Jane Doe v. Richard L. Swearingen

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10644

____________________

JANE DOE,

As Next Friend on Behalf of John Doe #6,

JOHN DOE, 7,

JOHN DOE 1,

Plaintiffs-Appellants,

JOHN DOE 2, et al.,

Plaintiffs,

versus

RICHARD L. SWEARINGEN,

Defendant-Appellee.

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2 Opinion of the Court 21-10644

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cv-24145-KMW

____________________

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,

Circuit Judges.

BRASHER, Circuit Judge:

The Commissioner of the Florida Department of Law En-

forcement maintains a sex-offender registry that lists identifying in-

formation about registrants. The Commissioner obtains this infor-

mation directly from the registrant either when he registers, which

he must do in person at least twice a year, or when any of his reg-

istration information changes, which triggers an in-person report

that must take place within forty-eight hours. The plaintiffs here,

whose offenses predate the registry, have been subject to this re-

porting structure since the registry law was enacted in 1997.

Over the past twenty-five years, however, the Florida legis-

lature amended the registry law more than a dozen times. The in-

formation collected by the Commissioner now ranges from basic

identifying information like a registrant’s permanent address to de-

tails like the license tag number of his roommate’s car. Any change

to this information triggers a registrant’s duty to report, and failure

to comply is a third-degree felony.

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21-10644 Opinion of the Court 3

The plaintiffs allege that the reporting requirement became

intolerable in 2018, when Florida again amended the registry law.

Registrants are now required to report any absence from their per-

manent residence, for any reason, that lasts more than three days.

And the Florida legislature imposed a new mandatory-minimum

term of supervision for violations of the registry law. The plaintiffs

sued the Commissioner of the Florida Department of Law Enforce-

ment in his official capacity, contending that the registry law’s pre-

viously manageable burdens were rendered unconstitutional by

the 2018 amendments.

The constitutionality of the registry law is not before us—

we must determine whether the plaintiffs’ claims are timely. The

plaintiffs sued to remedy various injuries, some caused by the 2018

amendments and some arising from other provisions that have

been on the books for several years. The district court dismissed

the plaintiffs’ claims, agreeing with the Commissioner that the

plaintiffs’ injuries stem from one-time acts: the enactment of each

provision that allegedly injures them. Therefore, under the appli-

cable statute of limitations, they were required to sue within four

years of the date that each provision that imposed the challenged

burdens was enacted.

We disagree. Although the plaintiffs’ injuries undoubtedly

originated when the challenged provisions permitted the Commis-

sioner to first injure them, the district court failed to consider

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4 Opinion of the Court 21-10644

whether the plaintiffs, who are subject to the registration require-

ments day after day, were continually injured by the requirements

within the statutory period. Examining each of the plaintiffs’ al-

leged injuries and claims individually, we conclude that the follow-

ing claims are timely or satisfy the continuing violation doctrine:

Count I, Count III(A), Count III(B), Count IV(A), Count IV(B),

Count IV(C) and Count V. Conversely, we conclude that Count II

and Count IV(D) are barred by the statute of limitations. Accord-

ingly, we affirm in part, reverse in part, and remand for proceed-

ings consistent with this opinion.

I.

A.

Florida first enacted its registry law as part of the 1997 Public

Safety Information Act. See 1997 Fla. Laws Ch. 97-299, § 8, codified

at Fla. Stat. § 943.0435 (1997). It initially contained two require-

ments for persons who commit qualifying offenses: a one-time reg-

istration obligation and an ongoing obligation to report changes in

residency. Id. § 943.0435(2)–(3) (1997). Satisfying these obligations

required an offender to report in person within forty-eight hours of

the obligation being triggered. See id. A residency was defined as

either permanent or temporary, with the latter including any place

where an offender resided for two consecutive weeks or less, ex-

cluding “vacation or an emergency or special circumstance” that

required the offender to change residence for some time. Id.

§ 943.0435(2) (1997). Non-compliance with the registry provisions

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was punishable as a third-degree felony. Id. § 943.0435(6) (1997). In

the same legislation, Florida permitted public access to registry in-

formation through a toll-free number. See 1997 Fla. Laws Ch. 97-

299, § 7, codified at Fla. Stat. § 943.043 (1997).

Over the next twenty years, these provisions were amended

over a dozen times, resulting in a more expansive regulatory re-

gime. Registration became a lifetime obligation, see 1998 Fla. Laws

Ch. 98-81, § 7, codified at Fla. Stat. § 943.0435(11) (1998), with re-

moval a possibility for only some offenders and, even then, only

after twenty-five years, see 2007 Fla. Laws Ch. 2007-209, § 2, codi-

fied at Fla. Stat. § 943.0435(11)(a)(1) (2007). Violations of the regis-

try law are still a third-degree felony, but a registrant is limited to

asserting a defense of lack of notice one time; that defense is una-

vailable in future prosecutions. See 2004 Fla. Laws Ch. 2004-371,

§ 2, codified at Fla. Stat. § 943.0435(9)(c)–(d) (2004). The informa-

tional burdens have also expanded significantly—a registrant is

now required to disclose virtually all personal information to the

Commissioner. See, e.g., 2014 Fla. Laws Ch. 2014-5, § 5, codified at

Fla. Stat. § 943.0435(1)(b) (2014) (adding “Internet identifiers” to

the information a registrant must provide). The Florida legislature

also codified its view that registrants “have a reduced expectation

of privacy,” 2002 Fla. Laws Ch. 2002-58, § 3, codified at Fla. Stat.

§ 943.0435(12) (2002), and the Commissioner is required to “verify”

the address a registrant provides, see 1998 Fla. Laws Ch. 98-81, § 7,

codified at Fla. Stat. § 943.0435(6) (1998). The public can also access

information about a registrant via the internet, 1998 Fla. Laws Ch.

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6 Opinion of the Court 21-10644

98-81, § 6, codified at Fla. Stat. § 943.043(1) (1998), and a registrant’s

driver’s license must bear a mark identifying him as a sex offender,

see 2007 Fla. Laws Ch. 2007-207, § 1, codified at Fla. Stat.

§ 322.141(3)(b) (2007).

The registry law also requires registrants to appear in person

more often. All registrants are subject to mandatory semi-annual

re-registration, see 2005 Fla. Laws Ch. 2005-28, § 9, codified at Fla.

Stat. § 943.0435(14) (2005), and some are required to re-register

quarterly, see 2007 Fla. Laws Ch. 2007-209, § 2, codified at Fla. Stat.

§ 943.0435(14)(b) (2007). Because the legislature has expanded the

information a registrant must provide, the ongoing obligation to

update that information is triggered more frequently. See 2010 Fla.

Laws Ch. 2010-92, § 4, codified at Fla. Stat. § 943.0435(2) (2010)

(“Any change in the information required to be provided” upon

registration shall be reported). And even where the reporting re-

quirements remained the same, the legislature re-defined what

constituted a change in the reported information. The definition of

a temporary residence, which triggers an in-person report to up-

date an offender’s residence, was shortened from a fourteen-day

change in residence to five days in 2006. See 2006 Fla. Laws Ch.

2006-235, § 1, codified at Fla. Stat. § 775.21(2)(g) (2006); see Fla.

Stat. § 943.0435(1)(c). The exception for vacation or unexpected

travel was also eliminated.

The 2018 amendments expanded the registry law in two ad-

ditional ways. First, the legislature again shortened the definition

of temporary residence, changing it from a place where a registrant

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21-10644 Opinion of the Court 7

resides for five days to three days. See 2018 Fla. Laws Ch. 2018-105,

§ 1, codified at Fla. Stat. § 775.21(2)(n) (2018); see Fla. Stat.

§ 943.0435(1)(f). The result is that a registrant must now report in

person to a local driver’s license or sheriff’s office within forty-eight

hours of leaving his permanent residence for more than three days.

See Fla. Stat. § 943.0435(1)(f), (4)(a), (4)(b). Second, the legislature

added a new penalty for non-compliance: for violations of the reg-

istry statute that do not result in a term of incarceration, a court

must impose a “mandatory minimum term of community con-

trol.” See 2018 Fla. Laws Ch. 2018-105, § 2, codified at Fla. Stat.

§ 943.0435(9)(b) (2018). Community control is “intensive, super-

vised custody in the community” that includes a term of electronic

monitoring ranging from six months to two years. Id.; see Fla. Stat.

§ 948.001(3), (13).

B.

The plaintiffs alleged the following facts in their second

amended complaint, which we accept as true. The plaintiffs are

registered sex offenders who committed qualifying offenses prior

to 1997, meaning they were registered for over twenty years prior

to the 2018 amendments. John Does 1 and 7 each report in person

about eight times per year to re-register and report information

changes, such as those caused by travel. Neither has been arrested

for violating the registry law, but they fear that the law has become

so onerous that an inadvertent failure to register is unavoidable.

John Doe 6 suffers from a mental disability that requires him to

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8 Opinion of the Court 21-10644

depend on his sister, Next Friend Jane Doe, to comply with his reg-

istration requirements, including his obligation to report in person

four times a year. Before his sister began helping him, John Doe 6

was arrested twice for failing to comply with requirements that he

did not understand. Like the other plaintiffs, he fears that the regis-

try law now “virtually [e]nsures his future incarceration.”

The plaintiffs sued the Commissioner in October 2018, a few

months after the 2018 amendments took effect. The original com-

plaint listed four constitutional claims under 42 U.S.C. § 1983: a

claim based on the Ex Post Facto Clause, a claim based on the

Eighth Amendment’s prohibition of cruel and unusual punish-

ment, and two claims based on the Fourteenth Amendment’s guar-

antee of substantive and procedural due process. The plaintiffs

sought declaratory and injunctive relief to prevent the Commis-

sioner from enforcing the statute against them. The plaintiffs later

added a claim under the Florida Constitution’s right to privacy, Fla.

Const. art. I, § 23.

The Commissioner moved to dismiss the complaint, con-

tending in part that “the underlying basis for the [plaintiffs’] claims

accrued long ago.” The Commissioner read the plaintiffs’ claims to

complain of burdens related to “registration requirements that first

gave rise to their alleged injuries . . . as early as the [registry law’s]

enactment in 1997.” For each claim, the Commissioner traced the

alleged injury to an amendment to the registry law and measured

the limitations period from that amendment’s effective date. The

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plaintiffs responded that they were not “challeng[ing] their desig-

nation” as sex offenders, but “the constitutionality of second-gen-

eration registration burdens and the continuing threat of imprison-

ment for failing to meet them.”

The district court granted the Commissioner’s motion to

dismiss, concluding that the plaintiffs’ claims were time-barred. Be-

cause the plaintiffs were subject to the registry law for longer than

the four-year limitations period, and because they had not pleaded

“that their challenges and alleged injuries [we]re tailored specifi-

cally to amendments enacted within the limitations period,” the

district court concluded that the plaintiffs were prohibited from

challenging any requirement enacted outside the limitations pe-

riod. The district court dismissed the second amended complaint

with prejudice. It also denied the plaintiffs’ motion to file a third

amended complaint. This appeal followed.

II.

We review de novo the district court’s ruling on a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6), “accept-

ing the factual allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Glover v. Liggett

Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). Likewise, “[w]e re-

view the district court’s interpretation and application of statutes

of limitations de novo.” Ctr. for Biological Diversity v. Hamilton,

453 F.3d 1331, 1334 (11th Cir. 2006) (per curiam) (quoting Tello v.

Dean Witter Reynolds, Inc., 410 F.3d 1275, 1278 (11th Cir. 2005)).

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10 Opinion of the Court 21-10644

III.

The only question on appeal is whether the plaintiffs’ claims

are timely. Although the plaintiffs are not seeking damages, they

have brought their constitutional claims under 42 U.S.C. § 1983.

The statute of limitations for a Section 1983 claim is “governed by

the forum state’s residual personal injury statute of limitations.”

Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999).

In Florida, the parties agree, such an action must be commenced

within four years. See Baker v. Gulf & W. Indus., Inc., 850 F.2d

1480, 1482 (11th Cir. 1988) (citing Fla. Stat. § 95.11(3)). Neither

party addresses the statute of limitations that applies to a claim un-

der the Florida Constitution. Accordingly, like the parties, we as-

sume without deciding that the same statute of limitations analysis

that applies to the plaintiffs’ Section 1983 claims applies to their

claim under the Florida Constitution.1

1 We note that the Eleventh Amendment prohibits federal courts from intrud-

ing on state sovereignty by instructing state officials on how to comply with

state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106

(1984). But neither party has addressed this issue, and Florida may waive its

Eleventh Amendment immunity if it wishes. See Green v. Graham, 906 F.3d

955, 961–62 (11th Cir. 2018). Accordingly, we will leave this issue to be ad-

dressed on remand. See Morris v. Washington Metro. Area Transit Auth., 702

F.2d 1037, 1040–41 (D.C. Cir. 1983) (raising possible Eleventh Amendment bar

sua sponte for the parties and the district court to address on remand), abro-

gation on other grounds recognized by Jones v. Castro, 168 F. Supp. 3d 169,

186 (D.D.C. 2016).

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The plaintiffs contend that each of their claims is timely be-

cause it either challenges provisions in the 2018 amendments or

challenges an ongoing violation of their constitutional rights that

occurred within the limitations period. The Commissioner re-

sponds that the plaintiffs’ “claims are each founded on require-

ments that were legislatively enacted well outside of the four-year

statute of limitations.” We conclude that neither party is entirely

correct: some claims are barred by the statute of limitations, and

others are not.

Our discussion proceeds in three parts. First, we explain that

the plaintiffs’ claims accrued when they were first injured by the

actual or threatened enforcement of the allegedly unconstitutional

statute. Second, assuming that some or all of plaintiffs’ claims ac-

crued before the limitations period, we explain how the continuing

violation doctrine may nonetheless allow those claims to be liti-

gated. Third, we apply the statute of limitations and the continuing

violation doctrine to the operative complaint injury by injury and

claim by claim.2

A.

We begin with the question whether the plaintiffs’ constitu-

tional causes of action accrued more than four years before they

2 We do not address the plaintiffs’ challenge to the district court’s decision to

deny leave to file a third amended complaint because the amended allegations

would not lead us to a different result. Accordingly, we rely on the second

amended complaint as the operative pleading.

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filed suit. The time at which a federal cause of action accrues is a

question of federal law, Mullinax v. McElhenney, 817 F.2d 711, 716

(11th Cir. 1987), that “depends on the claim asserted,” Lewis v. City

of Chicago, 560 U.S. 205, 214 (2010). In the usual course, we start

the limitations period when the plaintiff was injured. See Rozar v.

Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996). That is, the statute of

limitations begins to run when “the facts which would support a

cause of action are apparent or should be apparent to a person with

a reasonably prudent regard for his rights.” Rozar v. Mullis, 85 F.3d

556, 561–62 (11th Cir. 1996) (quoting Mullinax, 817 F.2d at 716); see

Wallace v. Kato, 549 U.S. 384, 388 (2007) (explaining that “it is the

standard rule that accrual occurs when the plaintiff has a complete

and present cause of action” (cleaned up)).

The Commissioner suggests that the plaintiffs’ claims ac-

crued on the effective date of the statutes that they are challenging.

Because most of Florida’s registry law has been in place in some

form for many years, the Commissioner argues that all the plain-

tiffs’ claims accrued before the limitations period. In response, the

plaintiffs argue that the 2018 amendments provide the relevant ef-

fective date. To that end, much of the operative complaint is di-

rected to alleging that provisions in the 2018 amendments modified

the law’s pre-existing requirements.

We believe neither party is correct. The statute of limita-

tions for a constitutional challenge to a statute is triggered by in-

jury. In the usual case, “the harm inflicted by the statute . . . does

not occur until the statute is enforced—in other words, until it is

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applied.” Hillcrest Prop., LLC v. Pasco Cnty., 754 F.3d 1279, 1282

(11th Cir. 2014) (quoting Levald, Inc. v. City of Palm Desert, 998

F.2d 680, 688 (9th Cir.1993)). That is why a constitutional cause of

action lies exclusively against an official with enforcement power

and not the legislature itself. See Ex parte Young, 209 U.S. 123, 149–

50, 155–56 (1908). And it is why a plaintiff lacks standing to chal-

lenge legislation that will not be enforced. See Support Working

Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1204 (11th Cir.

2021) (recent legislation that “would” cause an injury if enforced

against the plaintiff was not enough to maintain a cause of action);

Doe v. Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003) (no claim over

existing law without “credible threat” of enforcement).

This insight—that a plaintiff must allege an injury stemming

from the enforcement or threat of enforcement of an unconstitu-

tional law against him—means that a constitutional claim like the

plaintiffs’ does not necessarily run from a statute’s effective date.

Because the enforcement of an unconstitutional statute causes an

injury, a person can challenge a statute enacted long ago based on

a new threat of enforcement; conversely, he cannot challenge a

statute enacted yesterday if there is no threat of enforcement

against him today. See Support Working Animals, Inc., 8 F.4th at

1204; see 13B Wright, Miller, & Cooper, Federal Practice and Pro-

cedure § 3532.5 (2d ed. 1987) (noting that in many cases, courts “re-

fuse[] to determine the validity of a criminal statute that apparently

applies to the plaintiff’s present or intended future conduct” for

“want of threats of prosecution”). The effective date of a statute

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14 Opinion of the Court 21-10644

may be necessary to start the limitations clock for a constitutional

claim, but it is not sufficient.

We have recognized one exception to this general rule: a fa-

cial claim for the deprivation of a property interest. See Hillcrest

Prop., 754 F.3d at 1283. The theory of a facial property takings

claim “is that the very enactment of the statute has reduced the

value of the property or has effected a transfer of a property inter-

est.” Id. at 1282 (quoting Levald, 998 F.2d at 688). That harm, if it

occurs at all, “occurs immediately upon, and because of, the stat-

ute’s enactment: the property value depreciates and a taking occurs

as soon as the statute goes into effect.” Id. at 1282 (citing Levald,

998 F.2d at 688). Accordingly, a plaintiff can bring a facial challenge

to the taking of a property interest at the very moment of the stat-

ute’s effective date.

Here, of course, the plaintiffs are bringing commonplace

constitutional claims against the continued enforcement of laws

that impose criminal penalties for noncompliance. The Commis-

sioner is therefore wrong that the plaintiffs’ claims accrued when

Florida’s registry law first became effective, and the plaintiffs are

wrong to the extent they argue that the 2018 amendment restarted

the clock on claims that could have been brought earlier. To deter-

mine when the plaintiffs’ claims accrued, we cannot rely on effec-

tive dates. Instead, we must review the operative complaint claim

by claim to assess when the plaintiffs were injured by the allegedly

unconstitutional actions they are challenging.

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B.

Even if some of their claims accrued more than four years

before this lawsuit, the plaintiffs argue that the continuing violation

doctrine allows them to litigate. “The continuing violation doc-

trine permits a plaintiff to sue on an otherwise time-barred claim

when additional violations of the law occur within the statutory

period.” Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331,

1334 (11th Cir. 2006). If a defendant’s actions violate a plaintiff’s

rights on a repeated or ongoing basis, then a cause of action may

be timely even if the first violation took place outside the statute of

limitations. Calloway v. Partners Nat’l Health Plans, 986 F.2d 446,

448–49 (11th Cir. 1993). As relevant here, a law inflicting a “‘con-

tinuing and accumulating harm’” on a plaintiff “actively deprive[s]”

that plaintiff of his “asserted constitutional rights every day that it

remain[s] in effect.” Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d

516, 522 (6th Cir. 1997) (quoting Hanover Shoe, Inc. v. United Shoe

Mach. Corp., 392 U.S. 481, 502 n.15 (1968)).

That said, we have held that a plaintiff must identify more

than a present harm from a past act to satisfy the continuing viola-

tion doctrine. A prior violation of a plaintiff’s constitutional rights

is not a continuing violation simply because its effects linger into

the present. Instead, we must “distinguish[] between the present

consequence of a one time violation, which does not extend the

limitations period, and the continuation of the violation into the

present, which does.” Calloway, 986 F.2d at 448 (internal quotation

marks omitted) (quoting Beavers v. Am. Cast Iron Pipe Co., 975

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16 Opinion of the Court 21-10644

F.2d 792, 796 (11th Cir. 1992)). Only ongoing violations satisfy the

continuing violation doctrine and remain timely despite accruing

outside the statutory limitation period.

To sort one-time violations from continuing ones, we some-

times consider the actions of the defendant. For example, in

McGroarty v. Swearingen, we held that merely publishing a sex-

offender registry is a one-time act that is a single alleged violation.

977 F.3d 1302, 1307–08 (11th Cir. 2020). The challenger, who had

moved out of the state and had “no continuing obligations to up-

date his registration,” id. at 1307 n.4, alleged that a state agency’s

“continu[ing] to maintain and disseminate [his] personal infor-

mation on [the defendant’s] public website” was a continuing vio-

lation, id. at 1305, 1307. But the plaintiff “specifically disavowed the

argument that a new violation occurred each time the [defendants]

updated their website or re-posted information,” id. at 1307 n.5,

leaving him only with a challenge to “[t]he initial publication of

[his] information,” id. at 1308. We determined that publication was

plainly “a ‘one time’ act” that did not extend the statute of limita-

tions, “even though [the plaintiff] [wa]s experiencing ‘present con-

sequences’ of that action.” Id. at 1308 (quoting Carter v. West Pub.

Co., 225 F.3d 1258, 1263 (11th Cir. 2000)). We have likewise found

“a one time act with continued consequences” where a prisoner

sued over a one-time change to his eligibility for parole. Lovett v.

Ray, 327 F.3d 1181, 1183 (11th Cir. 2003).

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In addition to distinguishing continuing violations from the

present effects of one-time violations, we also must sort a continu-

ing violation, on the one hand, from a series of repeated violations

that result in related harms, on the other. See Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002) (explaining with respect

to a discrimination claim that “discrete discriminatory acts are not

actionable if time barred, even when they are related to acts alleged

in timely filed charges”). Repeated similar violations are not the

same as a single violation of an ongoing nature. See id. at 112.

When a discrete violation “gives rise to a new cause of action,” then

each new violation “begins a new statute of limitations period as to

that particular event.” Knight v. Columbus, 19 F.3d 579, 582 (11th

Cir. 1994). Accordingly, we have held that, when a defendant takes

separate and discrete acts that repeatedly violate the law, the con-

tinuing violation doctrine does not apply. Id. at 580–82. Instead, a

plaintiff may seek to remedy the discrete violations that occurred

within the limitations period. In Knight v. Columbus, for example,

we concluded that the plaintiffs’ alleged right to be paid overtime

was “violated each time the [defendant] issued . . . a paycheck that

failed to include payment for overtime hours actually worked.” Id.

at 581 (emphasis added). The defendant’s actions amounted to “a

series of repeated violations of an identical nature” that progressed

into the limitations period, which allowed the plaintiffs to sue for

lost wages during that period but not before. Id. at 582.

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18 Opinion of the Court 21-10644

Here, the plaintiffs argue that the continuing violation doc-

trine applies to all their claims because the Commissioner’s ongo-

ing threat of enforcement that began in the past continues to vio-

late their rights in the present day. See Flynt v. Shimazu, 940 F.3d

457, 462 (9th Cir. 2019) (continuing violation doctrine applies

“[w]hen the continued enforcement of a statute inflicts a continu-

ing or repeated harm”); Kuhnle, 103 F.3d at 521–22 (substantive

due process claim survives statute of limitations because the chal-

lenged law “barred [the plaintiff] from using the roads in question

on an ongoing basis”). At this juncture, the plaintiffs do not argue

that they have experienced a series of related but discrete violations

that occurred in the limitations period. Instead, they disclaim the

argument that “any single act independently violated their consti-

tutional rights.” For his part, the Commissioner argues that the

plaintiffs are suing over the lingering effects of a one-time injury

caused by their initial designation as sex offenders. As with the ac-

crual date of plaintiffs’ claims, we believe the only way to apply the

continuing violation doctrine is injury by injury and claim by claim.

C.

We now turn to an injury-by-injury and claim-by-claim anal-

ysis of the plaintiffs’ operative complaint. To determine whether

the plaintiffs’ claims are time-barred, we must “first . . . identify the

alleged injuries, and then . . . determine when plaintiffs could have

sued for them.” Rozar, 85 F.3d at 562. Next, we consider whether

any of those injuries resulted from violations that occurred before

the limitations period and, if so, whether the violations continued

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21-10644 Opinion of the Court 19

into the limitations period such that the continuing violation doc-

trine applies. See Calloway, 986 F.2d at 448.

As we see it, the plaintiffs allege that Florida’s enforcement

of its laws has inflicted four injuries, and they bring multiple claims

to remedy those injuries. First, the plaintiffs allege that the Com-

missioner’s threatened enforcement of recent amendments has im-

posed a purportedly unconstitutionally vague “strict liability”

scheme enforced by mandatory minimum sentences. Second, the

plaintiffs allege that the Commissioner has applied the registry law

to injure their reputation. Third, the plaintiffs contend that the reg-

istry law unconstitutionally requires them to take—or alter their

conduct to avoid—actions that are time-consuming and burden-

some, such as registering and re-registering under the law. Fourth,

the plaintiffs allege that their very designation as sex offenders vio-

lates the Constitution. We address each asserted injury in turn.

1.

The plaintiffs say they are suing to remedy three injuries spe-

cifically caused by amendments enacted within the limitations pe-

riod. In support of their procedural due process claim (Count

III(A)), the plaintiffs contend that the 2018 mandatory-minimum

provision rendered the registry law a “strict liability” scheme that

criminalizes non-dangerous offenses. The plaintiffs also allege that

the registry law’s reporting requirements for travel-related resi-

dence changes violate their procedural due process rights by being

unconstitutionally vague (Count III(B)). They contend that the

terms “day,” “place,” “destination,” “within 48 hours,” “secure,”

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20 Opinion of the Court 21-10644

and “update” are vague as used in the provision requiring an in-

person report for a three-day change in residence. And they con-

tend that under either procedural due process theory, the registry

law subjects them to the constant threat of serving a mandatory-

minimum sentence for “even inadvertent and unknowing viola-

tions” of the registry law. The plaintiffs’ substantive due process

claim likewise asserts an injury allegedly caused by recent amend-

ments. Specifically, they contend that requiring registrants to re-

port a three-day change in residence discourages them from travel-

ing, thereby violating their right to intrastate and interstate travel

(Count IV(A)).

These injuries are expressly related to the threatened en-

forcement of provisions added to the registry law in 2018. See 2018

Fla. Laws Ch. 2018-105, §§ 1, 2. Because the plaintiffs did not suffer

these injuries before the threatened enforcement of the amend-

ments, these claims did not arise until after 2018. The plaintiffs sued

the Commissioner in 2018, well within the four-year statute of lim-

itations. Therefore, these claims are timely.

2.

The plaintiffs also seek to remedy an alleged reputational in-

jury. They contend that the Commissioner “aggressively signals to

the public that . . . registrant[s] will always be a menace.” The Com-

missioner does so by carrying out its duty to “verify” the plaintiffs’

addresses through community- and neighborhood-wide notifica-

tion, and by maintaining an internet registry that makes the plain-

tiffs’ registration information available to the public. The plaintiffs

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21-10644 Opinion of the Court 21

invoke this injury throughout the complaint, seeking to remedy it

in Count I under the Ex Post Facto Clause, Count IV(B) under a

substantive due process theory, and Count V under the Florida

Constitution.

The Commissioner contends that the plaintiffs could have

sued over this reputational injury long before now because some

of the plaintiffs’ information has been publicly available since an

early version of the registry law. The plaintiffs seem to concede

that they first suffered this reputational injury before the limita-

tions period. And we agree that these claims arose before the limi-

tations period. Florida law has long required publication of sex of-

fenders’ information; therefore, the plaintiffs could have sued over

this reputational injury many years ago.

We believe, however, that these time-barred claims are

saved under the continuing violation doctrine. The plaintiffs argue

that the Commissioner’s enforcement of certain provisions contin-

ues to harm the plaintiffs’ reputations on an ongoing basis. Because

the Commissioner sends officers to the plaintiffs’ neighborhoods to

verify where they live on an ongoing basis, the plaintiffs contend

that this enforcement sends a continuing signal to their neighbors

that they are dangerous people, inflicting reputational harm. The

plaintiffs further allege that the Commissioner must continue to

take these actions regularly to comply with his duties under the

statute. See Ctr. for Biological Diversity, 453 F.3d at 1334 (“To de-

termine whether the continuing violation doctrine applies, we

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22 Opinion of the Court 21-10644

must consider the text of the relevant statute . . . .”). The Commis-

sioner’s ongoing enforcement actions distinguish this case from

McGroarty. See 977 F.3d at 1308 n.6. (explaining that McGroarty

“allege[d] only passive effects from a one-time act”). And, unlike

the plaintiff in McGroarty, the plaintiffs here have a continuing

duty to update their registration information under the threat of

prosecution, which allows the publication of their updated infor-

mation on a publicly available registry. Compare 977 F.3d at 1307

n.4 (“no continuing obligations to update his registration”) with

Doc. 102, ¶ 65 (“Doe 1 lives with pervasive dread of arrest for inad-

vertent failure to register.”). Because the plaintiffs’ reputational in-

jury depends on continuing enforcement actions taken by the

Commissioner within the limitations period, we believe the con-

tinuing violation doctrine applies.

The Commissioner responds that the plaintiffs should not

benefit from the continuing violation doctrine because they knew

about and could have filed a suit about these injuries sooner. We

have held that, because the continuing violation doctrine is equita-

ble in nature, “[i]f an event or series of events should have alerted

a reasonable person to act to assert his rights at the time of the vi-

olation, the victim cannot later rely on the continuing violation

doctrine.” Ctr. for Biological Diversity, 453 F.3d at 1335. The Com-

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21-10644 Opinion of the Court 23

missioner has not identified any prejudice arising from the plain-

tiffs’ delay. 3 And we think the plaintiffs have alleged an adequate

justification for waiting to bring their claims. In the operative com-

plaint, the plaintiffs allege that the original Florida registry statute

has grown more and more burdensome over the years and that the

2018 amendments were the proverbial “straw that broke the

camel’s back.” They allege that more recent amendments to the

registry law make it, arguably, different from similar laws that have

been upheld as constitutional. See Smith v. Doe, 538 U.S. 84 (2003).

Specific to their asserted reputational injury, the plaintiffs allege

that the recent amendment requires “vastly more information to

be disclosed,” “requires prompt in-person reporting of any

changes,” and “expressly endorses aggressive notification to the

public.” At this stage of the case, we believe the plaintiffs have suf-

ficiently alleged facts that excuse their delay in bringing these

claims.

3 We think this aspect of the continuing violation doctrine is akin to laches.

We have applied the doctrine of laches to claims for equitable relief under Sec-

tion 1983. Grayson v. Allen, 491 F.3d 1318, 1332 (11th Cir. 2007). Laches justi-

fies denying equitable relief when a plaintiff unreasonably delays in asserting

his rights to the prejudice of the defendant. Laches, Black’s Law Dictionary

(11th ed. 2019). The equitable analysis under the continuing violation doctrine

is similar. If the continuing violation doctrine allows an otherwise time-barred

claim for equitable relief under Section 1983, laches will not bar equitable relief

for that claim and vice versa.

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24 Opinion of the Court 21-10644

3.

Next, the plaintiffs contend that the registry law unconstitu-

tionally requires them to take—or alter their conduct to avoid—

actions that are time-consuming and burdensome. Under their Ex

Post Facto Clause claim (Count I), they allege that the obligation

to register, re-register, and report changes to personal information

imposes an affirmative disability or restraint on them by requiring

in-person reports “multiple times a year for trivial changes to reg-

istered information and short trips from home.” The plaintiffs

make the same allegation about the law’s “oppressive burdens” in

their substantive due process claim (Count IV(C)).

The Commissioner argues that these claims are untimely

because the plaintiffs have been subject to registration and re-reg-

istration since the registry law’s initial version. One could argue

that a registered sex offender suffers a discrete injury each time he

or she is made to register or re-register, such that a new claim ac-

crues each time and, therefore, the plaintiffs may bring timely

claims for any injuries that occurred within the limitations period.

See Knight, 19 F.3d at 582. But the plaintiffs have not made that

argument to us, and their complaint alleges ongoing injuries from

their continuing duty to comply with the law, including injuries

that first occurred long before the limitations period. Accordingly,

as they have been pleaded, the plaintiffs’ causes of action under the

Ex Post Facto Clause and substantive due process accrued before

the limitations period.

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21-10644 Opinion of the Court 25

Again, however, we believe the plaintiffs have alleged a con-

tinuing violation. The registry law requires the plaintiffs to make

multiple in-person reports each year, even if nothing about their

registration information changes. In addition to that requirement,

each day the plaintiffs must try to determine whether an action

they take—whether, for example, they wish to purchase a new car,

book a weekend trip, or create a new online account—requires

making an in-person report. See Fla. Stat. § 943.0435(2)(b) (2018).

The complaint contends that these reports are time-consuming and

burdensome, and the plaintiffs allege that they have forgone cer-

tain opportunities because of the likelihood that they would have

to report information to the Commissioner. Contrary to the Com-

missioner’s suggestion, this injury is not caused by the plaintiffs’

initial designation as sex offenders, but by the Commissioner’s con-

tinuing threat of enforcement of the registration and re-registration

requirements. See McGroarty, 977 F.3d at 1308. The plaintiffs al-

lege that the Commissioner’s ongoing threat of enforcement con-

tinues to violate their rights each time they forego an opportunity

out of fear of enforcement. See Ctr. for Biological Diversity, 453

F.3d at 1334. For this reason, any injury caused by the ongoing duty

to register supports a cause of action against the registration provi-

sions.

As with the plaintiffs’ claims about reputational injury, the

Commissioner argues that the plaintiffs should have filed suit

about these injuries sooner and that it would be inequitable to ap-

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26 Opinion of the Court 21-10644

ply the continuing violation doctrine. But, again, the plaintiffs suf-

ficiently allege in the operative complaint that they were justified

in waiting, and the Commissioner has not identified any prejudice

arising from the plaintiffs’ delay. Specific to these asserted injuries,

the plaintiffs allege that they were prompted to file suit because of

recent amendments that require them to re-register and to register

more frequently. Again, at this early stage of the case, we believe

the plaintiffs have sufficiently alleged facts that excuse any delay in

bringing these claims.

4.

Fourth and finally, the plaintiffs argue that they have been

injured by their very classification as sex offenders. The plaintiffs

contend that they are being unconstitutionally punished under the

Eighth Amendment (Count II) because the law imposes obligations

on them “until they die” without any individualized assessment of

their risk of re-offense. Likewise, their substantive due process

claim (Count IV(D)) asserts an injury caused by the “irrebuttable

presumption” of dangerousness imposed by the registry law with-

out regard to individual risk. The plaintiffs’ complaint clearly states

when this injury occurred: they contend that an individualized as-

sessment of risk should have been in place “before requiring regis-

tration.” Thus, any cause of action based on this injury was com-

plete when the plaintiffs were designated as sex offenders and ini-

tially required to register.

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21-10644 Opinion of the Court 27

We believe the counts about this alleged injury are based on

nothing more than the lingering effects of the plaintiffs’ initial des-

ignation as sex offenders, which occurred over twenty years prior

to this lawsuit. The plaintiffs were either provided with appropriate

process before they were “punished” by being placed on the list, or

they were not. Either way, their claim was complete at the time

they were categorized as sex offenders and made subject to the

law’s requirements. The continuing violation doctrine does not

save this kind of claim. See Lovett, 327 F.3d at 1183; Bird v. Dep’t

of Hum. Servs., 935 F.3d 738, 739 (9th Cir. 2019) (due process chal-

lenge to placement on a child abuse registry is not saved by contin-

uing violation doctrine). Accordingly, the time for bringing a cause

of action based on this injury has expired.

IV.

For the foregoing reasons, we conclude that the following

claims are timely or satisfy the continuing violation doctrine:

Count I, Count III(A), Count III(B), Count IV(A), Count IV(B),

Count IV(C) and Count V. We conclude that Count II and Count

IV(D) are barred by the statute of limitations. Accordingly, the dis-

trict court’s judgment is AFFIRMED IN PART, REVERSED IN

PART, and REMANDED for proceedings consistent with this opin-

ion.

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21-10644 PRYOR, C.J., Concurring 1

WILLIAM PRYOR, Chief Judge, Concurring:

I concur in the panel opinion. I write separately to explain

why it is proper for this Court to raise Eleventh Amendment im-

munity sua sponte. See Maj. Op. at 10 n.1. Though we are not re-

quired to raise this issue, see Patsy v. Bd. of Regents of Fla., 457

U.S. 496, 515–16 n.19 (1982), this case presents weighty reasons to

do so. See, e.g., Atl. Healthcare Benefits Tr. v. Googins, 2 F.3d 1, 4

(2d Cir. 1993) (raising Eleventh Amendment issue sua sponte); Raj

v. La. State Univ., 714 F.3d 322, 329 (5th Cir. 2013) (same); cf. Sua-

rez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997) (“We

believe that, because of its jurisdictional nature, a court ought to

consider the issue of Eleventh Amendment immunity at any time,

even sua sponte.”).

We have explained that the “nature and purposes of Elev-

enth Amendment immunity suggest that it is a threshold issue” and

that “unnecessarily postpon[ing]” a ruling on the issue does not

serve the purposes of the Amendment. Bouchard Transp. Co. v.

Fla. Dep’t of Env’t Prot., 91 F.3d 1445, 1448–49 (11th Cir. 1996).

The Amendment “deprives a federal court of power to decide cer-

tain claims against States that otherwise would be within the scope

of Art. III’s grant of jurisdiction.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 119–20 (1984). “[I]t is difficult to think of a

greater intrusion on state sovereignty than when a federal court

instructs state officials on how to conform their conduct to state

law.” Id. at 106.

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2 PRYOR, C.J., Concurring 21-10644

Delaying a ruling on Eleventh Amendment immunity also

does not promote judicial economy. Consider that Pennhurst, the

landmark decision on this issue, was the culmination of a decade of

litigation and was the second decision by the Supreme Court in that

litigation. Resolving issues of Eleventh Amendment immunity at

the earliest opportunity helps avoid that kind of protracted and un-

necessary litigation. The panel opinion mentions this threshold is-

sue, without deciding it, only to alert the district court and the par-

ties that it should be addressed as soon as possible. See Patsy, 457

U.S. at 515–16 n.19 (raising Eleventh Amendment issue sua sponte

and declining to decide it because the district court was better po-

sitioned to address immunity in the first instance on remand).