Jane Doe v. Richard L. Swearingen ( 2022 )

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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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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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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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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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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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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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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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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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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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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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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).