Earle v. Dist. of Columbia

Decision Date28 December 2012
Docket NumberNo. 11–7078.,11–7078.
Citation707 F.3d 299
PartiesVernon Norman EARLE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit


Appeal from the United States District Court for the District of Columbia (No. 1:06–cv–00072).

Dominic F. Perella argued the cause for the appellant. Peter S. Spivack, Sean Marotta and Jonathan B. Skowron were on brief.

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 42 U.S.C. § 1983, we conclude that Earle's suit is untimely. We therefore affirm the district court's grant of summary judgment to the District.


“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, 126 S.Ct. 2669, 165 L.Ed.2d 557 (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. SeeLuke 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, 126 S.Ct. 2669 (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 VCCR. 21 U.S.T. at 326. The United States withdrew from the Optional Protocol in 2005. Sanchez–Llamas, 548 U.S. at 368, 126 S.Ct. 2669.

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” after they detain a foreign national: (1) if requested by the foreign national, they must notify the consular post of the foreign national's country of the fact of his detention; (2) they must forward communications from the foreign national to the consular post “without delay”; and (3) they must notify “without delay” the foreign national of his right to contact the consular post.


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 District Department of Corrections. On September 19, 1988, he escaped from custody and remained at large until he was recaptured by deputies of the United States Marshals Service (USMS) on March 7, 1989. At no point from his initial arrest in 1985 until 2004 was Earle informed of his consular access rights 2 under the VCCR.

Earle apparently first become 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 42 U.S.C. § 1983 for violating their VCCR disclosure obligations.3 The district court dismissed the complaint as untimely filed. We reversed and instructed the district court to consider, inter alia, whether D.C.Code § 12–302(a)(3)4 tolled the statute of limitations. Earle v. Washington D.C. Police Dep't, 298 Fed.Appx. 10, 11 (D.C.Cir.2008) (per curiam).5

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 D.C.Code § 12–302(a)(3) tolled the statute of limitations during Earle's imprisonment, the tolling ceased when Earle escaped and did not recommence upon his recapture. Earle v. District of Columbia, No. 1:06–cv–0072, slip op. at 9–13 (D.D.C. June 29, 2011). Earle does not appeal this holding. See Br. for Appellant 4–5. Second, it concluded that the District's failure to inform Earle of his VCCR rights was not a continuing violation and therefore his claim “accrued on the day of his arrest—June 13, 1985.” Id. at 7. Finally, the district court held that Earle was not entitled to equitable tolling of the statute of limitations because the District had not fraudulently concealed any facts material to Earle's claim. Id. at 13–15. Earle timely appealed.


The district court had subject matter jurisdiction over Earle's section 1983 claim under 28 U.S.C. §§ 1331 and 1343(a)(3). See Doe v. Metro. Police Dep't of Dist. of Columbia, 445 F.3d 460, 466 (D.C.Cir.2006); Best v. Kelly, 39 F.3d 328, 330 (D.C.Cir.1994). We have jurisdiction to review the district's final order under 28 U.S.C. § 1291. We review a grant of summary judgment de novo.” Hampton v. Vilsack, 685 F.3d 1096, 1099 (D.C.Cir.2012). Summary judgment is appropriate only if “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). A “dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In making that determination, the court must ‘view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in her favor, and eschew making credibility determinations or weighing the evidence.’ Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011) (brackets omitted) (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

“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, 128 S.Ct. 1346, 170 L.Ed.2d 190 (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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (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.


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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), abrogated on other grounds as...

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