good morning may please the court my name is ann fitz and i represent the appellant michael mccarthy i'll be focusing my argument today on the primary issue raised in this appeal which is whether the continuing violation doctrine extended the statute of limitations period in the corpus subject to any questions that the court may have concerning the applicability of united states versus nichols we would rest on the brace for that argument the middle district of alabama's decision and versus marshall makes it clear that the due process violation of fundamental rights that mr mccourty asserts in his complaint is not simply the consequence of one time registration as it was determined by the district court but instead constitutes a continuing violation as contemplated under the three part test promulgated and currently brothers and versus county of geog which is a case cited by the marshall court and that leading case on the outlook ability of continuing of the continuing violation doctrine in due process let me just ask you one question just to make sure we're on the same page so your client information appears on this florida website correct he because he has moved out of state since he moved out of state he has not had to do anything affirmatively he has not had to provide any information to the state is that correct that is correct so it is the mere fact that it was on this website before he left and it remains on this web site after he left the state that's correct and in the state of north carolina where he currently resides he is not recognized or classified as a sex offender under north carolina law and so he is not on the north carolina registry or the north carolina sex offender websites so he only appears on the florida sex offender website the f t l a sex offender website and that's what where our violation is that it violates his right to travel and to have the all of the privileges and immunities applied to him of north carolina law applied to him on a bridge that florida actually infringes on that on that fundamental rights and he lived in california at some point to guess ma'am and there's no website issue with california there is no i know he was  he had actually transferred his probation out to california and while he was in california and on probation he was included on the registry his probation terminated in two thousand twelve shortly thereafter his probation terminated in march i believe and in october of two thousand and twelve is when he moved to north carolina when he moved to north carolina and left the state of california california  for his lifetime under florida law and that is actually because under the actual registration statute there is nothing that talks about public notification or public dissemination of registration he was notified of his requirements that he would have to that he was subject to registration for life but he was not notified of the fact that he would be that there would be public notification and public dissemination of his public through the internet of any information regarding sexual predators and sexual offenders which is not confidential and exempt from public to disclosure so that so that the florida department of law enforcement they do anything other than just maintain the website what they the f d a only they collect information registration information and then they disseminate that information to the website but but that the web site has existed since before two thousand and twelve yes it's the law went into effect in one thousand nine hundred and seven which is at the same time that i believe that the website went into effect the website though is not it is not mandatory under the law it is a discretionary call that the department can but f d a only can use to disseminate information as it as it chooses but florida hasn't been updating the website since your client left the state of florida that's not true they updated all the time and in fact when we st filed the complaint in this case f d a alley had three violations  listed for mr mcwhorter and after the filing of the complaints updated that to list five violations that he was convicted of and said of the three so they do have the ability to go in and to update it at any the every day every day every day that his information is on the website with the label sexual offender is it provides an opportunity while he's living in north carolina for potential that how do you address the supreme court's decision in united airlines for buttons when they're talking about and that's and in an employment discrimination arena but it's talking about whether whether in looking at whether there's a continuing violation merely because there is a present effect to a past illegal act is not going to constitute a continuing violation correct and that's why i cited the  and the th and st circuit with regards to a separate but related issue regarding the continuing violation doctrine but basically in currently the court differentiated between  due process violation alleging a deprivation of property such as under the takings clause and a deprivation of liberty such as under the right to travel and what the court found was that when you have for example a deprivation of property that the minute that you're deprived of property that's when the statute of limitations starts running however with a deprivation of liberty when you're talking about a law that's depriving you of constitutional liberty protection but that every day the law is in effect is every day that you're being deprived of your rights and so it doesn't actually require an affirmative action basically in that case that the defendant had argued that there was no continuing violation because the defendant did not commit any affirmative invalid acts on a repeated basis do have a case here in the th circuit the hip hip case the liberty national life insurance and it's addressing the continuing violation theory that you seem to be advancing and seems to be rejecting it out of hand that if a series of events should have a little ordered a reasonable person to act to assert his or her rights at the time of the at the time of the violation the victim cannot later rely on the continuing violation doctrine to overcome risks the statutory requirement of filing a charge this is an e o c situation correctly your client has known about his put his information being on this website since two thousand and twelve so how how are you able to take advantage of this continuing violation theory in light of hip what there is actually so you are talking about a precipitating event or notification and in this particular situation there is no notification  public dissemination over the internet of his of his information and there is no precipitating event but he was notified no no ma'am no he wasn't he was no he received a letter that that told him that he had certain requirements that he had to comply with for a lifetime including registration checking in which sheriff's office reporting updates an address and things of that nature but the letter is silence as far as  his information being placed and publicly disseminated on a daily basis for the rest of his life when did he learn his information was on the website he never received notification of that and did he look is there any evidence in the record there is no evidence no there is no there is no evidence and a right maybe no evidence because you didn't raise the continuing by a lation theory i mean you your side below so the issue of what he was notified about didn't come up and when it was it he didn't  didn't claim that he was violated there he was there was a new violation every day because he didn't know that wasn't an argument below while in the in the states motion to dismiss they they raised mag versus bailey and as and the district court made a ruling on it except that all the things you're arguing now about the continuing by a latent theory are good below because it wasn't an argument of your side while there was no precedent in cases in the circuit intil the handing down of dough versus marshall and that was on the same day that was february th twenty one thousand dollars which was the same day that we filed our floor because every single day that his information is publicly disseminated on the internet with the label sexual offender is every day that he has a violation of his fundamental rights affirmative florida that's correct every day that florida puts his information out there they can easily your honor take his information off of the internet and he would still it would not affect his registration in florida at all they can easily do that and every single day that they choose to put his information out there bay infringe on his constitutional for challenges to information put up on the website and i understood opposing counsel to say that's exactly their position and i think we should think about that for a nd and whether it's consistent with the principles that this court has consistently and there is a clear exception that applies to the statute of limitations and here's what some of those social policies are you've got not just fine ality in repose but also avoiding unfair prejudice to the party he's trying to defend against the claim this specially in the context of an as applied constitutional challenge to a duly enacted sketch how would that apply here well mr mcgroarty says that it was unreasonable for the state of florida to believe that he might continue to maintain ongoing contacts with the state after he completed his sentence he moved out of the state and his terminations and his supervision was terminated on march th two thousand and twelve well the state of florida was not bound to accept those representation and we might very well have contested those factual allegations what kind of evidence would we rely on we might rely on information about people who had been actively involved in mr majority supervision they might have had knowledge about commercial interests and business transactions that he was involved in they might have had knowledge about continuing contacts that he has with the state of florida as the court is no doubt aware from its review of the record in this case there was also a dispute between the parties in the litigation below about the very facts and circumstances surrounding this to regrow his criminal affections criminal convictions that form the basis for the sex offender designation that's at issue in this case those are all the types of facts that ordinarily a defendant should be able to raise in the destroyed memories fade and that doesn't just prejudice the defendant it also prejudices the court which is tasked with adjudicating these claims and the court has a right to have information that is as accurate as possible in the context of so that's a long way of saying that the social policies embodied in the statute of limitations aren't that equally implicated by this litigation and what we haven't seen this majority ever say is that there was any reason why he could not have filed this lawsuit a point if have either known or reasonably should have known with the exercise of reasonable prudence and this is a standard that mr mcgroarty himself except in his brief to this court citing for example this court's published decision and make an error versus and so it's a more objective test but here in any event we can satisfy either standard or either the subjective or the objective test and st let's start with the notification to which your honor refers which is the letter from the department of corrections that mr be considered a sex offender notwithstanding the completion of his sentence then if you go down to numbers seven and eight of that letter they tell him a couple of things st that the sex offender registration requirement in florida is  a life time requirement and they invert to florida statute nine hundred and forty three point four hundred and thirty five why is that important well i for two reasons one is because if you look at the applicable statutes and i'll talk about one of them in just a nd they make it absolutely clear that under florida law the f d a only ordinarily is going to maintain this information on its website and just by way of example i would direct the court's attention to florida statute nine hundred and forty three point zero and forty three four hundred and thirty five to include a registration requirement and his understanding of the plain language of that provision is that plain language includes the requirement that the sex offender designation and of kompany information be put on florida's website his understanding of the statute not out in any event a plaintive with reasonably prudent regard for his rights would have known that his information had been on the f b i only website since according to mr macgregor two thousand and four could easily have been acquired in two thousand and twelve whether that information would continue to remain on the website and if mr mcgroarty really believed that maintaining that information on the website after he left the state was adversely affecting his constitutional rights the short answer to your honor's question is that there is nothing that would have prevented a reasonably  inquiring into that and then asking f d r only whether they could take that information down but also like to address judge branches question two opposing counsel about the hip case and that line of authority provides a narrow and relatively simple basis for affirming the judgment below in published decisions like hipaa versus liberty national insurance company and center for biological diversity the hamilton this court has said time and again that the continuing violations doctrine which really forms the predicate for mr magruder has appealed to this court is premised on the equitable notion that the statute of limitations ought not to begin to run until such time as a plaintiff either knows or reasonably could have known about all the facts supporting the cause of action and i don't think we only see any kind of good adequate answer to that line website and he's never represented that he could not have known with the exercise of reasonable prudence that's the factor on which the district court relied in its decision to allow and it absolutely provides a narrow and independent basis for affirming the judgment below because you don't even have to ask how the equitable doctrine of continuing violations would apply because at the threshold he can't invoke to that doctor and under this court's press i would like to respectfully direct the court's attention to one case that really makes that a couple cases that make that very clear one is this court's decision and center for biological diversity hamilton and in particular the last page of center for biological diversity versus hamilton there  court relied on the principle that you were diverted to judge branch the principal and help and it said it was responding to the plaintiff's argument relying on a different authority that said that non action can be considered a continuing violation and this court said that argument that non action can conceive can constitute a continuing violation contradicts this court's precedent quote narrowly construing the continuing violations doctrine the exact same analysis applies here because at the end of the day what mr majority is really complaining about is continuing non action that is to say his beef at the end of the day is that back in two thousand and twelve the state of florida didn't take his information down from its website even though he had completed his sentence and moved out of the state well that's not action the information was up on its website that wasn't taken down and his submission to this court is that that continued non action constitutes a distinct violation the court asked opposing counsel well are you saying that you have a new violation every day and opposing counsel said yes but actually you have the distinct violation every as challenging as inaccurate were illegal or that form the basis for the constitutional challenge now mr mcgroarty has represented to the court that there are certain updates that were made after he filed this litigation adding an additional conviction to the list of convictions that's up there i accept counsel's representation for purposes of this argument but counsel as i understand it hasn't argued that that information is an accurate counsel's argument as all of the and from the fact that he's been designated a sex offender all of the underlying convictions that go back two hundred and twenty million twelve thousand and two all of that has to has to be taken down actually i didn't hear an argument that the updates themselves  circumventing the applicable statute of limitations and as your honor is question two opposing counsel suggested he could have asked f d a only to do that back in two thousand and twelve so the fact that he sat on his rights from two thousand and twelve until two thousand and eighteen doesn't mean that he can resurrect stale claims by taking the experts just by resorting to the expediency of belatedly asking f d a only to take down information that according to mr mcgurk the federal constitution required it to take down back in two thousand and twelve i would also just finally like to emphasize a couple of the cases in which this court has discussed how the doctrines that we're talking about today apply to sex offender registration requirements and in particular i'd like to direct the court was challenging the fact of his designation as a sex offender but with this court's precedents recognize is that it's always going to be a linguistically plausible for a litigant to recur to rise a complaint that ask you do with an old violation as exclusively targeting the latest manifestation of injury or harm that's attributable to that old file ation and so for example in medicine the pla f was complaining about his classification as a sex offender but he could have easily read characterized that claim to challenge present ongoing continuous dissemination of his personal information i only website pursuant to an allegedly invalid statutory scheme or pursuant to an allegedly erroneous designation as a sex offender and with this court's cases stand for as the proposition that that kind of pleading doesn't get you around the statute of limitations that instead you need to look at the graviton of the claim the substance of the claim and ask exactly the question the judge wilson put two opposing counsel at the outset of this argument and that is why couldn't the exact same claim back in two thousand and twelve what are the facts that he did not know back then or could not have known with the exercise of reasonable prudence back then that prevented from bringing this lawsuit back then while he was incarcerated and in january of two thousand and ten he successfully persuaded the u s attorney's office to intervene on his behalf because information was taken down from the website he filed suit in february of two thousand and than one month later and notwithstanding all the equitable considerations that applied in this case none of which apply here this court said it's past the statute of limitations could've brought that same claim back in two thousand and five i see that my time is about to run out i'm happy yes sir i just want to make it clear that and make a stand and then more the challenge specifically was the it was the act of being registered and was the classification of being for example medicine versus bailey the plaintiff there was actually challenging his classification as a sex offender he was saying that that was wrong to include him as a convicted sex offender and to have him register as a sex offender we are not contesting that mr mccourty qualifies to be classified as a convicted sex offender what we are challenging here is the discretionary application of the law that f t l only has put into place with regard to the public notification component that is the public dissemination of his impersonal information over the internet the legislative purpose of putting his information on the internet is to is is for public safety but the law is not narrowly tailored to achieve this objective and the application f t l is application of the law i should say because the law is silent as to whether or not a registrants information must remain on the internet for their lifetime it does the law does not say that the law says that f t l e has the discretion to decide how to notify the public through the internet with what information can you explain to me your theory of privileges and immunities violation that might help me understand this debt limitation ok so so basically the argument is are but the violation of law is that we complain of is that it is a a due process violation of mr fundamental right to travel with respect to the privileges and immunities clause that is under the right to travel there under that doctrine there is embodied the idea that if a citizen of one state moves permanently to the citizen of or two and moves permanently to another state that he has the right as any other citizens of that state to enjoy all of the privileges and immunities afforded under the law of that state and so that's what we're saying he moved to north carolina he's not considered to be a sex offender in the state of north carolina and yet despite the fact he has no jurisdiction on the access to florida whatsoever florida continues to disseminate his personal information that's out dated with the law but it has his photograph and his name and his date of birth with the label sexual offender and that is very similar to in dover says marshall the driver's license the branded driver's license that the court found compelled speech under the  st amendment and that is that it was a piece of identification that was branded as a criminal sexual offender and what the court found was that that was not the least restrictive means possible to  to alert law enforcement which was the purpose of that requirement that an individual was a sex offender that they could have labeled it with a y for example and so you're saying there is an inability to get  because of something on the no ma'am i'm saying that the state of florida is violating his rights to be treated as every other citizen in the state of north carolina and i other citizen in the state of north carolina who committed sex offender the bence's and florida is going to be listed in florida we're saying that that that we're not saying the registration violates his rights were saying the public dissemination of his registration information violates his his rights in north carolina if he if he has a potential employer laura that has to accept north carolina's limitations as far as public notification because of the fact that mr mccourty is a permanent citizen of the state of north carolina that that and he has no jurisdiction on that to the state of florida that  florida may not disseminate his information over the internet that has no jurisdictional boundaries on it he can remain on the registry we're not arguing that he should be removed from the registry we're arguing that he should the public