Republic of Paraguay v. Allen

• Citation: 949 F.Supp. 1269
• Decision Date: 27 November 1996
• Docket Number: Civil Action No. 3:96CV745.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: The REPUBLIC OF PARAGUAY, et al., Plaintiffs, v. George ALLEN, Governor of Virginia, et al., Defendants.

949 F.Supp. 1269

The REPUBLIC OF PARAGUAY, et al., Plaintiffs, v. George ALLEN, Governor of Virginia, et al., Defendants.

Civil Action No. 3:96CV745.

United States District Court, E.D. Virginia, Richmond Division.

November 27, 1996.

COPYRIGHT MATERIAL OMITTED

Loren Kieve, Debevoise & Plimpton, Washington, DC, for plaintiffs.

Donald Richard Curry, Office of the Attorney General, Richmond, VA, for defendants Allen, Gilmore, Angelone, Garraghty, Netherland, Sheridan, Kendrick, Newman, Winston and Trodden.

Ara Loris Tramblian, Arlington, VA, for defendant Stover.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to FED.R.CIV. PROC. 12(b)(1). In the alternative, the defendants ask the Court to dismiss the action for failure to state a claim pursuant to FED. R.CIV.PROC. 12(b)(6). For the reasons set forth below, the Court GRANTS the motion to dismiss for lack of subject matter jurisdiction.

I. BACKGROUND

This case arises from the arrest and conviction of Angel Breard. Mr. Breard is a dual citizen of Paraguay and Argentina. He came to the United States on a student visa in 1986. He has remained in this country since then. In 1993, a jury found Mr. Breard guilty of the rape and stabbing death of thirty-nine year old Ruth Dickie. The trial court sentenced him to death for these crimes. On August 30, 1996, Mr. Breard filed a petition for a writ of habeas corpus in this Court.

On September 12, 1996, the Republic of Paraguay, Jorge J. Prieto, Ambassador of the Republic of Paraguay to the United States and Jose Dos Santos, Consul General of the Republic of Paraguay to the United States filed this action. Plaintiffs seek redress for alleged treaty violations stemming from Mr. Breard's arrest.

In 1970, the United States and the Republic of Paraguay entered into the Vienna Convention on Consular Relations, April 24 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (the "Vienna Convention"). Article 36(1) states that if an arrested foreign citizen so requests:

(b) 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.

Paraguay and its officials argue that defendants, various officials representing the state of Virginia, failed to comply with this provision.

Plaintiffs also insist that the Treaty of Friendship, Commerce, and Navigation, Feb. 4, 1859, U.S.-Para., 12 Stat. 1091 (the "Friendship Treaty") grants similar privileges. The United States and Paraguay entered into this treaty on February 4, 1859. It is still in effect. Although the Friendship Treaty does not contain a notice provision similar to that in the Vienna Convention, it does contain a "most favored nation clause." Under Article XII of the Treaty, "the Diplomatic Agents and Consuls of the Republic of Paraguay in the United States of America shall enjoy whatever privileges, exemptions and immunities are, or may be, there granted to Agents of any other Nation whatever." Based on this clause, Plaintiffs contend that they are entitled to immediate and mandatory notification of the arrest of any Paraguayan national. The United States has extended this privilege to other nations in bilateral agreements. See, e.g., Convention Regarding Consular Officers, June 6, 1951, U.S.U.K., art. 16, 3 U.S.T. 3426; Consular Convention, June 1, 1964, U.S.-U.S.S.R., art. 12(2) & sec. 1 of protocol, 19 U.S.T. 5018; Agreement on Consular Relations, Jan. 31, 1979, U.S.-China, sec. 5, 30 U.S.T. 17.

In addition, Mr. Dos Santos argues that defendants' inaction gives rise to a claim under 42 U.S.C. § 1983. Mr. Dos Santos is the Consul General of the Republic of Paraguay to the United States. In his official capacity, he has jurisdiction over the consular district encompassing the Commonwealth of Virginia.

Plaintiffs request several forms of declaratory and injunctive relief. In particular, they ask that this Court:

1. Declare that defendants violated the Vienna Convention and Friendship Treaty by failing to notify plaintiffs of Breard's arrest.

2. Declare that defendants continue to violate both treaties by failing to afford plaintiffs a meaningful opportunity to give Breard assistance during the proceedings against him.

3. Declare Breard's conviction void.

4. Enjoin defendants from taking any action based on the conviction and declare that any further action based on the conviction is a continuing violation of the treaties.

5. Grant an injunction vacating Breard's conviction and directing defendants to abide by the treaties during any future proceedings against Breard.

Defendants have filed a motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Defendants' arguments fall into two general categories: (1) that this Court does not have subject matter jurisdiction over the claims presented and (2) that the plaintiffs' claims are otherwise non-justiciable.

II. SUBJECT MATTER JURISDICTION

A. Eleventh Amendment Immunity

The Eleventh Amendment places constitutional limits on federal court subject matter jurisdiction. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The text of the amendment divests this Court of jurisdiction over actions against a state by "Citizens of another State or by Citizens or Subjects of any Foreign State." U.S. CONST. Amend XI. This language was soon interpreted to prohibit other actions against a state in federal court. See, e.g., Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (Eleventh Amendment bars suits against a state by one of its citizens); Blatchford v. Native Village of Noatak, 501 U.S. 775, 781, 111 S.Ct. 2578, 2582, 115 L.Ed.2d 686 (1991) (Eleventh Amendment bars suits against a state by an Indian Tribe). In particular, the Eleventh Amendment bars suits by a foreign government against a state government in federal court. Seminole Tribe of Florida v. Florida, ___ U.S. ___, ___ _ ___, 116 S.Ct. 1114, 1136-37, 134 L.Ed.2d 252, 283 (1996); Principality of Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934).

The Eleventh Amendment also bars suits against state officials that are in fact suits against a state. Pennhurst, 465 U.S. at 101-02, 104 S.Ct. at 908-09. However, there is a narrowly crafted exception to this rule. A party at risk of or suffering from a violation of federally protected rights may seek to enjoin the offending state officers. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Before issuing an Ex parte Young type injunction, the plaintiffs must satisfy two criteria: (1) they must show that they seek a remedy for a continuing violation of federal law and (2) they must show that the relief is prospective. Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1986).

Much of the debate over the doctrine of Ex parte Young has involved the second criterion. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (allowing award of attorney's fees as ancillary to the grant of prospective relief); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (discussing the distinction between retroactive and prospective relief). Here, however, the Court must determine if Paraguay is the victim of a continuing violation of federal law. The Supreme Court has considered this issue on at least two occasions. See, e.g., Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). In Papasan, the Court distinguished those cases properly reviewable under the doctrine of Ex parte Young from those that "stretch that case too far." "Young has been focused on cases in which a violation of federal law by a state is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past." Id. at 277-78, 106 S.Ct. at 2940. For example, in Milliken, the defendants were perpetuating a system of de jure segregation. They were in violation of federal law at the precise moment when the case was filed.

That is not the case here. The complaint does not state that defendants continue to deny plaintiffs access to Breard. There is no allegation that defendants refuse to allow plaintiffs to give Mr. Breard legal assistance. In fact, officials from the Republic of Paraguay assisted in the preparation of Breard's habeas petition filed before this Court. Now that defendants have given Paraguayan officials access to Mr. Breard, they are no longer in violation of the treaties.

Plaintiffs urge that but for Virginia's alleged violations of the treaties, Mr. Breard would not be on death row today. Assuming the validity of this assertion, it is a tragic consequence of Virginia's failure to abide by the law. Nonetheless, it is still a consequence of the violation and not a continuing wrong. Although this Court is...