OPINION
Plaintiff Polyns C. Bieregu (“Bieregu”), a prisoner currently confined at the Federal Correctional Institution at Loretto, Pennsylvania, seeks to bring this action pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350, alleging violations of his *345 rights under Article 36 of the Vienna Convention on Consular Relations.
At this time, the Court must review the Complaint pursuant to 28 U.S.C. § 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that dismissal of the Complaint is warranted. Nothing in this case suggests that plaintiff may be able to state a valid claim by amending the Complaint at this time. 1
I. BACKGROUND
Plaintiff, a Nigerian citizen, states that he was arrested in November 1991, and was subsequently convicted for conspiracy to import and conspiracy to possess with intent to distribute a controlled substance in violation of United States law. (Complaint ¶¶ 8-10; see also Docket No. 91-cr-533 (DRD) (D.N.J.).) Plaintiff also states that his property, including an automobile and $18,000 in United States currency, were seized and subsequently forfeited to the United States government. (ComplJ 8.) Plaintiff alleges that he was never, during his arrest, detention, trial, or subsequent incarceration advised of his right under Article 36 to consult with a consular official. (Compilé 9-10, 13.) He contends that the failure of Defendants to advise him of his right to consular notification under Article 36 caused him to be deprived of his right to counsel of his choice under the Sixth Amendment to the United States Constitution, resulting in his conviction and the forfeiture of his property. (CompLIHF 3,10-12.)
Plaintiff states that he learned of Article 36 of the Vienna Convention on Consular Relations from an article published in the New York Times on August 30, 2001. (Comply 13.) The Complaint is dated October 10, 2001, and was received by the Court on October 25, 2001.
Plaintiff names as Defendants an agent of the Drug Enforcement Agency, a United States Attorney, two Assistant United States Attorneys, and three current and former Attorney Generals of the United States. These Defendants are sued in their individual and official capacities. Plaintiff seeks compensatory and punitive damages for the violation of his rights under Article 36 which led, he asserts, to deprivation of his Sixth Amendment right to counsel. He asserts that this Court has jurisdiction of his claim under 28 U.S.C. § 1331 (federal question jurisdiction), § 1332 (diversity jurisdiction), and § 1350 (the Alien Tort Claims Act).
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104-134, §§ 801-810,110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a prisoner is proceeding informa pauperis or seeks redress against a governmental entity or employee. See 28 U.S.C. § 1915(e)(2)(B), 1915A. The PLRA requires the Court to identify cognizable claims, and to dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.
Congress’s purpose in enacting the PLRA was “primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Torts Claims Act
*346
... many of which are routinely dismissed as legally frivolous.”
Santana v. United States,
In determining the sufficiency of a
pro se
complaint, the Court must be mindful to construe it liberally in favor of the plaintiff.
Haines v. Kerner,
A complaint is frivolous if it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams,
A
pro se
complaint may be dismissed for failure to state a claim only if it appears “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”
Haines,
Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment.
Denton v. Hernandez,
III. Article 36
The United States is a signatory to the Vienna Convention on Consular Relations (“Vienna Convention”), April 24, 1963, 21 U.S.T. 77, 101 T.I.A.S. No. 6820, 596 U.N.T.S. 261,
The Preamble states that “the purpose of such privileges and immunities [set forth herein] is not to benefit individuals, but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”
Article 36 of the Vienna Convention provides, in pertinent part:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: ...
(b) if [a detained person] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consu *347 lar post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subpara-graph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation ....
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
Vienna Convention, Article 36.
The provisions of Article 36 have been implemented in federal regulations, including 28 C.F.R. § 50.5(a)(1) (“In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given.”). See also 28 C.F.R. § 50(a)(2) (requiring the arresting agent to inform the U.S. Attorney of the arrest and of the arrestee’s wishes regarding consular notification); 28 C.F.R. § 50.5(a)(3) (directing the U.S. Attorney to notify the appropriate consul in accordance with the arrestee’s wishes); 8 C.F.R. § 236.1(e) (requiring the INS to notify every detained alien of the right to communicate with consul).
Article 36 has been the subject of litigation in a variety of contexts in both United States and international courts. For example, in 1998, following Paraguayan Angel Breard’s unsuccessful pursuit of direct state criminal appeal, state collateral relief, and federal habeas relief, the Republic of Paraguay instituted proceedings against the United States in the International Court of Justice (“ICJ”), alleging that the United States had violated Article 36 of the Vienna Convention at the time of Breard’s arrest.
See Breard v. Greene,
Clearly, Breard had procedurally defaulted any Vienna Convention claim he might have had, yet he and Paraguay contended before the Supreme Court that his Vienna Convention claim could be heard in federal court because the Vienna Convention was the “supreme law of the land” and, thus, trumped the procedural default doctrine.
Id.
at 375,
*348
“Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held ‘that an Act of Congress ... is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.’ ”
Id.
at 376,
In dicta, the Court noted that Article 36 “arguably confers on an individual the right to consular assistance following arrest,” but that, even were Breard’s claim properly raised and proved, “it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.”
Id.
at 377,
Twice since Breard, the International Court of Justice (“ICJ”) has addressed claims against the United States involving its application of Article 36. In LaGrand (Germany v. United States of America), 2001 I.C.J. 104 (2001), involving a German national who was sentenced to death and executed during the pendency of the proceedings, the ICJ held that:
“Article 36, paragraph 1, creates individual rights, which, by virtue of the Optional Protocol, may be invoked in this Court by the national State of the detained person.” LaGrand, 2001 I.C.J. 401 ¶ 77. The ICJ further held that, in the circumstances presented in LaG-rand, “the procedural default rule had the effect of preventing ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended’, and thus violated paragraph 2 of Article 36.” Id. ¶ 91. Turning to the question of remedies, the ICJ stated that “if the United States ... should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.”
Id. ¶ 125. Finally, reaching a question of first impression, the ICJ held that its “orders on provisional measures” 2 have “binding effect.” Id. ¶ 109. Although *349 Germany had initially sought reparations for itself for the violation of its rights, it dropped that claim during the course of the proceedings and never sought reparations for the violation of the rights of its national. Id. ¶¶ 10,12.
Pursuant to the LaGrand decision, the United States instituted measures providing for review and reconsideration in all death penalty cases involving foreign nationals who had not received the notice required by Article 36. See Avena (Mexico v. United States of America), 2003 I.C.J. 128 ¶ 30 (2003). Specifically, the United States permits such review and reconsideration to “occur through the process of executive clemency — an institution ‘déeply rooted in the Anglo-American system of justice’ — which may be initiated by the individuals concerned after the judicial process has been completed.” Id. ¶44. Contending that this approach is insufficient, Mexico has applied to the ICJ for relief for itself and its nationals on death row in the United States who did not receive the required Article 36 notice. Id. ¶ 7. Mexico contends that it and such of its nationals are entitled to restitutio in integ-rum, that is, to the “reestablish[ment of] the situation which would, in all probability, have existed if [the violations] had not been committed.” Id. Mexico asks that the United States establish a “meaningful remedy at law” for violations of Article 36, including barring the imposition of “any procedural penalty for the failure timely to raise a claim or defense based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention.” Id. ¶ 8(3). This matter remains pending, and the ICJ has issued an Order for Provisional Measures requiring the United States to “take all measures necessary to ensure that [three named Mexican nationals] are not executed pending final judgment in these proceedings.” Id. Order. Again, Mexico has not sought reparations for itself or for its affected nationals.
Since
Breard,
domestic state and federal courts also have addressed the questions whether Article 36 confers a right enforceable by the individual arrestee and, if so, what is the proper remedy. The issue most often arises in the context of either an ongoing criminal proceeding or action for postconviction relief. In the criminal context, the courts are divided in their conclusions regarding the existence of an individual right, the remedies for its violation, and whether the individual must establish prejudice in order to obtain a remedy.
See, e.g., Valdez v. State of Oklahoma,
Two judges of the U.S. District Court for the Southern District of New York have issued opinions addressing the question whether an individual possesses a claim for damages under 42 U.S.C. § 1983
3
for a violation of Article 36 by a state actor; those two judges also differ in their conclusions.
See Standt v. City of New York,
One court has addressed whether the Alien Tort Claims Act, 28 U.S.C. § 1350,
5
*351
provides a remedy for a violation of Article 36 by state actors.
See Jogi v. Piland,
To satisfy section 1350’s jurisdictional threshold, a plaintiff must allege that a “tort” was committed “in violation” of international law or a treaty of the United States. Only those treaty provisions that would actually give rise to a tort action by reason of their violation are implicated by the Alien Tort claims Act. Thus, a plaintiff may bring an action under section 1350 only for a tort committed in violation of a United States treaty, not for any violation of a treaty. Xuncax v. Gramajo,886 F.Supp. 162 , 181 (D.Mass.1995).
TV. Analysis
With very limited exceptions, the Federal Employees Liability Reform and Tort Compensation Act (“Liability Reform Act”), 28 U.S.C. § 2679, immunizes federal employees from liability if they commit negligent or wrongful acts or omissions while acting within the scope of their office or employment. This general rule that federal officers are not liable for conduct arising within-the scope of their employment “does not extend or apply to a civil action against an employee of the Government — (A) which is brought for a violation of the Constitution of the United States, or (B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2). This immunity applies even where federal law does not otherwise provide a remedy against the United States.
See U.S. v. Smith,
Thus, for most such civil actions, the exclusive remedy is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., against the government itself. 28 U.S.C. § 2679(b)(1). The Federal Tort Claims Act gives a district court exclusive jurisdiction over civil actions:
[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, ... [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Deutsch v. United States,
Taking these provisions into account, Plaintiff can proceed against the Defendants here only if (1) one of the exceptions to individual immunity contained in § 2679(b)(2) applies or (2) the claim is *352 otherwise valid against the United States pursuant to the Federal Tort Claims Act.
Plainly, the exception under § 2679(b)(2)(A) for claims arising directly under the Constitution does not apply.
Cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
That determination is entitled to preclusive effect here.
See, e.g., Allen v. McCurry,
Nor does the exception under § 2679(b)(2)(B) for “violation of a statute of the United States under which such action against an individual is otherwise authorized” apply in the circumstances of this case. The Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, is, at the very least, a jurisdictional statute. Some courts, including this one, have held that the ATCA also creates a cause of action for the commission of torts in violation of the law of nations or a treaty.
See, e.g.,
*353
Abebe-Jira v. Negewo,
Assuming that a cause of action under the ATCA is exempt from the exclusive remedy provision of the Liability Reform Act,
7
Plaintiffs claim is nevertheless subject to dismissal. The ATCA requires the commission of a tort in order to impose liability.
8
See, e.g. Kadic v. Karadzic,
Plaintiff nowhere asserts what “tort” he contends the Defendants committed in violation of Article 36. Nor is this Court aware of any common-law duty imposed on private individuals to advise arrestees of their right of consular notification. In addition, to the extent Plaintiff could assert a theory of negligent breach of a duty to disclose,
9
he cannot state a tort claim in
*354
the absence of a showing of “causation” and “damages,” necessary elements of any tort claim.
See Ramirez v. United States,
Furthermore, with respect to Plaintiffs claims against Defendants in their official capacities, all courts that have addressed the issue agree that the ATCA does not itself waive the sovereign immunity of the United States.
10
See, e.g., Koohi v. United States,
That leaves the Federal Tort Claims Act as Plaintiffs sole remedy with respect to the claims asserted against Defendants in their official capacities. The FTCA, too, requires the commission of a tort to impose liability.
Goldstar (Panama) S.A. v. United States,
Also, assuming that an FTCA claim would otherwise be viable, a district court nevertheless lacks jurisdiction over an FTCA claim until the claimant has exhausted administrative remedies.
See McNeil v. United States,
An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
28 U.S.C. § 2675(a). Moreover, a claim under the FTCA “shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). 11
Plaintiffs claim accrued when the arresting agents failed to advise him of his rights under Article 36;
12
to the extent Plaintiff seeks to proceed under a “continuing wrong” theory, the claim certainly accrued no later than the date of his conviction, November 23, 1992; accordingly, Plaintiffs claim is untimely. Neither lack of legal knowledge nor attorney error constitute “extraordinary circumstances” required for equitable tolling.
See Williams v. Taylor,
Here, Plaintiff does not allege that he has exhausted his administrative remedies. Thus, Plaintiff cannot pursue a claim under the FTCA as he has not exhausted his administrative remedies and his claim is now time-barred.
V. CONCLUSION
For the reasons set forth above, the Complaint must be dismissed pursuant to 28 U.S.C. § 1915A(b)(l) as frivolous and for failure to state a claim. Because it *356 does not appear that Plaintiff could amend his pleading to state a claim, the Court will not grant Plaintiff leave to file an amended complaint. An appropriate order follows.
ORDER
For the reasons expressed in the Opinion filed herewith,
IT IS on this __ day of _, 2003,
ORDERED that the Complaint is DISMISSED WITH PREJUDICE; and it is further
ORDERED that Defendants’ Motion to Dismiss is DENIED AS MOOT; and it is further
ORDERED that the Clerk of Court shall enter judgment accordingly and shall close the Court’s file.
Notes
. The Court notes that Defendants have submitted a Motion to Dismiss. (Docket Entry No. 9.) The Court's decision herein renders the Motion to Dismiss moot.
. During the course of the proceedings, the ICJ had issued an Order on Provisional Measures, pursuant to Article 41 of the Statute of the Court, directing that "(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is *349 not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) the Government of the United States of America should transmit this Order to the Governor of the State of Arizona.” 2001 I.C.J. 104 ¶ 32. The parties disputed whether this Order was binding on the United States.
.Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... 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 proceeding for redress....
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law.
West v. Atkins,
. The District Court for the District of New Hampshire relied upon
Standt
in permitting a § 1983 claim based on an Article 36 violation to proceed past the initial screening stage.
Ulmann v. Anderson,
. “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.
. Upon certification by the Attorney General that an employee was acting within the scope of employment, the United States is substituted as a defendant. 28 U.S.C. § 2679(d)(1).
.Because of the Court’s disposition of this matter, it is not necessary to address whether Article 36 of the Vienna Convention is self-executing, or whether it has been implemented by legislation or regulation, so as to give rise to a private cause of action.
See Jama v. U.S. I.N.S., 22
F.Supp.2d 353, 362 (D.N.J. 1998).
See also Li v. Canarozzi,
. It is this requirement that a tort be committed in connection with the violation of a treaty that renders cases evaluating the existence of an Article 36 cause of action under § 1983 of limited import in the ATCA context, as § 1983 contains no comparable requirement.
.
See, e.g.,
Restatement of Torts (Second) § 282 ("Negligence is conduct which falls below the standard established by law for the protection of others against an unreasonable
*354
risk of harm.”); Restatement of Torts (Second) § 284 ("Negligent conduct may be ... a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.”); Restatement of Torts (Second) § 286 (which permits a court to adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or administrative regulation "whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results”) (cited in
Canino v. Novotny, 78 N.J.
355, 359,
. The United States has sovereign immunity except where it consents to be sued.
United States v. Mitchell,
. A court may dismiss a complaint for failure to state a claim, based on a time-bar, where "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.”
Bethel v. Jendoco Construction Corp.,
. A claim accrues as soon as the injured party "knew or had reason to know of the injury that constitutes the basis of this action.”
Oshiver v. Levin Fishbein, Sedran & Berman,