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.
No. 10-2167
United States Court of Appeals For the First Circuit
September 29, 2011
Before Lynch, Chief Judge, Boudin and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jaime Pieras, Jr., U.S. District Judge]
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
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.”
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 Conjunta del Seguro de Responsabilidad Obligatоrio 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.”
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.
That allоcation 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 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 perсent of the annual premium profits.2 The 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
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
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.
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 portiоns 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.6 Comm‘r of Ins. v. 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
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.
On November 4, 2008, the Association brought suit against Puerto Rico Insurance Commissioner Dorelisse Juarbe-Jiménez pursuant to
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).
Attеmpting 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.
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 limitatiоns. 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,
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 appearеd the Association was also asserting a claim that Rule LXX, as applied each year to the
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) (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 merе 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 mаke 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) (“[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
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 well-established 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.
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 challengе — 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.
This facial challenge was barred by the statute of limitations.10
The Association‘s takings claim was brought under
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
We agree with this conclusion. While the ripeness and accrual questions are conceptually distinct, as a functional
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 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
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 time-barred.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 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 faciаl 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
Given the Association‘s failurе 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
IV.
We affirm dismissal of the action.
Notes
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
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
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. Colón-Rivera v. Asociación de Suscripción Cоnjunta del Seguro de Responsabilidad Obligatorio, No. 07-1875, 2010 WL 5376116 (D.P.R. 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).
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).
The Association‘s opposition to the Commissioner‘s motion