N.D. Cal. Analyzes Circuit Split Re Whether Failure to Act Constitutes a Continuing Violation of Agency's Statutory Duty
Per Public Citizen, Inc. v. Mukasey, 2008 WL 4532540 (N.D. Cal. Oct 09, 2008):
Here, plaintiffs suggest that the continuing violations doctrine applies to government in action. Although the Ninth Circuit has extended the continuing violations doctrine to employment and civil rights contexts, it has not offered any explicit guidance regarding application of the continuing violations doctrine to the situation at bar. See, e.g., Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812 (9th Cir.2001); Gutkowsky v. County of Placer, 108 F.3d 256 (9th Cir.2007). Courts outside of the Ninth Circuit are split on whether to apply the continuing violations doctrine to instances of agency inaction. See, e.g., Wilderness Soc'y v. Norton, 434 F.3d 584, 589 (D.C.Cir.2006) (concludes in dicta that § 2401(a) does not time-bar actions to rectify agency inaction in violation of a statutory duty); S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1232 (10th Cir.2002) (notes in dicta that an agency's failure to act as statutorily mandated "should be considered an ongoing failure to act, resulting in an ever-green cause of action for failure to act") . . . ("The statute of limitations commences to run anew each and every day that the Service does not fulfill the affirmative duty required of it.").