FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

L AR R Y C. F LY

N T ; H A I G KE L E G I A

N , S R .; H A I G T. KE L E GI A N , J R ., Plaintiffs-Appellants
,

v

.

S T E P HA N I E K. S H I M

AZ U , in her official capacity as the Director of the California Departm ent of Justice, Bureau of Gam

bling Control; J I M E V A N S , in his official capacity as Chairm an of the California Gam bling Control Comm ission; T R A N G T O , in his official capacity as Comm issioner of the California Gam bling Control Comm ission; X A V I E R B E C E R

R A , in his official capacity as Attorney General of the State of California; P A ULA D

. L AB R I E , in her official capacity as Comm issioner of the California Gam bling Control Comm ission, Defendants-Appellees. * No. 17-17318

D.C. No. 2:16-cv-02831- JAM-EFB

OPINION

* Appellee Shim azu is autom atically substituted f or her predecessor under Federal Rule of Appellate Procedure 43(c)(2).F LY N T V

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Appeal from

the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Subm itted February 13, 2019 San Francisco, California

Filed October 7, 2019

Before: Mary M. Schroeder, Diarm uid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge O’Scannlain; Dissent by Judge Rawlinson

SUMMARY * *

C ivil Rights

The panel reversed the district court’s dism issal, on statute of lim itatio n s grounds, of a lawsuit b rought p ursuant to 42 U.S.C. § 1983.

Plaintiffs hold ga mb li ng licenses to own and to o perate cardro o ms in California and wish to invest substantially in out-of-state casinos. They alleged that C alifornia Business & Professions Code §§ 19858 and 19858.5 prohibit them from doing so because, pursuant to the statutes, a l i c e n se e of a California ca rdroom m ay n o t own m ore than a one-percent

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F LY N T V

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interest in any out-of-state entity that engages in casino-style gam bling activities, even if such activi ties are lawful where the entity operates. Thus, in 2 0 10, for exam p le, the California Gam

bling Comm ission d eterm ined th a t plaintiff Kelegian Jr. violated the statutes through his own er s hip interest in an o ut-of-state casino and denied his application to

renew his licenses for two California c ardroom s. Kelegian Jr. thereafter divested his out-of-state o wnership interest and

on June 12, 2014, the Comm ission approved his renewal app lications, but ordered h im to p ay a f ine for his p revious violations.

On Novem

ber 30, 2016, plaintiffs brought suit fo r declarat ory and injunctive relief alleging, in part, that §§ 19858 a n d 19858.5 were f acially unconstitutional under the Dorm ant C omm erce Clause. The district court dism issed the suit, ruli n g t h a t the claim s were tim e-barred because plaintiffs failed t o b ri n g suit within two years of the Comm ission’s 2014 decision.

The panel first h e l d t h at although this Circuit had yet to apply a state statute of lim itations to a f acial challenge under the Dorm ant Comm erce Clause, it saw no reason to treat such

a claim d ifferently from facial constitutional claim s under the First, F ifth, or Fourteenth Am endm ents. Thus, the panel concluded that plaintiffs’ claim s w ere sub j e c t to the forum state’s statute of lim itations. H ere, the r e l e v ant period was two years.

The panel rejected the State’s argum ent that plaintiffs’ claims accrued in 2014 when the Comm ission issued its adverse decision on Kelegian Jr.’s investm ent. The panel held that when the continued enforcem ent of a statute inflicts

a continuing o r repeated harm
, a new claim arises (and a newF LY N T V

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lim itations period comm en c e s ) w ith each new injury. The panel held that a ssum ing for the sake o f analysis that §§ 19858 and 1 9858.5 v iolated the Dorm ant Co mme r ce Clau s e , plaintiffs dem onstrated a continuing violation. The panel reasoned that sections 19585 and 19858.5 operate on an ongoing b asis t o p rohibit plaintiffs from investing significantly in num erous casinos outside of California. And every two y ears, the Comm iss i on stands ready to enforce such prohibition as part of the state’s license renewal process. The p anel concluded that plaintiffs continue to be precluded from exploring other investm ent opp o r tunities not as a
cons e qu e n ce of the Comm ission’s 2014 decision, but rather

a result of the continued existence of the statutes them selves and the realistic threat of future enforcem ent.

D issen tin g , Ju d g e R awlinso n ag reed w ith th e d i strict co u rt that plaintiffs’ claim s w ere barred by the applicable two-year statute of lim i t ations. Judge Rawlinson stated that the

ma j o r i ty’s v iew that the injury continues because the Gam bling Comm ission stands ready to co n t inue to enforce the statute is p atently at o dds with this Circuit’s consistently articulated analysis of the continuing violation doctrine.

C OUNSEL

Paul J. C am

br ia Jr. (argued) and E rin McCam pbell Paris, Lipsitz Green Scim e Camb r i a LLP, Buffalo, New Y ork, for Plaintiffs-Appellants.F LY N T V

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Jam es G. W aian (argued) and Peter H

. Kaufman, D eputy Attorneys General; Sara J. Drake, Senior Assistant Attorney General; Xavier Becerra, Attorney Gen e ral; Office of the Attorney General, San Diego, California; f or DefendantsAppellees.

OPINION

O’SCANNLAIN, Circuit Judge:

W e m ust d e cide whether California’s statute o f lim itations f

or personal injury suits bars a facial challenge to the constitutionality of certain California gam bling laws.

I

La rry F lynt, Haig Kelegian Sr., and Haig Kelegian J r. (collectively “Licensees”) h old gam bling licenses to own and to operate cardroom s—establishm ents that “allow patrons to engage in non-banked or non-percentage card gam es during which the players play against each other and pay the cardroom a fee to us e its facilities.” 1 In addition to owning cardroom s in C alifornia, they wish to invest substan t ially in

o ut-of-state casinos. They com p lain
, h o w ev e r, th at C a lif

o rn ia law prohibits themfrom doing so.

1 W e take as true the w ell-pleaded allegations of th e First A m ended Com plaint. S ee AlliedSignal, Inc. v. City o f Phoenix
, 182 F.3d 692, 6 9 5 (9th Cir. 1999).F LY N T V

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A

California has long perm itted in-stat e g am bling, subject t o certain restrictions. Relevant here, the state requ i r e s cardroom s to obtain a license to o perate, see Ca l

. Bus. & Prof. Co de § 19850, and to renew such license every two years, Cal. Bus. & P rof. Code § 1 9876(a). To m aintain operations, cardroom owners m ust com ply w it h state gam bling laws. See Cal. Bus. & Prof. Code § 19922.

Thi s case concerns the intersection of three such laws. First, California Penal Code § 330 prohibits cardroom s from engaging in casino-like activities, including blackjack, roulette, and oth e r h o use-banked or percentage gam es. S eco n d
, C alif

o rn ia B u siness and Professions Code § 1 9 8 5 8 ( a) prohibits a person from “hold[ing] a state gam bling license to

own a gamb l i n g establishm ent if,” am ong other things, he “has any financial interest in any business or organization that is engaged in any form of gam bling prohibited by Section 330 of the Penal Code
, whether within or w ithout [ the] state

. ” (em phasis added). F in ally
, C alif o r n ia B u sin ess & P ro f

essio n s Cod e § 1 9 8 58.5 perm its a lim ited exception to § 19858’s broad prohibition. Under § 19858.5, an applicant or licensee who “has a financial interest in another business that conducts lawful g am

bling outside the state that, if condu c t e d within California, would be unlawful,” m ay still “ h o l d a state gam bling license” so long as he d oes “not own, either directly

or indirectly, more than a 1 percent interest in , or have control of, that business.” (em phasis added).

The upshot of §§ 19858 and 1 9858.5 is that a licensee o f

a California cardroom m ay not own m ore than a one-percent interest in any out-of-state entity that engages in casino-styleF LY N T V

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gam bling activities, even if such activities are lawfu l where the entity operates.

B

W ith these laws on the books, Fl y n t a nd the Kelegians allege that they h a v e been unable to pursue num erous investm ent opportunities in out-of-state casinos, d es pite having a “keen interest” in doing so and being “ready, willing, and able to com

pete for the o pportunity.” Flynt, for instance, alleges that prior to 2014 and as late as No v em ber 2015, he declined offers to purchase casinos in Nevada, Iowa, Colorado, Louisiana, and Mississippi because of California’s ownership restrictions. The Ke le g ians claim that they too declined to pursue sim ilar o p portunities to invest o utside the state.

In 2 010, for exam

ple, Kelegian Jr. acquired real property in the State of W ashington fo r the purpose of opening a casino there. To ge t her w ith his wife, Kelegian Jr. form ed Kelco Gam ing, LLC, which operatedthe casino. He owned

a one-percent interest in the LLC, and his wife owned the

rem aining n i n et y-nine percent. A t the sam e tim e, Kelegian Jr. applied to the California Gam bling Comm ission to renew his licenses for two California cardroom s. The Comm ission, taske d with reviewing and issuing state gam bling licenses, denied his applications on the gro u n d s that his ownership interest i n t h e W ashington casino violated §§ 19858 and 19858.5. Kelegian Jr. divested h is interest in the casino and requested a hearing o n the denial of his ap pl i c a tions. In a public d ecision issued on June 1 2, 201 4, the Comm ission approved Kelegian Jr.’s applications but ordered him to pay

a fi n e f or his previous violation to the Bureau of Gam blin gF LY N T V

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Control, a div i s i on of the California Departm ent of Justice that is charged with enforcing California’s gam bling laws.

C

On N ovem

ber 30, 2016, Flynt and the Kelegians sued the Bureau of Gam

bling Control, m em

bers of the C aliforn ia Gam bling Comm ission in their official capacities, and t h e Attorney General of California (collect i v ely, “the State”) under 42 U.S.C. § 1983 in the Eastern District of California. They alleged that §§ 19858 and 19858.5 were facially unconstitutio n al under the Dorm ant Comm erce Clause because the statutes pr ohibit interstate investm ent and discrim inate against o ut-of-state econom ic inte r ests. 2 Licensees sought declaratory and injunctive relief. The State

mo v ed to dism iss under Federal Rule of Civil P rocedu r e 12(b)(6) on t h e ground that the suit was barred by the applicable statute of lim itations.

The district court dism issed the suit, ruling that Licensees’ claim s were t im e-barred because they failed to bring suit within two years of the Co mmi s sion’s 2014 decision.

This tim ely appeal followed.

2 Licensees also alleged t

h at t h e st at ut e s w er e f

acially unconstitutional under the Fourteenth A m endm ent and unconstitutional as applied to t hem

. Li c ensees have abandoned these claim s by failing to address them o n appeal. See Collins v. City of San D iego , 841 F.2d 337, 339 (9th Cir. 1988).F LY N T V

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II

Licensees contend that the district court e rr e d in d ism issing their claim s as tim e-barred. “Section 1983 d oe s not contain its own statute of lim itations.” B utler v. Nat ’ l Co mm. Renaissance of Cal.
, 766 F.3d 1191, 1198 (9th Cir

. 2014). Instead, claim s brought under § 1983 are subject to the forum state’s statu te o f lim itations for personal injury suits. See Wilson v. Garcia
, 471 U .S. 2 61, 275–77 (1985), superseded by statute o n o ther grounds ; Butler
, 7 66 F.3d at 1198. C iting Brown v. Board of Education , 347 U.S. 483 (195 4), and Obergefell v. H odges
, 1 35 S. Ct. 2584 (2015), Licensees note that courts h ave entertained facial challenges to the constitutionality of statutes long after their enactm ent. Licensees thus contend that a statute of lim itations ought

never to apply to facial challenges because “such challenges

are litigated without r egard to the particularities of the p la i n t i ff or the case.” But whether a statute of lim itation s applies to such cla i m s and whether it ultim ately bars them

are different m atter s

. Som etim es, as we explain below, a statute of lim itations, though applicable, does n ot bar a facial challenge. See, e.g. , Maldonado v. Harris
, 370 F.3d 945, 956 (9th Cir. 2004).

The Suprem e Cour t has n ever lim ited the application o f

a statute-of-lim itations period t o as-applied challenges. Instead, it ha s c o n s trued 42 U.S.C. § 1988 broadly “as a dir e c t i ve to select, in each S tate, the one m ost appropriate statute of lim itations for all § 1983 claim s.” See Wilson
, 471 U.S. at 275–79 (em phasis ad d e d ). Accordingly, our
cases routinely subject both as-applied and facial challenges brought under § 1983 to the f orum state’s statu te of lim itations. See, e.g. , Scheer v. Kelly
, 817 F.3d 1183 (9th Cir. 2016) (facial challenge under the F irst and F ourteenthF LY N T V

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Am endm ents); Lukovsky v. City & County of San Francisco
, 535 F.3d 1044 (9t h Cir. 2008) (as-applied challenge to

ra cially d iscrim inatory practices); A ction Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd.
, 509 F. 3d 1020 (9th Cir. 2007) (facial challenge under the Fifth and Fo u rteenth Am endm ents); Maldonado
, 370 F .3d at 945 (facial challenge under the First A m endm ent); Barancik v. County o f Marin
, 872 F.2d 834 (9th Cir. 1988) (facial due process challenge).

Although our court ha s y e t to apply a state statute o f lim itations to a facial challenge under the Dorm ant Comm ere Clause, we see no reason to treat s u c h a claim differently from f acial constitutional claim s u n d er the First, Fifth, o r Fourteen th Am endm ents. Thus, consistent with our court’s

case law, we conclude (as the distric t c ou rt did) that Licensees’ claim s are subje c t to the forum state’s statute o f lim itations. Here, the relevant period is two years. See Cal. Code Civ. P. § 335.1; Act ion Apartment Ass’n
, 509 F.3d at 1027.

A

Deciding that California’s statute of lim itat ions applies—in the abstract—to Li c ensees’ claim s does n ot end the inqu iry , however, for we still m ust decide whether the lim itations p eriod ultim ately ba r s s uc h claim s. In other words, we m

u st consider when the l i m i tations period began to run and whether, as the district court concluded, tim e had

run out. To answer these questions, we look to feder al l a w. See Wallace v. Kato , 549 U.S. 384, 388 (2007).F LY N T V

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1

A lim itations period begins to run when the claim accrues. See Levald, Inc. v. City of Palm Desert
, 998 F.2d 6 8 0, 687 (9th Ci r

. 1 9 93). “It is the standard rule that accrual occurs when the plaintiff has a com plete and present cause o f action,” Wallace
, 549 U.S. at 3 88 (in t e rn a l quotation m arks and alteration om itted), that is, when the plaintiff “knows o r has reason to know of the actual injury,” Scheer
, 817 F.3d at 1188 (quoting Lukovsky , 535 F.3d at 1051).

License e s u rge u s to reject this rule on accrual for facial constitutional challenges. But just as there is no justification to treat f

acial challen g e s differently for purposes o f determ ining whether a statute of lim itations applies
, there is

no reason to do so for purposes of determ ining when a claim

accrues

. See Bird v. De

p’ t of Human Servs
., 935 F .3d 738, 746 (9th Cir. 2019). Scheer states the proper test for accrual. The question, then, i s whether Licensees’ claim s accrued outside the lim itations period.

2

The State argues (and the d i s t rict court f ound) that Licensees’ claim s accrued when the Comm ission issued its adverse decision on Kelegian Jr.’s investm ent in June 2014. The State rea s o n s t h at such decision put all three Licensees

on notice of how the Comm ission would interpret and enforce § 19858.5’s one-percen t lim itation and that Licensees therefore knew of the injuries underlying this suit as early as June 2014. Because Licensees filed suit m ore than two years later, the State contends that the d istrict court properly dism issed the suit as untim ely.F LY N T V

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Lic e n sees concede that they w ere aware of the Comm ission’s decision and that they refrained from pursuing

som e investm ent opportunities as a result. Nevertheless, they urge that their claim s are tim ely because the statutes’ ongoing prohibition, coupled with the Comm ission’s will i n g ness to enforce it, effects a “continuing violation” and a “continuing harm ”—nam ely, because of the statutes, Licensees continue to be prohibited from investing substantially in out-of-state casinos, as they wish to do.

When the continued enforcem ent of a s t a tute inflicts a continuing or repeated harm
, a ne w c l aim arises (and a new lim itations period comm ences) with each n e w i n j ury. See Kuhnle Bros., Inc

. v

. County o f G eauga , 103 F.3d 516, 521–22 (6th Cir. 1997); Palmer v. Bd. of Ed u c

. of Comm. Unit Sch. Dist. 201-U

, 46 F.3d 682, 686 (7th Cir. 1995) (“A series of wrongful acts

. . . cre ates a series of claim s.”); cf. Nat’l R.R. Passeng e r Co rp. v. Morgan
, 536 U .S. 101, 113 (2002) (“Each discrete discrim inatory act starts a new clock for f iling charges alleging that act.”). Assum ing for the sake of analysis that §§ 1 9 85 8 a n d 19858.5 v iolate the Dorm ant C o m m erce C lau se, Licensees h av e d em o n strated a co ntin u in g violation. 3 Sections 19585 and 19858.5 operate on an ongoing b asis to prohibit them from investing significantly in

3 A s the Eleventh Circuit h as explained, the term “continuing violation” is “som ething of a m isnom er,” in that it “im plies that there is but one incessant violation and that the p laintiffs should be able to recover for the entire duration of the violation, without re g a rd t o the fact t h at i t began outside the statute of lim itations w i n dow.” Knight v. Columbus
, 19 F.3d 579, 582 (11th Cir. 1994). But th a t i s n o t the scenario that i t describes. Rath e r than “one on-going violation,” a continuing v iolation is really “a series of repeated v iolations.” I d. An d “[b]ecause each violation gives rise to a new cause of action, each [violation] begins a new statute of lim itations period as to that particular event.” Id.F LY N T V

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nume r o u s casinos outside of California. And every two years, the Co mmission stands ready to enforce such prohibition as part of the state’s license renewal process. See Cal. Bus. & Prof. Code § 19930(a)(1) & (b). Licensees therefore suffer a n ew injury each tim e they ab s ta in from investin g for fear that the C omm ission will enforce the statutes’ prohibition. 4 See Kuhnle
, 103 F.3d at 522 (“Kuhnle suffered a new deprivation of constitutional rights every d ay that R esolution 91-87 rem ained in effect.”). W ith each new injury, a new claim arises, and the s t a tu t e of lim itations period b egins a n e w. Id. at 522–23 (holding that because “a

new injury was allegedly inflicte d o n K uhnle each day that Resolution 91-87 was in effect, a new limi ta t i ons period began to run each day as to that day’s dam age” ( in t ernal quotation m arks rem oved)); see also Pa lm er , 4 6 F .3d at 685–86 (holding that a ra ci a l discrim ination claim “arises each day a child is assigned to school under a racially discrim inatory policy”).

W e need turn only to the First Am ended Com plaint to observe that such injuries occurred during the lim itations period. See L ewis v. City of Chicago
, 5 6 0 U.S. 205, 214 ( 2 0 1 0 ) (Whether a violation occurred during the lim itations period “depends o n the claim asserted.”). Licensees allege a present inability t o invest. Although they highlight specific forgone investm ent opportunities from 2014 and 2015, they do not seek dam ages for such lost opportunities. Instead, they

4 T he d issent contends that the Comm i ssion’s readiness to enforce the statutes has n o bearing on th e c o nt inuing violation analysis. But such readiness dem onstrates the legitim acy of Licensees’ claim s: so l o ng as the Comm ission is w illing to enforce the statutes, Licensees w ill continue to suffer a constitutional deprivation so long as t hey abide by the statutes’ ongoing prohibition.F LY N T V

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seek prospective relief, enjoining the State from enforcing the statutes in the future. Assum ing a lim itations period extending two years back f rom the date o n which Licensees’ fil ed their First Am ended Com p laint (June 15, 2017), Li c e n sees’ alleged injuries f all w ell within the p eriod. Th e district court erred by concluding otherwise.

The State resp o nds that Licensees failed to plead a continuing violation because their inability to invest outside California is m erely a continuing effect of the Comm ission’s 2014 d ecision, rather than a new injury. See Knox v. Davis
, 260 F.3d 1009
, 1 0 1 3 (9th C ir. 2001) (A “m ere continuing impact f rom past violations is not actionable” if the violations lie outside th e statu

te of lim itations period. (internal quotation

m arks om itted)); see also Garcia v. Brockway
, 5 26 F.3d 456, 462 (9th Cir. 2008) (A “continuing violation is occasioned by continual unl awfu l acts, not by continual ill effects from an original v iolation.”). The Comm ission’s decision, h owever, is not what p rohibits Li c e nsees from pursuing their desired investm ents. The statutes them selves d o that. Ultim ately, the Comm ission’s de cision did nothing but enforce the statutes agains t a particular plaintiff—Kelegian Jr.—with respect to

a particular investm ent. That all three Licensees continue to be preclu ded from exploring other investm ent opportunities is not a consequence of the Comm ission’s d ecision, as the disse n t would have us conclude, but rather a result of the continued existence of the statutes them sel v es and the

rea l is ti c threat of future enforcem ent. 5 The State’s reliance

5 For t he sam e re a s on, this case is distinguishable from our recent opinion i n B i rd v. Dep’t of Human Servs
., 935 F.3d 738 (9th Cir. 2019). Bi r d h eld t

hat the plaintiff’s § 1 983 claim for deprivation o f procedural due p rocess w as tim e-barred because the deprivation occurred b efore the lim itations period and o n ly effects of such deprivation occurred d uring theF LY N T V

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on Knox and other sim ilar cases is therefore m isplaced. 6 Licensees’ claim s are tim ely.

B

Two final arg um ents raised by the State m erit brief attention.

First, the S tate contends—without support

—that Licensees are estopped from asserting their facial challenges to § § 19858 and 19858.5 b ecause they “urged the California Legislature to adopt California Bus i n ess and Professions Code section 1 9858.5.” We a r e unaware of any theory o f judicial estoppel that would preclude relief on the basis of a litigant’s l e

gislative lobbying. R egardless, Licensees’ p rior lobbying has n o bearing on their ability to challenge the constitutionality of the statutes; that L icensees supported the adoption of § 19858.5’s o ne-percent lim itation at a tim e when § 19858 com

pletely banned investm e nt in o ut-o f -state casin o s is not inconsistent with their position later that even the onepercent exception violates the Constitution.

lim itations period. By contrast, the § 1 983 claim in this case is tim ely becau s e the Licensees p lead a harm that constantly renews, including during the lim itations period.

6 The State’s (and the d issent’s) relia nce on Scheer is sim ilarly unpersuasive. Unlike the gam bling statutes here, the challenged practice in Scheer was n ot a continuing violation, but instead involved a o ne-tim e application of California’s attorney disciplin e p rocedures, triggering the

s ta tute of lim itations only upon final decision of the California S uprem e Court, see 817 F .3d at 1188. Scheer t herefore does not d em and a contrary result.F LY N T V

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Second, the State argues cursorily that Licensees failed to plead facts supporting a facial, as oppo s e d t o an as-applied, challenge. T he S tate did not raise this argum ent in its m otion to dism iss, so the district court did not rule on it. W e decline to do so in the first instance.

III

Assum ing that the enforcem ent of §§ 19858 and 19858.5 inflicts an injury, California’s two-year statute o f lim itations does not bar facial challenges under the Dorm ant Comm erce Clause.

REVERSED and REMANDED.

RAW LINSON, Circuit Judge, dissenting:

I respectfully dissent. I agree with the district cou rt that the Plaintiffs’ claim s were barred by the applicable two-year statute of lim itations.

The m ajority opinion relies on o ut-of-circuit authori t y addressing the con tinuing violation doctrine to reverse the ruling of the district court. See Majority Opinion , pp.12–13 (citin g Ku hn le Bros., Inc. v. C ty. of Geauga
, 103 F.3d 516, 521–22 (6th Cir. 1997); Palmer v. Bd. o f Educ. of Comm. Unit Sch. Dis t

. 2 01-U

, 4 6 F.3d 682, 686 (7th Cir. 1995)). However, our precedent supp o r t s the ruling by the district court.

As the m ajority ac kn o wledges, a statute of lim itation

comm ences running when the claim accrues. See Levald, Inc.F LY N T V

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v. City of Palm Desert
, 998 F.2d 680, 687 (9th Cir. 1993). In turn, the claim accrues when “a plaintiff knows or has reason to know of the actual injury.” Scheer v. Kelly
, 817 F.3d 1183, 1188 (9th C ir. 2016) (quoting Lukovsky v. City & C ty. of San Francisco
, 535 F.3d 1044, 1051 (9th Cir. 2008)) (internal quotation m arks om itted).

It is un dispute d t h a t Plaintiffs Larry C. Flynt, Haig Ke l e g i an, and Haig Kelegian, Jr. becam e aware on June 1 2
, 2014, that the challenged statute prohi bi t ed any interest in a gam bling establishm ent outside C ali fo rn ia if that interest exceeded one percent. Because Plaintiffs desired to acquire prohibited interests in g am bling establishm ents outside California, the injury im

p osed by the statute accrued as to them at the latest on June 12, 2014, when the California Gam blin g Comm ission required Kelegian, Jr. to divest him self of a c o mmunity property interest in a gam bling establishm ent t hat exceeded one percent. At that point, Plaintiffs knew or had reason to know t h a t the statute im posed an actual in

ju ry upon them

. See Scheer
, 817 F.3d at 1 188 (observing that the statute of lim itations on a claim against the State Bar would b egin to run when discipline was im posed or was foreseeable).

Plaintiffs’ com

plaint was filed m ore than two years after the Gamb l ing Comm ission’s action, and was thus untim ely. The m ajority avoids this conclusion by emp l o y ing the continuing violation d octrine as interpreted by other circuits. But the continuing v iolation d octrine, as interpreted in this circuit, supports the decision of the district court.

In RK Ventures, Inc. v. City of Seattle
, 307 F.3 d 1 045, 1058 (9th Cir. 2002), we determ ined the lim itations p eriod by identifying “when the operative d ecision occurred.” (internalF LY N T V

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quotation m arks om itted). Once the ope ra t ive decision is identified, the inevitable cons e qu ences of the o perative decision do not affect the running of the statute of lim itations. See id.

Relying upon out-of-circuit authority, the m ajority posits that Plaintiffs established the existence of a cont inuing violation because “the Comm ission stands ready to enforce” the statutory prohibition “as p art of the state’s license renewal process.” Majority Opinion
, p. 13 (citing Kuhnle
, 103 F.3d at 522 – S ixth Circuit; Palmer
, 46 F.3d at 685–86

– Seventh Circuit). Ho we v e r, o ur precedent does not support this interpre t a t i o n of the continuing violation doctrine. Rather, inaction on the part of a governm ent entity has n o effect on the statute of lim itations calculus. See Scheer
, 817 F .3d at 1 1 88 (observing that the statute of lim itations was n o t triggered until the State Bar had imp o s e d d iscipline). The fact that the Gam

bling Comm ission “stands ready” to enforce the statute does not t r a n s l a te into the “discrete act” required to support a continu i ng violation argum ent. RK Ventures
, 307 F.3d at 1 0 61 (rejecting a continuing violation argum ent and explaining that “the statute of lim itations runs separately from each d iscrete act ”) (citing N ational Railroad Passenger Corp. v. Morgan
, 122 S. Ct. 2 061, 2072 (2002)) (em p h a sis added). Sim

ply put, under our pr ec e d e nt the continuing violation theory cannot r e s t on a non-act, such as “standing ready” to enforce a statute. See id.

The m ajority attem

p ts to distinguish our recent decision in Bird v. Dep’t of Human Servs

. , No. 17-16076,

___ F.3d

___, 2019 W L 3977554 (9th Cir. August 23, 2019) (per curiam ), reiterating our steady approach to the continuing violation doctrine. See Majority Opinion
, p

. 14 n.5.F LY N T V

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However, there is no principled basis upon which Bird can be distinguished from the facts of this case.

In Bird
, the plaintiff brought a claim under 4 2 U.S.C. § 1983 against the Hawai‘i Departm ent of Hum an Servic e s for including and retaining her n am e on a child abuse registry. S

ee 2019 W L 3977554 at *1, 4. Bird becam e aware that h er nam e was on the registry in 2 012 “when the report tu rn ed up on a background check.” Id. at *2. After Bi r d rejected the o ffer of a lim ited adm inistrative h earing, her at t orn e y sent the Departm ent a letter dated May 14, 2013, stating that Bird would proceed to litigation unless her nam e
was rem o ved from

the registry. See id. at *4.

Th e district court concluded that Bird’s cause of act i o n accrued at the latest o n May 14, 2013, and the com plaint filed

m ore than two years aft er t hat date w as untim ely. See id. at *5.

W e affirm ed the judgm ent of the district court that Bird’s

c om plaint was tim e-barred. See id. W e rejected Bi rd ’s

con t i nu i ng v iolation argum ent and her argum ent that the statute can be challenged as long as it is in effect. See id. at *5–6. W e confirm ed that an alleged due process violation under § 1983 is “a d iscrete event” that is governed b y the

“ d i s c o very rule of accrual.” Id. at *7. Applying the rule t o Bird’s claim
, we concluded that b e c au s e Bird was aware o f her claim no later than May, 2013, her claim was d iscovered

on that date and the statute of lim itations began to a c crue

. See id. at *10. W e n oted that the “little [ that] rem ains of the continuing violations doctrine” did no t apply to Bird’s individualized claim

. Id. at *8–9. W e echoed o u r past rulings in reasoning that “the deprivation of liberty that Bird

c ontinues to suffer is best understood as the continuin gF LY N T V

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im pact from a past v iolation,” rather than a separate d iscrete injury. Id. at *9 (citations and alteration om itted)

. W e el aborated that although the injuries resulting from Bird’s placem ent on the registry continued “to the present d ay,” that “continuing effect is insufficient to constitute a continui n g violation.” Id. (citation om itted).

Application of this sam e analys i s to the plaintiffs in this

c a se is inescapable. The plaintiffs in this case indispu t ab l y becam e aware on June 12, 2014, that they were p rohibited by the challenged statute from acquiring an interest in a gam ing establishm ent outside California i n excess of one percent. Their com

plaint, asserting indivi du a l i zed claim s as in Bird
, was filed m ore than two years later, and was untim ely. The fact that the Gam

b ling Comm ission continued to enforce the statute “is insufficient to constitute a continuing violation.” Id. (citation om itted).

In B ird
, we specifically addressed and reject e d t h e argum ent that the continued existence of a challenged statute supports the extension of a lim itations period. W e explained that acceptance of th at argum ent “would essentially nu llify all statutes of lim itations with respect to statutory cha l lenges.” Id. at *6.

In th e p r o cess of d ebunking Bird’s argum ent, we expressly negated any reliance on the Sixth Circuit’s decision in K uhnle
, a case also heavily relied upon by the m ajority. In Bird
, we explained that Kuhnle “did nothing m ore than bring the

. . . Sixt h Ci r c u it [] into alignm ent w ith our view that a facial challenge to a statute generally accrues when the statute is enforced.” Id. (citation and internal qu o tation m arks

om itted). The m ajority’s v iew that the injury co n t i nues because the Gam

bling C omm is s i o n “stands ready” toF LY N T V

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continue to enforce the statute i s p a t e nt ly at odds with our consistently articulated analysis of the continuing violation doctrine. S

ee id.

Because the co nt inuing violation theory is not viable under our precedent, I agree w ith the district co u rt that Plaintiffs’ action is b arred by the applicable statute o f lim itations. I respectfully d issent from the m ajority’s contrary conclusion.