Western District Of Louisiana Notes Split Re Continuing Violations Doctrine And Statutory Deadlines In Suits Alleging Agency Noncompliance

Per Schoeffler v. Kempthorne, --- F.Supp.2d ----, 2007 WL 1850711 ( W.D.La. Jun 26, 2007) (NO. CIV.A. 05-1573):
The continuing violations doctrine permits a plaintiff to sue on a claim that would be time-barred if considered in isolation, but where subsequent violations act to prevent accrual or otherwise toll the limitations period. The United States Court of Appeals for the Fifth Circuit has recognized the viability of the continuing violations doctrine to toll the statute of limitations. See Mayberry v. Conoco, Inc., 2001 WL 1751461(5th Cir.2001); Lariscey v. Smith, 1995 WL 535012, 4 (5th Cir.1995); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir.1990). The scope of the doctrine is unclear, and the United States Supreme Court has not ruled on the issue. While the doctrine has not been applied in the Fifth Circuit in an ESA citizen suit against the government, it has been applied by other federal courts to toll the 28 U.S.C. § 2401 statute of limitations in citizen suits with fact patterns similar to the present one in which the government owed a continuing duty to the plaintiff. FN29

FN29. The federal circuits are split as to whether plaintiffs in suits alleging agency noncompliance with statutory deadlines may be able to avoid the statute of limitations by application of the continuing violation doctrine. The D.C. Circuit has applied the continuing violations doctrine to toll the statute of limitations in cases involving government agency inaction. See The Wilderness Soc. v. Norton, 434 F.3d 584 (D.C.Cir.2006) (holding that the six-year, general federal statute of limitations for civil actions against the United States does not apply to actions under the APA to compel agency action unlawfully withheld or unreasonably delayed because the plaintiff in such a suit seeks redress for an alleged continuing violation). Numerous un-appealed federal district court decisions have also considered the applicability of the doctrine. See. e.g. Modern, Inc. v. Florida, 2006 WL 1679347, 5 (M.D.Fla.2006); Heartwood v. Norton, 2005 WL 2656733 (S.D.Ohio.2005); Central Pines Land Co. v. United States, 61 Fed. Cl. 527, 537 (Fed.Cl.2004); Boling v. United States, 220 F.3d 1365, 1373 (Fed.Cir.2000); Fallini v. United States, 56 F.3d 1378, 1381 (Fed.Cir.1995), cert. denied, 517 U.S. 1243, 116 S.Ct. 2496, 135 L.Ed.2d 189 (1996) ( citing United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947)(providing that the statute of limitations does not begin to run until the challenged government actions have stabilized.)).