204 F. Supp.2d 305 (2002) | Cited 0 times | D. Puerto Rico | May 20, 2002


Before the Court is a motion to dismiss by the United States ofAmerica. Plaintiffs are home-owners residing in the La Margarita andExtensión La Margarita housing developments in Salinas, PuertoRico.1 There are 108 plaintiffs who own a total of 67 properties.2They bring this action against the Government pursuant to the FederalTort Claims Act ("FTCA").3

At the outset, the Court must determine what standard of review isrequired for this motion. The motion before the Court is a motion todismiss for lack of subject matter jurisdiction which challenges thevalidity of the FTCA claim. Accordingly, the Court credits Plaintiffs'well-pleaded allegations in both the complaint and in the sworn statementappended to their opposition to the Government's motion and draws allreasonable inferences in their favor. See Valentin v. Hospital BellaVista, 254 F.3d 358, 363 (1st Cir. 2001).

Plaintiffs bought their homes between 1973 and 1995.4 Theypurchased these homes with loans obtained through the federal Farmers HomeAdministration ("FmHA"), the U.S. Department of Agriculture, the FederalHousing Administration ("FHA"), and the Department of Housing and UrbanDevelopment. They allege that these homes were built in accordance withspecifications approved by these federal agencies; that the sellers of thehomes issued builder's warranties for the purpose of inducing theseagencies to make loans for the purchase of the properties; that the deedsprovided that the federal agencies had the fight to inspect theproperties; and that the plaintiffs were obligated to make repairs thatthe agencies requested and to obtain fire and earthquake insurance. Thehomeowners were obligated to obtain flood insurance only when the federalagencies so required it.

The two developments are located in the Nigua River "floodway zone." Ithas been the site of "major flooding" in 1928, 1933, 1956, 1970, 1975,1985, 1992, and 1996. Flooding also occurred in the communityin 1992, 1997, and 1998. Additionally, the sewer and drainage systems areinadequate: they back up when the river's level rises. As a result,Plaintiffs allege that their homes are subject to "substantial flooding"and soil movement; that their properties have sustained damage to theirland as well as to the foundations, walls, roofs, and floors of theirhomes; and that this recurrent flooding makes the properties unfit fortheir intended use.

Plaintiffs claim that their damages were caused by the negligence ofgovernment agents. Specifically, they allege that these agents werenegligent in their duty to inspect Plaintiffs' properties; that they werenegligent in their duty to warn Plaintiffs of the area's conditions; thatthey failed to inform Plaintiffs of the need for flood insurance; thatthey failed to take measures to protect Plaintiffs' properties; that theywere negligent in their duty to supervise the construction of the homes;that they were negligent in their duty to detect the developments'susceptibility to flooding and the inadequacies of the sewer and drainagesystems; that they were negligent in their duty to require or takemeasures to protect Plaintiffs' properties from flood damages; and thatthey failed to build retaining levees or take other appropriate measuresto stop rising flood waters.

In its motion to dismiss, the Government argues that Plaintiffs' claimsare time-barred and that they are precluded by the misrepresentation anddiscretionary function exceptions to the FTCA. Plaintiffs have opposedthe motion to dismiss. For the reasons set forth below, the Court grantsthe motion to dismiss.


As the sovereign, the United States may not be sued without itsconsent. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69L.Ed.2d 548 (1981); Day v. Mass. Air Nat'l Guard, 167 F.3d 678, 681 (1stCir. 1999). The FTCA is a limited waiver of the United States' sovereignimmunity from liability. Dynamic Image Technologies v. United States,221 F.3d 34, 39 (1st Cir. 2000); Day, 167 F.3d at 681. The limits of thatwaiver define a federal court's jurisdiction. United States v. Mitchell,445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). It is awaiver, however, that must be strictly construed in favor of thegovernment. Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct.2957, 2963, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club,463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983); DynamicImage, 221 F.3d at 39; Weldon v. United States, 70 F.3d 1, 4 (2nd Cir.1995). Under the FTCA, the government is liable to the same extent that aprivate individual would be under similar circumstances in accordance withthe law of the place where the act occurred. 28 U.S.C.A. § 1346(b)(1);Abreu-Guzman v. Ford, 241 F.3d 69, 75 (1st Cir. 2001); DynamicImage, 221 F.3d at 39.

The FTCA is replete with exceptions. See 28 U.S.C.A. § 2680. In itsmotion, the Government claims that it is protected by the exception whichprecludes claims of misrepresentation. See id. § 2680(h). The essenceof a misrepresentation claim is that there be a "communication ofmisinformation" upon which the plaintiff has relied. Block v. Neal,460 U.S. 289, 296, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983). TheGovernment will not be liable for an injury resulting from a commercialdecision made by plaintiff in reliance on a misrepresentation by agovernment agent. Saraw Partnership v. United States, 67 F.3d 567, 570(5th Cir. 1995); Jimenez-Nieves v. United States, 682 F.2d 1, 4-5 (1stCir. 1982). This exceptionapplies to more than mere affirmativestatements; a claim based on a failure to warn or to communicate willalso be barred. See JBP Acquisitions v. United States, 224 F.3d 1260,1265-66 (11th Cir. 2000); Green v. United States, 629 F.2d 581, 584-85(9th Cir. 1980); Preston v. United States, 596 F.2d 232, 238-39 (7thCir. 1979); Mullens v. United States, 785 F. Supp. 216, 219-20 (D.Me.1992), aff'd, 976 F.2d 724 (1st Cir. 1992) (Unpublished table text);Harrah v. Miller, 558 F. Supp. 702, 706 (S.D.W. Va. 1983).

In the present case, Plaintiffs' allege, among other things, thatgovernment agents were negligent (1) in their duty to warn Plaintiffs ofthe area's propensity to flooding and (2) in their failure to informPlaintiffs of the need for flood insurance. These are claims, in effect,that the Plaintiffs suffered an injury because they relied on acommunication of misinformation by government agents. That is, theybought their homes because they were never warned of any risk of floodingand they neglected to obtain adequate flood insurance because they werenever told to do so. Even though Plaintiffs do not use the word"misrepresentation" in their allegations, these claims are still barredby that exception. In determining whether one of the FTCA exceptionscomes into play, a court must look beyond the literal meaning of thecomplaint and ascertain the true nature of the cause of action. UnitedStates v. Neustadt, 366 U.S. 696, 703-04, 81 S.Ct. 1294, 1297, 6 L.Ed.2d614 (1961). The claims regarding the failure to warn of the risk of floodand the failure to advise Plaintiffs that they should obtain floodinsurance are claims that Plaintiffs relied on a communication ofmisinformation and that as a result they suffered an injury. SeeMullens, 785 F. Supp. at 219-20; Harrah, 558 F. Supp. at 706. Thus, theyare barred by the misrepresentation exception.

Plaintiffs also assert that the Government is liable based on allegednegligence in the duty to inspect the properties and the duty to detectthe problems in drainage, sewage, and flooding. The mere failure toinspect and detect, by itself, is not sufficient to impose liability. Anegligent inspection could not have caused Plaintiffs' injuries, for anydefects would already have been present in the houses. See Hamre v.United States, 799 F.2d 455, 457 (8th Cir. 1986). Any faulty inspection,therefore, must be accompanied by some other conduct sufficient to createliability. If Plaintiffs are arguing that government agents werenegligent in inspecting the property and that they informed Plaintiffsthat the property did not suffer from defects and that Plaintiffspurchased their homes in reliance on this information, then this claim isbarred by the misrepresentation exception. See Neustadt, 366 U.S. at704-07, 81 S.Ct. at 1299-1301; Schneider v. United States, 936 F.2d 956,959-62 (7th Cir. 1991); Farmers State Savings Bank v. Farmers HomeAdmin., 891 F.2d 200, 202 (8th Cir. 1989); Bonuchi v. United States,827 F.2d 377, 379-80 (8th Cir. 1987); Hamre, 799 F.2d at 457; Pritchettv. Milstid, 891 F. Supp. 1541, 1547-48 (S.D.Ala. 1995); Pennbank v.United States, 599 F. Supp. 1573, 1581-82 (W.D.Pa. 1985), aff'd on othergrounds by 779 F.2d 175 (3rd Cir. 1985); Scott v. First InvestmentCorp., 556 F. Supp. 782, 785 (W.D.Pa. 1983).

If, however, Plaintiffs' allegation of negligence in inspection anddetection is part of their claim that government agents were negligent intheir supervision of the construction of their homes, the Court'sanalysis takes a different tack. A claim of negligence in the supervisionof the construction of homes purchased with FHA or FmHA loans might beable toproceed under the FTCA. See Block, 460 U.S. at 296-99, 103 1093-95. In the consideration of this claim, it is important tounderscore that the Government is liable under the FTCA to the sameextent that a private person would be under similar circumstances inaccordance with the law of the place where the act occurred. 28 U.S.C.A.§ 1346(b)(1); Abreu-Guzman, 241 F.3d at 75; Dynamic Image, 221 F.3dat 39. There must be a relationship between the plaintiff and thegovernment employee which would, under local law, impose a duty in apurely private sector setting. Sea Air Shuttle Corp. v. United States,112 F.3d 532, 537 (1st Cir. 1997); Zabala Clemente v. United States,567 F.2d 1140, 1143-44 (1st Cir. 1977). In their amended complaint,Plaintiffs refer to Article 1802 of the Puerto Rico Civil Code,5 butin their opposition to the motion to dismiss they cite to no case thatholds that under Article 1802 a private person lending money to ahome-buyer is obliged to inspect and supervise the construction of thehome that is to be purchased.6 Thus, their reliance on Article 1802is not sufficient to support their theory. Cf. Zabala Clemente, 567 F.2dat 1143 (noting that while the civil code's concept of fault may bebroad, it does not seem to support a claim that it is tortious conduct tofail to inspect another person's property and warn that person ofimpending injury, unless there is some duty to the owner of theproperty).

That is not to say that the analysis ends here. Plaintiffs' claim isone based on an alleged breach of a regulatory or oversight duty forwhich private persons are not normally liable under local law. See SeaAir, 112 F.3d at 537. In other FTCA cases where the plaintiff has allegedthat the government has breached a similar duty, courts have viewed theclaim through the prism of the Good Samaritan doctrine. See, e.g., IndianTowing Co. v. United States, 350 U.S. 61, 64-69, 76 S.Ct. 122, 124-27,100 L.Ed. 48 (1955); Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir.1995); Howell v. United States, 932 F.2d 915, 918 n. 3 (11th Cir. 1991)(collecting cases); Moody v. United States, 774 F.2d 150, 155 n. 6 (6thCir. 1985); Zabala Clemente, 567 F.2d at 1145; Mr. (Vega Alta), Inc. v.Caribe Gen. Elec. Products, 31 F. Supp.2d 226, 237 (D.P.R. 1998); Kirkv. United States, 604 F. Supp. 1474, 1480-84 (D.N.H. 1985). Under thisdoctrine, when a party — in this case, theGovernment —gratuitously undertakes to perform a service upon which the plaintiffjustifiably relies, the Government will have a duty to perform thatservice with an appropriate standard of care. The Government will beliable if it failed to exercise reasonable care in the performance ofthis duty and if the plaintiff justifiably relied on this performance tohis or her detriment. Indian Towing, 350 U.S. at 69, 76 S.Ct. at 126-27;Restatement (Second) of Torts §§ 323 & 324A (1965). As Plaintiffsacknowledge in their opposition to the motion to dismiss, the Puerto RicoSupreme Court has recognized this doctrine.7 See PiñeiroManzano v. Estado Libre Asociado, 102 P.R.Dec. 795, 801-02, 2 OfficialTranslations 1028, 1036 (1974).

In the present case, the Government could be liable if it hadvoluntarily assumed a duty to supervise or oversee the construction ofPlaintiffs' homes. Courts in earlier cases have found that such a dutyexisted based on government regulations which required FmHA or FHA agentsto supervise and inspect the construction of homes that were to bepurchased with Government-backed loans.8 See Neal v. Bergland,646 F.2d 1178, 1180-84 (6th Cir. 1981), aff'd sub nom. Blocky. Neal,460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983); Kirk, 604 F. Supp. at1479-81; Park v. United States, 517 F. Supp. 970, 974-75, 977-78 (D.Or.1981).

The force of these government regulations does not support the claimsof all Plaintiffs in the present action. This is due to the fact that therelevant regulations were amended, effective June 12, 1980. See 45 Fed.Reg. 39, 789 & 39, 803 (1980) (codified at 7 C.F.R. Pt. 1924). Theamended regulations state that the individual borrower is responsible formaking any inspections necessary to protect his interest; that theGovernment inspections are not intended to assure the borrower that thehouse is being built in accordance with any plans or specifications; that"[t]he inspections create or imply no duty or obligation to theparticular borrower;" and that "[t]he Borrower should make enough periodicvisits to the site to be familiar with the progress and performance ofthe work, in order to protect the borrower's interest."7 C.F.R. § 1924.9(a) & (b)(5) (2001) (emphasis added). In the wakeof these amendments, it cannot be held that the Government hasvoluntarily undertaken a duty to supervise or inspect the construction ofthe homes or that theborrowers could reasonably rely on the Government'sinspection or supervision of the constructions. See Moody, 774 F.2d at156-57; Cash v. United States, 571 F. Supp. 513, 515-16 (N.D.Ga. 1983).In the present case, twenty-one of the properties were purchased afterthe new regulations took effect on June 12, 1980. Because of the changesin the regulations, the Government did not owe these purchasers a duty tosupervise or inspect their homes, and these purchasers were therefore notjustified in relying on any Government inspection or supervision.Accordingly, the Court dismisses the claims of these owners.

There remain, then, the claims of those Plaintiffs who purchased theirhomes prior to June 12, 1980. The Government argues that these claims aretime-barred.9 This issue goes to the question of the Court'sjurisdiction to hear this suit. Gonzalez v. United States, 284 F.3d 281,288 (1st Cir. 2002). An FTCA claim will be time-barred unless theplaintiff has filed an administrative claim with the appropriategovernment agency within two years of the tort's accrual. 28 U.S.C.A.§ 2401(b) (West 1994); Coska v. United States, 114 F.3d 319, 322(1st Cir. 1997). of the remaining Plaintiffs, the owners of forty-five ofthe properties filed administrative claims on both February 26, 1998, andFebruary 29, 2000; the other owner filed only one claim, on February 29,2000.10 It is unclear, but it appears that Plaintiffs filed two setsof administrative claims because they are basing their cause of action onthe flooding which occurred in 1996 and 1998.

Plaintiffs' administrative claims will be timely only if their tortclaims accrued as of February 26, 1996, and February 28, 1998. Theaccrual date of a FTCA claim is a question of federal law. Bartleson v.United States, 96 F.3d 1270, 1276 (9th Cir. 1996); Miller v. UnitedStates, 932 F.3d 301, 303 (4th Cir. 1991). Generally, a tort claimaccrues at the time of the injury. Gonzalez, 284 F.3d at 288; Attallahv. United States, 955 F.2d 776, 779 (1st Cir. 1992). If an injury and itscause are not immediately apparent, the claim will accrue either at thetime the plaintiff discovers his injury or at the time the plaintiff, inthe exercise of reasonable diligence, could have discovered it.Attallah, 955 F.2d at 780.

As mentioned above, Plaintiffs appear to be bringing claims forflooding which occurred in 1996 and 1998. The problem with these claimsis that the properties were purchased in 1980 or before. The allegedtortious government conduct would have occurred at the time of purchase— eighteen years or more prior to the filing of the administrativeclaims. Between the time Plaintiffs purchased their homes and the time ofthe 1996 flooding, the properties had already been flooded on a number ofearlier occasions. In their amended complaint, Plaintiffs allege thatmajor flooding occurred in 1975, 1985, and 1992. The Government arguesthat therefore Plaintiffs knew, or should have known, of their injury by1992, and that their administrative claims filed in 1998 and 2000 areuntimely.

Plaintiffs raise a series of arguments to counter the Government'sreasoning. In one of them, Plaintiffs rely on the jurisprudenceregarding accrual in cases that involved government takings of a continualnature.11 See United States v. Dickinson, 331 U.S. 745, 67 S.Ct.1382, 91 L.Ed. 1789 (1947); Applegate v. United States, 25 F.3d 1579(Fed. Cir. 1994); Cooper v. United States, 827 F.2d 762 (Fed. Cir. 1987).The plaintiffs in those cases brought Fifth Amendment claims for whatthey alleged were the takings of their properties. The issue there waswhen the takings claim accrued. The Supreme Court in Dickinson held thatwhen the taking is caused by a continuous process, it is not complete,for purposes of determining when the claim arose, "until the situationbecomes stabilized." 331 U.S. at 749, 67 S.Ct. at 1385. The present case,however, does not involve a taking of Plaintiffs' properties; rather itinvolves a claim for tortious conduct. The question here is when a tortoccurred, not when a takings occurred. Therefore, the Court need notconsider the takings cases cited by Plaintiffs.

Plaintiffs also argue that their claims are timely owing to thecontinuous nature of the flooding. This argument obfuscates thedistinction between a continuing act and a single act that "`bringscontinuing consequences in its roiled wake.'" Johnson v. Rodriguez,943 F.2d 104, 108 (1st Cir. 1991) (quoting Gilbert v. City of Cambridge,932 F.2d 51, 58-59 (1st Cir. 1991)). An accrual date may be delayed if aplaintiff has suffered a continuing tort or a continuing violation. Acontinuing violation occurs when there is a series of continual unlawfulacts, not when there are merely continual harmful effects from anoriginal unlawful act. Nesovic v. United States, 71 F.3d 776, 778 (9thCir. 1995); Diliberti v. United States, 817 F.2d 1259, 1264 (7th Cir.1987); Bergman v. United States, 751 F.2d 314, 316-17 (10th Cir. 1984);Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981); Lazarini v. UnitedStates, 898 F. Supp. 40, 45 (D.P.R. 1995), aff'd 89 F.3d 823 (1st Cir.1996) (Unpublished table text); see also O'Rourke v. City of Providence,235 F.3d 713, 730 (1st Cir. 2001); Rodriguez Montalvo v. Municipality ofArecibo, 30 F. Supp.2d 118, 121 (D.P.R. 1998). When there is a continuingtort, the cause of action accrues when the tortious conduct ceases. Pagev. United States, 729 F.2d 818, 821-22 (D.C.Cir. 1984); Maslauskas v.United States, 583 F. Supp. 349, 351 (D.Mass. 1984).

In the present case, Plaintiffs allege that Government agents werenegligent in supervising and overseeing the construction of their homes.This alleged tortious conduct would have been completed at the time ofthe purchase of the homes. Plaintiffs may suffer the effects of thisnegligence every time flooding occurs in their housing development. Thisdoes not mean, however, that their claim is one for a continuous tort.They do not allege that Government agents committed a series of ongoingviolations. Rather, Plaintiffs are suffering the continual injuriousconsequences of alleged tortious conduct which has long since ceased. SeeJohnson, 943 F.2d at 108; Ward, 650 F.2d at 1147. To hold otherwise wouldbe to start a new statute of limitations every time a flood occurred. SeeHarrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir. 2002); Bowyer v.United States Dep't of Air Force, 875 F.2d 632, 638-39 (7th Cir. 1989);Bergman, 751 F.2d at 317. This the Court cannot do.

There remains the issue of when these claims accrued. The allegedtortious conduct would have ceased at the time that Plaintiffs purchasedtheir homes. At thattime, however, there had been no flooding. Thus,Plaintiffs had not yet suffered any injury. In 1975, 1985, and 1992 theirproperties were flooded. By this third flood they should have known thatthey had suffered an injury. Therefore, their claims appear to betime-barred.

Plaintiffs claim that the accrual of their claims should be tolledpursuant to the discovery rule.12 Under this rule, a claim will accrue"when the plaintiff discovers, or in the exercise of reasonable diligenceshould have discovered, the factual basis of the cause of action."Gonzalez, 284 F.3d at 288; Attallah, 955 F.2d at 780. This is anobjective standard. For there to be a tolling of the statute oflimitations pursuant to the discovery rule, the factual basis forplaintiffs case must have been "`inherently unknowable'" at the time ofhis injury. Gonzalez, 284 F.3d at 288-89 (quoting Attallah, 955 F.2d at780).

Once a plaintiff knows of an injury and its probable causes, it becomesincumbent upon him to make the necessary inquiries to determine whetherhe has a cause of action. United States v. Kubrick, 444 U.S. 111, 123,100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979); Gonzalez, 284 F.3d at 289. Thelimitations period will begin to run regardless of whether a plaintiffhas made these inquiries. Gonzalez, 284 F.3d at 289. Furthermore, thestatute of limitations will begin to run even though the plaintiff maynot know all of the relevant facts pertaining to his claim. Gonzalez, 284F.3d at 289; see also Morris v. Gov't Dev. Bank of Puerto Rico,27 F.3d 746, 750 (1st Cir. 1994).

In the present case, Plaintiffs argue in their opposition that they didnot immediately realize that their housing development was subject tocontinual flooding. This argument is belied by their amended complaint inwhich they allege that their houses are in what has been, since 1928, a"known flood area" and that major floods occurred there in 1928, 1933,1956, 1970, 1975, 1985, 1992, and 1996.13 These Plaintiffs would havesuffered injuries caused by the flooding in 1975, 1985, and 1992. By 1992they should have known, with the exercise of reasonable diligence, thatthey had suffered an injury and that they had a cause of action.Plaintiffs have appended to their opposition a sworn statement fromJeanette Perez Maceira, one of the plaintiffs. In it, she avers thatPlaintiffs did not become aware that flooding was a recurrent problemuntil September 1996. There is no explanation, either in this swornstatement or in the briefs why they could not have made this discoverysooner.

In her sworn statement, Perez Maceira refers to an Army Corps ofEngineers report that was issued in September 1996 which found thatflooding was a recurrent problem in the area. If this report is howPlaintiffs first learned of the continuing nature of the problem, itwould be insufficient to allow them to invoke the discovery rule. First,the floods of 1975, 1985, and 1992 should have put Plaintiffs on noticeof a problem. Second, it was incumbent upon Plaintiffs, not the ArmyCorps of Engineers, to make the necessary inquiries to determine what wasthe cause of this problem and whether they had a viable cause of action.See Kubrick, 444 U.S. at 123, 100 S.Ct. at 360; Gonzalez, 284 F.3d at289. The limitations period ontheir claims began to run regardless ofwhether they made these inquiries. See Gonzalez, 284 F.3d at 289.Plaintiffs' argument that they were somehow unable to discover theircause of action earlier is unsupported and therefore unavailing.

Plaintiffs offer another argument: that the limitations period shouldhave been tolled because of Government assurances that it would takemeasures to prevent the flooding. The Court reads this argument to be oneinvoking the equitable estoppel doctrine. Under equitable estoppel, theGovernment is estopped from raising a statute of limitations defense whenthe plaintiffs untimeliness is due to his justified reliance on theGovernment's false or misleading statements or conduct. Berman v. UnitedStates, 264 F.3d 16, 20 (1st Cir. 2001); see also Irwin v. Dep't ofVeterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435(1990). For there to be equitable estoppel, there must be someaffirmative government misconduct. Dantran, Inc. v. United States Dep'tof Labor, 171 F.3d 58, 67 (1st Cir. 1999); Frillz, Inc. v. Lader,104 F.3d 515, 518 (1st Cir. 1997); Bell v. Fowler, 99 F.3d 262, 268-69(8th Cir. 1996); Dring v. McDonnel Douglas Corp., 58 F.3d 1323, 1329 (8thCir. 1995). The defendant must have acted with an improper purpose, or itmust have had constructive knowledge of the deceptive nature of itsconduct. Kale v. Combined Ins. Co., 861 F.2d 746, 752 (1st Cir. 1988).

In the present case, Plaintiffs' claim that they did not pursue theirclaims more aggressively because federal government agencies had madeassurances that they intended to implement flood control measures. Theassurances upon which Plaintiffs claim to have relied are the following:in 1990 the Government issued a "Reconnaissance Report" recommendingunspecified measures to control the flooding; after the 1992 flood,Plaintiffs were informed that improvements were planned according to this1990 report; and in 1996 a "final Feasibility Report for flood control"was published by the Army Corps of Engineers.14 Plaintiffs furtherassert that there have been constant delays and snags in theimplementation of these plans.

This government action is not sufficient to warrant equitable relieffrom the limitations provisions of the FTCA. First, there is noallegation of specific Government promises or guarantees that it wouldcorrect the flooding problem. Plaintiffs mention only reports whichrecommended that unspecified measures be taken or assurances thatunspecified steps were being planned. At most, this conduct indicatedthat government officials were aware of this problem and were attemptingto address it. There were, however, no promises on which Plaintiffs couldhave justifiably relied. Moreover, there is no evidence or allegationthat the Government's statements and reports regarding the flooding weremotivated by an intent to deceive or mislead Plaintiffs. There isabsolutely no indication of affirmative government misconduct. Thus,there is no support for a claim of equitable estoppel. It appears thatbureaucratic inefficiencies or institutional inertia has resulted in aless than swift government reaction to Plaintiffs' plight. Although thisis certainly lamentable, it is not sufficient to justify estopping theGovernment from raising a statute of limitations defense.15

Based on all of the above, therefore, the Court finds that Plaintiffswho purchased their homes prior to June 12, 1980, should have known bythe time of the 1992 flood of the factual bases of their FTCA causes ofaction. They did not file their first set of administrative claims until1998. Thus, their claims for negligence in the supervision and oversightof the construction of their homes are time-barred.

Lastly, Plaintiffs also bring a claim based on the Government's allegedfailure to take appropriate measures, such as building retaining levees,to stop rising flood waters.16 This appears to be a claim not againstthose Government agents who administered the loan programs, but againstthe employees of those agencies charged with preventing floods.Presumably, this is a claim against the Army Corps of Engineers. See33 U.S.C.A. § 540 (West 2001) ("Federal investigations and improvementsof rivers, harbors and other waterways shall be under the jurisdiction ofand shall be prosecuted by the Department of the Army under the directionof the Secretary of the Army and the supervision of the Chief ofEngineers . . . ."); Devito v. United States, 12 F. Supp.2d 269, 270(E.D.N.Y. 1998). The Government does not address this claim in its motionto dismiss. Thus, this claim remains.

The Court notes, however, that this claim is not without itsobstacles. For this claim to proceed, Plaintiffs must have presented atimely administrative claim with the appropriate federal agency. See28 U.S.C.A. § 2401(b). Furthermore, it may be barred by thediscretionary exception of 28 U.S.C.A. 2680(a). See E. Ritter & Co. v.Dep't of Army, Corps of Eng'rs, 874 F.2d 1236, 1241 (8th Cir. 1989).Also, it may be barred by other statutory provisions which provide theGovernment with immunity in such situations. See 33 U.S.C.A. § 702c(West 2001) ("No liability of any kind shall attach to or rest upon theUnited States for any damage from or by floods or flood waters at anyplace."). As the Government has not addressed this claim in its motion todismiss, the Court makes no ruling now on the viability of this lastclaim.

WHEREFORE, the Court grants the motion to dismiss (docket no. 50).

1. In their amended complaint, Plaintiffs state that they are bringingthis claim as a class. They have not, however, moved for classcertification pursuant to Rule 23. Accordingly, the Court treats this asa claim by a group of individual plaintiffs.

2. Docket no. 35. Pursuant to an earlier order, Plaintiffs appended totheir amended complaint a list of all Plaintiffs with the correspondingdate of purchase of each home and the dates that each individual filedadministrative claims with the Government. It appears that PlaintiffsPedro Colón and Ivonne Rodríguez own two properties: onewhich they purchased in 1978 and a second which they purchased in1990.

3. 28 U.S.C.A. § 1346(b) (West 1993 & Supp. 2001) & §§ 2671-2680(West 1994 & Supp. 2001).

4. Docket no. 35.

5. 31 P.R. LAWS ANN. § 5141 (1991).

6. Plaintiffs did cite to two Puerto Rico Supreme Court cases thatdealt with a bank's liability for defects in homes that were purchasedwith a loan from that bank. Amaro Gonzcález v. First Fed. SavingsBank, 132 P.R.Dec. 1042 (1993); Chase Manhattan Bank v. EmmanuelliBauzá, 111 P.R.Dec. 708, 11 Official Translations 893 (1981). InChase, the court held that there was no factual or legal support for afinding that the bank was a constructor or developer that could be liablefor construction defects. 111 P.R.Dec. at 710-13, 11 OfficialTranslations at 896-99. And in Amaro González, a group ofhomeowners in a housing development which had been built on heavilycontaminated land sued the bank that had made the loans for the purchasesof the homes. 132 P.R.Dec. at 1044. The Supreme Court held that the bankcould be liable for its negligence in carrying out its banking functionsif it financed the purchase of the homes even though it knew or shouldhave known of the contamination. Id. at 1063.

In the present case, Plaintiffs' theory is based upon the Government'salleged negligence in supervising and overseeing the construction oftheir homes. The Supreme Court in Amaro González did not rule thatthe bank could be liable under a similar theory. Thus, even if the Courtwere to assume that the ruling in Amaro González could make aprivate person liable under Puerto Rico law, that case's holding does notsupport the Plaintiffs' cause of action in the present case.

7. Docket 54, at 5. Plaintiffs also cite to two cases on thisdoctrine. See Carrasquillo v. Am. Missionary Assoc., 61 P.R.R. 837(1943); Chapman v. E.S.J. Towers, Inc., 803 F. Supp. 571 (D.P.R. 1992).These cases are not what the Restatement would consider to be goodsamaritan cases. Carrasquillo involved a claim that a hospital wasnegligent in its treatment of a newborn baby. 61 P.R.R. at 839. InChapman the plaintiff was a hotel guest who was injured by criminals thatentered the hotel premises. He claimed that defendant was negligent infailing to ensure the safety of the premises. 803 F. Supp. at 572-73.These cases did not discuss whether the defendant was liable because ithad gratuitously undertaken to perform a service upon which the plaintiffhad detrimentally relied.

8. Generally, a government agent's breach of a federal regulatory dutywill not be, by itself, sufficient to give rise to a FTCA negligenceclaim. Sea Air, 112 F.3d at 536; Johnson, 47 F.3d at 727-28; ArtMetal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157-58 (D.C.Cir.1985); Schindler v. United States, 661 F.2d 552, 560 (6th Cir. 1981). Theregulations may, however, create duties which could subject theGovernment to liability under local tort law for a breach of thoseduties. Johnson, 47 F.3d at 728; Moody, 774 F.2d at 156 n. 8; ArtMetal-U.S.A., 753 F.2d at 1158-59; Sellfors v. United States,697 F.2d 1362, 1367 (11th Cir. 1983); Schindler, 661 F.2d at 560; Mr.(Vega Alta), 31 F. Supp.2d at 237.

9. The Government argues in its motion to dismiss that all thePlaintiffs' claims are time-barred. However, because the Court dismissesthe claims of those individuals who purchased their properties after June12, 1980, on other grounds, it applies the timeliness analysis only tothose Plaintiffs who purchased their properties before June 12,1980.

10. Docket no. 35.

11. In their opposition to the motion to dismiss, Plaintiffsincorporated their arguments from an earlier opposition. Docket no. 54,at 8 n. 2; docket no. 26. Accordingly, the Court considers the argumentsPlaintiffs have raised in both their Oppositions.

12. In their discussion of the discovery rule, Plaintiffs cite tojurisprudence from Puerto Rico and Louisiana local courts. The questionof accrual in FTCA claims, however, is one of federal law. Bartleson, 96F.3d at 1276. Thus, the authorities cited by Plaintiffs areinapposite.

13. Docket no. 35, at 6.

14. Docket no. 26, at 9-10; docket no. 54, sworn statement of JeanettePerez Maceira.

15. Although not expressly invoked by Plaintiffs, the equitabletolling doctrine may also be used to avoid the statute of limitations.Equitable tolling will be justified when the plaintiff could not havediscovered, even in the exercise of reasonable diligence, facts essentialto his claim. Gonzalez, 284 F.3d at 291. The circumstances that causedthe plaintiff to miss a deadline must have been entirely out of hishands. Id. The Court's treatment above of the discovery rule is equallyapplicable here. Nothing in the record establishes that there werecircumstances beyond Plaintiffs' control which prevented them, in theexercise of reasonable diligence, from discovering earlier the factsessential to their claim. Therefore, the equitable tolling doctrineprovides no succor to Plaintiffs' claim.

16. Docket no. 35, ¶ 25.

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