FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 28, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15851

________________________

D. C. Docket No. 04-02573-CV-JTC-1

CENTER FOR BIOLOGICAL DIVERSITY, 

SIERRA CLUB, 

SOUTHERN APPALACHIAN BIODIVERSITY PROJECT, 

GEORGIA FORESTWATCH, 

Plaintiffs-Appellants, 

versus 

SAM HAMILTON, 

Regional Director, Region 4, 

United States Fish and Wildlife Service, 

STEVEN WILLIAMS, 

Director, United States Fish and Wildlife Service, 

DIRK KEMPTHORNE, 

Secretary of the Interior, Department of Interior, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(June 28, 2006)
 Honorable Anne C. Conway, United States District Judge for the Middle District of *

Florida, sitting by designation.

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Before BLACK and PRYOR, Circuit Judges, and CONWAY , District Judge. *

PER CURIAM:

The Center for Biological Diversity appeals the dismissal of its complaint as

untimely under the six-year statute of limitations for suits against the United States. 

See 28 U.S.C. § 2401(a). This appeal raises an issue of first impression for the

Courts of Appeals: whether the failure of the Secretary of the Department of the

Interior to perform the nondiscretionary duty to designate a critical habitat for a

threatened species is a continuing violation that permits a plaintiff to file suit more

than six years after the deadline to perform that duty has passed. Because we

conclude that the continuing violation doctrine does not apply, we affirm.

I. BACKGROUND

On April 19, 1991, the Secretary issued a proposed rule to list two species of

minnows, the Blue Shiner and the Goldline Darter, as threatened species. 

Proposed Threatened Status for the Fish the Goldline Darter (Percina aurolineata)

and Blue Shiner (Cyprinella caerulea), 56 Fed. Reg. 16,054 (April 19, 1991). On

April 22, 1992, the final rule was promulgated. Threatened Status for Two Fish,

57 Fed. Reg. 14,786 (Apr. 22, 1992). In the final rule, the Secretary stated that the

designation of a critical habitat—the area in which the threatened or endangered
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species is found and to which the Endangered Species Act affords additional

protections—“may be prudent but [] it is not now determinable.” Id. Although the

rule said, “In the coming months, a proposed rule for the designation of critical

habitat will be published,” id., the Secretary never proposed such a rule; to date,

the Secretary has not designated a critical habitat for the threatened fish.

On September 2, 2004, the Center filed a complaint in federal district court

that alleged that the Secretary violated its nondiscretionary duty to designate a

critical habitat for the Blue Shiner and Goldline Darter. See 16 U.S.C. §

1533(b)(6)(A), (b)(6)(C)(ii) (requiring the Secretary to publish a final regulation

that designates the critical habitat within two years of the proposed regulation that

listed the species as endangered or threatened); id. § 1540(g)(1)(C) (citizen suit

provision). The Secretary conceded the failure to comply with the duty under

section 1533, but argued that the complaint was untimely under the six-year statute

of limitations that governs suits against the United States. See 28 U.S.C. §

2401(a). The Center argued that it complied with the six-year statute of limitations

because the failure to designate a critical habitat was a “continuing violation.” See

S. Appalachian Biodiversity Project v. U.S. Fish & Wildlife Servs., 181 F. Supp.

2d 883, 887 (E.D. Tenn. 2001). The district court found that the Endangered
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Species Act “does not impose a continuing duty on Defendants to designate a

critical habitat” and dismissed the complaint as untimely.

II. STANDARD OF REVIEW

“We review the district court’s interpretation and application of statutes of

limitations de novo.” Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1278

(11th Cir. 2005) (quoting United States v. Clarke, 312 F.3d 1343, 1345 n.1 (11th

Cir. 2002)).

III. DISCUSSION

The sole issue before this Court is whether this suit was untimely on the

ground that the failure of the Secretary to designate a critical habitat for a

threatened species is a “continuing violation.” The continuing violation doctrine

permits a plaintiff to sue on an otherwise time-barred claim when additional

violations of the law occur within the statutory period. See Hipp v. Liberty Nat’l

Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir. 2001). To determine whether the

continuing violation doctrine applies, we must consider the text of the relevant

statute, which is the Endangered Species Act. See National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 108-09, 122 S. Ct. 2061, 2069–70 (2002).

We first consider the provisions that govern the duties of the Secretary. The

Act provides, “Within the one-year period beginning on the date on which general
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notice is published . . . regarding a proposed regulation, the Secretary shall publish

in the Federal Register . . . a final regulation to implement” its determination

whether a species is threatened. 16 U.S.C. § 1533(b)(6)(A). “A final regulation

designating critical habitat of an endangered species or a threatened species shall

be published concurrently with the final regulation implementing the determination

that such species is endangered or threatened[.]” Id. § 1533(b)(6)(C). If the

Secretary

deems that . . . [the] critical habitat of such species is not then

determinable, [the Secretary] may extend the one-year period . . . by

not more than one additional year, but not later than the close of such

additional year the Secretary must publish a final regulation, based on

such data as may be available at that time, designating, to the

maximum extent prudent, such habitat.

Id. § 1533(b)(6)(C)(ii) (emphasis added).

We next consider the statutes that pertain to civil actions to enforce the Act. 

The Act permits “any person [to] commence a civil suit . . . where there is alleged a

failure of the Secretary to perform any act or duty under [section 1533] which is

not discretionary with the Secretary.” Id. § 1540(g)(1)(C). The Act prescribes no

statute of limitations, so the general six-year statute of limitations for suits against

the United States applies. See 28 U.S.C. § 2401(a); Edwards v. Shalala, 64 F.3d

601, 605 (11th Cir. 1995) (finding that section 2401(a) “sets an outside time limit

on suits against the United States”). “Unlike an ordinary statute of limitations, § 
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2401(a) is a jurisdictional condition attached to the government’s waiver of

sovereign immunity, and as such must be strictly construed.” Spannaus v. Dep’t of

Justice, 824 F.2d 52, 55 (D.C. Cir. 1987).

Because the Secretary stated in the April 22, 1992, rule that the critical

habitat for the Blue Shiner and Goldline Darter was “not determinable,”

Threatened Status for Two Fish, 57 Fed. Reg. 14,786, the Secretary was required to

issue a final rule designating the critical habitat two years after issuance of the

proposed rule on April 19, 1991. The parties agree that the Center could have

brought suit based on the failure of the Secretary to comply with this deadline

beginning April 20, 1993. The Center argues that April 20, 1993, is merely the

first violation of section 1533; the Center contends that, under the continuing

violation doctrine, the passage of each day creates an additional cause of action,

which triggers anew the running of the six-year limitations period. We disagree.

Nothing in the language of the Act supports the position of the Center. To

the contrary, the Act counsels in favor of a single violation that accrues on the day

following the deadline. See Toussie v. United States, 397 U.S. 112, 120, 90 S. Ct.

858, 863 (1970), superseded by statute, 50 U.S.C. app. § 462(d). The language

“not later than” creates not an ongoing duty but a fixed point in time at which the

violation for the failure of the Secretary to act arises. The requirement of section
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1533 that the Secretary rely on “such data as may be available at the time,” 16

U.S.C. § 1533(b)(6)(C)(ii) (emphasis added), provides additional support for the

position of the Secretary. If the duty were ongoing, it would be anomalous for

Congress to require the Secretary to ignore new information when promulgating

the rule.

This interpretation is consistent with our precedents that have addressed the

scope of the continuing violation doctrine. First, this Court has distinguished

between the continuing effects of a discrete violation and continuing violations: 

“In determining whether a discriminatory employment practice constitutes a

continuing violation, this Circuit distinguishes between the present consequence of

a one time violation, which does not extend the limitations period, and the

continuation of that violation into the present, which does.” City of Hialeah v.

Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002) (quotations omitted); see also Lovett

v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). The Center complains of the

continuing effects of the failure of the Secretary to determine the critical habitat by

the statutory deadline, a one-time violation under the Act.

Second, we have limited the application of the continuing violation doctrine

to situations in which a reasonably prudent plaintiff would have been unable to

determine that a violation had occurred. “If an event or series of events should
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have alerted a reasonable person to act to assert his or her rights at the time of the

violation, the victim cannot later rely on the continuing violation doctrine[.]” 

Hipp, 252 F.3d at 1222 (quoting Martin v. Nannie & the Newborns, Inc., 3 F.3d

1410, 1415 n.6 (10th Cir. 1993)). Because a reasonably prudent plaintiff would

have been aware of the failure of the Secretary to act on the day following the

deadline, the continuing violation doctrine does not apply.

Our conclusion that the continuing violation doctrine does not apply is also

consistent with our statute of limitations and sovereign immunity jurisprudence.

“The United States, as sovereign, is immune from suit save as it consents to be

sued.” United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941). 

“When the United States consents to be sued, the terms of its waiver of sovereign

immunity define the extent of the court’s jurisdiction.” See United States v.

Mottaz, 476 U.S. 834, 841, 106 S. Ct. 2224, 2229 (1986). “[T]he terms ‘upon

which the Government consents to be sued must be strictly observed and

exceptions thereto are not to be implied.’” McMaster v. United States, 177 F.3d

936, 939 (11th Cir. 1999) (quoting Soriano v. United States, 352 U.S. 270, 276, 77

S. Ct. 269, 273 (1957)). Our predecessor court similarly observed that courts “will

not, as a general rule, read into statutes of limitation an exception which has not

been embodied therein.” Simon v. United States, 244 F.2d 703, 705 (5th Cir.
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1957) (quotation omitted). Because section 2401 unambiguously imposes a sixyear statute of limitations, our refusal to extend the application of the continuing

doctrine comports with principles of sovereign immunity.

We recognize that at least one district court has applied the continuing

violation doctrine to section 1533. See S. Appalachian Biodiversity Project, 181 F.

Supp. 2d at 887. We disagree with the reasoning of that decision. The conclusion

of the Southern Appalachian court that the “[Secretary]’s non-action logically can

only be construed as a continuing violation of 16 U.S.C. § 1533(b)(6)(C),” id.,

contradicts our Circuit precedent, which narrowly limits the scope of the

continuing violation doctrine.

Finally, we note that our decision does not foreclose all relief for the Center. 

The Center may petition the Secretary “to designate critical habitat or to adopt a

special rule to provide for the conservation of a species.” 50 C.F.R. § 424.14(d). 

Although the lack of an alternative remedy would not cause us to read an exception

to the limitations period into the Act, the existence of an alternative remedy

supports our conclusion that Congress did not intend the continuing violation

doctrine to apply.

IV. CONCLUSION

The dismissal of the complaint is

AFFIRMED.