and Submitted February 12, 2019
Submission Vacated February 26, 2019
Resubmitted August 23, 2019 University of Hawai'i Manoa
from the United States District Court for the District of
Hawai'i D.C. No. 1:15-cv-00304-DKW-KJM Derrick Kahala
Watson, District Judge, Presiding.
Margery S. Bronster (argued), Robert M. Hatch, and Kelly A.
Higa, Bronster Fujichaku Robbins, Honolulu, Hawai'i; John
Y. U. Choi, Honolulu, Hawai'i; for Plaintiff-Appellant.
M. Akamine (argued) and Caron M. Inagaki, Deputy Attorneys
General; Department of the Attorney General, Honolulu,
Hawai'i; for Defendants-Appellees.
Before: Richard C. Tallman, Jay S. Bybee, and N. Randy Smith,
panel affirmed the district court's dismissal, on statute
of limitations grounds, of a complaint brought pursuant to 42
U.S.C. § 1983 alleging that the Hawai'i Department
of Human Services violated plaintiff's right to due
process when it listed her, without notice, on the
State's Child Protective Services Central Registry.
and her then-husband were placed on the State's Registry
after their 7-week-old baby died of cardiac arrest in 2007.
Bird's husband later confessed to killing the infant and
a criminal investigation concluded that plaintiff was not a
suspect. The Department of Health Services did not, however,
remove plaintiff's name from the Registry, nor did it
notify her that her name was listed. In 2013, plaintiff
discovered, during a background check, that her name was on
the Registry. Plaintiff's attorney communicated with the
Department and threatened to sue when plaintiff's name
was not removed, but did not file suit until more than two
Hawai'i's two-year statute of limitations, the panel
held that plaintiff's complaint was not subject to any
exceptions from the normal discovery rule of accrual. The
panel held that plaintiff had knowledge of the injury giving
rise to her claim by May 2013 when she threatened to sue the
Department if she was not removed from the Registry.
Accordingly, her suit, filed in July 2015, was time-barred.
panel rejected plaintiff's assertion that a claim seeking
injunctive relief to invalidate an ongoing unconstitutional
statutory and regulatory scheme does not accrue until the
statute is repealed. The panel held that the traditional
interests of protecting defendants and facilitating the
administration of claims was applicable to a due process
claim and justified enforcing a limitations period through
the discovery rule of accrual. The panel further rejected
plaintiff's claim that her complaint alleged a continuing
violation. The panel held that because the violation
plaintiff alleged was the placement of her name on the
Registry without constitutionally required due process, she
had brought only an individualized claim. As such, the
systematic branch of the continuing violations doctrine was
inapplicable, and the discovery rule of accrual applied.
in the per curiam opinion, Judge Bybee stated that plaintiff
had assuredly stated a plausible due process claim and that
the Department of Health Services should not interpret the
panel's decision, which was based on statute of
limitations grounds, as in any way condoning the blatantly
insufficient procedures by which the Department maintains
plaintiff's name in its Central Child Abuse Registry.
March 28, 2007, plaintiff-appellant Courtney Bird returned
home from a dentist appointment to find her then-husband
administering CPR to their seven-week-old baby, who later
died at the hospital of cardiac arrest. As a result of the
infant's death, the Hawai'i Department of Human
Services ("DHS") listed both Bird and her husband
on the state's Central Child Abuse Registry
("CCAR"). Bird's husband later confessed to
killing their infant baby and the criminal investigation
concluded that Bird was not a suspect. DHS, however, did not
remove Bird's name from the CCAR. Throughout this time,
DHS never told Bird that she was listed on the registry.
did not learn that she had been listed on the CCAR until June
2012-more than five years later-when the report turned up on
a background check. When a request for a hearing and various
communications with DHS failed to result in Bird's
removal from the CCAR, Bird's attorney threatened DHS in
May 2013 with suit in federal court. Bird did not file suit,
however, until July 20, 2015-more than two years after her
extensive communications with DHS and previous threat to sue.
The district court determined that Bird's claims brought
under 42 U.S.C. § 1983 were untimely and granted summary
judgment in favor of the State.
Bird's complaint is not subject to any exception from the
normal discovery rule of accrual, we agree that Bird's
claim accrued no later than May 2013, when Bird threatened to
sue DHS if she was not removed from the CCAR. We affirm.
FACTS AND PROCEEDINGS BELOW
most states, Hawai'i law requires DHS to maintain a
central registry for reports of child abuse or neglect.
See Haw. Rev. Stat. § 350-2(d) ("The
department shall maintain a central registry of reported
child abuse or neglect cases . . . ."). "Central
registry reports are typically used to aid agencies in the
investigation, treatment, and prevention of child abuse cases
. . . . Central registry records also are used to screen
persons who will be entrusted with the care of
children," such as "individuals [who] apply to be
foster or adoptive parents or child or youth care
providers." Establishment and Maintenance of Central
Registrations for Child Abuse or Neglect Reports at 2,
Child Welfare Information Gateway: U.S. Dep't of Health
& Human Serv., Children's Bureau (2018).
times relevant to this suit, § 350-2 further provided
that reports maintained in the central registry "shall
[be] promptly expunge[d] . . . if: (1) The department has
found the reports to be unsubstantiated; or (2) The petition
arising from the report has been dismissed by order of the
family court after an adjudicatory hearing on the
merits." Act of May 18, 2017, sec. 3, § 350-2(d),
2017 Haw. Sess. Laws 60, 61-62.The statute stated that "a
report is unsubstantiated only when the department has found
the allegations to be frivolous or to have been made in bad
faith." Id. The statute provided, and continues
to provide, however, no procedures by which DHS should
investigate, record, or expunge reports in the CCAR. Such
procedures are left to "the department's
rules." Haw. Rev. Stat. § 350-2(a).
Hawai'i Administrative Rules require DHS to record
accused individuals in the CCAR whenever it receives a report
of serious child abuse. Haw. Admin. R. § 17-1610-18. DHS
is simultaneously required to commence an investigation.
Id. At the conclusion of its investigation, DHS will
declare the report "confirmed," "not
confirmed," or "unsubstantiated." Id.
§ 17-1610-19(a)(1)-(3). Only a report declared
"unsubstantiated" will be expunged from the CCAR.
Id. § 17-1610-19(a)(1). In cases where the
report is declared "confirmed" or "not
confirmed," the individuals subject to the allegations
remain on the CCAR. See id. § 17-1610-19(a)(2),
(4). The regulations specify that DHS
"shall comply with requests from other states to check
its central registry for the purpose of conducting background
checks in foster or adoptive placement cases."
Id. § 17-1610-19(a)(5).
DHS has completed its investigation and determined that an
accused individual should remain on the CCAR, state
regulations require DHS to give written notice to the
"identified perpetrator or maltreater."
Id. § 17-1610-11(c). Anyone "dissatisfied
with the disposition of the department's assessment or
action taken by the department" has two routes for
challenging his or her inclusion in the CCAR. Id.
§ 17-1610-12(b). First, if DHS has not yet commenced any
proceeding against the listed individual in family court, he
or she may file an administrative appeal. Id. At the
appeal, however, the listed individual remains subject to the
requirements for expungement laid out in Hawai'i Revised
Statutes § 350-2, which at all relevant times in this
case required the listed individual to prove that the report
was "unsubstantiated," in other words, that it was
"frivolous or . . . made in bad faith." Act of May
18, 2017, sec. 3, § 350-2(d), 2017 Haw. Sess. Laws 60,
61-62. If the listed individual was unable to meet this
exacting standard, he or she remained on the registry.
if DHS has petitioned the family court for custody of the
listed individual's child(ren), the listed individual is
not permitted to seek administrative review. Haw. Admin. R.
§ 17-1610-12(c). Instead, the listed individual's
exclusive means by which to expunge his or her listing in the
CCAR is to prevail at an adjudicatory hearing before the
family court. Haw. Rev. Stat. § 350-2(d)(2). At the
adjudicatory hearing, the family court will determine
"[w]hether the child's physical or psychological
health or welfare has been harmed or is subject to threatened
harm by the acts or omissions of the [listed
individual]." Haw. Rev. Stat. § 587A-28(d)(1).
Significantly, if DHS returns custody of the child and
settles the family court proceeding before it reaches the
adjudicatory phase, the statutory scheme leaves listed
individuals who are wrongfully listed in the CCAR with no
recourse for expunging their names. See id.
2003, Bird married Frank Fontana and two years later gave
birth to a daughter, T.F. Fontana, who worked for the Navy,
was subsequently transferred to Hawai'i. Bird and their