Vernon Norman EARLE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
No. 11-7078.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 16, 2012. Decided Dec. 28, 2012.
707 F.3d 299
KAREN LECRAFT HENDERSON, Circuit Judge
James C. McKay Jr., Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the appellee. Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor, were on brief.
Before: HENDERSON and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Appellant Vernon Earle (Earle) alleges that the District of Columbia (District) violated rights conferred upon him by Article 36(1)(b) of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 101, 596 U.N.T.S. 261 (VCCR). Assuming without deciding that Article 36(1)(b) confers individually enforceable rights actionable under
I
A.
“The Vienna Convention was drafted in 1963 with the purpose, evident in its preamble, of ‘contribut[ing] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.‘” Sanchez-Llamas v. Oregon, 548 U.S. 331, 337 (2006) (quoting 21 U.S.T. at 79). To achieve the purpose established in its preamble, the VCCR‘s seventy-nine articles regulate the relationships among consular officers, the appointing state and the receiving state. See LUKE T. LEE, CONSULAR LAW AND PRACTICE 23-27 (2d ed.1991). The United States ratified the VCCR in 1969 and, as of 2006, 170 countries were parties thereto. Sanchez-Llamas, 548 U.S. at 337-38 (citing 21 U.S.T. at 77). The United States also ratified the Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (Optional Protocol), in 1969. The Optional Protocol conferred compulsory jurisdiction on the International Court of Justice to resolve disputes regarding the interpretation and application of the
In his appeal, Earle contends that the District failed to comply with obligations imposed on it by Article 36 of the VCCR. Article 36(1) provides in pertinent part:
(b) if he 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 consular 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 sub-paragraph.
VCCR, 21 U.S.T. at 101.1 Subparagraph (b) imposes three obligations on the “competent authorities of the receiving State”
B.
Earle is a national of Jamaica and currently incarcerated in a federal penitentiary. On June 13, 1985, officers of the Metropolitan Police Department arrested Earle pursuant to a warrant charging him with “Assault with Intent to Kill while Armed.” Joint Appendix (JA) 34. Earle was convicted in District Superior Court of, inter alia, first-degree murder and, on October 22, 1987, sentenced to two consecutive terms of twenty years to life imprisonment. He was originally incarcerated in the Lorton Correctional Complex in Fairfax County, Virginia, in the custody of the
Earle apparently first became aware of his consular access rights in 2004, although the record does not disclose how he came to be aware of those rights. In 2006, he sued the District and federal defendants under
Earle filed an amended complaint against the District on November 9, 2009.6 The district court granted summary judgment to the District on three grounds. First, it held that even if
II
A.
The district court had subject matter jurisdiction over Earle‘s section 1983 claim
“In our circuit it is a venerable practice, and one frequently observed, to assume arguendo the answer to one question in order to resolve a given case by answering another and equally dispositive one....” In re Grand Jury Subpoena (Judith Miller), 438 F.3d 1141, 1159 (D.C.Cir.2006) (Henderson, J., concurring). We therefore hasten to make clear which questions we assume, but refrain from deciding, in order to resolve this case. First, we express no opinion on whether the VCCR is a “law[]” within the meaning of section 1983, viz., whether it is either self-executing or the subject of implementing legislation by the Congress. See Medellin v. Texas, 552 U.S. 491, 504-05 (2008). Assuming arguendo that the VCCR is a “law[]” under section 1983, we express no view on the disagreement amongst our sister circuits over whether Article 36 of the VCCR creates “specific, individually enforceable rights,” Gonzaga Univ. v. Doe, 536 U.S. 273, 281 (2002), actionable under section 1983. Compare Gandara v. Bennett, 528 F.3d 823, 827-29 (11th Cir.2008) (Article 36 creates no rights enforceable under section 1983), Mora v. New York, 524 F.3d 183, 196-97 (2d Cir.2008) (same), Cornejo v. Cnty. of San Diego, 504 F.3d 853, 855 (9th Cir.2007) (same), United States v. Emuegbunam, 268 F.3d 377, 392 (6th Cir.2001), and United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir.2001), with Jogi v. Voges, 480 F.3d 822, 834-36 (7th Cir.2007) (Article 36 creates rights enforceable under section 1983). Finding Earle‘s claim barred by the statute of limitations, we reserve these questions for another day.
B.
The law governing the statute of limitations and claim accrual in a section 1983 case is a complex patchwork of federal law and state law. To avoid the statute of limitations bar, Earle argues both that, under District law, the statute of limitations was tolled until he discovered his rights and that, under federal law, his claim accrued only upon the District‘s satisfaction of its disclosure obligations. Before addressing his arguments, we briefly lay out the general framework governing claim accrual and the limitations period applicable in a section 1983 action.
Section 1983 sets no limitations period. Consistent with “settled practice,” Wilson v. Garcia, 471 U.S. 261, 266 (1985), abrogated on other grounds as recognized by
A federal court considering a section 1983 claim also applies the tolling rules of the jurisdiction from which it draws the limitations period so long as those rules are not “inconsistent with the policies underlying § 1983.” Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980) (quotation marks omitted). This rule applies to both statutory and common law tolling rules. See id. at 486-87 (borrowing statutory tolling rules); Wallace, 549 U.S. at 394-95 (borrowing common law rules).
Unlike the statute of limitations, “the accrual date of a § 1983 action is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388 (emphasis in original). A section 1983 claim accrues “when the plaintiff has ‘a complete and present cause of action,’ that is, ‘when the plaintiff can file suit and obtain relief.‘” Id. (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)); see, e.g., Muñoz v. Bd. of Trs. of Univ. of Dist. of Columbia, 427 Fed.Appx. 1, 4 (D.C.Cir.2011) (per curiam) (section 1983 claim accrues when wrongful conduct occurs).
C.
We turn first to Earle‘s accrual argument. Applying the ordinary rule of claim accrual, the district court concluded that, because all of the elements of a cause of action under section 1983 existed on the day Earle was arrested in 1985, his claim accrued upon his arrest. Earle, slip op. at 7. Earle argues, however, that the VCCR imposes a continuous obligation to inform him of his consular access rights. A claim for a violation of Article 36(1)(b) did not accrue, Earle reasons, until the obligation was satisfied.7 Because the District had failed to discharge its obligation to Earle
As a general rule, “[a] claim normally accrues when the factual and legal prerequisites for filing suit are in place.” Norwest Bank Minn. Nat‘l Ass‘n v. FDIC, 312 F.3d 447, 451 (D.C.Cir.2002) (quoting 3M Co. v. Browner, 17 F.3d 1453, 1460 (D.C.Cir.1994)). We have recognized various exceptions to, and glosses on, the rule,9 see, e.g., Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 342 (D.C.Cir.1991) (adopting discovery rule for damages claim involving latent injuries), including the continuing violation doctrine. This doctrine is “muddled,” Thomas v. Eastman Kodak Co., 183 F.3d 38, 53 (1st Cir.1999) (quotation marks omitted), “intricate and somewhat confusing,” Keohane v. United States, 669 F.3d 325, 329 (D.C.Cir.2012), and we have never had occasion to apply it to a section 1983 claim. Other courts, however, have done so. See, e.g., Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 30 n. 6 (1st Cir.2012); Hildebrandt v. Ill. Dep‘t of Natural Res., 347 F.3d 1014, 1036 n. 18 (7th Cir.2003). We need not decide whether the continuing violation doctrine applies to section 1983 claims because Earle does not prevail under this theory, assuming arguendo it applies.
Our continuing violation precedent recognizes at least two applications of the doctrine. The first applies to conduct that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period, typically because it is only its cumulative impact (as in the case of a hostile work environment) that reveals its illegality. Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir.1997) (citations and quotation marks omitted); see also Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16 (2002) (“cumulative effect of individual acts ... collectively constitute[s] one unlawful employment practice” (quotation marks omitted)). If such a violation is alleged, the plaintiff may rely on conduct that took place outside the limitations period so long as some conduct on which the claim is based took place within the limitations period. Singletary, 351 F.3d at 526-27. The doctrine does not, however, make actionable either a discrete unlawful act or the “lingering effect of an unlawful act.” Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C.Cir.2007) (quotation marks omitted). Moreover, the “mere failure to right a wrong ... cannot be a continuing wrong ... for that is the purpose of any lawsuit and the exception would obliterate the rule.” Fitzgerald v. Seamans, 553 F.2d 220, 230 (D.C.Cir.1977). This application of the continuing violation doctrine thus applies if the fact of the violation becomes apparent only by dint of the cumulative effect of repeated conduct. Keohane, 669 F.3d at 329.
We have occasionally recognized a second application of the continuing violation doctrine if the text of the pertinent law imposes a continuing obligation to act or refrain from acting. “[W]here a ... statute[] imposes a continuing obligation to act, a party can continue to violate it until that obligation is satisfied and the statute of limitations will not begin to run until it does.” See AKM LLC dba Volks Constructors v. Sec‘y of Labor, 675 F.3d 752, 763 (D.C.Cir.2012) (Garland, J., concurring). Whether the obligation is continuing is a question of statutory construction. In Postow v. OBA Fed. Sav. & Loan Ass‘n, 627 F.2d 1370 (D.C.Cir.1980), for example, this court considered the Consumer Credit Protection Act‘s statute of limitations, which required an action alleging a violation of the Act to be brought within one year of the violation. Id. at 1379. The Act required a lender to make certain disclosures to a borrower “before the credit is extended.” Id. at 1374 (quoting
Earle contends that the goal of Article 36, which he believes to be the provision of “legal and other assistance [by the] consulate,” makes the disclosure obligation of consular access continuing. Br. for Appellant 16. The District, however, contends that the plain language of Article 36(1)(b) requires notification at discrete points in time—arrest, commitment to prison, commitment to custody or any other form of detention—and therefore a claim alleging violation of the obligation accrues at those discrete points. We express no opinion as to the proper construction of the VCCR because assuming arguendo that Article 36‘s notification obligation is continuing, Earle cannot prevail.
A claim alleging a continuing violation accrues “after the date of the last injury,” viz., after the defendant‘s last violative act. Keohane, 669 F.3d at 329; see also Page v. United States, 729 F.2d 818, 821 (D.C.Cir.1984). We must first, then, determine who owed Earle the duty to notify him of his consular access rights. Article 36 does not impose a disclosure
those officials, whether federal, state, or local, who are responsible for legal action affecting the foreign national and who are competent, within their legal authorities, to give the notification required. This interpretation makes sense as a practical matter: compliance with the notification requirements works best when it is assumed by those government officials closest to the foreign national‘s situation and with direct responsibility for it.
U.S. DEP‘T OF STATE, CONSULAR NOTIFICATION AND ACCESS 14 (3d ed.2010). Given the “great weight” we accord the State Department‘s interpretation of treaties, Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982), we find this common-sense interpretation persuasive and, accordingly, apply it here.
Because it was responsible for his arrest and detention in 1985, we assume that the District was the “competent authorit[y]” obligated to notify Earle of his consular access rights. On September 19, 1988, however, Earle escaped the District‘s custody. When he escaped, the District was no longer “the government ... closest to the foreign national‘s situation.” NOTIFICATION AND ACCESS 14. In fact, as he was no longer in any government‘s custody, there were no “competent authorities” obligated to disclose anything to him. Accordingly, the District‘s notification duty as a “competent authorit[y]” ceased at that time. Even assuming Article 36(1)(b)‘s notice obligation was ongoing, the day of the last act constituting a violation of the obligation was September 19, 1988, and his claim based on that violation accrued on that day. His 2006 suit against the District was therefore untimely as to that violation.
Earle was subsequently captured by the USMS in 1989. He now argues that he was thereafter transferred back to the District‘s custody, which transfer triggered a new continuing violation. But he did not allege in his amended complaint that he escaped or was subsequently recaptured (or by whom). He therefore failed to allege a “second” violation of Article 36(1)(b) that began when he was recaptured in 1989. Moreover, Earle raises this “second” violation argument for the first time on appeal. “It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984); see also Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 56 (D.C.Cir.2011) (holding argument raised for first time on appeal forfeited); Benoit v. U.S. Dep‘t of Agric., 608 F.3d 17, 21 (D.C.Cir.2010) (same). Although we have discretion to consider such arguments, we exercise that discretion only if “exceptional circumstances” exist. Flynn v. Comm‘r, 269 F.3d 1064, 1068-69 (D.C.Cir.2001). Discerning none, we decline to consider Earle‘s argument.10
Earle also contends that the statute of limitations was tolled under the common law doctrine of fraudulent concealment. He argues that the District‘s failure to notify him of his consular access rights—despite a duty to do so—amounts to a fraudulent concealment of facts relevant to his claim. He thus concludes that the statute of limitations was tolled until he discovered his rights in 2004. Because, in a section 1983 action, we apply the tolling rules of “the state in which the cause of action arose,” see Wallace, 549 U.S. at 387, we look to the law of the District of Columbia for the relevant common law tolling rules. See Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 843 (D.C.Cir.1998) (“When interpreting the common law of the District of Columbia, we follow the decisions of the District of Columbia Court of Appeals, which is, for Erie purposes, treated as if it were the highest court of the state.“).
The District of Columbia Court of Appeals (D.C. Court of Appeals) has repeatedly recognized the doctrine of fraudulent concealment. Drake v. McNair, 993 A.2d 607, 619 (D.C.2010) (“It is well established that affirmative acts employed by a party to fraudulently conceal either the existence of a claim or facts forming the basis of a cause of action toll the running of limitations periods.“) (quoting Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C.1982)). If a defendant undertakes “something of an affirmative nature designed to prevent discovery of a cause of action,” Cevenini v. Archbishop of Wash., 707 A.2d 768, 773-74 (D.C.1998) (quotation marks and brackets omitted), and the plaintiff by reasonable diligence could not discover the concealed facts, see Diamond v. Davis, 680 A.2d 364, 376 (D.C. 1996), the statute of limitations is tolled until the facts are revealed. Silence, however, is insufficient to toll the statute of limitations. See Adrian v. Am. Sec. & Trust Co., 211 A.2d 771, 772 (D.C.1965). Moreover, “mere failure to disclose pertinent information ... is not sufficient to toll the statute of limitations unless there has been some affirmative act of concealment.” Drake, 993 A.2d at 619. But “failure to disclose pertinent information” is all that Earle has asserted.
To avoid this rule, Earle contends that “if a defendant has a duty to disclose
Because no D.C. Court of Appeals case is directly on point, we “reason by analogy from D.C. cases” to predict how that court would decide the question in a case like this. Workman v. United Methodist Comm. on Relief, 320 F.3d 259, 262 (D.C.Cir.2003); see also Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C.Cir.2006) (“Our duty, then, is to achieve the same outcome we believe would result if the District of Columbia Court of Appeals considered this case.“). At oral argument, Earle‘s counsel agreed with the Court‘s suggestion that the appropriate analogy in this case would be a section 1983 action brought against the District for failure to give a required Miranda warning. See Earle v. District of Columbia, No. 11-7078, Oral Argument Tr. at 20-23 (D.C.Cir. Oct. 16, 2012). Although neither this court nor the Supreme Court has held that a Miranda violation is actionable under section 1983, see Chavez v. Martinez, 538 U.S. 760 (2003) (addressing but failing to resolve question), and we do not decide that now, the District Court of Appeals has addressed the question. In Cannon v. District of Columbia, the plaintiff sought to recover under section 1983 after “he was questioned by police concerning his involvement in a criminal incident without being given a so-called Miranda warning.” 569 A.2d 595, 596 (D.C.1990) (per curiam). He brought suit well after the expiration of the limitations period but argued that the District‘s failure to give the Miranda warning “constituted fraudulent concealment, thereby tolling the statute of limitations.” Id. The court rejected his argument: “[E]ven assuming the police themselves deliberately concealed from appellant his rights at the time they questioned him, he did have an attorney soon thereafter to counsel him as to his rights and to pursue such rights against the government as the circumstances warranted.” Id. at 597.
Cannon points the way here.11 We know that Earle was assisted by counsel during his Superior Court trials and we predict that the D.C. Court of Appeals, should it consider this question, would therefore decline to toll the statute of limitations. Accordingly, because the statute of limitations began to run no later than Earle‘s escape on September 19, 1988, his 2006 lawsuit is untimely.
For the foregoing reasons, we affirm the judgment of the district court.
So ordered.
Notes
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he 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 consular 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 sub-paragraph;
(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. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
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.
VCCR, 21 U.S.T. at 100-01.