In the

administrative appeal, however, plaintiff focused on equitable

relief, asking that his transfer be set aside and that an

unspecified "defendant" be directed "to cease and desist from

persecuting and harassing him." To be sure, plaintiff did
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follow up this prayer for an injunction with a request for

compensation in the amount of $1,000,000 "for suffering and

mental anguish" – a request that the JASAP clearly lacked the

authority to grant. See P.R. Laws Ann. tit. 3, § 1397

(authorizing the JASAP only to issue orders of reinstatement and

awarding back pay); Cintron, No. CE-88-761, slip op.,

translation, at 10. But it is not at all clear that plaintiff

expected the Municipality to pay the compensatory damages, as

the text of the appeal complains almost exclusively about the

conduct of Rivero-Albino. In any event, the lack of precise and

specific identity between the claims put forth in the

administrative appeal and the relief sought in this lawsuit

precludes recognition of the administrative appeal as an

extrajudicial claim. See, e.g., Benitez-Pons, 136 F.3d at 59-

61.

In their brief, defendants invite us to hold that an

appeal to the JASAP with a request for an ultra vires damages

award will never constitute an extrajudicial claim sufficient to

toll the running of a limitations period in a civil rights

damages action. But there is no need for us to rule so broadly,

and we decline to do so.

Affirmed. No costs.