Earle v. District of Columbia , 707 F.3d 299 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2012 Decided December 28, 2012
No. 11-7078
VERNON NORMAN EARLE,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
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.
2
KAREN LECRAFT HENDERSON, Circuit Judge: 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.
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
VCCR. 21 U.S.T. at 326. The United States withdrew from
3
the Optional Protocol in 2005. Sanchez-Llamas, 548 U.S. at
368.
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
1
Article 36 states in its entirety:
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
4
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.
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.
5
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 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
2
In addition to the disclosure obligations at issue, we assume
arguendo that Article 36(1)(b) grants two substantive rights to a
detained foreign national: the right to have his consulate informed of
his detention by “competent authorities” (right of consular
notification) and the right to have his communications forwarded to
his consulate (right of consular communication). We refer to
these rights collectively consular access rights.
3
Section 1983 applies to a violation of “rights . . . secured by the
Constitution and laws” of the United States by any person acting
under color of law “of any State or Territory or the District of
6
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. App’x 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
Columbia.” 42 U.S.C. § 1983. Earle’s action against the federal
defendants—the United States Attorney, the Immigration and
Naturalization Service and the Department of Justice—arises under
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The federal defendants are not
before us and so we treat only Earle’s section 1983 claim.
4
D.C. Code § 12-302(a)(3) provides, in pertinent part: “[W]hen
a person entitled to maintain an action is, at the time the right of
action accrues . . . (3) imprisoned . . . he or his proper representative
may bring action within the time limit after the disability is
removed.”
5
We informed the district court that it might also consider how,
if at all, Earle’s escape from prison affected tolling; when the cause
of action accrued; whether Earle needed to amend his complaint to
clarify a claim of municipal liability against the District; and,
whether Article 36 of the VCCR creates individually enforceable
rights. Earle, 298 Fed. App’x at 11.
6
He also named several other defendants in his amended
complaint but the complaint was dismissed as to those defendants for
failure to effect service. The District is the only appellee.
7
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.
II
A.
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
(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,
8
1088 (D.C. Cir. 2003)); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (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 (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
9
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 Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 269 (2004), 42 U.S.C.
§ 1988(a) adopts the applicable state statute of limitations for a
section 1983 action so long as such adoption “is not
‘inconsistent with the Constitution and laws of the United
States.’ ” Burnett v. Grattan, 468 U.S. 42, 48 (1984) (quoting
42 U.S.C. § 1988(a)). The United States Supreme Court has
determined that the appropriate statute of limitations for a
claim brought under section 1983 “is that which the State
provides for personal-injury torts.” Wallace v. Kato, 549 U.S.
384, 387 (2007). “[W]here state law provides multiple
statutes of limitations for personal injury actions, courts
considering § 1983 claims should borrow the general or
residual statute for personal injury actions.” Owens v. Okure,
488 U.S. 235, 249–50 (1989). The District has two statutes of
limitations applicable to tort claims: a one-year statute
governing enumerated intentional torts, D.C. Code
§ 12-301(4), and a three-year residual statute covering all other
tort actions. Id. § 12-301(8). We apply the three-year residual
statute of limitations to a section 1983 claim. Singletary v.
District of Columbia, 351 F.3d 519, 529 n.11 (D.C. Cir. 2003).
A federal court considering a section 1983 claim also
applies the tolling rules of the jurisdiction from which it draws
10
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. App’x 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
7
In his brief, Earle did not make clear whether his claim accrues
only when the District in fact informs him of his consular access
rights or whether it accrues when he learns of them. At oral
argument, when pressed on the issue, Earle’s able counsel indicated
11
to discharge its obligation to Earle as of the date he brought
suit, his claim had yet to accrue and his suit was therefore
timely. 8
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, 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. 9 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.
that the duty probably expired when Earle discovered his rights
although he declined to concede the point. Earle v. District of
Columbia, No. 11-7078, Oral Argument Tr. at 13 (D.C. Cir. Oct. 16,
2012).
8
The district court briefly addressed Earle’s continuing
violation argument, concluding that even under that theory, Earle’s
claim accrued, at the latest, on the date of his conviction. Earle, slip
op. at 8–9.
9
Courts do not lightly create exceptions to the general rule of
claim accrual. On the contrary, the general rule governs “[u]nless
Congress has told us otherwise in the legislation at issue.” Bay Area
Laundry, 522 U.S. at 201. Indeed, absent a “clear[] directive” from
the Congress, the general rule applies. AKM LLC dba Volks
Constructors v. Sec’y of Labor, 675 F.3d 752, 757 (D.C. Cir. 2012).
12
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
13
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.
Here, the District’s first alleged violation of Earle’s
Article 36 rights (its failure to apprise him of his consular
access rights on his arrest) was immediately actionable. The
subsequent alleged violations did not accumulate to comprise a
single, actionable violation. Earle essentially concedes the
point, arguing that “the District therefore had a continuing duty
to tell Mr. Earle about his right to contact his consulate, and
each day it failed to do so was another lost opportunity for Mr.
Earle to secure assistance.” Br. for Appellant 15. Because the
violation does not rest on the cumulative impact of the
District’s ongoing failure to inform Earle of his consular access
rights, this articulation of the doctrine does not apply.
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, 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. 627 F.2d 1370, 1379 (D.C. Cir. 1980). The Act
required a lender to make certain disclosures to a borrower
“ ‘before the credit is extended.’ ” Id. at 1374 (quoting 15
U.S.C. § 1639(b) (1976)). Although we concluded that a
violation of the Act occurred when two borrowers paid a
14
“stand-by fee” without having obtained the required
disclosures, we held the Act imposed a disclosure obligation
continuing after the payment of the stand-by fee. Id. at 1379–
80. A suit brought more than one year after the two plaintiffs
paid the stand-by fee was timely so long as it was brought
within a year of the date on which the disclosures were made.
Id. at 1379. We so held because we determined that “the
announced goals of the Act” required construing the obligation
imposed by section 1639(b) to be a continuing one. Id. at 1380;
cf. In re Bluewater Network, 234 F.3d 1305, 1312–15 (D.C.
Cir. 2000) (permitting mandamus action after expiration of
limitations period for challenging agency action because
statute imposed continuing obligation to act); In re United
Mine Workers of Am. Int’l Union, 190 F.3d 545, 548–49 (D.C.
Cir. 1999) (same).
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
15
disclosure obligation on the whole world. Rather, it imposes
the obligation on the “competent authorities of the receiving
State.” VCCR, 21 U.S.T. at 101. While it appears that no
court has interpreted the phrase, the United States Department
of State has defined “competent authorities” as
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), available at
http://travel.state.gov/pdf/cna/CNA_Manual_3d_Edition.pdf
(NOTIFICATION AND ACCESS). 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
16
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
10
We are further convinced that, even if the District
subsequently became the “competent authorit[y]” at some point after
Earle’s recapture in 1989, Earle’s cause of action remains untimely.
As the District noted in its brief the Congress ordered the District to
close Lorton no later than December 31, 2001. National Capitol
Revitalization and Self-Government Improvement Act of 1997, Pub.
L. No. 105-33, § 11201(b), (f), 111 Stat. 251, 734. That Act
17
D.
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
directed that “the felony population sentenced pursuant to the
District of Columbia Code residing at the Lorton Correctional
Complex shall be transferred to a penal or correctional facility
operated or contracted for by the Bureau of Prisons.” Id. § 11201(b),
111 Stat. at 734. In so doing, the Congress transferred to the United
States responsibility for “custody, care, subsistence, education,
treatment and training of” all District prisoners. Id. We have
previously indicated that this transfer resulted in the District no
longer remaining a proper respondent in a habeas corpus petition
involving a Lorton prisoner whose parole was previously denied by
the District. See Crawford v. Jackson, 323 F.3d 123, 125–26 (D.C.
Cir. 2003). Moreover, we have heretofore recognized that the
District closed Lorton in 2001. See Fletcher v. Reilly, 433 F.3d 867,
873 (D.C. Cir. 2006); see also Serge F. Kovaleski, Lorton’s Final
Lockdown: Last Inmates Leave as 91-Year-Old Facility Completes a
Difficult Four-Year Closure, WASH. POST, Nov. 20, 2001, at B01.
Because we may take judicial notice of statutes, see Pine View
Gardens, Inc. v. Mut. of Omaha Ins. Co., 485 F.2d 1073, 1075 (D.C.
Cir. 1973), as well as facts of record in other proceedings, see Covad
Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir.
2005), we may conclude that Earle, a felon, was transferred to the
custody of the United States in 2001 pursuant to section 11201(b) of
the Revitalization Act. Accordingly, the District ceased to be the
“competent authorit[y]” under Article 36(1)(b) when it lost all
responsibility for Earle’s imprisonment. Nevertheless we do not
reach this issue because, as discussed earlier, Earle both failed to
allege that his recapture triggered a new continuing violation and
raises his second violation argument for the first time on appeal.
18
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.
19
To avoid this rule, Earle contends that “if a defendant has a
duty to disclose information, nondisclosure alone can trigger
the tolling.” Br. for Appellant 22. Earle points out that in two
cases—Sprint Commc’ns Co. v. FCC, 76 F.3d 1221 (D.C. Cir.
1996), and Smith v. Nixon, 606 F.2d 1183 (D.C. Cir.
1979)—we held that silence in the face of a statutory obligation
to disclose tolled the statute of limitations. Although he
correctly describes the holdings, see Sprint Commc’ns Co. 76
F.3d at 1226–27; Smith, 606 F.2d at 1190, he overlooks a
crucial distinction: in those cases, we construed federal statutes
of limitations and therefore applied federal tolling rules.
Here, we apply the District’s statute of limitations and
therefore the District’s tolling rule.
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. 2008) (“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
20
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.
11
The appellant in Cannon raised the argument for the first time
on appeal so the District Court of Appeals considered whether there
were “exceptional circumstances” permitting it to consider the
claim. Cannon, 569 A.2d at 596–97. We do not believe that the
waiver issue affects Cannon’s merits holding.