FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY C. FLYNT; HAIG KELEGIAN,

SR.; HAIG T. KELEGIAN, JR.,

Plaintiffs-Appellants,

v.

STEPHANIE K. SHIMAZU, in her

official capacity as the Director of

the California Department of Justice,

Bureau of Gambling Control; JIM

EVANS, in his official capacity as

Chairman of the California

Gambling Control Commission;

TRANG TO, in his official capacity as

Commissioner of the California

Gambling Control Commission;

XAVIER BECERRA, in his official

capacity as Attorney General of the

State of California; PAULA D.

LABRIE, in her official capacity as

Commissioner of the California

Gambling Control Commission,

Defendants-Appellees.*

No. 17-17318

D.C. No.

2:16-cv-02831-

JAM-EFB

OPINION

* Appellee Shimazu is automatically substituted for her predecessor

under Federal Rule of Appellate Procedure 43(c)(2).
2 FLYNT V. SHIMAZU

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted February 13, 2019

San Francisco, California

Filed October 7, 2019

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Rawlinson

SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal, on

statute of limitations grounds, of a lawsuit brought pursuant

to 42 U.S.C. § 1983. 

Plaintiffs hold gambling licenses to own and to operate

cardrooms in California and wish to invest substantially in

out-of-state casinos. They alleged that California Business &

Professions Code §§ 19858 and 19858.5 prohibit them from

doing so because, pursuant to the statutes, a licensee of a

California cardroom may not own more than a one-percent

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FLYNT V. SHIMAZU 3

interest in any out-of-state entity that engages in casino-style

gambling activities, even if such activities are lawful where

the entity operates. Thus, in 2010, for example, the

California Gambling Commission determined that plaintiff

Kelegian Jr. violated the statutes through his ownership

interest in an out-of-state casino and denied his application to

renew his licenses for two California cardrooms. Kelegian

Jr. thereafter divested his out-of-state ownership interest and

on June 12, 2014, the Commission approved his renewal

applications, but ordered him to pay a fine for his previous

violations.

On November 30, 2016, plaintiffs brought suit for

declaratory and injunctive relief alleging, in part, that

§§ 19858 and 19858.5 were facially unconstitutional under

the Dormant Commerce Clause. The district court dismissed

the suit, ruling that the claims were time-barred because

plaintiffs failed to bring suit within two years of the

Commission’s 2014 decision. 

The panel first held that although this Circuit had yet to

apply a state statute of limitations to a facial challenge under

the Dormant Commerce Clause, it saw no reason to treat such

a claim differently from facial constitutional claims under the

First, Fifth, or Fourteenth Amendments. Thus, the panel

concluded that plaintiffs’ claims were subject to the forum

state’s statute of limitations. Here, the relevant period was

two years. 

The panel rejected the State’s argument that plaintiffs’

claims accrued in 2014 when the Commission issued its

adverse decision on Kelegian Jr.’s investment. The panel

held that when the continued enforcement of a statute inflicts

a continuing or repeated harm, a new claim arises (and a new
4 FLYNT V. SHIMAZU

limitations period commences) with each new injury. The

panel held that assuming for the sake of analysis that

§§ 19858 and 19858.5 violated the Dormant Commerce

Clause, plaintiffs demonstrated a continuing violation. The

panel reasoned that sections 19585 and 19858.5 operate on an

ongoing basis to prohibit plaintiffs from investing

significantly in numerous casinos outside of California. And

every two years, the Commission stands ready to enforce

such prohibition as part of the state’s license renewal process. 

The panel concluded that plaintiffs continue to be precluded

from exploring other investment opportunities not as a

consequence of the Commission’s 2014 decision, but rather

a result of the continued existence of the statutes themselves

and the realistic threat of future enforcement. 

Dissenting,Judge Rawlinson agreedwith the district court

that plaintiffs’ claims were barred by the applicable two-year

statute of limitations. Judge Rawlinson stated that the

majority’s view that the injury continues because the

Gambling Commission stands ready to continue to enforce

the statute is patently at odds with this Circuit’s consistently

articulated analysis of the continuing violation doctrine.

COUNSEL

Paul J. Cambria Jr. (argued) and Erin McCampbell Paris,

Lipsitz Green Scime Cambria LLP, Buffalo, New York, for

Plaintiffs-Appellants.
FLYNT V. SHIMAZU 5

James G. Waian (argued) and Peter H. Kaufman, Deputy

Attorneys General; Sara J. Drake, Senior Assistant Attorney

General; Xavier Becerra, Attorney General; Office of the

Attorney General, San Diego, California; for DefendantsAppellees.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether California’s statute of

limitations for personal injury suits bars a facial challenge to

the constitutionality of certain California gambling laws.

I

Larry Flynt, Haig Kelegian Sr., and Haig Kelegian Jr.

(collectively “Licensees”) hold gambling licenses to own and

to operate cardrooms—establishments that “allow patrons to

engage in non-banked or non-percentage card games during

which the players play against each other and pay the

cardroom a fee to use its facilities.”1In addition to owning

cardrooms in California, they wish to invest substantially in

out-of-state casinos. They complain, however, that California

law prohibits them from doing so.

1 We take as true the well-pleaded allegations of the First Amended

Complaint. See AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692, 695

(9th Cir. 1999).
6 FLYNT V. SHIMAZU

A

California has long permitted in-state gambling, subject

to certain restrictions. Relevant here, the state requires

cardrooms to obtain a license to operate, see Cal. Bus. &

Prof. Code § 19850, and to renew such license every two

years, Cal. Bus. & Prof. Code § 19876(a). To maintain

operations, cardroom owners must comply with state

gambling laws. See Cal. Bus. & Prof. Code § 19922.

This case concerns the intersection of three such laws. 

First, California Penal Code § 330 prohibits cardrooms from

engaging in casino-like activities, including blackjack,

roulette, and other house-banked or percentage games. 

Second,California Business and Professions Code § 19858(a)

prohibits a person from “hold[ing] a state gambling license to

own a gambling establishment if,” among other things, he

“has any financial interest in any business or organization that

is engaged in any formof gambling prohibited by Section 330

of the Penal Code, whether within or without [the] state.” 

(emphasis added). Finally,California Business & Professions

Code § 19858.5 permits a limited exception to § 19858’s

broad prohibition. Under § 19858.5, an applicant or licensee

who “has a financial interest in another business that conducts

lawful gambling outside the state that, if conducted within

California, would be unlawful,” may still “hold a state

gambling license” so long as he does “not own, either directly

or indirectly, more than a 1 percent interest in, or have

control of, that business.” (emphasis added).

The upshot of §§ 19858 and 19858.5 is that a licensee of

a California cardroom may not own more than a one-percent

interest in any out-of-state entity that engages in casino-style
FLYNT V. SHIMAZU 7

gambling activities, even if such activities are lawful where

the entity operates.

B

With these laws on the books, Flynt and the Kelegians

allege that they have been unable to pursue numerous

investment opportunities in out-of-state casinos, despite

having a “keen interest” in doing so and being “ready,

willing, and able to compete for the opportunity.” Flynt, for

instance, alleges that prior to 2014 and as late as November

2015, he declined offers to purchase casinos in Nevada, Iowa,

Colorado, Louisiana, and Mississippi because of California’s

ownership restrictions. The Kelegians claim that they too

declined to pursue similar opportunities to invest outside the

state.

In 2010, for example, Kelegian Jr. acquired real property

in the State of Washington for the purpose of opening a

casino there. Together with his wife, Kelegian Jr. formed

Kelco Gaming, LLC, which operated the casino. He owned

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

remaining ninety-nine percent. At the same time, Kelegian

Jr. applied to the California Gambling Commission to renew

his licenses for two California cardrooms. The Commission,

tasked with reviewing and issuing state gambling licenses,

denied his applications on the grounds that his ownership

interest in the Washington casino violated §§ 19858 and

19858.5. Kelegian Jr. divested his interest in the casino and

requested a hearing on the denial of his applications. In a

public decision issued on June 12, 2014, the Commission

approved Kelegian Jr.’s applications but ordered him to pay

a fine for his previous violation to the Bureau of Gambling
8 FLYNT V. SHIMAZU

Control, a division of the California Department of Justice

that is charged with enforcing California’s gambling laws. 

C

On November 30, 2016, Flynt and the Kelegians sued the

Bureau of Gambling Control, members of the California

Gambling Commission in their official capacities, and the

Attorney General of California (collectively, “the State”)

under 42 U.S.C. § 1983 in the Eastern District of California. 

They alleged that §§ 19858 and 19858.5 were facially

unconstitutional under the Dormant Commerce Clause

because the statutes prohibit interstate investment and

discriminate against out-of-state economic interests.2

Licensees sought declaratory and injunctive relief. The State

moved to dismiss under Federal Rule of Civil Procedure

12(b)(6) on the ground that the suit was barred by the

applicable statute of limitations.

The district court dismissed the suit, ruling that

Licensees’ claims were time-barred because they failed to

bring suit within two years of the Commission’s 2014

decision.

This timely appeal followed.

2Licensees also alleged that the statutes were facially unconstitutional

under the Fourteenth Amendment and unconstitutional as applied to them. 

Licensees have abandoned these claims by failing to address them on

appeal. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.

1988).
FLYNT V. SHIMAZU 9

II

Licensees contend that the district court erred in

dismissing their claims as time-barred. “Section 1983 does

not contain its own statute of limitations.” Butler v. Nat’l

Comm. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir.

2014). Instead, claims brought under § 1983 are subject to

the forum state’s statute of limitations for personal injury

suits. See Wilson v. Garcia, 471 U.S. 261, 275–77 (1985),

superseded by statute on other grounds; Butler, 766 F.3d

at 1198. Citing Brown v. Board of Education, 347 U.S. 483

(1954), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015),

Licensees note that courts have entertained facial challenges

to the constitutionality of statutes long after their enactment. 

Licensees thus contend that a statute of limitations ought

never to apply to facial challenges because “such challenges

are litigated without regard to the particularities of the

plaintiff or the case.” But whether a statute of limitations

applies to such claims and whether it ultimately bars them

are different matters. Sometimes, as we explain below, a

statute of limitations, though applicable, does not bar a facial

challenge. See, e.g., Maldonado v. Harris, 370 F.3d 945, 956

(9th Cir. 2004).

The Supreme Court has never limited the application of

a statute-of-limitations period to as-applied challenges. 

Instead, it has construed 42 U.S.C. § 1988 broadly “as a

directive to select, in each State, the one most appropriate

statute of limitations for all § 1983 claims.” See Wilson,

471 U.S. at 275–79 (emphasis added). Accordingly, our

cases routinely subject both as-applied and facial challenges

brought under § 1983 to the forum state’s statute of

limitations. See, e.g., Scheer v. Kelly, 817 F.3d 1183 (9th Cir.

2016) (facial challenge under the First and Fourteenth
10 FLYNT V. SHIMAZU

Amendments); Lukovsky v. City & County of San Francisco,

535 F.3d 1044 (9th Cir. 2008) (as-applied challenge to

racially discriminatory practices); Action Apartment Ass’n,

Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th

Cir. 2007) (facial challenge under the Fifth and Fourteenth

Amendments); Maldonado, 370 F.3d at 945 (facial challenge

under the First Amendment); Barancik v. County of Marin,

872 F.2d 834 (9th Cir. 1988) (facial due process challenge).

Although our court has yet to apply a state statute of

limitations to a facial challenge under the Dormant Commere

Clause, we see no reason to treat such a claim differently

from facial constitutional claims under the First, Fifth, or

Fourteenth Amendments. Thus, consistent with our court’s

case law, we conclude (as the district court did) that

Licensees’ claims are subject to the forum state’s statute of

limitations. Here, the relevant period is two years. See Cal.

Code Civ. P. § 335.1; Action Apartment Ass’n, 509 F.3d

at 1027.

A

Deciding that California’s statute of limitations

applies—in the abstract—to Licensees’ claims does not end

the inquiry, however, for we still must decide whether the

limitations period ultimately bars such claims. In other

words, we must consider when the limitations period began

to run and whether, as the district court concluded, time had

run out. To answer these questions, we look to federal law. 

See Wallace v. Kato, 549 U.S. 384, 388 (2007).
FLYNT V. SHIMAZU 11

1

A limitations period begins to run when the claimaccrues. 

See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687

(9th Cir. 1993). “It is the standard rule that accrual occurs

when the plaintiff has a complete and present cause of

action,” Wallace, 549 U.S. at 388 (internal quotation marks

and alteration omitted), that is, when the plaintiff “knows or

has reason to know of the actual injury,” Scheer, 817 F.3d at

1188 (quoting Lukovsky, 535 F.3d at 1051).

Licensees urge us to reject this rule on accrual for facial

constitutional challenges. But just as there is no justification

to treat facial challenges differently for purposes of

determining whether a statute of limitations applies, there is

no reason to do so for purposes of determining when a claim

accrues. See Bird v. Dep’t of Human Servs., 935 F.3d 738,

746 (9th Cir. 2019). Scheer states the proper test for accrual. 

The question, then, is whether Licensees’ claims accrued

outside the limitations period.

2

The State argues (and the district court found) that

Licensees’ claims accrued when the Commission issued its

adverse decision on Kelegian Jr.’s investment in June 2014. 

The State reasons that such decision put all three Licensees

on notice of how the Commission would interpret and enforce

§ 19858.5’s one-percent limitation and that Licensees

therefore knew of the injuries underlying this suit as early as

June 2014. Because Licensees filed suit more than two years

later, the State contends that the district court properly

dismissed the suit as untimely.
12 FLYNT V. SHIMAZU

Licensees concede that they were aware of the

Commission’s decision and that they refrained from pursuing

some investment opportunities as a result. Nevertheless, they

urge that their claims are timely because the statutes’ ongoing

prohibition, coupled with the Commission’s willingness to

enforce it, effects a “continuing violation” and a “continuing

harm”—namely, 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 enforcement of a statute inflicts a

continuing or repeated harm, a new claim arises (and a new

limitations period commences) with each new injury. See

Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516,

521–22 (6th Cir. 1997); Palmer v. Bd. of Educ. of Comm.

Unit Sch. Dist. 201-U, 46 F.3d 682, 686 (7th Cir. 1995) (“A

series of wrongful acts . . . creates a series of claims.”); cf.

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002) (“Each discrete discriminatory act starts a new clock

for filing charges alleging that act.”). Assuming for the sake

of analysis that §§ 19858 and 19858.5 violate the Dormant

Commerce Clause, Licensees have demonstrateda continuing

violation.3 Sections 19585 and 19858.5 operate on an

ongoing basis to prohibit them from investing significantly in

3 As the Eleventh Circuit has explained, the term “continuing

violation” is “something of a misnomer,” in that it “implies that there is

but one incessant violation and that the plaintiffs should be able to recover

for the entire duration of the violation, without regard to the fact that it

began outside the statute of limitations window.” Knight v. Columbus,

19 F.3d 579, 582 (11th Cir. 1994). But that is not the scenario that it

describes. Rather than “one on-going violation,” a continuing violation

is really “a series of repeated violations.” Id. And “[b]ecause each

violation gives rise to a new cause of action, each [violation] begins a new

statute of limitations period as to that particular event.” Id.
FLYNT V. SHIMAZU 13

numerous casinos outside of California. And every two

years, the Commission 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 new injury each time they abstain from

investing for fear that the Commission will enforce the

statutes’ prohibition.4

See Kuhnle, 103 F.3d at 522 (“Kuhnle

suffered a new deprivation of constitutional rights every day

that Resolution 91-87 remained in effect.”). With each new

injury, a new claim arises, and the statute of limitations

period begins anew. Id. at 522–23 (holding that because “a

new injury was allegedly inflicted on Kuhnle each day that

Resolution 91-87 was in effect, a new limitations period

began to run each day as to that day’s damage” (internal

quotation marks removed)); see also Palmer, 46 F.3d at

685–86 (holding that a racial discrimination claim “arises

each day a child is assigned to school under a racially

discriminatory policy”).

We need turn only to the First Amended Complaint to

observe that such injuries occurred during the limitations

period. See Lewis v. City of Chicago, 560 U.S. 205, 214

(2010) (Whether a violation occurred during the limitations

period “depends on the claim asserted.”). Licensees allege a

present inability to invest. Although they highlight specific

forgone investment opportunities from 2014 and 2015, they

do not seek damages for such lost opportunities. Instead, they

4 The dissent contends that the Commission’s readiness to enforce the

statutes has no bearing on the continuing violation analysis. But such

readiness demonstrates the legitimacy of Licensees’ claims: so long as the

Commission is willing to enforce the statutes, Licensees will continue to

suffer a constitutional deprivation so long as they abide by the statutes’

ongoing prohibition.
14 FLYNT V. SHIMAZU

seek prospective relief, enjoining the State fromenforcing the

statutes in the future. Assuming a limitations period

extending two years back from the date on which Licensees’

filed their First Amended Complaint (June 15, 2017),

Licensees’ alleged injuries fall well within the period. The

district court erred by concluding otherwise.

The State responds that Licensees failed to plead a

continuing violation because their inability to invest outside

California is merely a continuing effect of the Commission’s

2014 decision, rather than a new injury. See Knox v. Davis,

260 F.3d 1009, 1013 (9th Cir. 2001) (A “mere continuing

impactfrompast violations is not actionable” if the violations

lie outside the statute of limitations period. (internal quotation

marks omitted)); see also Garcia v. Brockway, 526 F.3d 456,

462 (9th Cir. 2008) (A “continuing violation is occasioned by

continual unlawful acts, not by continual ill effects from an

original violation.”). The Commission’s decision, however,

is not what prohibits Licensees from pursuing their desired

investments. The statutes themselves do that. Ultimately, the

Commission’s decision did nothing but enforce the statutes

against a particular plaintiff—Kelegian Jr.—with respect to

a particular investment. That all three Licensees continue to

be precluded from exploring other investment opportunities

is not a consequence of the Commission’s decision, as the

dissent would have us conclude, but rather a result of the

continued existence of the statutes themselves and the

realistic threat of future enforcement.5 The State’s reliance

5 For the same reason, this case is distinguishable from our recent

opinion in Bird v. Dep’t of Human Servs., 935 F.3d 738 (9th Cir. 2019). 

Bird held that the plaintiff’s § 1983 claim for deprivation of procedural

due process was time-barred because the deprivation occurred before the

limitations period and only effects of such deprivation occurred during the
FLYNT V. SHIMAZU 15

on Knox and other similar cases is therefore misplaced.6

Licensees’ claims are timely.

B

Two final arguments raised by the State merit brief

attention.

First, the State contends—without support—that

Licensees are estopped from asserting their facial challenges

to §§ 19858 and 19858.5 because they “urged the California

Legislature to adopt California Business and Professions

Code section 19858.5.” We are unaware of any theory of

judicial estoppel that would preclude relief on the basis of a

litigant’s legislative lobbying. Regardless, Licensees’ prior

lobbying has no bearing on their ability to challenge the

constitutionality of the statutes; that Licensees supported the

adoption of § 19858.5’s one-percent limitation at a time when

§ 19858 completely banned investment in out-of-state casinos

is not inconsistent with their position later that even the onepercent exception violates the Constitution.

limitations period. By contrast, the § 1983 claim in this case is timely

because the Licensees plead a harm that constantly renews, including

during the limitations period.

6 The State’s (and the dissent’s) reliance on Scheer is similarly

unpersuasive. Unlike the gambling statutes here, the challenged practice

in Scheer was not a continuing violation, but instead involved a one-time

application of California’s attorney discipline procedures, triggering the

statute of limitations only upon final decision of the California Supreme

Court, see 817 F.3d at 1188. Scheer therefore does not demand a contrary

result.
16 FLYNT V. SHIMAZU

Second, the State argues cursorily that Licensees failed to

plead facts supporting a facial, as opposed to an as-applied,

challenge. The State did not raise this argument in its motion

to dismiss, so the district court did not rule on it. We decline

to do so in the first instance.

III

Assuming that the enforcement of §§ 19858 and 19858.5

inflicts an injury, California’s two-year statute of limitations

does not bar facial challenges under the Dormant Commerce

Clause.

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. I agree with the district court that

the Plaintiffs’ claims were barred by the applicable two-year

statute of limitations.

The majority opinion relies on out-of-circuit authority

addressing the continuing violation doctrine to reverse the

ruling of the district court. See Majority Opinion, pp.12–13

(citing Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516,

521–22 (6th Cir. 1997); Palmer v. Bd. of Educ. of Comm.

Unit Sch. Dist. 201-U, 46 F.3d 682, 686 (7th Cir. 1995)). 

However, our precedent supports the ruling by the district

court.

As the majority acknowledges, a statute of limitation

commences running when the claim accrues. See Levald, Inc.
FLYNT V. SHIMAZU 17

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 Cir. 2016) (quoting Lukovsky v. City & Cty. of San

Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008)) (internal

quotation marks omitted).

It is undisputed that Plaintiffs Larry C. Flynt, Haig

Kelegian, and Haig Kelegian, Jr. became aware on June 12,

2014, that the challenged statute prohibited any interest in a

gambling establishment outside California if that interest

exceeded one percent. Because Plaintiffs desired to acquire

prohibited interests in gambling establishments outside

California, the injury imposed by the statute accrued as to

them at the latest on June 12, 2014, when the California

Gambling Commission required Kelegian, Jr. to divest

himself of a community property interest in a gambling

establishment that exceeded one percent. At that point,

Plaintiffs knew or had reason to know that the statute

imposed an actual injury upon them. See Scheer, 817 F.3d

at 1188 (observing that the statute of limitations on a claim

against the State Bar would begin to run when discipline was

imposed or was foreseeable).

Plaintiffs’ complaint was filed more than two years after

the Gambling Commission’s action, and was thus untimely. 

The majority avoids this conclusion by employing the

continuing violation doctrine as interpreted by other circuits. 

But the continuing violation doctrine, as interpreted in this

circuit, supports the decision of the district court.

In RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045,

1058 (9th Cir. 2002), we determined the limitations period by

identifying “when the operative decision occurred.” (internal
18 FLYNT V. SHIMAZU

quotation marks omitted). Once the operative decision is

identified, the inevitable consequences of the operative

decision do not affect the running of the statute of limitations. 

See id.

Relying upon out-of-circuit authority, the majority posits

that Plaintiffs established the existence of a continuing

violation because “the Commission stands ready to enforce”

the statutory prohibition “as part of the state’s license renewal

process.” Majority Opinion, p. 13 (citing Kuhnle, 103 F.3d

at 522 – Sixth Circuit; Palmer, 46 F.3d at 685–86 – Seventh

Circuit). However, our precedent does not support this

interpretation of the continuing violation doctrine. Rather,

inaction on the part of a government entity has no effect on

the statute of limitations calculus. See Scheer, 817 F.3d at

1188 (observing that the statute of limitations was not

triggered until the State Bar had imposed discipline). The

fact that the Gambling Commission “stands ready” to enforce

the statute does not translate into the “discrete act” required

to support a continuing violation argument. RK Ventures,

307 F.3d at 1061 (rejecting a continuing violation argument

and explaining that “the statute of limitations runs separately

from each discrete act”) (citing National Railroad Passenger

Corp. v. Morgan, 122 S. Ct. 2061, 2072 (2002)) (emphasis

added). Simply put, under our precedent the continuing

violation theory cannot rest on a non-act, such as “standing

ready” to enforce a statute. See id.

The majority attempts to distinguish our recent decision

in Bird v. Dep’t of Human Servs., No. 17-16076, ___ F.3d

___, 2019 WL 3977554 (9th Cir. August 23, 2019) (per

curiam), reiterating our steady approach to the continuing

violation doctrine. See Majority Opinion, p. 14 n.5. 
FLYNT V. SHIMAZU 19

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 42 U.S.C.

§ 1983 against the Hawai‘i Department of Human Services

for including and retaining her name on a child abuse

registry. See 2019 WL 3977554 at *1, 4. Bird became aware

that her name was on the registry in 2012 “when the report

turned up on a background check.” Id. at *2. After Bird

rejected the offer of a limited administrative hearing, her

attorney sent the Department a letter dated May 14, 2013,

stating that Bird would proceed to litigation unless her name

was removed from the registry. See id. at *4.

The district court concluded that Bird’s cause of action

accrued at the latest on May 14, 2013, and the complaint filed

more than two years after that date was untimely. See id.

at *5.

We affirmed the judgment of the district court that Bird’s

complaint was time-barred. See id. We rejected Bird’s

continuing violation argument and her argument that the

statute can be challenged as long as it is in effect. See id.

at *5–6. We confirmed that an alleged due process violation

under § 1983 is “a discrete event” that is governed by the

“discovery rule of accrual.” Id. at *7. Applying the rule to

Bird’s claim, we concluded that because Bird was aware of

her claim no later than May, 2013, her claim was discovered

on that date and the statute of limitations began to accrue. 

See id. at *10. We noted that the “little [that] remains of the

continuing violations doctrine” did not apply to Bird’s

individualized claim. Id. at *8–9. We echoed our past

rulings in reasoning that “the deprivation of liberty that Bird

continues to suffer is best understood as the continuing
20 FLYNT V. SHIMAZU

impact from a past violation,” rather than a separate discrete

injury. Id. at *9 (citations and alteration omitted). We

elaborated that although the injuries resulting from Bird’s

placement on the registry continued “to the present day,” that

“continuing effect is insufficient to constitute a continuing

violation.” Id. (citation omitted).

Application of this same analysis to the plaintiffs in this

case is inescapable. The plaintiffs in this case indisputably

became aware on June 12, 2014, that they were prohibited by

the challenged statute from acquiring an interest in a gaming

establishment outside California in excess of one percent. 

Their complaint, asserting individualized claims as in Bird,

was filed more than two years later, and was untimely. The

fact that the Gambling Commission continued to enforce the

statute “is insufficient to constitute a continuing violation.” 

Id. (citation omitted).

In Bird, we specifically addressed and rejected the

argument that the continued existence of a challenged statute

supports the extension of a limitations period. We explained

that acceptance ofthat argument “would essentially nullify all

statutes of limitations with respect to statutory challenges.” 

Id. at *6.

In the process of debunking Bird’s argument, we

expressly negated any reliance on the Sixth Circuit’s decision

in Kuhnle, a case also heavily relied upon by the majority. In

Bird, we explained that Kuhnle “did nothing more than bring

the . . . Sixth Circuit[] into alignment with our view that a

facial challenge to a statute generally accrues when the statute

is enforced.” Id. (citation and internal quotation marks

omitted). The majority’s view that the injury continues

because the Gambling Commission “stands ready” to
FLYNT V. SHIMAZU 21

continue to enforce the statute is patently at odds with our

consistently articulated analysis of the continuing violation

doctrine. See id.

Because the continuing violation theory is not viable

under our precedent, I agree with the district court that

Plaintiffs’ action is barred by the applicable statute of

limitations. I respectfully dissent from the majority’s

contrary conclusion.