Jogi v. Voges

• Decision Date: 12 March 2007
• Docket Number: No. 01-1657.,01-1657.
• Citation: 480 F.3d 822
• Parties: Tejpaul S. JOGI, Plaintiff-Appellant, v. Tim VOGES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

480 F.3d 822

Tejpaul S. JOGI, Plaintiff-Appellant, v. Tim VOGES, et al., Defendants-Appellees.

No. 01-1657.

United States Court of Appeals, Seventh Circuit.

November 10, 2005.

Decided March 12, 2007.

Brad P. Rosenberg (argued), Mayer, Brown, Rowe & Maw, Washington, DC, for Plaintiff-Appellant.

Jerome P. Lyke (argued), Flynn, Palmer & Tague, Champaign, IL, for Defendants-Appellees.

Sharon Swingle Dept. of Justice, Civil Div., Appellate Sec., Washington, DC, for U.S. Amicus Curiae.

William P. Hardy, Hinshaw & Culbertson, Springfield, IL, for United Counties Council of Illinois, Amicus Curiae.

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

ON PETITION FOR REHEARING^*

WOOD, Circuit Judge.

This case presents the question whether a foreign national who is not informed of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, has any individual remedy available to him in a U.S. court. This panel's original opinion in the case, Jogi v. Voges, 425 F.3d 367 (7th Cir.2005), concluded that the answer was yes. The original opinion, to which we refer here as Jogi I, held that the district court had subject matter jurisdiction under both the general federal jurisdiction statute, 28 U.S.C. § 1331, and under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. See 425 F.3d at 371-73. Jogi I also held that the Vienna Convention is a self-executing treaty, id. at 376-78; that Article 36 of the Convention confers an individual right to notification on nationals of parties to the treaty, id. at 378-84; and that the Convention itself gives rise to an implied individual private right of action for damages, id. at 384-85. Finally, Jogi I addressed several additional defenses that had been presented and concluded that none warranted dismissal.

Since Jogi I was decided, the Supreme Court has spoken on the subject of the Vienna Convention, albeit in the context of the availability of certain remedies in criminal proceedings and the applicability of the normal rules of procedural default. See Sanchez-Llamas v. Oregon, ___ U.S. ___, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006). In addition, the Court has addressed the exclusionary rule, describing it as a remedial rule of "last resort," and its relation to the remedy provided by 42 U.S.C. § 1983 for police misconduct. See Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 2167-68, 165 L.Ed.2d 56 (2006). The Court's reference to § 1983 prompted us to request supplemental memoranda in Jogi's case addressing two questions: (1) whether it is necessary to rely on § 1350 for subject matter jurisdiction in a Vienna Convention case, given the existence of § 1331, and (2) whether § 1983 provides a private right of action here, rendering unnecessary our discussion of an implied action directly under the Convention. The parties have submitted their memoranda, and we also have the benefit of an amicus curiae submission from the United States.

In the interest of avoiding a decision on grounds broader than are necessary to resolve the case, especially in an area that touches so directly on the foreign relations of the United States, the panel has reexamined its earlier opinion and has decided to withdraw that opinion and substitute the following one. Briefly put, we are persuaded that it is best not to rest subject matter jurisdiction on the ATS, since it is unclear whether the treaty violation Jogi has alleged amounts to a "tort." Both parties, as well as the United States, have suggested that jurisdiction is secure under 28 U.S.C. § 1331, and we agree with that position. Furthermore, rather than wade into the treacherous waters of implied remedies, we have concluded that Jogi's action rests on a more secure footing as one under 42 U.S.C. § 1983. At bottom, he is complaining about police action, under color of state law, that violates a right secured to him by a federal law (here, a treaty). We can safely leave for another day the question whether the Vienna Convention would directly support a private remedy.

I

For convenience, we briefly recount the background facts of Jogi's case. Tejpaul S. Jogi is an Indian citizen who was charged with aggravated battery with a firearm in Champaign County, Illinois. Jogi pleaded guilty to the crime and served six years of a twelve-year sentence; at that point, he was removed from the United States and returned to India. No state official ever advised him of his right under the Vienna Convention to contact the Indian consulate for assistance, nor did any Champaign County law enforcement official ever contact the Indian consulate on his or her own initiative on Jogi's behalf.

At some point after Jogi was in prison, he learned about the Vienna Convention. This prompted him to initiate several lawsuits, including the present case, in which he filed a pro se complaint seeking compensatory, nominal, and punitive damages to remedy this violation. He named as defendants various Champaign County law enforcement officials, including the two investigators who questioned him after his arrest. Jogi's complaint relied on the ATS, 28 U.S.C. § 1350, which establishes jurisdiction in the district courts over a civil action by an alien for a tort committed in violation of a treaty of the United States. See generally Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The district court found that the state officials had violated the Vienna Convention, but it concluded that Jogi's allegations were insufficient to trigger subject matter jurisdiction under the ATS.

Jogi's appeal to this court followed, and, as we have recounted above, the panel in Jogi I concluded that the district court did have subject matter jurisdiction over the suit and that Jogi was entitled to proceed with his action. We expressed no opinion on a number of defenses that had not yet been raised, given the posture of the case, including the statute of limitations and qualified immunity. 425 F.3d at 386.

II

A

As before, the first issue we reach is that of subject matter jurisdiction. In the end, very little needs to be said on that point. Jogi's complaint makes it clear that he is attempting to assert rights under Article 36 of the Vienna Convention. The general federal jurisdiction statute, 28 U.S.C. § 1331, confers jurisdiction over claims arising under the "Constitution, laws, or treaties of the United States." As everyone, including the United States, acknowledges, the assertion of a claim arising under any one of those sources of federal law is enough to support subject matter jurisdiction unless the claim is so plainly insubstantial that it does not engage the court's power. As the Supreme Court reaffirmed in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998):

It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case. See generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, p. 196, n. 8 and cases cited (2d ed.1990). As we stated in Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 . . . (1946), "[j]urisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." Rather, the district court has jurisdiction if "the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another," id., at 685, 66 S.Ct. 773, unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id., at 682-683, 66 S.Ct. 773.

523 U.S. at 89, 118 S.Ct. 1003. There can be no doubt that Jogi's claim does not fall within that small subset of utterly frivolous actions that are insufficient to support the court's jurisdiction.

We thus save for another day the question whether the ATS might also support subject matter jurisdiction in a case like Jogi's. The ATS, as the Supreme Court held in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), grants jurisdiction to the federal courts to hear suits brought by aliens for torts either in violation of the law of nations or in violation of a treaty of the United States. We expressly refrain from deciding whether the failure of the police officers here to inform Jogi of the right to consular notification provided by Article 36 of the Vienna Convention was the kind of "tort . . . in violation of a treaty" that § 1350 covers. It is enough, for present purposes, that jurisdiction under § 1331 is secure.

B

We now turn to the question whether 42 U.S.C. § 1983 provides the statutory right of action that Jogi needs for his claim. (The reason that the panel's opinion in Jogi I did not discuss this possibility is simple: the parties did not rely on § 1983. It is established, however, that complaints need not plead legal theories. Particularly with the benefit of the parties' supplemental memoranda on this point of law, we are free to consider it as a possible basis for the suit.) This well known statute says that "[e]very person who, under color of [state law], 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." (Emphasis added.)

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983...