Courtney Bird v. State of Hawaii , 935 F.3d 738 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COURTNEY BIRD, No. 17-16076
Plaintiff-Appellant,
D.C. No.
v. 1:15-cv-00304-
DKW-KJM
STATE OF HAWAI‘I; DEPARTMENT OF
HUMAN SERVICES; DHS, SOCIAL
SERVICES DIVISION, CHILD OPINION
WELFARE SERVICES BRANCH;
PANKAJ BHANOT, Department of
Human Services Director; JEFFREY
R. WOODLAND; DOES,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawai‘i
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 12, 2019
Submission Vacated February 26, 2019
Resubmitted August 23, 2019
University of Hawai‘i Manoa
Filed August 23, 2019
Before: Richard C. Tallman, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
2 BIRD V. STATE OF HAWAI‘I
Per Curiam Opinion;
Concurrence by Judge Bybee
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal, on
statute of limitations grounds, of a complaint brought
pursuant to 42 U.S.C. § 1983 alleging that the Hawai‘i
Department of Human Services violated plaintiff’s right to
due process when it listed her, without notice, on the State’s
Child Protective Services Central Registry.
Plaintiff and her then-husband were placed on the State’s
Registry after their 7-week-old baby died of cardiac arrest in
2007. Bird’s husband later confessed to killing the infant and
a criminal investigation concluded that plaintiff was not a
suspect. The Department of Health Services did not,
however, remove plaintiff’s name from the Registry, nor did
it notify her that her name was listed. In 2013, plaintiff
discovered, during a background check, that her name was on
the Registry. Plaintiff’s attorney communicated with the
Department and threatened to sue when plaintiff’s name was
not removed, but did not file suit until more than two years
later.
Applying Hawai‘i’s two-year statute of limitations, the
panel held that plaintiff’s complaint was not subject to any
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BIRD V. STATE OF HAWAI‘I 3
exceptions from the normal discovery rule of accrual. The
panel held that plaintiff had knowledge of the injury giving
rise to her claim by May 2013 when she threatened to sue the
Department if she was not removed from the Registry.
Accordingly, her suit, filed in July 2015, was time-barred.
The panel rejected plaintiff’s assertion that a claim
seeking injunctive relief to invalidate an ongoing
unconstitutional statutory and regulatory scheme does not
accrue until the statute is repealed. The panel held that the
traditional interests of protecting defendants and facilitating
the administration of claims was applicable to a due process
claim and justified enforcing a limitations period through the
discovery rule of accrual. The panel further rejected
plaintiff’s claim that her complaint alleged a continuing
violation. The panel held that because the violation plaintiff
alleged was the placement of her name on the Registry
without constitutionally required due process, she had
brought only an individualized claim. As such, the
systematic branch of the continuing violations doctrine was
inapplicable, and the discovery rule of accrual applied.
Concurring in the per curiam opinion, Judge Bybee stated
that plaintiff had assuredly stated a plausible due process
claim and that the Department of Health Services should not
interpret the panel’s decision, which was based on statute of
limitations grounds, as in any way condoning the blatantly
insufficient procedures by which the Department maintains
plaintiff’s name in its Central Child Abuse Registry.
4 BIRD V. STATE OF HAWAI‘I
COUNSEL
Margery S. Bronster (argued), Robert M. Hatch, and Kelly A.
Higa, Bronster Fujichaku Robbins, Honolulu, Hawai‘i; John
Y. U. Choi, Honolulu, Hawai‘i; for Plaintiff-Appellant.
Ryan M. Akamine (argued) and Caron M. Inagaki, Deputy
Attorneys General; Department of the Attorney General,
Honolulu, Hawai‘i; for Defendants-Appellees.
OPINION
PER CURIAM:
On March 28, 2007, plaintiff-appellant Courtney Bird
returned home from a dentist appointment to find her then-
husband administering CPR to their seven-week-old baby,
who later died at the hospital of cardiac arrest. As a result of
the infant’s death, the Hawai‘i Department of Human
Services (“DHS”) listed both Bird and her husband on the
state’s Central Child Abuse Registry (“CCAR”). Bird’s
husband later confessed to killing their infant baby and the
criminal investigation concluded that Bird was not a suspect.
DHS, however, did not remove Bird’s name from the CCAR.
Throughout this time, DHS never told Bird that she was listed
on the registry.
Bird did not learn that she had been listed on the CCAR
until June 2012—more than five years later—when the report
turned up on a background check. When a request for a
hearing and various communications with DHS failed to
result in Bird’s removal from the CCAR, Bird’s attorney
threatened DHS in May 2013 with suit in federal court. Bird
BIRD V. STATE OF HAWAI‘I 5
did not file suit, however, until July 20, 2015—more than two
years after her extensive communications with DHS and
previous threat to sue. The district court determined that
Bird’s claims brought under 42 U.S.C. § 1983 were untimely
and granted summary judgment in favor of the State.
Because Bird’s complaint is not subject to any exception
from the normal discovery rule of accrual, we agree that
Bird’s claim accrued no later than May 2013, when Bird
threatened to sue DHS if she was not removed from the
CCAR. We affirm.
I. FACTS AND PROCEEDINGS BELOW
A. Statutory Background
Like most states, Hawai‘i law requires DHS to maintain
a central registry for reports of child abuse or neglect. See
Haw. Rev. Stat. § 350-2(d) (“The department shall maintain
a central registry of reported child abuse or neglect cases
. . . .”). “Central registry reports are typically used to aid
agencies in the investigation, treatment, and prevention of
child abuse cases . . . . Central registry records also are used
to screen persons who will be entrusted with the care of
children,” such as “individuals [who] apply[] to be foster or
adoptive parents or child or youth care providers.”
Establishment and Maintenance of Central Registrations for
Child Abuse or Neglect Reports at 2, Child Welfare
Information Gateway: U.S. Dep’t of Health & Human Serv.,
Children’s Bureau (2018).
At times relevant to this suit, § 350-2 further provided
that reports maintained in the central registry “shall [be]
promptly expunge[d] . . . if: (1) The department has found the
6 BIRD V. STATE OF HAWAI‘I
reports to be unsubstantiated; or (2) The petition arising from
the report has been dismissed by order of the family court
after an adjudicatory hearing on the merits.” Act of May 18,
2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60, 61–62.1
The statute stated that “a report is unsubstantiated only when
the department has found the allegations to be frivolous or to
have been made in bad faith.” Id. The statute provided, and
continues to provide, however, no procedures by which DHS
should investigate, record, or expunge reports in the CCAR.
Such procedures are left to “the department’s rules.” Haw.
Rev. Stat. § 350-2(a).
The Hawai‘i Administrative Rules require DHS to record
accused individuals in the CCAR whenever it receives a
report of serious child abuse. Haw. Admin. R. § 17-1610-18.
DHS is simultaneously required to commence an
investigation. Id. At the conclusion of its investigation, DHS
will declare the report “confirmed,” “not confirmed,” or
“unsubstantiated.” Id. § 17-1610-19(a)(1)–(3). Only a report
declared “unsubstantiated” will be expunged from the CCAR.
Id. § 17-1610-19(a)(1). In cases where the report is declared
“confirmed” or “not confirmed,” the individuals subject to the
allegations remain on the CCAR. See id. § 17-1610-19(a)(2),
(4).2 The regulations specify that DHS “shall comply with
1
Haw. Rev. Stat. § 350-2(d) was amended effective May 29, 2017,
so that “not confirmed” reports of child abuse are also expunged from the
registry. Act of May 18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws
60, 61–62.
2
We note that while the Hawai‘i statute governing the CCAR has
been amended to expunge “not confirmed” reports of child abuse, the
regulations have not kept pace and still require that “not confirmed”
reports of child abuse remain on the registry. See Haw. Admin. R. § 17-
1610–19.
BIRD V. STATE OF HAWAI‘I 7
requests from other states to check its central registry for the
purpose of conducting background checks in foster or
adoptive placement cases.” Id. § 17-1610-19(a)(5).
Once DHS has completed its investigation and
determined that an accused individual should remain on the
CCAR, state regulations require DHS to give written notice
to the “identified perpetrator or maltreater.” Id. § 17-1610-
11(c). Anyone “dissatisfied with the disposition of the
department’s assessment or action taken by the department”
has two routes for challenging his or her inclusion in the
CCAR. Id. § 17-1610-12(b). First, if DHS has not yet
commenced any proceeding against the listed individual in
family court, he or she may file an administrative appeal. Id.
At the appeal, however, the listed individual remains subject
to the requirements for expungement laid out in Hawai‘i
Revised Statutes § 350-2, which at all relevant times in this
case required the listed individual to prove that the report was
“unsubstantiated,” in other words, that it was “frivolous or . . .
made in bad faith.” Act of May 18, 2017, sec. 3, § 350-2(d),
2017 Haw. Sess. Laws 60, 61–62. If the listed individual was
unable to meet this exacting standard, he or she remained on
the registry.
Alternatively, if DHS has petitioned the family court for
custody of the listed individual’s child(ren), the listed
individual is not permitted to seek administrative review.
Haw. Admin. R. § 17-1610-12(c). Instead, the listed
individual’s exclusive means by which to expunge his or her
listing in the CCAR is to prevail at an adjudicatory hearing
before the family court. Haw. Rev. Stat. § 350-2(d)(2). At
the adjudicatory hearing, the family court will determine
“[w]hether the child’s physical or psychological health or
welfare has been harmed or is subject to threatened harm by
8 BIRD V. STATE OF HAWAI‘I
the acts or omissions of the [listed individual].” Haw. Rev.
Stat. § 587A-28(d)(1). Significantly, if DHS returns custody
of the child and settles the family court proceeding before it
reaches the adjudicatory phase, the statutory scheme leaves
listed individuals who are wrongfully listed in the CCAR
with no recourse for expunging their names. See id.
B. Factual Background
In 2003, Bird married Frank Fontana and two years later
gave birth to a daughter, T.F. Fontana, who worked for the
Navy, was subsequently transferred to Hawai‘i. Bird and
their daughter accompanied him to Hawai‘i to live in base
housing.
Shortly after their arrival, in February 2007, Bird gave
birth to a second daughter, C.F. Over the next six weeks,
between early February and March 20, C.F. was examined by
over thirty healthcare personnel in multiple well-child checks,
and as she was treated for jaundice, wheezing, apnea induced
by acid reflux, and a fever. Over the course of this treatment,
C.F. underwent two chest x-rays, neither of which showed
any injuries. None of the doctors and nurses that treated C.F.
ever noted any signs of abuse or neglect.
On March 28, Bird returned home from a dentist
appointment to find Fontana administering CPR to C.F. C.F.
was transported by ambulance to Tripler Army Medical
Center, where she died of cardiac arrest. The doctors and
nurses who examined C.F. noted multiple bruises on her
body, evidence of a fractured rib, and evidence of possible
fractures in her femurs. As a result, an emergency
department nurse at the hospital called the Child Welfare
BIRD V. STATE OF HAWAI‘I 9
Services branch (“CWS”) of DHS to report a case of possible
child abuse.
In accordance with its regulations, DHS listed both Bird
and Fontana on the CCAR and initiated an investigation. On
April 2, an investigative multidisciplinary team concluded
that C.F.’s death was likely due to child maltreatment, and
recommended that DHS seek custody of Bird and Fontana’s
remaining daughter, T.F. On the basis of this report, CWS
concluded on April 5 that the alleged physical abuse of C.F.
by her parents, Fontana and Bird, was “confirmed.” DHS
then filed a Petition for Foster Custody of their remaining
daughter, T.F., with the family court. DHS, however, failed
to give Bird notice that she was now listed on the CCAR as
a “perpetrator or maltreater.”
At the same time, Naval Criminal Investigative Services
(“NCIS”) initiated an investigation into the death of C.F. In
July 2007, Fontana “confessed [to Navy investigators] to
harming [C.F.] with actions that caused [her] death.” Fontana
was charged with first degree murder and subsequently pled
guilty to the crime. In November 2007, NCIS reported to
DHS that “[Bird was] not a suspect” in their on-going
investigation. Nevertheless, because DHS did not conclude
that its initial assessment was “frivolous or in bad faith,”
DHS took no action and Bird remained on the CCAR as a
“confirmed” child abuser.
Meanwhile, Bird was still engaged with the family court
in an attempt to regain custody of T.F. “After months of
home checks, supervised visits, and evaluations by various
medical and social work professionals,” Bird was granted
physical custody of T.F. in November 2007. In December,
the family court authorized Bird to leave Hawai‘i with T.F.
10 BIRD V. STATE OF HAWAI‘I
and return to Tennessee where she could live with her father
on the condition “that Tennessee DHS approves the . . .
placement, and Tennessee DHS puts in writing that services
for [Bird] and [T.F.] will be in place when mother and
daughter arrive in Tennessee, and both are received by the
Court.” In June 2008, the Hawai‘i family court terminated its
jurisdiction and revoked the prior order of family supervision.
Although the family court entered no findings with respect to
Bird’s alleged mistreatment of C.F., it found that “[T.F.’s]
family can provide a safe family home without the assistance
of a service plan.”
Bird alleges that throughout these events, she was never
given notice, written or otherwise, of her listing on the CCAR
and that she “did not have any knowledge that a child abuse
registry even existed.” Without that notice, Bird believed that
an adjudicatory trial before the family court concerned only
her custody of her surviving daughter, T.F. She did not know
that obtaining a finding or ruling from the family court would
be the only way for her to get her name removed from a
registry she did not know existed. Bird had rejected an
adjudicatory trial before the family court, opting instead to
work with DHS to drop the case. Bird contends that without
notice, she did not know “that failure to adjudicate [her]
claim through the Family Court would result in [her] being on
a list of confirmed child abusers for the rest of [her] life.”
After returning to Tennessee, Bird eventually remarried.
Bird and her new husband decided that they wanted to adopt
a child from Africa, “[p]referably . . . an older child who was
HIV positive so that [they] could provide him or her with the
kind of medical and family care that [he or she was] lacking.”
During the adoption process, the adoption agency conducted
background checks with each of the states where Bird had
BIRD V. STATE OF HAWAI‘I 11
previously lived, and discovered in June 2012 that she was
listed on Hawai‘i’s Central Child Abuse Registry. This report
rendered Bird ineligible to adopt.
Bird contacted DHS in June 2012 and requested an
administrative hearing before the agency.3 DHS initially
refused to give Bird a hearing, explaining that jurisdiction had
been turned over to the family court five years prior in
connection with the custody dispute over T.F. After further
correspondence with Bird and her attorney, DHS offered Bird
an administrative hearing limited to determining “whether
DHS properly confirmed (i) abuse of a minor and (ii) threat
of abuse of a minor.” Bird rejected this hearing, deeming the
evidentiary standard impossible to meet. In a letter dated
May 14, 2013, Bird’s attorney indicated to DHS that Bird
would “proceed with litigation” if she was not removed from
the registry.
C. Procedural Background
In July 2015, Bird filed a complaint in the First Circuit
Court, State of Hawai‘i, seeking both injunctive and
monetary relief against the State of Hawai’i, DHS and various
state officials, in both their official and individual capacities.
She alleged violations of her state constitutional right to due
process and her federal constitutional rights, a claim brought
3
Bird was given official notice that she had been placed on the
registry for the first time in September 2012 when DHS mailed and
emailed her a “Notice to Perpetrator.”
12 BIRD V. STATE OF HAWAI‘I
under 42 U.S.C. § 1983.4 The defendants timely removed the
action to federal court, and sought summary judgment on the
ground that Bird’s claims fail as a matter of law. At the
hearing on the motion, the district court raised sua sponte the
issue of whether Bird’s § 1983 claim is barred by the
applicable statute of limitations. In response, Bird’s attorney
requested leave to amend the complaint.
After supplemental briefing, the district court granted the
defendants’ motion for summary judgment, finding that
Bird’s § 1983 claim was untimely. The court concluded that
a two-year statute of limitations applies to Bird’s § 1983
claim, and that her claim had accrued “at the very latest—by
May 2013, more than two years before Bird filed her July 20,
2015 Complaint.” The court rejected Bird’s argument that
her complaint was protected by the continuing violation
doctrine and denied Bird leave to amend. Having dismissed
Bird’s § 1983 claim, the court declined to exercise
supplemental jurisdiction over Bird’s remaining state law
claim, and remanded the case to state court. This appeal
followed.5
4
Bird’s complaint does not actually specify which constitutional
rights the State violated. Bird’s parallel state constitutional claim,
however, focuses on a violation of due process, and the injunctive relief
that Bird seeks under her § 1983 claim would require the State to “provide
immediate notice to all individuals who have been reported to the
Registry” and “provide procedures for previously reported individuals to
seek to correct false reports.” Thus, Bird’s claim is most aptly
characterized as a procedural due process claim.
5
We review de novo the district court’s conclusion that a claim is
barred by a statute of limitations. Avila v. Spokane Sch. Dist. 81, 852 F.3d
936, 939 (9th Cir. 2017).
BIRD V. STATE OF HAWAI‘I 13
II. DISCUSSION
Because 42 U.S.C. § 1983 does not contain its own statute
of limitations, “[a]ctions brought pursuant to 42 U.S.C.
§ 1983 are governed by the forum state’s statute of
limitations for personal injury actions.” Knox v. Davis, 260
F.3d 1009, 1012–13 (9th Cir. 2001) (citing Wilson v. Garcia,
471 U.S. 261, 276 (1985)). In Hawai‘i, the statute of
limitations for personal injury actions is two years. See Haw.
Rev. Stat. § 657-7.
Here, the parties disagree over when the statute of
limitations commenced to run. “Although state law
determines the length of the limitations period, federal law
determines when a civil rights claim accrues.” Knox, 260
F.3d at 1013 (quoting Morales v. City of Los Angeles, 214
F.3d 1151, 1153–54 (9th Cir. 2000)). Under federal law, the
“discovery rule” typically governs the accrual of § 1983
claims so that “a claim accrues when the plaintiff knows or
has reason to know of the injury which is the basis of the
action.” Id. (quoting TwoRivers v. Lewis, 174 F.3d 987, 992
(9th Cir. 1999)).
Because Bird learned in June 2012 that she had been
placed on the CCAR, requested and was denied a hearing that
fall, rejected a proffered hearing in February 2013, and then
sent a letter in May 2013 to DHS threatening to “proceed
with litigation,” the district court concluded that Bird was
aware that she had been placed on the registry, felt this
placement was unjustified, and was contemplating her legal
options “at the very latest” by May 2013.
Bird does not seriously dispute that she had knowledge of
the injury giving rise to her claims by May 2013. Instead, she
14 BIRD V. STATE OF HAWAI‘I
raises two arguments against applying the normal discovery
rule of accrual. First, Bird argues that “[w]here a plaintiff
challenges the constitutionality of a statutory or regulatory
scheme, the plaintiff’s claim does not accrue until the
offending law is repealed.” Second, Bird argues that her
complaint alleges a “continuing violation”—an exception to
the usual discovery rule of accrual. Because neither argument
prevails, we conclude that the normal discovery rule of
accrual applies. We agree with the district court’s conclusion
that Bird knew of her injury no later than May 2013, and
affirm the district court’s order dismissing Bird’s complaint
as time-barred.
A
Bird first contends that a facial challenge to an allegedly
unconstitutional statute is exempt from the traditional rules of
accrual. More specifically, Bird asserts that a claim seeking
“injunctive relief to invalidate an [ongoing] unconstitutional
statutory and regulatory scheme” does not accrue until the
statute is repealed. In essence, Bird’s proposed rule would
mean that a person who has been harmed by an allegedly
unconstitutional statute can bring suit at any time so long as
the statute remains in operation.
Bird acknowledges that “[t]he Ninth Circuit has not yet
addressed” the issue, and relies on several out-of-circuit cases
to support her position. First, Bird points to Virginia Hospital
Ass’n v. Baliles, 868 F.2d 653, 656 (4th Cir. 1989) (“VHA”),
where the plaintiffs—a nonprofit association of hospitals and
other healthcare providers—sought to enjoin the procedures
that Virginia used to determine Medicare reimbursements as
violative of the Medicaid Act, 42 U.S.C. § 1396 et seq., and
the due process clause, U.S. CONST. amend. XIV. When the
BIRD V. STATE OF HAWAI‘I 15
defendants argued that the plaintiffs’ claim was barred by the
applicable statute of limitations, the district court concluded
that “VHA had alleged an ongoing constitutional violation,
and . . . the statute [of limitations] would not have begun to
run until the violation ended.” Id. at 663. The Fourth Circuit
agreed, concluding that “[t]he continued enforcement of an
unconstitutional statute cannot be insulated by the statute of
limitations.” Id. (alteration in original). Bird highlights the
same language in Kuhnle Brothers, Inc. v. County of Geauga,
103 F.3d 516, 518, 522 (6th Cir. 1997), where the Sixth
Circuit quoted VHA’s assertion that “[t]he continued
enforcement of an unconstitutional statute cannot be insulated
by the statute of limitations” and concluded that a trucking
company’s challenge to a county resolution that banned
through traffic on certain roads was not time-barred.6
Bird’s reliance on this language in VHA and Kuhnle
exceeds the context of both cases. In both VHA and Kuhnle,
the defendants had argued that the plaintiff’s facial challenges
had accrued when the statute was enacted as opposed to when
the statute was enforced against the plaintiff. See Kuhnle,
103 F.3d at 522 (explaining that a statute “does not become
immunized from legal challenge for all time merely because
no one challenges it within two years of its enactment”);
VHA, 868 F.2d at 663 (explaining that the parties agreed that
VHA’s cause of action accrued “when Virginia enacted its
current reimbursement plan”). Faced with the unsavory
prospect of denying recovery to plaintiffs who had actually
been injured within the limitations period merely because the
statute had been enacted outside the limitations period, the
6
The Kuhnle court’s discussion relies primarily on the continuing
violations doctrine, see 103 F.3d at 520–23, and is discussed below in Part
II.B.
16 BIRD V. STATE OF HAWAI‘I
courts responded by allowing the suit to proceed. Thus, VHA
and Kuhnle did nothing more than bring the Fourth and Sixth
Circuits into alignment with our own view that a facial
challenge to a statute generally accrues when “the statute is
enforced—in other words, [when] it is applied.” Levald, Inc.
v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993).
Although the courts used broader language in reaching
their holdings, see Kuhnle, 103 F.3d at 522; VHA, 868 F.2d
at 663, we do not believe the cases stand for the broad
proposition advocated by Bird. Bird’s argument goes far
beyond the actual outcomes in both cases; here, Bird argues
that her claim did not accrue at the time of her injury, but
rather continues ad infinitum until the statute is repealed.
Although Bird frames her argument in terms of accrual, such
a position would essentially “nullify all statutes of limitations
with respect to statutory challenges.” VHA, 868 F.2d at 663.
Bird cites only one case that arguably supports such a
broad definition of accrual. In Tearpock-Martini v. Borough
of Shickshinny, 756 F.3d 232, 234 (3d Cir. 2014), the plaintiff
brought a § 1983 suit to enjoin a religious sign that the
municipality approved to be installed on public grounds near
the plaintiff’s property. While the plaintiff conceded that a
time period greater than the statutory limitations period had
elapsed since the sign was installed, she argued that her
claims were nevertheless timely under the continuing
violations doctrine. Id. at 236. The Third Circuit rejected
application of the continuing violations doctrine—a holding
discussed in greater detail in Part II.B, infra—and instead
considered whether the plaintiff’s claims were entirely
exempt from the traditional statute of limitations. Id. at
237–40. The court first concluded that a federal court should
apply the state-law statute of limitations to a § 1983 claim
BIRD V. STATE OF HAWAI‘I 17
“only if it is not ‘inconsistent with the Constitution and laws
of the United States.’” Id. at 238 (quoting Burnett v. Grattan,
468 U.S. 42, 47–48 (1984)). The court went on to “consider
the significance of the federal rights implicated by an
Establishment Clause claim” and concluded that “the
traditional rationales justifying a limitations period . . . simply
have no persuasive force in this context.” Id. at 238–39.
Even if this general exemption from the statute of
limitations is justified in the Establishment Clause context—a
question that we have not decided, see Maldonado v. Harris,
370 F.3d 945, 955–56 (9th Cir. 2004) (“[W]hether a statute of
limitations for § 1983 actions can bar a facial challenge under
the First Amendment to a state statute appears to be a
question that has not been conclusively resolved by any
Circuit court . . . but we need not resolve the . . . question
here . . . .”), and which is not before us today—such a
departure from the discovery rule of accrual is not warranted
here. The court in Tearpock-Martini expressly limited its
holding to the “federal rights implicated by an Establishment
Clause claim.” 756 F.3d at 238. Here, Bird asserts a due
process claim and the “traditional rationales justifying a
limitations period—‘to protect defendants against stale or
unduly delayed claims,’ ‘facilitat[e] the administration of
claims,’ and ‘promot[e] judicial efficiency’”—are applicable
to a due process claim. See id. at 238–39 (alterations in
original). Unlike “a still-existing monument that
communicates anew an allegedly unconstitutional
endorsement of religion by the government each time it is
viewed,” see id. at 239, a due process violation is a discrete
event for which evidence and memory will fade over time.
The traditional interests of protecting defendants and
facilitating the administration of such claims are thus
applicable to a due process claim and justify enforcing a
18 BIRD V. STATE OF HAWAI‘I
limitations period through the discovery rule of accrual.
Although enforcing the statute of limitations here will make
Bird’s alleged losses permanent, such a cost is present in
every case where a plaintiff’s claim is denied on statute of
limitations grounds and is alone insufficient to justify
departing from the normal discovery rule of accrual.
Moreover, Bird’s assertion that applying the discovery
rule of accrual to her case will forever immunize an
unconstitutional state statute is untrue. The only way for the
state to immunize itself from further suit by future plaintiffs
would be to stop enforcing its statute. As long as Hawai’i
continues to enforce its statute, it is subject to a facial
challenge by every individual it affects. Enforcing the statute
of limitations in the case of a facial challenge to an allegedly
unconstitutional statute, thus, does not render the statute
immune from challenge; it merely requires that such
challenges be brought in a timely manner. For these reasons,
we decline to adopt Bird’s proposed rule exempting claims
seeking “injunctive relief to invalidate an [ongoing]
unconstitutional statutory . . . scheme” from the discovery
rule of accrual.
B
We next consider whether Bird’s claim qualifies as a
continuing violation. The continuing violations doctrine
functions as an exception to the discovery rule of accrual
“allowing a plaintiff to seek relief for events outside of the
limitations period.” Knox, 260 F.3d at 1013. Although the
continuing violations doctrine is most frequently seen in the
context of employment discrimination suits, we have held
that the continuing violations doctrine also applies to § 1983
claims. See id. (“The continuing violation theory applies to
BIRD V. STATE OF HAWAI‘I 19
§ 1983 actions.”); Cherosky v. Henderson, 330 F.3d 1243,
1246 n.3 (9th Cir. 2003) (“[T]he Supreme Court’s analysis of
the continuing violations doctrine is not limited to Title VII
actions. It applies with equal force to . . . actions arising
under other civil rights laws.”).
“The doctrine of continuing violations . . . is actually a
conglomeration of several different ideas,” Williams v.
Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982)
(internal quotation omitted), the essence of which is that
“when a defendant’s conduct is part of a continuing practice,
an action is timely so long as the last act evidencing the
continuing practice falls within the limitations period,”
Tearpock-Martini, 756 F.3d at 236 (quoting Brenner v. Local
514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d
1283, 1295 (3d Cir. 1991)). We have recognized two
applications of the continuing violations doctrine: first, to “a
series of related acts, one or more of which falls within the
limitations period,” and second, to “the maintenance of a
discriminatory system both before and during [the
limitations] period.” Gutowsky v. County of Placer, 108 F.3d
256, 259 (9th Cir. 1997) (quoting Green v. L.A. Cty.
Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir.
1989)).
Prior to 2002, we applied the serial acts branch of the
continuing violations doctrine when the defendant committed
a series of acts directed against a single plaintiff. See Morgan
v. Nat’l R.R. Passenger Corp., 232 F.3d 1008 (9th Cir. 2000)
(“Morgan I”); Kyle Graham, The Continuing Violations
Doctrine, 43 GONZ. L. REV. 271, 304 (2008). As long as the
plaintiff could show that acts preceding the limitations period
were “sufficiently related” to acts that occurred within the
limitations period, the plaintiff could recover damages for all
20 BIRD V. STATE OF HAWAI‘I
of the related acts—even those that would otherwise be
barred by the statute of limitations. See Morgan I, 232 F.3d
at 1016. In 2002, however, the Supreme Court reversed our
decision in Morgan I and limited the serial acts branch of the
continuing violations doctrine. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114 (2002) (“Morgan II”). The
Court held that “discrete . . . acts are not actionable if time
barred, even when they are related to acts alleged in timely
filed charges” because “[e]ach discrete . . . act starts a new
clock for filing charges alleging that act.” Id. at 113.7
Although Morgan II applied Title VII of the Civil Rights
Act of 1964, we have relied on Morgan II to abrogate the
serial acts branch of the continuing violations doctrine for
§ 1983 claims as well. See Carpinteria Valley Farms, Ltd. v.
County of Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003)
(“Although Morgan was a Title VII case . . . we have applied
Morgan to bar § 1983 claims predicated on discrete time-
barred acts, not-withstanding that those acts are related to
timely-filed claims.”); Cherosky, 330 F.3d at 1246 n.3
(concluding that the Supreme Court’s holding in Morgan II
“applies with equal force . . . to actions arising under other
civil rights laws”).
Unlike the serial acts branch, the systematic branch does
not require the plaintiff to allege specific acts that occurred
within the statute of limitations period. Originally, the
systematic branch allowed the plaintiff to recover for acts that
occurred prior to the limitations period as long as (1) those
7
The Court carved out one exception for hostile work environment
claims, because “[s]uch claims are based on the cumulative effect of
individual acts” that “cannot be said to occur on any particular day.”
Morgan II, 536 U.S. at 115–17.
BIRD V. STATE OF HAWAI‘I 21
acts were conducted pursuant to a policy or practice that
remained in effect within the statute of limitations period and
(2) the plaintiff remained subject or susceptible to the policy
within the limitations period. See Gutowsky, 108 F.3d at 260(applying the systematic branch of the continuing violations
doctrine where the plaintiff’s “specific examples” of
discrimination occurred prior to the limitations period, but
where the “widespread policy and practices of discrimination
of which [the plaintiff] complain[ed] continued every day of
her employment, including days that fall within the limitation
period”); Graham, 43 GONZ. L. REV. at 303–04. The theory
behind the systematic branch was that every day the plaintiff
was subject to the policy or practice “constituted a new
violation” sufficient to extend the statute of limitations
period. See Reed v. Lockheed Aircraft Corp., 613 F.2d 757,
759–60 (9th Cir. 1980) (“[E]ach day without promotion
constituted a new violation of Title VII . . . .”).
Although the Supreme Court in Morgan II addressed only
the serial acts branch of the continuing violations doctrine,
see 536 U.S. at 115 & n.9, we have applied Morgan II to
abrogate the systematic branch of the continuing violations
doctrine as well. For example, in Lyons v. England, 307 F.3d
1092, 1107 (9th Cir. 2002), we reasoned from Morgan II that
a plaintiff’s “assertion that [a] series of discrete acts flows
from a company-wide, or systematic, discriminatory practice
will not succeed in establishing the employer’s liability for
acts occurring outside the limitations period.” Similarly, in
Cherosky, the plaintiffs sought to avoid Morgan II’s
unfavorable holding by arguing under the systematic branch
of the continuing violations doctrine; the plaintiffs contended
that they could still recover damages for acts of employment
discrimination that had occurred prior to the statute of
limitations period as long as those acts had been conducted
22 BIRD V. STATE OF HAWAI‘I
pursuant to a discriminatory company policy. 330 F.3d at
1246. We rejected that argument, concluding instead that
“[t]he allegation that . . . discrete acts were undertaken
pursuant to a discriminatory policy does not extend the
statutory limitations period.” 330 F.3d at 1247.
Thus, after Morgan II, little remains of the continuing
violations doctrine. Except for a limited exception for hostile
work environment claims—not at issue here—the serial acts
branch is virtually non-existent. Moreover, while we have
left room for the systematic branch to apply to class-wide
pattern-or-practice claims, see Lyons, 307 F.3d at 1107 n.8
(emphasizing that its holding did not “suggest that after
Morgan the same plaintiff would be precluded from bringing
a class-wide pattern-or-practice claim”), we have consistently
refused to apply the systematic branch to rescue
individualized claims that are otherwise time-barred.
In this light, the district court’s conclusion that Bird is
time-barred from seeking damages for her placement on the
CCAR in 2007 is correct. Because “the violation Bird alleges
is the placement of her name on the Registry without
constitutionally required due process,” she has brought only
an individualized claim.8 As such, the systematic branch of
the continuing violations doctrine is inapplicable here, and
the discovery rule of accrual applies.
Bird raises several arguments to the contrary. First, she
likens her case to that of Kuhnle, where the Seventh Circuit
8
Bird did style her complaint as a class action, but “there has been no
class certification granted, or even sought” and “the parties have identified
no potential class member plaintiffs.” At oral argument, Bird’s counsel
conceded that Bird had not pursued her class action claim.
BIRD V. STATE OF HAWAI‘I 23
held that a county resolution which barred the plaintiff from
using certain roads for truck travel “deprived [the plaintiff] of
liberty interests . . . created by a fundamental constitutional
right to intrastate travel . . . every day that it remained in
effect” and thus constituted a continuing violation. 103 F.3d
at 521–22. Bird argues that “[s]imilar to the plaintiff in
Kuhnle . . . [her] § 1983 claim arises from a continued
deprivation of liberty interests caused by an unconstitutional
rule or statute.” This argument is, in essence, an attempt to
recast Bird’s claim as a substantive due process claim for
deprivation of liberty interests in working with and adopting
children.
Bird’s case, however, is distinguishable from that of
Kuhnle. In Kuhnle, the resolution directly forbade the
plaintiff from driving on certain roads, thereby depriving him
every day of his “fundamental constitutional right to
intrastate travel.” 103 F.3d at 521. By comparison, the
deprivation of liberty that Bird continues to suffer is best
understood as the “continuing impact from [a] past
violation[].” Williams, 665 F.2d at 924 (quoting Reed,
613 F.2d at 760); see Del. State Coll. v. Ricks, 449 U.S. 250,
252–54, 258 (1980) (holding that a professor’s eventual
termination was merely the continuing effect of the original
decision to deny tenure and not a new violation); Knox,
260 F.3d at 1013 (holding that repeated denials of prison
visitation rights did not constitute a continuing due process
violation because each of the subsequent denials merely
implemented the original suspension and did not represent an
independent violation). Although Bird’s injuries resulting
from the 2007 act of placing her on the CCAR continue to the
present day, continuing effect is insufficient to constitute a
continuing violation. See Williams, 665 F.2d at 924
24 BIRD V. STATE OF HAWAI‘I
(“[C]ontinuing impact from past violations is not actionable.”
(quoting Reed, 613 F.2d at 670)).
Second, Bird argues that her claim is not confined to the
denial of pre-deprivation process; rather, Bird believes that
the continual lack of a post-deprivation process by which she
can challenge her placement on the CCAR constitutes an
ongoing deprivation of due process. Bird is unable to
identify, however, any specific instance within the limitations
period where she sought and was denied post-deprivation
process. See Pouncil v. Tilton, 704 F.3d 568, 581 (9th Cir.
2012) (holding that constitutional and statutory claims for
religious discrimination were not barred by the statute of
limitations where the defendant allegedly committed an
independently wrongful, discrete act within the limitations
period, even if the discrete act was related to a preexisting
policy of which the plaintiff was aware and subject to outside
the limitations period). The only instance Bird has identified
where she sought and was denied a post-deprivation hearing
occurred prior to May 2013.
***
Because Bird has alleged only individualized claims for
deprivation of procedural due process, the normal discovery
rule of accrual applies. Based on the correspondence between
Bird and DHS, we agree with the district court that Bird had
knowledge of the injury giving rise to her claims by May
2013. Accordingly, her suit, filed in July 2015, was outside
the two-year statute of limitations. Because “the complaint
would not [have been] saved by any amendment,” Carvalho
v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir.
2010) (quoting Leadsinger, Inc. v. BMG Music Publ’g,
BIRD V. STATE OF HAWAI‘I 25
512 F.3d 522, 532 (9th Cir. 2008)), the district court did not
err in denying Bird leave to amend.
III. CONCLUSION
We AFFIRM the judgment of the district court.
BYBEE, Circuit Judge, concurring:
I fully concur in the per curiam opinion of the court that
Ms. Bird’s complaint is barred by the applicable statute of
limitations. I regret that result, however, and write separately
because I fear that a great injustice may have been done. Ms.
Bird alleges that the State of Hawai‘i has violated her
Fourteenth Amendment right to procedural due process when,
without giving her notice and an opportunity for a hearing,
the state placed her on its Central Child Abuse Registry
(“CCAR”). Were we permitted to reach the merits of her
argument, Ms. Bird has assuredly stated a plausible due
process claim. Regrettably, if Ms. Bird was erroneously
listed on the CCAR, she may suffer the effects of the state’s
error for the remainder of her life.
We analyze procedural due process claims in two familiar
steps: we first ask “whether there exists a liberty or property
interest which has been interfered with by the State.” Ky.
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). We
then ask “whether the procedures attendant upon that
deprivation were constitutionally sufficient.” Id.Unfortunately, this is not a case of first impression. We
previously addressed the adequacy of state procedures for
26 BIRD V. STATE OF HAWAI‘I
listing and maintaining names on child abuse registries in
Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir.
2009), overruled on other grounds by Los Angeles County v.
Humphries, 562 U.S. 29 (2010). There, we addressed a
challenge to California’s Child Abuse Central Index
(“CACI”) and held at step one of the due process inquiry that
an individual’s liberty interest has been “interfered with by
the State” where “a state statute creates both a stigma and a
tangible burden on an individual’s ability to obtain a right or
status recognized by state law.” 554 F.3d at 1185, 1188. We
recognized that “being labeled a child abuser by being placed
on [a child abuse registry] is ‘unquestionably stigmatizing.’”
Id. at 1186. Moreover, “a tangible burden . . . exists where
the plaintiff can show that, as a practical matter, the law
creates a framework under which agencies reflexively check
the stigmatizing listing—whether by internal regulation or
custom—prior to conferring a legal right or benefit.” Id. at
1188. In this case, there is no question that by listing Ms.
Bird on its CCAR—irrespective of whether she is
“confirmed” or “not confirmed”—Hawai‘i has placed a
stigmatizing label on Ms. Bird. Indeed, there is perhaps no
name more deserving of our opprobrium than to be called a
child abuser—or, as Hawai‘i euphemistically refers to them:
a “perpetrator” or “maltreater.” Haw. Admin. R. § 17-1610-
11(c).
There are real consequences for those who find
themselves on a state registry. State-created child abuse
registries form an organic network of accusations from which
consequences flow: those listed may be denied the privilege
of teaching or working with children, adopting, fostering, and
coaching youth sports or other activities. See Wright v.
O’Day, 706 F.3d 769, 771 (6th Cir. 2013) (describing how
Tennessee law prohibits people listed on the state’s child
BIRD V. STATE OF HAWAI‘I 27
abuse registry from working in child-care agencies, child-care
programs, and adult-daycare centers); Humphries, 554 F.3d
at 1177–78 (describing consequences of being listed on
California’s CACI); Behrens v. Regier, 422 F.3d 1255, 1257
(11th Cir. 2005) (describing how plaintiff was unable to adopt
another child after inaccurate listing on Florida’s child abuse
registry); Dupuy v. Samuels, 397 F.3d 493, 497–98 (7th Cir.
2005) (describing how Illinois law requires licensed facilities
in childcare to check the state’s child abuse registry).
When a state places legal disabilities on its citizens, we
ask “whether the procedures attendant upon that deprivation
were constitutionally sufficient.” See Thompson, 490 U.S. at
460. The answer here is a resounding “NO.” Hawai‘i offers
little process—pre-listing or post-listing—for persons it lists
on its CCAR. In the same provision that creates the CCAR,
Hawai‘i requires DHS to notify police and prosecutors of any
reports DHS receives. Haw. Rev. Stat. § 350-2(a), (b).
Although nothing in the statute requires DHS to notify the
individual who has been branded a perpetrator or maltreater,
DHS’s regulations require it to give notice of the listing and
the right to an administrative appeal. Haw. Admin. R. § 17-
1610-11(c). In this case, however, DHS did not follow its
regulations; Ms. Bird received no notice. She had no way of
knowing that she was on the registry until years later, after
her ex-husband had been convicted of killing their daughter,
Hawai‘i family court restored her older daughter to her
custody, she had left Hawai‘i for her family’s home in
Tennessee, she remarried, and she and her new husband
sough to adopt a special-needs child from a third-world
country. By the time Ms. Bird learned that she was on
Hawai‘i’s CCAR, the damage had been done. She was
disqualified by Tennessee from adoption (and probably many
other things she hadn’t figured out yet), and her only recourse
28 BIRD V. STATE OF HAWAI‘I
was to go back to Hawai‘i five years after the incident and try
to persuade an agency that didn’t want to deal with her to
give her a hearing. In the end, DHS begrudgingly offered her
“an administrative hearing for the sole purpose of deciding
whether DHS properly confirmed (i) abuse of a minor and
(ii) threat of abuse of a minor.”
We have seen this bad movie before. In Humphries, we
concluded that California’s procedures for listing and
maintaining individuals on the CACI were constitutionally
deficient because they created a high likelihood that innocent
names would remain on the registry. We first emphasized
that the statutory standard for inclusion on the CACI was “a
very low threshold” that created a high likelihood of “false
positives.” 554 F.3d at 1195. We observed that California
law essentially “reverse[d] . . . the presumption of innocence
in our criminal justice system: the accused [was] presumed to
be a child abuser and listed [on the registry] unless the
investigator [affirmatively] determine[d] that the report [was]
false, improbable, or accidental.” Id. The danger of an
erroneous listing was further compounded by the lack of any
statutory procedure by which an individual could challenge
his or her inclusion on the CACI. Id. at 1195–1200. Rather
than decide for ourselves what procedures California should
adopt, we ordered California to “provide ‘some kind of
hearing’ by which [an accused individual] can challenge his
inclusion.” Id. at 1201.
Hawai‘i’s procedures for creating and maintaining its
registry perpetuate some of the same problems we identified
in Humphries. First, Hawai‘i regulations require that even
“not confirmed” reports of child abuse be listed on the
CCAR, thereby creating a high likelihood of “false positives.”
BIRD V. STATE OF HAWAI‘I 29
Haw. Admin. R. § 17-1610-19(a)(1)(A).1 The danger of
erroneous listings in the CCAR is magnified by inadequate
procedures by which an individual can challenge his or her
inclusion in the CCAR. Unlike the statutory scheme at issue
in Humphries, Hawai‘i regulations do require notice and do
allow for administrative review of CCAR listings in some
circumstances. At least one of the two means for review
occurs on DHS’s initiative and can be terminated on DHS’s
initiative. See Haw. Rev. Stat. § 350-2(d)(1). If DHS
petitions for a separate family court proceeding in which it
claims custody of the listed individual’s child, the listed
individual is not permitted to seek administrative review of
his or her registry listing. See Haw. Admin. R. § 17-1610-12.
Instead, the listed individual must prevail at an adjudicatory
hearing before the family court can expunge the report. Haw.
Rev. Stat. § 350-2(d)(2).
At first blush, this statutory scheme appears more
protective than the scheme at issue in Humphries, where
listed individuals were offered neither administrative review
nor a court hearing capable of expunging the listing. Ms.
Bird’s unfortunate situation, however, highlights a glaring
hole in Hawai‘i’s regulations: In cases where DHS chooses
to return a child to his or her parents rather than pursue the
family court proceeding to the adjudicatory phase, listed
individuals are denied access to both an administrative
hearing and a court adjudication. See Haw. Rev. Stat. § 350-
1
I recognize that on May 29, 2017, the statute governing listings on
the Registry, Haw. Rev. Stat. § 350-2(d), was amended so that “not
confirmed” reports of child abuse may be expunged from the CCAR. See
2017 Haw. Laws Act 16 (H.B. 1099) (May 18, 2017). As our per curiam
opinion notes, the regulations governing listings in the CCAR, however,
still require that “not confirmed” reports remain on the CCAR. Haw.
Admin. R. § 17-1610-19; see Panel Op. at 6 n.2.
30 BIRD V. STATE OF HAWAI‘I
2(d); Haw. Admin. R. § 17-1610-12(c). In other words, under
Hawai‘i procedures, DHS can both return a child to the
parents and keep the parent’s names on the CCAR. In that
circumstance, the only way the parent can get a hearing on
the CCAR listing is to decline the opportunity to get the child
back and pursue litigation in the family court to a full
adjudication. This makes no sense. The parents who settle
with DHS and thus forego adjudication get their child back,
but may be barred forever from teaching school or coaching
Little League. See, e.g., Humphries, 554 F.3d at 1183 & n.9.
Persons such as Ms. Bird have no recourse for expunging
their names from the CCAR, except to file a civil rights
action under 42 U.S.C. § 1983.
The state suggests that the hole in its regulations, by
which certain individuals are offered neither administrative
review nor a court adjudication, is immaterial because parents
who are listed on the CCAR should know better than to
regain custody of their children from DHS without enduring
a court adjudication. According to the State, the onus lies on
the parents to insist that the district court proceed to an
adjudication where it would otherwise be unnecessary.
The flaw in the state’s procedures is compounded in this
case by the fact that it never told Ms. Bird she was listed on
the CCAR. The state’s position that it was, nevertheless, Ms.
Bird’s burden to insist on an adjudication is just astounding.
Even worse, the State argues that the lack of notice in this
case is also immaterial because Ms. Bird was represented by
counsel in the dependency proceeding before the family court
and thus should have “just known” that she was listed on the
CCAR and that the only way for her to get off was to insist on
proceeding to an adjudicatory hearing in spite of the fact that
BIRD V. STATE OF HAWAI‘I 31
DHS had effectively mooted the family court proceeding by
agreeing that Bird’s daughter could be safely returned home.
I don’t understand how the State of Hawai‘i can maintain
such arguments with a straight face. Ms. Bird was plainly
denied due process of law. And, if the facts are as she alleges
them, not only was she denied notice and an opportunity to
contest her placement on the CCAR, she was erroneously
listed in the first place. The state has twice wronged her:
first, by listing her at all; second, by denying her an
opportunity to prove that she didn’t deserve to be blacklisted.
Hawai‘i prevails here only because of a statute of
limitations. Statutes of limitations are important to the search
for truth. They “‘promote justice by preventing surprises
through [plaintiffs’] revival of claims that have been allowed
to slumber until evidence has been lost, memories have faded,
and witnesses have disappeared.’” CTS Corp. v. Waldburger,
573 U.S. 1, 8 (2014) (alteration in original) (quoting R.R.
Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342,
348–49 (1944)). The state gets the benefit of that rule today,
because Ms. Bird filed her suit just outside the two-year
statute of limitations. The irony is that while Ms. Bird filed
her suit just two months late, she didn’t even learn of the
CCAR—and her cause of action—until five years after the
state listed her. Hawai‘i will not be compelled by law—at
least not by us—to give Ms. Bird an opportunity to show she
doesn’t deserve to be on its CCAR, but it can always choose
to do the right thing voluntarily. In any event, DHS should
not interpret our decision today as in any way condoning the
blatantly insufficient procedures by which it maintains Ms.
Bird’s name in its Central Child Abuse Registry.