[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15851
June 28, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-02573-CV-JTC-1
CENTER FOR BIOLOGICAL DIVERSITY,
SIERRA CLUB,
SOUTHERN APPALACHIAN BIODIVERSITY PROJECT,
GEORGIA FORESTWATCH,
Plaintiffs-Appellants,
versus
SAM HAMILTON,
Regional Director, Region 4,
United States Fish and Wildlife Service,
STEVEN WILLIAMS,
Director, United States Fish and Wildlife Service,
DIRK KEMPTHORNE,
Secretary of the Interior, Department of Interior,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 28, 2006)
Before BLACK and PRYOR, Circuit Judges, and CONWAY *, District Judge.
PER CURIAM:
The Center for Biological Diversity appeals the dismissal of its complaint as
untimely under the six-year statute of limitations for suits against the United States.
See 28 U.S.C. § 2401(a). This appeal raises an issue of first impression for the
Courts of Appeals: whether the failure of the Secretary of the Department of the
Interior to perform the nondiscretionary duty to designate a critical habitat for a
threatened species is a continuing violation that permits a plaintiff to file suit more
than six years after the deadline to perform that duty has passed. Because we
conclude that the continuing violation doctrine does not apply, we affirm.
I. BACKGROUND
On April 19, 1991, the Secretary issued a proposed rule to list two species of
minnows, the Blue Shiner and the Goldline Darter, as threatened species.
Proposed Threatened Status for the Fish the Goldline Darter (Percina aurolineata)
and Blue Shiner (Cyprinella caerulea), 56 Fed. Reg. 16,054 (April 19, 1991). On
April 22, 1992, the final rule was promulgated. Threatened Status for Two Fish,
57 Fed. Reg. 14,786 (Apr. 22, 1992). In the final rule, the Secretary stated that the
designation of a critical habitat—the area in which the threatened or endangered
*
Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
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species is found and to which the Endangered Species Act affords additional
protections—“may be prudent but [] it is not now determinable.” Id. Although the
rule said, “In the coming months, a proposed rule for the designation of critical
habitat will be published,” id., the Secretary never proposed such a rule; to date,
the Secretary has not designated a critical habitat for the threatened fish.
On September 2, 2004, the Center filed a complaint in federal district court
that alleged that the Secretary violated its nondiscretionary duty to designate a
critical habitat for the Blue Shiner and Goldline Darter. See 16 U.S.C. §
1533(b)(6)(A), (b)(6)(C)(ii) (requiring the Secretary to publish a final regulation
that designates the critical habitat within two years of the proposed regulation that
listed the species as endangered or threatened); id. § 1540(g)(1)(C) (citizen suit
provision). The Secretary conceded the failure to comply with the duty under
section 1533, but argued that the complaint was untimely under the six-year statute
of limitations that governs suits against the United States. See 28 U.S.C. §
2401(a). The Center argued that it complied with the six-year statute of limitations
because the failure to designate a critical habitat was a “continuing violation.” See
S. Appalachian Biodiversity Project v. U.S. Fish & Wildlife Servs., 181 F. Supp.
2d 883, 887 (E.D. Tenn. 2001). The district court found that the Endangered
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Species Act “does not impose a continuing duty on Defendants to designate a
critical habitat” and dismissed the complaint as untimely.
II. STANDARD OF REVIEW
“We review the district court’s interpretation and application of statutes of
limitations de novo.” Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1278
(11th Cir. 2005) (quoting United States v. Clarke, 312 F.3d 1343, 1345 n.1 (11th
Cir. 2002)).
III. DISCUSSION
The sole issue before this Court is whether this suit was untimely on the
ground that the failure of the Secretary to designate a critical habitat for a
threatened species is a “continuing violation.” The continuing violation doctrine
permits a plaintiff to sue on an otherwise time-barred claim when additional
violations of the law occur within the statutory period. See Hipp v. Liberty Nat’l
Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir. 2001). To determine whether the
continuing violation doctrine applies, we must consider the text of the relevant
statute, which is the Endangered Species Act. See National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 108-09, 122 S. Ct. 2061, 2069–70 (2002).
We first consider the provisions that govern the duties of the Secretary. The
Act provides, “Within the one-year period beginning on the date on which general
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notice is published . . . regarding a proposed regulation, the Secretary shall publish
in the Federal Register . . . a final regulation to implement” its determination
whether a species is threatened. 16 U.S.C. § 1533(b)(6)(A). “A final regulation
designating critical habitat of an endangered species or a threatened species shall
be published concurrently with the final regulation implementing the determination
that such species is endangered or threatened[.]” Id. § 1533(b)(6)(C). If the
Secretary
deems that . . . [the] critical habitat of such species is not then
determinable, [the Secretary] may extend the one-year period . . . by
not more than one additional year, but not later than the close of such
additional year the Secretary must publish a final regulation, based on
such data as may be available at that time, designating, to the
maximum extent prudent, such habitat.
Id. § 1533(b)(6)(C)(ii) (emphasis added).
We next consider the statutes that pertain to civil actions to enforce the Act.
The Act permits “any person [to] commence a civil suit . . . where there is alleged a
failure of the Secretary to perform any act or duty under [section 1533] which is
not discretionary with the Secretary.” Id. § 1540(g)(1)(C). The Act prescribes no
statute of limitations, so the general six-year statute of limitations for suits against
the United States applies. See 28 U.S.C. § 2401(a); Edwards v. Shalala, 64 F.3d
601, 605 (11th Cir. 1995) (finding that section 2401(a) “sets an outside time limit
on suits against the United States”). “Unlike an ordinary statute of limitations, §
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2401(a) is a jurisdictional condition attached to the government’s waiver of
sovereign immunity, and as such must be strictly construed.” Spannaus v. Dep’t of
Justice, 824 F.2d 52, 55 (D.C. Cir. 1987).
Because the Secretary stated in the April 22, 1992, rule that the critical
habitat for the Blue Shiner and Goldline Darter was “not determinable,”
Threatened Status for Two Fish, 57 Fed. Reg. 14,786, the Secretary was required to
issue a final rule designating the critical habitat two years after issuance of the
proposed rule on April 19, 1991. The parties agree that the Center could have
brought suit based on the failure of the Secretary to comply with this deadline
beginning April 20, 1993. The Center argues that April 20, 1993, is merely the
first violation of section 1533; the Center contends that, under the continuing
violation doctrine, the passage of each day creates an additional cause of action,
which triggers anew the running of the six-year limitations period. We disagree.
Nothing in the language of the Act supports the position of the Center. To
the contrary, the Act counsels in favor of a single violation that accrues on the day
following the deadline. See Toussie v. United States, 397 U.S. 112, 120, 90 S. Ct.
858, 863 (1970), superseded by statute, 50 U.S.C. app. § 462(d). The language
“not later than” creates not an ongoing duty but a fixed point in time at which the
violation for the failure of the Secretary to act arises. The requirement of section
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1533 that the Secretary rely on “such data as may be available at the time,” 16
U.S.C. § 1533(b)(6)(C)(ii) (emphasis added), provides additional support for the
position of the Secretary. If the duty were ongoing, it would be anomalous for
Congress to require the Secretary to ignore new information when promulgating
the rule.
This interpretation is consistent with our precedents that have addressed the
scope of the continuing violation doctrine. First, this Court has distinguished
between the continuing effects of a discrete violation and continuing violations:
“In determining whether a discriminatory employment practice constitutes a
continuing violation, this Circuit distinguishes between the present consequence of
a one time violation, which does not extend the limitations period, and the
continuation of that violation into the present, which does.” City of Hialeah v.
Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002) (quotations omitted); see also Lovett
v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). The Center complains of the
continuing effects of the failure of the Secretary to determine the critical habitat by
the statutory deadline, a one-time violation under the Act.
Second, we have limited the application of the continuing violation doctrine
to situations in which a reasonably prudent plaintiff would have been unable to
determine that a violation had occurred. “If an event or series of events should
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have alerted a reasonable person to act to assert his or her rights at the time of the
violation, the victim cannot later rely on the continuing violation doctrine[.]”
Hipp, 252 F.3d at 1222 (quoting Martin v. Nannie & the Newborns, Inc., 3 F.3d
1410, 1415 n.6 (10th Cir. 1993)). Because a reasonably prudent plaintiff would
have been aware of the failure of the Secretary to act on the day following the
deadline, the continuing violation doctrine does not apply.
Our conclusion that the continuing violation doctrine does not apply is also
consistent with our statute of limitations and sovereign immunity jurisprudence.
“The United States, as sovereign, is immune from suit save as it consents to be
sued.” United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941).
“When the United States consents to be sued, the terms of its waiver of sovereign
immunity define the extent of the court’s jurisdiction.” See United States v.
Mottaz, 476 U.S. 834, 841, 106 S. Ct. 2224, 2229 (1986). “[T]he terms ‘upon
which the Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied.’” McMaster v. United States, 177 F.3d
936, 939 (11th Cir. 1999) (quoting Soriano v. United States, 352 U.S. 270, 276, 77
S. Ct. 269, 273 (1957)). Our predecessor court similarly observed that courts “will
not, as a general rule, read into statutes of limitation an exception which has not
been embodied therein.” Simon v. United States, 244 F.2d 703, 705 (5th Cir.
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1957) (quotation omitted). Because section 2401 unambiguously imposes a six-
year statute of limitations, our refusal to extend the application of the continuing
doctrine comports with principles of sovereign immunity.
We recognize that at least one district court has applied the continuing
violation doctrine to section 1533. See S. Appalachian Biodiversity Project, 181 F.
Supp. 2d at 887. We disagree with the reasoning of that decision. The conclusion
of the Southern Appalachian court that the “[Secretary]’s non-action logically can
only be construed as a continuing violation of 16 U.S.C. § 1533(b)(6)(C),” id.,
contradicts our Circuit precedent, which narrowly limits the scope of the
continuing violation doctrine.
Finally, we note that our decision does not foreclose all relief for the Center.
The Center may petition the Secretary “to designate critical habitat or to adopt a
special rule to provide for the conservation of a species.” 50 C.F.R. § 424.14(d).
Although the lack of an alternative remedy would not cause us to read an exception
to the limitations period into the Act, the existence of an alternative remedy
supports our conclusion that Congress did not intend the continuing violation
doctrine to apply.
IV. CONCLUSION
The dismissal of the complaint is
AFFIRMED.
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