Petition — Chardon v. Fumero Soto

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FILED

AUG 16 1962

82 * 2 7 1 ALEXANDER L. STEVAS,

No. CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1982

CRS CHarpon, Etc., et ul., Petitioners,

JuAN Fumero Soro, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

K. Martin Wortuy, Counsel of Record

Joux G. DeGoover

STEPHEN L. HUMPHREY

HAMEL, Park, McCase & SAUNDERS

888 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 835-8000

Hector ReicHarp De CARDONA

Secretary of Justice

EDUARDO CASTILLO BLANCO

Assistant Secretary

Ines Eouia De CASANOVA

Attorney

DEPARTMENT OF JUSTICE

Or Puerto Rico

P.O. Box 192

San Juan, Puerto Rico 00902

Counsel for Petitioners

PRESS OF BYRON 8. ADAMS PRINTING, INC., WASHINOTON, D.C.

QUESTIONS PRESENTED

1. Whether the rule established by this Court in

American Pipe & Construction Co. v. Utah, 414 U.S, 538

(1974), that the filing of a purported class action in federal

court suspends the running of the statute of limitations

for unnamed class members until a decision is reached

whether to certify the class, and that following a denial of

certification the statute resumes running again, is appli-

cable to a purported class action brought in federal court

seeking relief under 42 U.S.C. § 1983.

2. Whether this Court’s decision in Board of Regents

v. Tomanio, 446 U.S. 478 (1980), precludes application of

the rule of American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974), to purported class actions brought in

federal court seeking relief under 42 U.S.C. § 1983.

3. Whether under this Court’s holding in Chardon v.

Fernandez, 454 U.S. 6 (1981), for purposes of determin-

ing when the statute of limitations begins to run, a cause

of action under 42 U.S.C. § 1983 alleging a discriminatory

decision not to reappoint an employee to a non-permanent

position accrues at the time the employee is orally notified

of such non-reappointment, where the employee has de-

clared in a sworn statement filed with the district court

that through such oral notice he was informed of the

non-reappointmenit decision and that subsequent written

notice served only to confirm such oral notice.

iii

PARTIES TO THE PROCEEDING

The Petitioners are Carlos Chardon, individually,

Maria Socorro Lacot, as the current Secretary of Public

Education for the Commonwealth of Puerto Rico*, and

Oscar Ramos, individually and as the Assistant Secretary

of Personnel for the Department of Education of the

Commonwealth of Puerto Rico.

Petitioners request a writ of certiorari to the Court of

Appeals for the First Circuit to review the judgment

entered in favor of the following thirty-seven respon-

dents, whose cases were considered in one appeal below,

Nos. 81-1567 and 81-1607:

BRMNISKl ower

Aurora Sierra Pizarro

Virginia Otero Arroyo

Juan Fumero Soto

Dora Castro de Aguilar

Reinaldo Rodriguez Solivan

Elba Rosario de Bravo

Ramon Norat Zayes

Charles H. Quiles Mariani

Bienvenido Rivera Diaz

Carmen M. Morales Hernandez

Juan Rivera Pagan

Joaquin Cruz Mendez

Ursula Aguilar Quintero

. Aminta Rivera Cardona

Roberto Cruz Cruz

Nelson Velez Quinones

Cristina Cancel Cuevas

Maria D. Guerra Navarro

. By automat ie substitution when Mr. Chardon, who was sued

individually and as Secretary of Education, resigned his position.

SSRSSRESSSSEKESRESS

Francisco Bonilla Ocasio

Heriberto Gallardo Gutierrez

Julio E. Colon

Aida Rodriguez Rios

Jose Ortiz Rivera

Carmen Nunez Rivera

Carmen L. Negron Marin

Carmen Garcia Rosado

Noelia Torres de Cantres

Antonio Rodriguez Rivera

Jose E. Aponte de la Torre

Carmen H. Montez Velez

Nilsa Cardona Flores

Elba M. Colon Torres

Ana Mercedes Ortiz Colon

Sylvia M. Denis

Bienvenido Castro del Valle

Santiago Gonzalez Velasquez

Angela Colon Santiago

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........cccccccecceeessvvves i

6 ccccccccccccecocceccosoccccscvccee l

PEE occocccccccccacecetcocecescoscnscosoce 2

STATUTORY PROVISION IN VOIVPpoöböoõůh 2

oec. 3

REASONS FOR GRANTING THE Wr 90

I. In Holding That The Individual Complaints Of Un-

named C Members Were Timely Filed, The

Court Below Failed To Follow Two Controlling Deci-

sions Of This Court.. 9

II. In Holding That Ortiz Rivera’s Complaint Was

Timely Filed, The Court Below Failed To Follow A

Controlling Decision Of This Court 13

r 17

APPENDIX

Court of Appeals Order, July 28, 1982 ” vl. la

Court of Appeals Order, July 6, 1982 é ů·—i 3a

Court of Appeals Order, July 6, 1983ù¹²·⸗ 5a

Court of Appeals Opinion, June 8, 1982 11212 7a

District Court Final Order and Judgment, July 24,

eee pode dees 00006 38a

District Court Order, July 24, 16 4a

District Court Order, May 7, 1611 48a

District Court Memorandum Opinion, May 7, 1981 . 5la

District Court Decision and Order, April 21, 1980 .. 74a

Sworn Statement Of Jose Ortiz Rivera, September 30,

eee eee ee see eee eee eee la

TABLE OF AUTHORITIES

CASES: Page

American Pipe & Construction Co. v. Utah, 414 U.S,

SPEED co vccccesccccesocesoscocevessesevens 9

Appleton Electric Co. v. Graves Truck Lines, Ine, 635

F. 2d 603 (7th Cir. 1980), cert. denied, 451 U.S. 976

GEE cccccvccccecedeccsecssoevescoasceseueses 9

Arneil v. Ramsay, 550 F. 2d 774 (2d Cir. 1977) 10

Bailey v. Patterson, 369 U.S. 31 (1962ũꝶ 66 cece ee 16

Bantolina v. Aloha Motors, Inc., 75 F. R. D. 26 (D.

I 1—?—¶ ¾'?!po':?: .

Board of Regents v. Tomanio, 446 U.S, 478 (1980) 11

Chardon v. Fernandez, 454 U.S. 6 (1981) ........ 2, 5, 13

Delaware State College v. Ricks, 449 U.S, 250 (1980). 18

Fernandez v. Chardon, 648 F. 2d 765 (ist Cir, 1981) 5

Green v. United States Steel Corp., 481 F. Supp. 295

GERD. FO, TRV cccccccccccccccccccccccessseses

Haas v. Pittsburgh National Bank, 526 F.2d 1083 (ard

ieee. eee ses eee eee ee e 10

In re Independent Gasoline Antitrust Litigation, 79

F. R. D. 552 (D. Md. 1978/4 16

Jeffersony. H. K. Porter Co., 485 F. Supp. 356 (N. D. Ala.

1980), aff'd, 648 F. 2d 337 (5th Cir, 1981) 9

McCarthy v. Kleindienst, 562 F. 2d 1260 (D. C. Cir. 1977) 10

Me Williams v. Escambia County School Board, 658 F. 2d

eee. esse se e n 16

Morton v. Charles County Board of Education, 373 F.

Supp. 394 (D. Md. 1974), aff'd, 520 F.2d 871 (4th

Cir.), cert. denied, 423 U.S. 1034 (1975) ......... 10

Harter v. Crown, Cork & Seal Co., Inc., 677 F. 2d 301 (4th

eee eee 9

Pavlak v. Church, 51 U.S. L. W. 2068 (9th Cir. July 14,

1 A . ů¶ô 10

Paxman v. Campbell, 612 F. 2d 848 (4th Cir. 1980) (en

bance), cert. ied, 449 U.S. 1129 (1981) ........ 10

Robertson v. Wegmann, 436 U.S. 584 (1978) ......... 13

vii

Table of Authorities Continued

Sosua v. lowa, 419 U.S. 393 (19750)))) 16

Stoddard v. Ling-Temco-Vought, Inc., 513 F. Supp. 314

(C.D.Cal. 1980) ..... _ CC 10

Stull v. Bayard, 561 F. 2d 429 (2d Cir. 1977), cert. denied,

| § | — 10

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) a)

Wach via Bank & Trust Co. v. National Student Market-

pg a 461 F. . 999 (D. D.C. 1978), rev'd on

nds, 650 F. 2d 342 (D.C. Cir. 1980), cert.

denied, 452 U.S. 954 (1881))))) eeeeees 10

Wei v. Retail Credit Co., 498 F.2d 552 (4th Cir.

e ’!⸗²ů - -²•m⅛-ꝛu— eee, 16

Wright v. Califano, 603 F. 2d 666 (7th Cir. 1979), cert.

denied, 447 U.S. 911 (19600): ũ cee eeeees 10

STATUTES:

ie esse eee 2

re (... „eee 4

rene eee eee 4

eee ese 4

MD esse esse 4

MED eee ess eee 1,4

EE di eee ese 8

rere ese ss 8

D e 4

IN THE

Supreme Court of the United States

OcTOBER TERM, 1982

No.

CARLOS CHARDON, Etc., et al., Petitioners,

JuAN Fumero Soro, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

Petitioners respectfully pray that a writ of certiorari be

issued to review the judgment of the United States Court

of Appeals for the First Circuit entered in favor of the

thirty-seven respondents herein on June 8, 1982, as mod-

ified on rehearing on July 6, 1982.

OPINIONS BELOW

The opinion of the court below dated June 8, 1982, has

not been reported, but is reproduced in the Appendix

hereto, 7a-37a. The order issued by the court below on

July 6, 1982, modifying its opinion of June 8, 1982, is

reproduced in the Appendix, 3a-4a. The orders of the

court below entered on July 6, 1982, and July 28, 1982,

denying petitioners’ petitions for rehearing, are repro-

duced in the Appendix, Ha- and la-2a. The May 7, 1981

Memorandum Opinion of the United States District

Court for the District of Puerto Rico, which was re-

viewed on appeal by the court below, is reported at 514 F.

Supp. 339(D.P.R. 1981) and reproduced in the Appendix,

5la.-73a. The District Court’s unreported Order of May

7, 1981, which accompanied the foregoing Memorandum

Opinion, is reproduced in the Appendix, 48a-50a. Also

reproduced are the District Court’s Order, Appendix

43a-47a, and Final Order and Judgment, Appendix, 38a-

42a, both dated July 24, 1981.

JURISDICTION

The judgment of the court below was entered on June

8, 1982. Petitioners timely filed a Petition for Rehearing,

which the court below denied on July 6, 1982. Appendix,

5a-6a. Eight of the respondents timely filed a Petition for

Rehearing and Modification of Judgment, which the court

below granted on July 6, 1982, and modified its opinion

accordingly. Appendix, 3a-4a. Petitioners thereafter

timely filed a Petition for Rehearing on Modification of

Judgment, which the court below denied on July 28, 1982.

Appendix, la-2a. This petition for writ of certiorari was

filed on August 16, 1982. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 (Supp. IV 1980)

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceed-

ing for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of Col-

umbia shall be considered to be a statute of the District of

Columbia.

STATEMENT OF THE CASE

These thirty-seven consolidated cases are related to

the cases decided by this Court last term in Chardon v.

Fernandez, 454 U.S. 6, 102, S.Ct. 28 (1981), and arose out

of essentially the same facts. Appendix, 9a.'

As in Fernandez, the petitioners here are Carlos Char-

don, individually, Maria Socorro Lacot, as the current

Secretary of Public Education (by automatic substitution

when Mr. Chardon resigned that position), and Oscar

Ramos, individually and as the Assistant Secretary for

Personnel of the Department of Education.

Like the respondents in Fernandez, the respondents

here held non-tenured administrative positions in the

Puerto Rico Department of Education for the 1976-77

school year. Appendix, 9a. These respondents were

notiſied one on May 27, 1977," and the others on or after

June 17, 1977—that their appointments would not be

renewed for the 1977-78 school year and that, instead,

they would be reinstated to the tenured teaching posi-

In Fernandez, this Court reversed the judgments previously

entered by the Court of Appeals for the First Circuit and remanded

the cases for further proceedings. 454 U.S. at. 102 S.Ct. at 29.

On remand, the Court of Appeals decided the Fernandez cases and

the instant Fumeru Soto cases in the same opinion. Appendix, 8a-9a.

* Respondent Ortiz Rivera was orally notified on that date that his

appointment would not be renewed. Appendix, Sla-82a. In sworn

testimony in the District Court, Ortiz Rivera said that written

notification, which he received thereafter, confirmed what he had

already been told on May 27. Appendix, 8la-83a. Petitioners con-

tended in the court below that, under this Court's ruling in Fernan-

dez, supra, Ortiz Rivera's cause of action accrued on May 27, 1977,

but the Court of Appeals rejected this contention. Appendix, 5a-6a.

See argument, infra, at 13-16.

tions they had held previously in the Department. Appen-

dix, 10a.

On June 19, 1978, Jose Ortiz Rivera, one of the respon-

dents herein, filed a purported class action against Char-

don and Ramos in the United States District Court for the

District of Puerto Rico. Appendix, 10a. Ortiz Rivera

claimed that the Department of Education had failed to

reappoint him, and the members of the class he purported

to represent, because of their political affiliation. Ortiz

Rivera sought relief under 42 U.S.C. § 1983. Appendix,

10a. Jurisdiction of the District Court was invoked under

28 U.S.C. §§ 1331, 1343(3) and (4), 2201 and 2202.

On August 21, 1978, the District Court denied class

certification on the ground that the class was not so

numerous as to make joinder impracticable. Appendix,

lla. More than four months later, on dates ranging from

January 10 to January 31, 1979, ninety individual plain-

tiffs, including the remaining thirty-six respondents

herein, filed separate complaints, each making essential-

ly the same claims, thus bringing to ninety-one the total

number of related cases then pending in the District

Court. Chardon and Ramos filed separate answers in

each case, and in each such answer stated as an affirma-

tive defense that the action was barred by the applicable

statute of limitations. Appendix, 13a.

In Puerto Rico, the limitations period applicable to a

claim under 42 U.S.C. § 1983 is one year. 31 L. P. R. A.

§ 5298(2). Appendix, 13a. The District Court thus dis-

missed thirty-six cases as time-barred. Appendix, 12a. In

each of those cases the plaintiff had received notice of the

non-reappointment decision more than one year before

Ortiz Rivera filed his purported class suit. These thirty-

six cases, then, became the Fernandez cases, in which the

Court of Appeals for the First Circuit held that the limita-

tions period began to run not when notice of non-reap-

pointment was received, but when the plaintiffs’ appoint-

ments ended. Fernandez v. Chardon, 648 F. 2d 765 (Ist

Cir. 1981). This Court reversed, holding that the plain-

tiffs’ causes of action under 42 U.S.C. § 1983 accrued on

the dates that they were “notified. . . that a final decision

had been made to terminate their [temporary] appoint-

ments.” Chardon v. Fernandez, 454 U.S. at. 102

S.Ct. at 29. As noted above, this Court remanded the

thirty-six Fernandez cases for further proceedings.

After the Fernandez cases had been dismissed by the

District Court, and while those cases were on appeal, the

remaining fifty-five individual cases—the Fumero Soto

cases—were consolidated for trial. Appendix, 12a. The

District Court bifurcated the trial into liability and dam-

age phases, and reserved its decision on the statute of

limitations defense in all fifty-five cases. Appendix, 12a.

After trial in January 1981, the jury returned a verdict in

favor of all fifty-five plaintiffs on the question of liability.

Appendix, 12a. Thereafter, in light of the jury’s answers

to certain special interrogatories, the District Court

found Chardon and Ramos immune from liability in-

dividually, but ordered the Department of Education to

reinstate all the plaintiffs to their previous administrative

positions with full back pay. Appendix, 12a-13a. Judg-

* Thus, the filing of the purported class action could have had no

tolling effect on the running of the statute of limitations for those

thirty-six plaintiffs.

ments were entered accordingly.‘ Appendix, 38a-42a.

Petitioners herein appealed on the ground that, inter

alia, all the suits were filed after the statute of limitations

had expired and thus were time-barred.’ Respondents

cross-appealed contending that the defendants below did

not enjoy individual immunity.

The court below issued its opinion on June 8, 1982,

disposing of the cross-appeals in the fifty-five Fumero

Soto cases, as well as the thirty-six Fernandez cases then

before the court on remand." With respect to the Fernan-

dez cases, the court vacated the judgments it had

previously entered and remanded those cases to the Dis-

trict Court with instructions to dismiss. Appendix, 37a.

With respect to the Fumero Soto cases, the court re-

versed the judgment entered by the District Court in

twenty-six of the fifty-five cases and remanded those

cases with instructions to dismiss. In those twenty-six

‘The District Court, in entering judgment, necessarily rejected

the statute of limitations defense on which it had reserved decision

prior to trial.

* Petitioners also appealed on the grounds that the District Court

erred in refusing to enter judgment for them notwithstanding the

verdict, and that the back pay award entered against the Depart-

ment of Education violated the Eleventh Amendment to the United

States Constitution. The court below did not find error in the District

Court’s refusal to grant judgment notwithstanding the verdict, but

reversed the back pay award, finding it in violation of the Eleventh

Amendment. Appendix, 30a, 36a.

® After this Court issued its decision in Fernandez, the court below

directed the parties to submit briefs on the question whether the

statute of limitations had been tolled in any of those thirty-six cases

and whether that issue should be certified to the Supreme Court of

Puerto Rico. The covrt concluded that no tolling had occurred, and

that the issue did not need to be certified. Appendix, 30a, 34a.

cases, the plaintiffs were in precisely the same position as

the thirty-six plaintiffs in Fernandez and were therefore

found to be time-barred. Appendix, 27a.

As to the remaining twenty-nine Fumero Soto plain-

tiffs, who had received notice after June 19, 1977, the

court found their suits to have been timely filed. Appen-

dix, 27a.’ To reach that result the court held that the filing

of the class suit by Ortiz Rivera tolled the running of the

statute of limitations as to unnamed class members, but

that, after class certification was denied, each unnamed

class member then had another full year within which to

bring suit. Appendix, 18a.

Chardon and Ramos timely petitioned the court below

for rehearing on the grounds that the court erred in

holding that the denial of class certification caused the

one-year limitations period to begin running anew, and

that Ortiz Rivera’s own suit was untimely since he had

received notice more than one year before his complaint

was filed. The court denied the petition on July 6, 1982.

Appendix, 5a-6a.

Eight of the Fumero Soto plaintiffs whose judgments

had been reversed also petitioned for rehearing on the

ground that their complaints were not time-barred, even

though they had received notice on June 17, 1977. They

argued that since June 17, 1978—the date on which the

one-year limitations period expired in their cases—fell on

a Saturday, they were entitled under Puerto Rico law to

benefit from the filing of the class suit on Monday, June

Their cases were remanded to the District Court for assessment

of compensatory damages against the individual defendants, Char-

don and Ramos. Appendix, 37a.

19, 1978. Without offering defendants an opportunity to

respond, the court below granted plaintiffs’ petition and

modified its judgment accordingly, thus bringing to

thirty-seven the number of plaintiffs held to have timely

filed their complaints. Appendix, 3a-4a, Chardon and

Ramos petitioned for rehearing on the modification of

judgment pointing out that, contrary to respondents’ con-

tentions, Saturdays are not excluded under Puerto Rico

law from computation of a statute of limitations period.”

Petitioners simultaneously moved the court for a stay of

mandate pending application to this Court for a writ of

certiorari. The court on July 28, 1982, denied the

petition,’ but granted the stay of mandate on the condi-

tion that application for the writ be filed by August 16,

1982. Appendix, la-2a.

*The plaintiffs had advanced as authority for their position, 1

L. P. R. A. § 72, which provides:

1 excluding the tay, a ‘and including the last,

com e t ng t

unless the last day is a holiday, and then it is also excluded.”

Plaintiffs, however, failed to mention, or even acknowledge, 1

L. P. R. A. $71, which defines “(hjolidays, within the meaning of

sections 71-73” of Title 1. Saturdays are not included in that defini-

tion.

*In denying this petition, the court below held that the federal

rules controlled, noting that F. R. Civ. P. 6 expressly excludes Satur-

day from such computations, and that F. R. App. P. 26 contains the

same exclusion. Appendix, la-2a.

REASONS FOR GRANTING THE WRIT

I. In Holding That The Individual Complaints Of Unnamed

Class Members Were Timely Filed, The Court Below

Failed To Follow Two Controlling Decisions Of This

Court.

In American Pipe & Construction Co, v. Utah, 414

U.S. 538 (1974), this Court held that the filing of a federal

class action tolls the running of the statute of limitations

for all purported class members until a decision is made

whether to certify the class. If certification is denied, the

statute resumes running and the individual class mem-

bers then have whatever time remained in the limitations

period when the class suit was filed within which to move

for permission to intervene. 414 U.S. at 560-61.

In American Pipe, this Court noted specifically that it

was addressing “an aspect of the relationship between a

statute of limitations and the provisions of Fed. Rule Civ.

Proc. 23 regulating class actions in the federal courts.”

414 U.S. at 540. The rule adopted by this Court was

described as “the rule most consistent with federal class

action procedure.” 414 U.S. at 554. Numerous courts

have applied the rule of American Pipe as a rule of

general applicability to class actions brought in federal

court, including actions brought under 42 U.S.C. § 1983."

For instance, American I’ipe has been applied, or its principles

have been distinguished on the facts, in Title VII cases, ¢.g., United

Airlines, Inc. v. McDonald, 482 U.S. 385, 391-92 (1977), Parker v.

Crown, Cork & Seal Co., lne., 677 F. 2d 391 (4th Cir. 1982); Jefferson

v. H. K. Porter Co., 485 F. Supp. 356, 360-61 (N. D. Ala. 1980), aff'd,

648 F. 2d 337 (Sth Cir. 1981); Green v. United States Steel Corp., 481

F. Supp. 295 (E. D. Pu. 1979); in an I. C. C. rate refund enforcement

action, Appleton Electric Co. v. Graves Truck Line, Ine, 635 F. 2d

603, 609-10 (7th Cir. 1980), cert. denied, 451 U.S. 976 (1981); in an

action under the Truth-In-Lending Act, Bantolina vy. Aloha Motors,

The court below clearly recognized that if the rule of

American Pipe were applied in the instant cases, all of

the unnamed class members would be time-barred:

“Under American Pipe, the one-year statute of

limitations would have been tolled on June 19, 1978,

when Ortiz Rivera filed his class action. The tolling

would have ended, and the remaining portion of the

limitations period would have recommenced runni

on Au 1, 1978, when the district court decli

to certify the class. Over half of the plaintiffs in [the

Fumero Soto and Fernandez cases combined] had

received notice of demotion more than one year be-

fore Ortiz Rivera filed suit, so their claims would

already have been time-barred. The remaining

intiffs would have had from one to one hundred

and thirty-eight days 3. individual complaints

after August 21, 1978. The earliest individual com-

Inc., 75 F. R. D. 26, 42-23 (D. Hawaii 1977); in an action seeking

benefits under the Social Security Act, Wright v. Califano, 603 F. 2d

666, 669 n. 8 (7th Cir. 1979), cert. denied, 447 U.S. 911 (1980); in a

wrongful death action brought under the Suits In Admiralty Act,

Stoddard v. Ling-Temeo-Vought, Inc., 513 F. Supp. 314, 329

(C. D. Cal. 1980); in an action under state and federal banking stat-

utes, Haas v. Pittsburgh National Bank, 526 F.2d 1083, 1096-98 (3d

Cir. 1975); in actions involving alleged violations of the securities

laws, Stull v. Bayard, 561 F. 20 429 (2d Cir. 1977), cert. denied, 434

U.S. 1035 (1978); Arneil v. Ramsay, 550 F.2d 774 (2d Cir. 1977)

Wachovia Bank & Trust Co. v. National Student Marketing Corp.,

461 F. Supp. 999, 1011-12 (D. D.C. 1978), rev'd on other grounds, 650

F.2d 342 (D.C. Cir. 1980), cert. denied, 452 U.S. 954, (1981); and,

finally, in actions brought under 42 U.S.C. § 1983, Paxman v. Camp-

bell, 612 F. 2d 848, 855 (4th Cir. 1980) (en bane), cert. denied, 449 U.S.

1129 (1981); McCarthy v. Kleindienst, 562 F. 2d 1269, 1272-75 (D.C.

Cir. 1977); Morton v. Charles County Board of Education, 373 F.

Supp. 394 (D. Md. 1974), aff'd, 520 F.2d 871 (4th Cir.), cert. denied,

423 U.S. 1034 (1975). See also, Pavlak v. Church, 51 U.S. L. W. 2068

(9th Cir. July 14, 1982).

plaints were not filed, however, until January 10,

1979, after expiration of the remaining one hundred

-— thirty-eight day period.” Appendix, 14a; empha-

8 A

Although the court correctly stated the rule of American

Pipe, and clearly understood what it would mean to apply

that rule in these cases, it nevertheless erroneously cre-

ated an exception to that rule for class actions brought

under 42 U.S.C. § 1983. Appendix, 17a. In that respect

the court below failed to follow American Pipe.

In refusing to apply the rule of American Pipe, the

court below cited Board of Regents v. Tomanio, 446 U.S.

478 (1980), as requiring that “Puerto Rican tolling rules,

rather than the federal rule of American Pipe. apply,

unless they are inconsistent with federal law.“ Appen-

dix, 15a. Contrary to the suggestion of the court below,

this Court’s decisions in Tomanio and American Pipe are

not in conflict. Indeed, in Tomanio, this Court, in con-

sidering the relationship between state and federal law in

actions brought under § 1983, stated:

“In § 1988, Congress ‘quite clearly instructs [federal

courts] to refer to state statutes’ when federal law

provides no rule of decision for actions brought

under § 1983.” 446 U.S. at 484-85, citing Robertson

v. Wegmann, 436 U.S. 584 (1978); emphasis added;

citation and footnote omitted.

American Pipe clearly provides the applicable “rule of

decision” for class actions brought in the federal courts.

This finding stands in marked contrast to the court's holding that

the Federal Rules control on the question of how the limitations

period is to be computed. Appendix, Ia.

Thus, in refusing to apply that rule in these cases, the

court below failed to follow Tomanio.”

In any event, even when the court below looked to

Puerto Rico law, as it felt constrained to do, it found “no

discernible state rule” applicable to federal class actions

brought under 42 U.S.C. § 1983. Appendix, 17a. Yet,

apparently compelled to find some basis on which to hold

the suits timely filed, the court below created a “state

rule” with that effect. It did so by borrowing from Amer-

ican Pipe only the tolling or suspension principle of that

holding. It rejected the balance of the rule of American

Pipe and, instead, added a novel and unprecedented in-

terpretation of Puerto Rico law, so as to extend the

statute of limitations beyond the dates on which the re-

spondents’ individual complaints were filed. Thus, the

court below declared that the filing of the class suit by

Ortiz Rivera on June 19, 1978, stopped the statute of

limitations from running against the other respondents

herein” and that, when class certification was denied on

August 21, 1978, each such respondent thereupon ac-

quired a whole new year within which to file a separate

lawsuit. Appendix, 18a. Given that whole new year, the

The effect of the Court of Appeals’ holding is to remove from the

application of American Pipe only federal class actions brought

under 42 U.S.C. § 1983. Such an exception is unjustified and unwise;

has never been sanctioned by this Court; and directly conflicts with

this Court’s holding in American Pipe. In any event, to the extent

that this Court perceives a need to reconcile its holdings in American

Pipe and Tomanio, this case presents an appropriate vehicle for that

purpose

ad her Ortiz Rivera's suit was itself timely filed is addressed

infra, at 13-16.

compiaints filed by respondents in January 1979 were

found to be timely."

These failures of the court below to follow American

Pipe and Tomanio warrant full review and reversal by

this Court.

II. In Holding That Ortiz Rivera's Complaint Was Timely

Filed, The Court Below Failed To Follow A Controlling

Decision Of This Court.

In Chardon v. Fernandez, 454 U.S. 6 (1981), this Court

held that respondents’ causes of action under 42 U.S.C.

§ 1983 accrued when notice was received that a final

decision had been made to terminate their appointments.

454 U.S. at, 102 8. Ct. at 29. In reaching that deci-

sion, the Court applied its decision in Delaware State

College v. Ricks, 449 U.S. 250 (1980), which it found to be

“indistinguishable” from the Fernandez case.

The court below well understood the application of

Ricks and Fernandez to the instant cases, stating:

“(T jhe crux of a § 1983 action is a discriminatory act,

and in an employment case, this act occurs—and the

This Court has cautioned the lower federal courts against unwar-

ranted adoption of whichever law, state or federal, would preserve

the rights of plaintiffs in actions brought under 42 U.S.C. § 1983.

Thus, in Robertson v. Wegmann, 436 U.S. 584 (1978), in an admitted-

ly different context, this Court stated:

“If success of the § 1983 action were the only benchmark, there

would be no reason at all to look to state law, for the appropriate

rule would then always be the one oy he ry

source would be essentially irrelevan U.S. at 593

The court below has disregarded this — in its . for a

rule favoring respondents.

limitations period begins to run—when notice of

termination or demotion is given . . Appendix,

22a.

* * *

The date of notice of termination is the triggering

date under Ricks and Rivera Fernandez ...

Appendix, 26a.

The court, however, refused to apply the foregoing prin-

ciple in determining whether Ortiz Rivera’s suit itself was

timely filed.

In a sworn statement filed with the District Court,

Ortiz Rivera stated that he was notified on May 27, 1977,

over a year before he filed his suit on June 19, 1978, that a

final decision had been made not to renew his temporary

appointment for the 1977-78 school year. Appendix, Sla-

83a. According to the statement, he visited the School

Superintendent for his District on May 27, 1977, to advise

her “in writing” that he “wished to return” to his tenured

position as classroom teacher for the 1977-78 school year,

and thus did not wish to have his temporary appointment

renewed. Appendix, 8la-82a. During that visit. however,

he was advised that his written request was not necessa-

ry “since it had already been determined” that his

temporary appointment as school director would not be

renewed, and that he “was going to be assigned to [his]

permanent position of school teacher.” Appendix, 82a.

Prior to this Court’s decisions in Ricks and Fernandez,

the District Court, in ruling on a motion to dismiss Ortiz

Rivera’s suit as time-barred, held that it was “unclear

from the record” whether, when Ortiz Rivera received

notice on May 27, 1977, that he “knew or should have

known, of the [alleged] illegal motivations behind the

decision to return him to his previous position.” Appen-

dix, 79a. The court held that a cause of action of It he

present type” does not accrue until the date plaintiff “is

officially informed that he is being demoted and he is

aware of the reasons for this demotion.” Appendix, 79a;

is added. In Ortiz Rivera’s case, the District

Court ruled that he was “officially informed” on June 21,

1977." The court below upheld that ruling.

That ruling constitutes a substantial departure from

this Court’s decisions in Ricks and Fernandez. In Ricks,

the Court stated that “the only alleged discrimination

occurred—and the filing limitations therefore

commenced—at the time the tenure decision was made

and communicated to Ricks.” 449 U.S. at 258. Similarly,

in Fernandez, this Court looked to the date respondents

were “notified . . that a final decision had been made to

terminate their appointments. 454 U.S. at 102

S.Ct. at 29. Under the decisions in Ricks and Fernandez,

there is no basis for the court below to have rejected the

notice Ortiz Rivera received from the School Superinten-

dent on May 27, 1977 particularly since the notice re-

ceived on that date, according to Ortiz Rivera’s own

Relying on a June 21, 1977 “date stamp” placed on the June 10

letter, the court held that Ortiz Rivera's cause of action accrued on

June 21 and that his suit was therefore timely. Nowhere in the record

is there any evidence that Ortiz Rivera in fact received the letter on

June 21. Indeed, it is significant that his sworn statement omits any

such claim; to the contrary, it states explicitly “/ was demoted or

removed from the position .. . on June 10, 1977 as per letter

dated on said date . . Appendix, 81a; emphasis added. Thus the

only two dates of notice for which there is any support in the record

(May 27 and June 10, 1977) establish conclusively that Ortiz Rivera's

suit was not timely filed.

Indeed. the court below recognized that t he date of notice of

termination is the triggering date . . Appendix. 26a.

sworn statement, constituted, in his mind, notice of the

non-reappointment decision."

In the instant case, the Department’s decision was

communicated to Ortiz Rivera on May 27, 1977 and his

cause of action accrued on that date. Thus his suit,

brought more than one year thereafter, was untimely.”

In holding to the contrary, the court below failed to follow

this Court’s decision in Fernandez.” Full review and

reversal by this Court is warranted accordingly.

This Court need not reach the hypothetical question whether oral

notice is sufficient in all cases to mark the accrual of a cause of action

superior, the School Superintendent, and expressly declared in his

sworr. statement to the District Court that it was through that

communication that he was notified of the non-reappointment deci-

sion. Appendix, 8la-83a.

Of course, since the class suit was not timely filed, it could not

have had the tolling effect attributed to it by the court below. Indeed,

since Ortiz Rivera's cause of action was time-barred, he was not a

member of the class he sought to represent and thus could not have

acted as a class representative. Cf. Weinberger v. Retail Credit

Co.,498 F.2d 552, 556 (4th Cir. 1974), explained in, In re In-

dependent Gasoline Antitrust Litigation, 79 F. R. D. 552, 558 n.4

(D.Md. 1978); see also Sosna v. lowa, 419 U.S. 393, 403 (1975); Bailey

v. Patterson, 369 U.S. 31, 32-33 (1962).

Furthermore, the ruling of the court below on this point is in

conflict with the decision of the Court of Appeals for the Fifth Circuit

in McWilliams v. Escambia County School Board, 658 F. 2d 326,

328-30 (5th Cir. 1981). In that case, the court held that a cause of

action under Section 1983 for employment discrimination accrued

when it became “apparent” through an oral communication that the

plaintiff/teacher’s temporary appointment would not be renewed for

the following school year. Noting that its decision was consistent

* —

—— b+

— —— os 24 2d at

CONCLUSION

For these reasons the petition for writ of certiorari

should be granted.

Respectfully submitted,

K. MARTIN WortTHy, Counsel of Record

JOHN G. DEGOOYER