Does Detention for Immigration Violation Toll Libel Statute of Limitations?

In response to the anti-SLAPP motion filed by The Atlantic and its correspondent, George Boley has filed his opposition brief and the defendants, in turn, have filed their reply brief.  The briefs are relatively routine for this type of libel case, with Boley arguing that:

  • he has adequately plead facts showing actual malice (and the defendants arguing that he has not);
  • defendants are not entitled to the fair report privilege because some of the challenged statements were not based on official records (while they argue they were all based on court filings or official reports);
  • the reports on which the story was based were wrong, have never been challenged in court and have been disputed by numerous other Liberian government officials (while the defendants argue this is irrelevant under the fair report privilege).

The much more interesting issue, as least for a libel geek like me, is the parties’ disagreement over whether the suit was timely filed.  The defendants have argued that, because the allegedly defamatory articles were published in January and February 2010, and Boley’s suit was not filed until January 2013, it was not timely filed under DC’s one-year statute of limitations.  In response, Boley argues that the statute was tolled while he was detained for alleged immigration violations.

Under D.C. Code § 12-302(a)(3), “when a person entitled to maintain an action is, at the time the right of action accrues . . . imprisoned . . . he or his proper representative may bring action within the time limited after the disability is removed.”  Thus, in Von Kahl v. Bureau of Nat. Affairs, Inc., the court rejected the defendant’s argument that a libel claim was time barred because “the limitations period is tolled since plaintiff has been continuously incarcerated since the claims arose.”

In both its opening and reply briefs, the defendants argued that no DC court has held that “imprisoned” extends to immigration detentions.  They cited Cannon v. District of Columbia, where the DC Court of Appeals (the highest court in DC) held that parole was not “imprisonment” within meaning of D.C. Code § 12-302(a)(3) and that, “in order for the complaining party to toll the running of the statute of limitations on the ground of disability by reason of imprisonment, such party must be in prison.”

The defendants also argued that Boley litigated two cases while he was in civil immigration detention so that, even if his detention constituted “imprisonment” within meaning of the statute, he was certainly able to timely file his suit.  On this point, the Cannon court pertinently stated that it was “not persuaded that appellant in this case had ‘real disabilities’ from litigating while on parole, so as to toll the statute of limitations, given the fact that during the service of his first sentence in prison he was vigorously litigating in this jurisdiction, and after he was re-imprisoned under his second sentence he then filed this action.”

On the other hand, in Brown v. Jonz, which was not cited by either party, the same court held that “[a]lthough ‘imprisoned’ under D.C. Code § 12-302(a)(3) is not defined in the statute, the plain and ordinary meaning of this term is broad enough to encompass pretrial detention and other forms of confinement.”  While the defendant there argued that the statute should not be tolled because the plaintiff was able to litigate cases while incarcerated, the court rejected this argument:

[w]e are similarly unpersuaded by Jonz’s policy argument that the disability provision of D.C. Code § 12-302(a)(3) is inapplicable to Brown because he pursued his right to appeal his criminal conviction while in prison.  The fact that Brown was able to pursue the appeal of his criminal conviction while imprisoned does not establish the satisfaction of the purposes underlying the application of such a tolling provision.  The only condition for applying the tolling provision is that a person must be imprisoned when the cause of action accrues.

Ultimately the outcome of this narrow issue may be irrelevant because the defendants have moved to dismiss the complaint for several other reasons.  However, it will be interesting to see if the court rules on this issue.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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