United States Court of Appeals

For the First Circuit

No. 10-2167

ASOCIACIÓN DE SUSCRIPCIÓN CONJUNTA DEL SEGURO DE

RESPONSABILIDAD OBLIGATORIO,

Plaintiff, Appellant,

v.

DORELISSE JUARBE-JIMÉNEZ, in her official capacity as the

Insurance Commissioner of the Commonwealth of Puerto Rico,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Thompson, Circuit Judges.

Veronica Ferraiuoli Hornedo, with whom Nigaglioni and

Ferraiuoli were on brief, for appellant.

Susana I. Peñagaricano-Brown, Assistant Solicitor

General, with whom Irene S. Soroeta-Kodesh, Solicitor General,

Leticia Casalduc-Rabell, Acting Deputy Solicitor General, and Zaira

Z. Girón-Anadón, Acting Deputy Solicitor General, were on brief,

for appellee.

September 29, 2011
LYNCH, Chief Judge. At issue is when a facial Takings

Clause claim attacking a statute and regulations accrues for

statute of limitations purposes. The district court concluded that

the claim here was untimely. Asociación de Suscripción Conjunta

del Seguro de Responabilidad Obligatorio v. Juarbe-Jiménez, 720 F.

Supp. 2d 152 (D.P.R. 2010). We agree and affirm the dismissal of

this case.

I.

This case arises out of Puerto Rico's compulsory

automobile liability insurance scheme. In December of 1995 the

Commonwealth of Puerto Rico enacted Act 253, which required all

motor vehicles to be covered by certain minimum automobile

liability insurance. The purpose of the insurance is to cover

"damages caused to motor vehicles of third parties as a result of

a traffic accident, for which the owner of the vehicle covered by

this insurance is legally liable and which, through its use, has

caused said damages." P.R. Laws Ann. tit. 26, § 8051. 

At the same time, the Commonwealth created the Asociación

de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio

(the Association) to provide compulsory liability insurance to

those vehicle owners rejected by private insurers or who have opted

out of purchasing liability insurance. We have held that the

Association, while it was created "under some direction by the

commonwealth," is "private in nature." Associación de Suscripción

-2-
Conjunta del Seguro de Responsabilidad Obligatorio v. Flores

Galarza, 484 F.3d 1, 20 (1st Cir. 2007) (quoting Arroyo-Melecio v.

P.R. Am. Ins. Co., 398 F.3d 56, 62 (1st Cir. 2005)) (internal

quotation marks omitted). This conclusion has since been

reinforced by the passage of Act 201, in December 2009, which

amends Act 253 and defines the Association as a "private

Association." P.R. Laws Ann. tit. 26, §§ 8052(c), 8055(a), amended

by Act 201 of Dec. 29, 2009, arts. 3(c), 6(a). At present, the

Association provides compulsory insurance for over 80 percent of

the vehicles in Puerto Rico.1

The compulsory insurance scheme has spawned a great deal of 1

local and federal litigation. 

The payment scheme under the Compulsory Liability Insurance

Act is chronologically ordered as follows: (1) motorists pay

insurance premiums to the Secretary of the Treasury pursuant to

P.R. Laws Ann. tit. 26, § 8053(a); (2) the Secretary then transfers

those premiums to the Association pursuant to P.R. Laws Ann. tit.

26, § 8055(c); and (3) the Association then places 95 percent of

the profits from those premiums in a Special Reserve for the

benefit of the public under the Insurance Commissioner's Rule LXX. 

In this case, the Association alleges that step (3) above effects

a regulatory taking. 

The Association has also sued the Secretary of the

Treasury, challenging another portion of the legislation. 

Asociación de Suscripción Conjunta del Seguro de Responsabilidad

Obligatorio v. Flores Galarza, 484 F.3d 1 (1st Cir. 2007). In that

suit, the Association alleged a taking under step (2) above because

the Secretary withheld certain insurance premiums that it was

required to transfer to the Association pursuant to § 8055(c). Id.

at 11.

In addition, insured automobile owners who have paid for

both the compulsory insurance and private insurance have sued the

Association, bringing constitutional challenges to the scheme under

which they may obtain reimbursement of the double premium. ColónRivera v. Asociación de Suscripción Conjunta del Seguro de

Responsabilidad Obligatorio, No. 07-1875, 2010 WL 5376116 (D.P.R.

-3-
The legislation which created the Association also gave

the defendant Insurance Commissioner the power to regulate it. See

P.R. Laws Ann. tit. 26, § 8055(c), (f). In 1996, through

Regulation 5493, called Rule LXIX, the Commissioner set up a scheme

which required the Association to annually determine its profits

and losses in the same manner as in the Annual Statement required

by the Insurance Code. More pertinently, that Rule also provided:

The Members shall share in the annual profits

and losses of the Association in the

proportional participation of each of the

Members for the year for which such profit or

losses are determined.

The "members" are all of the insurance carriers who are licensed to

offer automobile insurance in Puerto Rico and underwrite more than

one percent of the total volume of such premiums in Puerto Rico. 

P.R. Laws Ann. tit. 26, §§ 8052(b), 8055(a).

That allocation of profit was changed by the Commissioner

in December 2000, by revisions contained in Regulation 6254, Rule

LXX, as follows:

The members shall share in the annual profits

or losses of the Association in the

proportional participation of each of the

members for the year for which such profits or

losses are determined. With regards to the

Dec. 27, 2010), appeal docketed, No. 11-1148 (1st Cir. Feb. 10,

2011). In a separate case, a group of insured automobile owners

who have paid for both types of insurance have brought similar

claims against the Governor and Secretary of the Treasury of Puerto

Rico. Garcia-Rubiera v. Fortuño, 752 F. Supp. 2d 180 (D.P.R.

2010), appeal docketed, No. 10-2507 (1st Cir. Dec. 22, 2010). 

-4-
participation in the profits, the same shall

not exceed the maximum percentage established

in the premium dollar for the profit, applying

the earned premiums for said year.

The profit for each year in excess of the

amounts distributed due to the participation

provided for in this paragraph shall be

accumulated in a special reserve that shall be

exclusively used for the future stabilization

of the premiums of the compulsory liability

insurance and the future expansion of the

benefits provided there under. Under no

circumstance shall the excess accumulated in

this reserve be used for the distribution of

profits provided for in the previous

paragraph.

Pursuant to this December 2000 regulation, which is

located in Article 20(e) of Rule LXX, the Commissioner established

that the Association's members may receive a distribution of up to

a maximum of five percent of the annual premium profits. The 2

remaining 95 percent of the profits must be placed in the Special

Reserve, where they must remain until the Association chooses to

use them to stabilize premiums or expand benefits. Neither the

It is unclear from where this five percent limit

2

originated. In 1999, the Association's board approved a five

percent distribution, and stated in a letter to the Commissioner

that this distribution was "for an amount equal to the portion of

each premium dollar earmarked as profits during said period, which

we understand is five percent (5%)." The Commissioner approved of

the distribution, noting that it "corresponds to the underlying

premium dollar distribution . . . [a]s presented to the Government

Commission of the Puerto Rico Senate, on July 15, 1995, and to the

Consumer Affairs Commission of the Puerto Rico House of

Representatives on July 19, 1995, in corresponding requests." The

complaint does allege that the Commissioner sets the percentage,

and the defendant's brief agrees.

-5-
Association, nor its members, challenged this rule when it was

enacted.

Eventually, the Commissioner required an audit of these

distributions and the Special Reserve fund. On June 12, 2008, the

Commissioner issued a resolution resulting from an audit of the

Association for the period from July 1, 2001 to December 31, 2004. 

In the resolution, the Commissioner stated that distributions to

members were capped at five percent of the annual premium profits

and could not include any distribution of investment income or 3

"other" income. All investment and "other" income must be placed 4

in the Special Reserve.

The resolution also indicated that distributions to

members in any given year could not exceed the net underwriting

gain for that year. Based on the audit findings, the resolution

ordered the Association to recover $8,266,767 in non-complying

distributions issued to members for the 2001-2004 audit period. 

The Association's investment income is generated by the 3

investment of Association assets in bonds, stocks and other

investment vehicles. It is unclear whether the investment income

at issue is derived solely from investments of Special Reserve

funds, or whether it also includes investments of other Association

funds.

The Association's "other" income accounts for all income of 4

the Association derived from sources other than the insurance

business or investments. Examples of the Association's "other"

income include legal settlements or judgments, and income from the

sale or decommissioning of Association assets such as furniture or

Association cars.

-6-
Additionally, because the Association realized a net underwriting

loss in 2005, the Association was directed to recover the full

distribution to members in that year, amounting to $7,593,556.5

The Puerto Rico Court of Appeals upheld these portions of

the audit against claims by the Association that the Commissioner

lacked statutory authority to impose restrictions on the

distribution of investment and other income. Comm'r of Ins. v. 6

Before the audit, the Association itself had interpreted 5

Rule LXX as requiring that its distribution not exceed five percent

of the earned underwriting premiums, but permitting distribution of

income earned from investments and other sources up to this limit. 

Thus, even if the net result of the insurance business (the earned

premiums minus the benefits paid out and operating costs) was

negative, the Association would pay distributions out of profits

from investment and other income, up to the cap of five percent of

the gross premiums. There is no claim that the Insurance

Commissioner knew of or acceded to the Association's

interpretation.

The current statutory authority of the Commissioner to 6

regulate the Association's distribution of profits, and thus the

validity of Article 20(e) of Rule LXX, is disputed. In December

2009, Puerto Rico passed Act 201, which amends Act 253 in a variety

of ways. As is relevant here, Act 201 removes the portion of Act

253 which stated that the Commissioner "shall provide through

regulations the manner and form in which the distribution" shall

take place, and the portion providing the Commissioner authority to

"establish through regulations the structure and operation of the

Joint Underwriting Association." P.R. Laws Ann. tit. 26,

§ 8055(c), (f). Instead, under Act 201, "[t]he operational plan of

the Joint Underwriting Association shall provide the form and

manner in which the distribution of the amount of the premiums

received by the Joint Underwriting Association will be carried

out." P.R. Laws Ann. tit. 26, § 8055(c), amended by Act 201 of

Dec. 29, 2009, art. 6(c). The operational plan is to be

established by the Association; the Commissioner is only to be

"notified" of the plan. P.R. Laws Ann. tit. 26, § 8055(f), amended

-7-
Compulsory Liab. Ins. Joint Underwriting Ass'n, No. E-2005-62,

KLRA200801403 (P.R. Cir. May 19, 2009).7

The Association asserts that it has complied with these

requirements in the sense that it has put into the Special Reserve

all income in excess of the amount it was allowed to distribute to

its members. It is unclear whether the Association has complied

with the audit resolution. As of December 31, 2008, the Special

Reserve contained $159,267,250 in undistributed profits.

The Association protests that it cannot be made to place

all of the profits (aside from the five percent distribution to its

members) into the Special Reserve fund, to be used only for the

benefit of the consumer insureds, because these restrictions amount

to an unconstitutional taking. It also makes on appeal a related

argument that it cannot be forced to include in this Reserve its

investment income and its other income, as is required by the 2008

audit resolution.

II.

by Act 201 of Dec. 29, 2009, art. 6(f). 

A Puerto Rico court of first instance has held that, given

Act 201, the Commissioner no longer has authority to regulate the

distribution of the Association. See Asociación Suscripción

Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe

Jiménez, No. K PE 2008-3826 (P.R. Gen. Ct. of J. Mar. 16, 2011).

We are told that decision has been appealed to the Puerto 7

Rico Supreme Court.

-8-
On November 4, 2008, the Association brought suit against

Puerto Rico Insurance Commissioner Dorelisse Juarbe-Jiménez

pursuant to 42 U.S.C. § 1983, arguing that the Insurance

Commissioner's limitation on the distribution of profits to the

Association's members, in conjunction with the restrictions placed

on the use of the Special Reserve funds, constituted a taking

without just compensation in violation of the Fifth Amendment's

Takings Clause. The complaint requested a declaration that Article

20(e)(2) of Rule LXX was unconstitutional under the Takings Clause

and that the Commissioner be enjoined from enforcing that

provision.

The Commissioner filed a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6) on the basis that the

Association's claim was unripe because the Association had failed

to seek compensation through Puerto Rico's inverse condemnation

procedures. See Williamson Cnty. Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); Downing/Salt Pond Partners, L.P. v.

Rhode Island, 643 F.3d 16 (1st Cir. 2011).

Attempting to avoid this ripeness problem, the

Association conceded, in its "Opposition to Motion to Dismiss,"

that its claim "would be unripe" if the claim were an as-applied

claim, but asserted that because what it had "mount[ed] [was] a

facial challenge to the regulation," its claim was ripe the moment

that Rule LXX was issued.

-9-
On November 16, 2009, the Association and the

Commissioner filed cross-motions for summary judgment. On June 25,

2010, the district court granted the Commissioner's motion for

summary judgment and denied the Association's motion because it

determined that the Association's facial challenge to Rule LXX was

time-barred by the statute of limitations. Asociación de

Suscripción, 720 F. Supp. 2d at 159. The district court reasoned

that because the Association was bringing a facial challenge to

Rule LXX, the statute of limitations accrued when Rule LXX was

enacted on December 28, 2000. Id. at 157. Further, the district

court explained, § 1983 claims in Puerto Rico carry a one-year

statute of limitations. Id. (citing Morán-Vega v. Cruz-Burgos, 537

F.3d 14, 20 (1st Cir. 2008)). Because the Association did not file

its complaint until November 4, 2008, the district court determined

that its claim was time-barred. Id. at 157, 159.

III.

"Our review of the grant of summary judgment is de novo,

taking all facts and reasonable inferences in the light most

favorable to [the Association], the nonmoving party." Sterling

Merch., Inc. v. Nestlé, S.A., No. 10-1925, 2011 WL 3849828, at *6

(1st Cir. Sept. 1, 2011).

As filed, the Association's suit raised a claim that Rule

LXX, on its face, constitutes a taking. At times it appeared the

Association was also asserting a claim that Rule LXX, as applied

-10-
each year to the Association, constitutes a taking. Later during

the litigation, the Association's briefing mentioned that the 2008

audit, specifically the audit resolution's interpretation that

investment income and other income must be placed in the Special

Reserve, constitutes a separate taking.

A. The Association's Facial Challenge to Rule LXX

 The Association raised only a facial challenge to Rule

LXX. The complaint, which was never amended, states only one cause

of action: "Violations of the Taking Clause of the U.S.

Constitution." The factual allegations underpinning this claim

focus entirely on Rule LXX — the Association contends that because

"Rule LXX provides that the funds accumulated in the Special

Reserve are to be used exclusively for a public purpose and only

for the benefit of the public in general," the Rule "provides for

a taking of [the Association's] private property by denying [the

Association] of any beneficial use of its property."

The relief sought is also relevant to whether the claim

is a facial claim. Here, the relief requested is a declaration

that Article 20(e)(2) of Rule LXX is unconstitutional, and an

injunction prohibiting its enforcement, rather than a request for

a declaration that a particular interpretation or application of

Rule LXX effects a taking. This requested relief also indicates

that the Association mounts a facial, rather than an as-applied,

attack on the Rule. See Doe v. Reed, 130 S. Ct. 2811, 2817 (2010)

-11-
(noting that when the "relief that would follow" from a claim

"reach[es] beyond the particular circumstances of these

plaintiffs," the plaintiffs must "satisfy our standards for a

facial challenge to the extent of that reach").

This attack on Rule LXX falls squarely within the Supreme

Court's definition of a facial taking: "a claim that the mere

enactment of a statute constitutes a taking," as opposed to an

as-applied claim that "the particular impact of government action

on a specific piece of property requires the payment of just

compensation." Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

U.S. 470, 494 (1987). It is clear that facial challenges may be

mounted on regulations; Keystone Bituminous itself involved an

assessment of whether certain regulations constituted a taking. 

Id. at 474, 493. 

More recent cases also distinguish facial from as-applied

takings claims. In Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the Court

noted that "[p]etitioners make only a facial attack on Ordinance

81-5 and Resolution 83-21. They contend that the mere enactment of

a temporary regulation that, while in effect, denies a property

owner all viable economic use of her property gives rise to an

unqualified constitutional obligation to compensate her for the

value of its use during that period." Id. at 320; see also Suitum

v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736 & n.10 (1997)

-12-
("[T]he only issue justiciable at that point was whether mere

enactment of the statute amounted to a taking. . . . Such facial

challenges to regulation are generally ripe the moment the

challenged regulation or ordinance is passed, but face an uphill

battle, since it is difficult to demonstrate that mere enactment of

a piece of legislation deprived [the owner] of economically viable

use of [his] property." (alterations in original) (internal

quotation marks and citations omitted)).

Beyond that, the Association's position, for strategic

reasons, has been that it is mounting a facial attack, and we

consider it bound by this position. It took this position in order

to argue it did not need to comply with Williamson County's

ripeness requirements. The district court relied on this

distinction in denying the Commissioner's motion to dismiss, and

explained that "[g]iven that Plaintiff is mounting a facial

challenge to Rule LXX, the Court finds that Plaintiff's claims are

ripe for review and that the Court's subject matter jurisdiction is

not foreclosed by the Williamson County requirements."8

In response to a motion to dismiss arguing that the 8

Association had failed to satisfy Williamson County's ripeness

requirements, the Association argued that "[w]hile the Insurance

Commissioner is correct that a claim that Rule LXX affects a

regulatory taking as applied to the [Association's] property would

be unripe for this reason, the [Association] mounts a facial

challenge to the regulation." The Association further clarified

that "[i]n this case, the [Association] has alleged a facial

challenge to the section of Rule LXX which establishes the Special

Reserve."

The Association's opposition to the Commissioner's motion

-13-
Nevertheless, the Association now argues that it should

be permitted to change its position based on an intervening Supreme

Court decision, and that its case should not be treated as solely

a facial attack. It argues that Citizens United v. Federal

Election Commission, 130 S. Ct. 876 (2010), has relaxed the

distinction between facial and as-applied claims. The Association

points to the majority's statement that "the distinction between

facial and as-applied challenges is not so well defined that it has

some automatic effect or that it must always control the pleadings

and disposition in every case involving a constitutional

challenge." Id. at 893.

Even aside from whether the Association is judicially

estopped from changing its position, the argument fails. Whatever

merit the Association's argument might have in the First Amendment

context, Citizens United did not purport to change the wellestablished rules as to facial challenges under the Takings

Clause.9

for summary judgment further reinforces that the Association's

challenge to Rule LXX was facial, rather than as-applied.

Cf. Metzger, Facial and As-Applied Challenges Under The 9

Roberts Court, 36 Fordham Urb. L.J. 773, 798 (2009) ("[S]ubstantive

constitutional law drives the Court's approach to facial and

as-applied challenges. That substantive constitutional law

determines the availability of facial challenges has long been

acknowledged, and is not a new development with the Roberts

Court."); Fallon, As-Applied And Facial Challenges And Third-Party

Standing, 113 Harv. L. Rev. 1321, 1324 (2000) ("[T]he availability

of facial challenges varies on a doctrine-by-doctrine basis and is

a function of the applicable substantive tests of constitutional

-14-
The Supreme Court has explained that there is "an

important distinction between a claim that the mere enactment of a

statute constitutes a taking and a claim that the particular impact

of government action on a specific piece of property requires the

payment of just compensation." Keystone Bituminous, 480 U.S. at

494 (emphasis added); see also Brubaker Amusement Co. v. United

States, 304 F.3d 1349, 1356 (Fed. Cir. 2002) ("The Supreme Court

has repeatedly emphasized a distinction between takings claims that

arise in the context of facial challenges and those that arise in

the context of challenges to the application of a statute or

regulation to a particular piece of property."). Not only has the

Court outlined the appropriate test to be used in a facial Takings

Clause challenge — whether the passage of the statute "denies an

owner economically viable use of his land," Keystone Bituminous,

480 U.S. at 495, but it has also explained that facial challenges

are not subject to the second portion of Williamson County's

ripeness analysis, San Remo Hotel v. City & Cnty. of S.F., 545 U.S.

323, 345-46 (2005); Yee v. City of Escondido, 503 U.S. 519, 533-34

(1992); see also Levald, Inc. v. City of Palm Desert, 998 F.2d 680,

686 (9th Cir. 1993) (noting that facial and as-applied takings

claims "raise[] different ripeness and statute of limitations

issues"). As a result, it is clear that the Association raised

only a facial challenge with respect to Rule LXX. 

validity.").

-15-
This facial challenge was barred by the statute of

limitations.10

The Association's takings claim was brought under 42

U.S.C. § 1983. Section 1983 does not contain its own statute of

limitations; instead, the courts apply the state's personal injury

statute of limitations to all § 1983 claims, regardless of the

underlying law on which the claim is based. Owens v. Okure, 488

U.S. 235, 240-41 (1989). In Puerto Rico, the relevant limitations

period is one year. P.R. Laws Ann. tit. 31, § 5298(2);

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.

2008) ("In Puerto Rico, the limitations period for personal

injuries is one year."). Further, "[i]t is federal law" that

governs "when the statute of limitations begins to run." Gorelick

v. Costin, 605 F.3d 118, 121 (1st Cir. 2010). Section 1983 claims

accrue "when the plaintiff knows, or has reason to know of the

The Commissioner timely raised the statute of limitations 10

defense in both the answer and motion for summary judgment. 

Because the statute of limitations is an affirmative defense, see

Fed. R. Civ. P. 8(c)(1), "the defendant bears the burden of

establishing its applicability. The party who has the burden of

proof on a dispositive issue cannot attain summary judgment unless

the evidence he provides on that issue is conclusive." Torres

Vargas v. Santiago Cummings, 149 F.3d 29, 36 (1st Cir. 1998)

(internal citations omitted). Once the defendant produces such

evidence, the burden shifts to the plaintiff to establish that the

statute of limitations does not apply. See Fed. R. Civ. P. 56(c),

(e); Citigroup Inc. v. Fed. Ins. Co., No. 10-20445, 2011 WL

3422073, at *3 (5th Cir. Aug. 5, 2011); Campbell v. Grand Trunk W.

R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001); Blue Cross & Blue

Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 (11th Cir. 1990).

-16-
injury on which the action is based, and a plaintiff is deemed to

know or have reason to know at the time of the act itself and not

at the point that the harmful consequences are felt." Id. at 122

(quoting Morán-Vega, 537 F.3d at 20) (internal quotation marks

omitted).

In the context of a facial takings challenge, the

limitations period accrues when the purportedly unconstitutional

statute or regulation is enacted or becomes effective. This is so

because, in such cases, the plaintiff alleges that the "mere

enactment of a statute constitutes a taking." Keystone Bituminous,

480 U.S. at 494.

It is true that the question of "ripeness" of a takings

claim is analytically distinct from the question of when a takings

claim accrues for statute of limitations purposes. See

Downing/Salt Pond, 643 F.3d at 20-22 (explaining Takings Clause

ripeness requirements); Addington v. U.S. Airline Pilots Ass'n, 606

F.3d 1174, 1182 n.6 (9th Cir. 2010) (explaining, in a non-takings

case, that while ripeness and accrual are related, "there are key

differences in the posture of a case that presents a statute of

limitations issue and one that presents a ripeness issue"). And

none of the Supreme Court takings cases we have cited are concerned

with the accrual of claims for statute of limitations purposes. 

Nevertheless, it is clear that a facial takings challenge

accrues at the time the offending statute or regulation is enacted

-17-
or becomes effective. A facial challenge also becomes ripe at 11

that time. The courts that have considered the relationship

between ripeness and accrual in the takings context have reached

this conclusion, reasoning that because the constitutional injury

is not complete until the claim becomes ripe, the statute of

limitations cannot accrue before that point in time. Norco

Constr., Inc. v. King Cnty., 801 F.2d 1143, 1146 (9th Cir. 1986)

(Kennedy, J.) (holding, in the takings context, that "[t]he

conclusion that a claim is premature for adjudication controls as

well the determination that the claim has not accrued for purposes

of limitations" because "[c]ourts have held consistently that a

cause of action does not accrue until a party has a right to

enforce the claim"); Hensley v. City of Columbus, 557 F.3d 693,

696-97 (6th Cir. 2009) (holding that the statute of limitations

accrues when the takings claim becomes ripe); New Port Largo, Inc.

v. Monroe Cnty., 985 F.2d 1488, 1496-97 (11th Cir. 1993) ("When

Williamson's two-prong test is met, the injury is complete, and the

claim accrues for purposes of the statute of limitations.");

Biddison v. City of Chicago, 921 F.2d 724, 728 (7th Cir. 1991)

(following Norco)

We agree with this conclusion. While the ripeness and

accrual questions are conceptually distinct, as a functional

This case does not require us to assess the precise moment 11

of accrual when the date of enactment differs from the date the

statute or regulation becomes effective.

-18-
matter, given the way the Court has formulated the Williamson

County ripeness requirements, and the takings law on facial

attacks, a facial takings challenge generally both ripens and

accrues for statute of limitations purposes at the same moment in

time. See, e.g., Suitum, 520 U.S. at 736 n.10 (noting that

"'facial' challenges to regulation are generally ripe the moment

the challenged regulation or ordinance is passed" (quoting Keystone

Bituminous, 480 U.S. at 495)).

Here, Rule LXX was promulgated, in its current form, on

December 28, 2000. The Association was on notice, as of that date,

of the supposed taking of what it considers to be its property. As

a result, the Association's claim that Rule LXX is an

unconstitutional taking accrued on that date, and the statute of

limitations ran one year later. The Association did not file suit

until November 4, 2008 and its suit is time-barred.

The Association's arguments based on analogy to the

continuing violation doctrine in employment fail and miss the

point. Even under that doctrine, the "ongoing injuries" or harmful

"effects" of a single unlawful act do not extend the limitations

period. Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990); see

also Gilbert v. City of Cambridge, 932 F.2d 51, 58-59 (1st Cir.

1991) (noting the "'critical distinction' between a continuing act

and a singular act that brings continuing consequences in its

-19-
roiled wake" (quoting Altair Corp. v. Pesquera de Busquets, 769

F.2d 30, 32 (1st Cir. 1985))).

A complaint about the ongoing effects of the 2000

amendment to Rule LXX is not a continuing violation. Indeed, the

very concept of a facial takings challenge is that the "mere

enactment of the statute amounted to a taking." Suitum, 520 U.S.

at 736. This reasoning also requires rejecting the application of

the continuing violation doctrine to facial takings claims, as

several circuits have held. See, e.g., Colony Cove Props., LLC v.

City of Carson, 640 F.3d 948, 956 (9th Cir. 2011) ("[I]n the

takings context, the basis of a facial challenge is that the very

enactment of the statute has reduced the value of the property or

has effected a transfer of a property interest. This is a single

harm, measurable and compensable when the statute is passed."

(quoting Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th

Cir. 2010))); New Pulaski Co. v. Mayor & City Council of Balt.,

Nos. 97-2118, 97-2204, 2000 WL 1005207, at *6 (4th Cir. July 20,

2000) (rejecting continuing violation theory in the context of a

facial challenge to an ordinance, holding that "any taking occurred

at the time of the Moratorium's enactment"); Kuhnle Bros., Inc. v.

Cnty. of Geauga, 103 F.3d 516, 521 (6th Cir. 1997) ("Any

deprivation of property that [plaintiff] suffered was fully

effectuated when Resolution 91-87 was enacted, and the statute of

limitations began to run at that time.").

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This is so despite the fact that the Association did not

know the precise dollar amount that would be subject to Rule LXX in

future years. The Association was aware that the Rule would

operate automatically on all profits earned after the Rule came

into effect. Its application to future earnings was mechanical and

automatic. The transfer of funds into the Special Reserve each

year is simply a harmful effect of the passage of Rule LXX, the

underlying source of the Association's complaint. Thus, the

continuing violation doctrine is inapposite. Cf. Gilbert, 932 F.2d

at 59 (rejecting continuing violation theory in the context of an

as-applied takings challenge to a permit denial, explaining that

"[w]hatever harms were suffered add up to nothing more than the

predictable, albeit painful, consequences of the permit denial").

The facial takings claims regarding Rule LXX are timebarred.12

B. The Audit and the Interpretation

The Association never articulated a clear, distinct

claim regarding the audit, the repayment orders, and the

Commissioner's interpretation that other property was subject to

The Association also argues, for the first time on appeal, 12

that its claims were brought directly under the Constitution, and

thus subject to a different statute of limitations, and that

statutes of limitations are inapplicable to claims for prospective

relief for constitutional violations. As neither argument was

raised before the district court, they are waived. Chiang v.

Verizon New Eng. Inc., 595 F.3d 26, 42 (1st Cir. 2010) 

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the Special Reserve requirements in the district court, and so has

waived any such claim. We do not decide whether such a claim would

have been timely, whether there is a takings claim, or whether, if

so, it would be a facial or an as-applied challenge.

The complaint does not contain any mention of the audit,

nor did the Association request any relief regarding the audit,

despite the fact that the complaint was filed on November 4, 2008

- nearly five months after the audit resolution was issued on June

12, 2008. Similarly, the opposition to the motion to dismiss makes

no claim regarding the audit; it explains that the Association

raises only "a facial challenge to the section of Rule LXX which

establishes the Special Reserve." The Association did not argue

the effects of the audit should be viewed differently than its

challenge to Rule LXX until its opposition to the Commissioner's

motion for summary judgment, where the Association stated, without

analysis, that "this announcement of a new official policy

constitutes an additional violation of the Association's

constitutional rights under the Fifth Amendment which would entitle

the Association to seek judicial redress."

The district court did not assess the timeliness of any

claim regarding the audit, because it found the belated assertion

was "in the nature of an as-applied takings challenge." 

Asociación de Suscripción, 720 F. Supp. 2d at 158. The district

court determined that such a claim was not before it, because the

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Association had stated it was "bringing only a facial challenge to

the regulation in question." Id.

Given the Association's failure to raise the issue of the

audit resolution in the complaint or at any time before its

response to the Commissioner's summary judgment motion, or even to

assert it was a separate facial claim, this determination was not

error. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004) ("At the summary judgment stage, the proper

procedure for plaintiffs to assert a new claim is to amend the

complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff

may not amend her complaint through argument in a brief opposing

summary judgment."); see also Wahi v. Charleston Area Med. Ctr.,

Inc., 562 F.3d 599, 617 (4th Cir. 2009) (collecting cases).

IV.

We affirm dismissal of the action.

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