Courtney Bird v. State of Hawaii

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.