Wyo-Ben Inc. v. HaalandWyo-Ben Inc. v. Haaland
Robert R. Marsh, S&D Law, Denver, Colorado (William R. Marsh, Sedalia, Colorado, with him on the briefs), for Petitioner-Appellant.
John Emad Arbab, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Jean E. Williams, Acting Assistant Attorney General and Erika B. Kranz, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.; L. Robert Murray, United States Attorney and Nicholas Vassallo, Assistant United States Attorney, Cheyenne, Wyoming; Kendra Nitta, of Counsel, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C.; with him on the brief), for Respondents-Appellees.
* Pursuant to
Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges.
Plaintiff-Appellant Wyo-Ben, Inc., (“Wyo-Ben“) appeals from the district court‘s dismissal of its complaint against the Secretary of the Department of the Interior (the “Secretary“) and the Bureau of Land Management (“BLM,” and collectively with the Secretary, the “Respondents“) asserting a singlе claim under the Administrative Procedure Act (“APA“),
In 1993, Wyo-Ben filed a mineral patent application with BLM. While that application was pending, on September 30, 1994, Congress enacted a moratorium on processing mineral patent applications. See Department of the Interior and Related Agencies Appropriations Act, 1995,
In 2019, Wyo-Ben brought the instant action against Respondents, alleging that, pursuant to
In holding that Wyo-Ben‘s claim was untimely, the district court declined to apply two doctrines—the continuing violation doctrine and the repeated violations doctrine—either of which would bring Wyo-Ben‘s claim within the six-year limitations period. The continuing violation doctrine “tethers conduct from both inside and outside the limitations period into one single violation that, taken as a whole, satisfies the applicable statute of limitations.” Hamer v. City of Trinidad, 924 F.3d 1093, 1100 (10th Cir. 2019) (emphasis added). For purposes of the continuing violation doctrine, a claim asserts a “single violation” that “continues over an extended period of time ‘when the . . . claim seeks redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act.‘” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 672 (10th Cir. 2016) (emphasis added) (quoting Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009)).
By contrast, “the repeated violations doctrine ‘divides what might otherwise represent a single, time-barred cause of action into several separate claims, at
On appeal, Wyo-Ben avers that the district court misconstrued its
Exercising jurisdiction under
I
A
Because the district сourt‘s order granted Respondents’ motion to dismiss pursuant to
On March 30, 1993, Wyo-Ben filed with the BLM Wyoming State Office an application for a mineral patent to some 290 placer mining claims consisting of approximately 7,070 acres in Big Horn County, Wyoming. A “placer” claim encompasses “all forms of [mineral] deposit” except for “veins of quartz[] or other rock” that is “in place.”
On August 31, 1993, BLM received additional documents from Wyo-Ben, including a check to pay the purchase price of the land contained in the patent application. BLM deemed the check prematurely submitted and returned it to Wyo-Ben.
On March 14, 1994, Wyo-Ben again resubmitted the documents, but this time without the purchase-price check. In doing so, Wyo-Ben did not dispute BLM‘s August 31, 1993, decision finding that Wyo-Ben tendered the purchase price prematurely. Four days later, on March 18, 1994, BLM sent a decision letter responding to
On September 30, 1994, the statutory moratorium on processing mineral patent applications went into effect.5 The statute provided an exemption from the moratorium for applications that, based on the Secretary‘s assessment, fit certain criteria under the 1995 Act.6
B
Twenty-five years later, on October 17, 2019, Wyo-Ben filed the instant action in the U.S. District Court for the District of Wyoming. Wyo-Ben alleged that the “Secretary‘s failure to apply the criteria required by applicable law to determine whether the Application qualifies for the Section 404(b) moratorium exception [in the 2019 Act] constitutes agency action unlawfully withheld and unreasonably delayed” under
On September 23, 2020, the district court issued an order dismissing Wyo-Ben‘s complaint as untimely. See Aplt.‘s Opening Br., Ex. 1 at 1–3 (Dist. Ct. Order, filed Sept. 23, 2020).7 Before addressing the statute of limitations, the court acknowledged its authority to “compel agency action unlawfully withheld or unreasonably delayed.” Id. at 18 (quoting
Nevertheless, the district court found that Wyo-Ben‘s claim was untimely under the six-year statute of limitations that is generally applicable to actions against the United States because the claim purportedly first accrued when BLM determined in 1994 that Wyo-Ben‘s application did not qualify for the exemption. See id. at 19–21 (citing
Critical to this appeal, in finding that Wyo-Ben‘s claim was time-barred, the district court concluded that neither the continuing violation doctrine nor the repeated violations doctrine applied to Wyo-Ben‘s claim. See id. at 20. With respect to the continuing violation doctrine, the district court explained that “[a] claim for a cоntinuing violation fails if the plaintiff knew, or through the exercise of reasonable diligence, would have known of the injury when it first began.” Id. (citing Sierra Club, 816 F.3d at 674). Because “[n]othing prevented Wyo-Ben from inquiring into the status of its application once in 25 years,” the court concluded that the “continuing violation doctrine does not fit.” Id.
The court similarly rejected Wyo-Ben‘s reliance on the “repeated violations” doctrine. Id. Explaining that the repeated violations doctrine “involves, single, separate claims, each with their own statute of limitations period,” id. (citing Hamer, 924 F.3d at 1100), the court concluded that the doctrine is inapplicable “because the only alleged unlawful act was BLM classifying Wyo-Ben‘s patent [application] as suspended by the moratorium,” which happened only once, in 1994, id. Additionally, the district court presumed that we limited the repeated violations doctrine in Hamer to claims asserted under the Americans with Disabilities Act (“ADA“) and the Rehabilitation Act. See id. (citing Hamer, 924 F.3d at 1103).
The district court also addressed our decision in Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167 (10th Cir. 1997). See id. at 21–22. In Mt. Emmons, the Secretary of the Interior had issued an interpretive memorandum under which the exemption in § 113 of the 1995 Act only granted the Secretary authority to deem exempt applications “for which a [First Half Final Certificate (“FHFC“)] was signed before October 1, 1994” or “for which a FHFC was pending in Washington, D.C., as of September 30, 1994.” 117 F.3d at 1169.8 As we explained there, a FHFC issuеs when an “application is complete
Yet the district court rejected Wyo-Ben‘s reliance on Mt. Emmons, finding it distinguishable. See Aplt.‘s Opening Br., Ex. 1 at 20–22. According to the district court, “[t]he most glaring [distinction is that] Mt. Emmons filed its APA complaint on December 30, 1994,” while Wyo-Ben filed its action twenty-five years later. Id. at 22 (citing Mt. Emmons, 117 F.3d at 1169). Additionally, the district court noted that whereas “BLM requested, received, and accepted Mt. Emmons’ payment for its application,” here, “BLM rejected Wyo-Ben‘s tender of payment, and Wyo-Ben accepted . . . that decision.” Id. (citing Mt. Emmons, 117 F.3d at 1168).
Having found Wyo-Ben‘s claim untimely, the district court entеred final judgment dismissing Wyo-Ben‘s complaint. Wyo-Ben filed its timely notice of appeal.
II
We review de novo a district court‘s ruling that a plaintiff‘s claim is time-barred. See, e.g., Hamer, 924 F.3d at 1099 (citing Sierra Club, 816 F.3d at 671). The statute of limitations is an affirmative defense that a defendant must raise, and we typically require factual development before deciding whether a claim is timely. See Herrera, 32 F.4th at 991 (citing Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018)). But we may resolve “[a] statute of limitations defense . . . ‘on a [Rule] 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.‘” Sierra Club, 816 F.3d at 671 (second alteration in original) (quoting Lee v. Rocky Mountain UFCW Unions & Emp‘rs Tr. Pension Plan, 13 F.3d 405, at *1 (10th Cir. 1993) (non-precedential order and judgment)); see also Herrera, 32 F.4th at 1001 (reversing a district court order that granted a
III
Wyo-Ben asserts a single claim in this litigation: it alleges that the Secretary “unlawfully withheld and unreasonably delayed” action required under the relevant appropriations acts—most recently under the Act applicable in fiscal year 2019—by failing to review Wyo-Ben‘s application,
A
We first explain how the district court misconstrued Wyo-Ben‘s complaint. Wyo-Ben argues that it challenged the Secretary‘s inaction as to its application for “‘failure to apply the criteria required by applicable law to determine whether the Application qualifies for the Section 404(b) moratorium exception’ in the 2019 Act.” Aplt.‘s Opening Br. at 39–40 (quoting Aplt.‘s App., Vol. I, at 10). But the district court construed Wyo-Ben‘s complaint as challenging an alleged “violation” by BLM—that is, “BLM improperly making a determination [in 1994 that] Wyo-Ben‘s application was subject to the moratorium.” Id., Ex. 1 at 19. In substance, we agree with Wyo-Ben‘s contention that the district court mischaracterized Wyo-Ben‘s complaint.
Wyo-Ben brought a claim under
However, following Respondents’ lead, the district court determined that BLM‘s October 3, 1994, determination was material to—and, indeed, dispositive of—this case. Notably, instead of finding that BLM‘s 1994 determination was, as a matter of law, the Secretary‘s decision—in other words, concluding that BLM exercised delegated authority from the Secretary when it decided that the application did not meet the exemption‘s requirements—the district court characterized BLM‘s decision as the “violation” that Wyo-Ben challenges and on which the limitations period first accrued. See Aplt.‘s Opening Br., Ex. 1 at 19.11
There is a critical difference between a claim that the Secretary unlawfully withheld or unreasonably delayed in taking an action—specifically, reviewing Wyo-Ben‘s application—and a claim that BLM incorrectly determined that the application was subject to the moratorium. The latter circumstance is what both Respondents and the district court improperly ascribe to Wyo-Ben‘s complaint. In other words, the district court and Respondents have operated on the premise that Wyo-Ben is challenging BLM‘s determination that its application was not subject to the § 113 exemption. But it is clear to us that Wyo-Ben claims the Secretary never decided whether its application is exempt. And because the Secretary never made that determination, Wyo-Ben filed a
B
Having concluded that the district court misconstrued Wyo-Ben‘s claim, we next address whether its claim—construed properly—was timely. The district court and Respondents maintain that Wyo-Ben‘s claim first accrued in 1994 and is untimely under the statute of limitations provided in
At the outset, we acknowledge that there is a more-than-colorable question concerning whether
Moreover, the D.C. Circuit has “repeatedly refused to hold that actions seeking relief under
However, under the circumstances here, we need not opine on whether
1
In its appellate briefing, Wyo-Ben expressly relies in part on the continuing violation doctrine. See, e.g., Aplt.‘s Opening Br. at 3 (stating that the appellate issue, in part, is “[w]hether the district court erred by not applying the continuing violation doctrine“); id. at 17 (noting that “[t]his case fits well within both doctrines [i.e., the continuing violation and the repeated violations doctrines] and, when either of them is applied in this case, the result is that the statute of limitations in
consider “the entire time period“—including those separate acts falling outside the filing period—“for the purposes of determining liability.“” Hamer, 924 F.3d at 1098-99 (quoting Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
For two salient reasons, however, we deem Wyo-Ben‘s arguments regarding the continuing violation doctrine to be waived. First, Wyo-Ben conceded before the district court that the doctrine did not apply to its action against Respondents. In opposing Respondents’ motion to dismiss, Wyo-Ben discussed the differences between the continuing violation and repeated violations doctrines at length. See Aplt.‘s App., Vol. I, at 176-77 (Pet‘r‘s Br. Opposing and Requesting Oral Argument on Respondents’ Mot. to Dismiss Based on Timeliness Defense, filed June 19, 2020). Critically, after that discussion, Wyo-Ben explained that, “unlike the continuous ongoing violation found to exist in Sierra Club . . ., Wyo-Ben‘s claim does not involve a prolonged violation of a single permanent statute. It involves the terms of the 1994 appropriations act that lost any force or effect when that statute expired, but were thereafter repeated in multiple entirely new statutes, each imposing a specific affirmative obligation to act.” Id. at 178 (second emphasis added). Wyo-Ben also stated that “the unlawful act asserted here . . . does not come within the definition of one continuing violation of a single permanent statute. Conversely, it fits perfectly and literally within the definition of a violation both “repeated” and “discrete.“” Id. at 179. Accordingly, Wyo-Ben submitted that it is “clear . . . this case involves a repeated, discrete unlawful act by Respondents as opposed to a single continuing unlawful act by them.” Id. at 180 (emphasis added).
Based on the foregoing, we would be hard pressed to identify a clearer case of waiver. Specifically, it is well-established that we do not consider arguments an appellant intentionally disclaimed or abandoned before the district court. See, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011) (“If the theory was intentionally relinquished or abandoned in the district court, we usually deem it waived and refuse to consider it.“); cf. United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver is accomplished by intent, [but] forfeiture comes about through neglect.” (second alteration in original) (emphases added) (quoting United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000))). Based on its statements in the district court, Wyo-Ben has waived any appellate argument it may have in support of the continuing violation doctrine. It intentionally conceded in the district court that the continuing violation doctrine does not apply.
Second, even if we were inclined to put aside this clear evidence of waiver based on Wyo-Ben‘s concessions before the district court, we would conclude that, at the very least, Wyo-Ben forfeited any argument in that court based on the continuing violation doctrine and because it has not advanced a continuing violation argument under the plain-error rubric before us, it has effectively waived any such argument. Specifically, in its briefing before the district court, Wyo-Ben failed to include any section identified as one explaining why its complaint is subject to the continuing violation doctrine.
Further, unlike its litigation position on appeal, Wyo-Ben did not explicitly argue that both the repeated violations and continuing violation doctrines apply. Judging from its exclusive reliance on the former, at the very least, Wyo-Ben forfeited its right to invoke the continuing violation doctrine, and its failure to argue under the plain-error framework before us transforms the initial forfeiture into an effective waiver. See, e.g., In re Rumsey Land Co., LLC, 944 F.3d 1259, 1271 (10th Cir. 2019) (“If an appellant does not explain how its forfeited arguments survive the plain error standard, it effectively waives those arguments on appeal.“); Havens v. Colo. Dep‘t of Corrs., 897 F.3d 1250, 1259 (10th Cir. 2018) (“We conclude that [the plaintiff] has forfeited the argument that Title II validly abrogates sovereign immunity as to his claim by failing to raise this argument before the district court, and he has effectively waived the argument on appeal by not arguing under the rubric of plain error.“); see also Richison, 634 F.3d at 1131 (“[T]he failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.“).
For these reasons, we find Wyo-Ben‘s reliance on the continuing violation doctrine waived and decline to consider it.13
2
We turn next to the repeated violations doctrine. “[T]he repeated violations doctrine “divides what might otherwise represent a single, time-barred cause of action into several separate claims, at least one of which accrues within the limitations period prior to suit.“” Hamer, 924 F.3d at 1100 (quoting Graham, supra, at 275). “That division, in turn, “allows recovery for only that part of the injury the plaintiff suffered during the limitations period“; recovery for the part of the injury suffered outside of the limitations period, however, remains unavailable.” Id. (first quoting White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1430 (11th Cir. 1997); and then citing Figueroa v. D.C. Metro. Police Dep‘t, 633 F.3d 1129, 1135 (D.C. Cir. 2011)).
Hamer illustrates the repeated violations doctrine in action. The plaintiff, who was confined to a motorized wheelchair and primarily used public sidewalks to move about, sued the City of Trinidad alleging that the city‘s sidewalks were not compliant with Title II of the ADA or Section 504 of the Rehabilitation Act. See id. at 1097-98. In ruling on the city‘s motion for summary judgment, the district court applied Colorado‘s general two-year statute of limitations and concluded that the plaintiff‘s claims were untimely because the plaintiff first discovered or encountered the city‘s noncompliant sidewalks more than two years before he filed his complaint. See id. at 1098.
On appeal, we held that the plaintiff‘s claims were timely under the repeated violatiоns doctrine. Two questions guided our analysis: (1) “Does a public entity violate Title II and section 504 only when it initially constructs or creates a non-compliant service, program, or activity?” (2) “Or does a public entity violate Title II and section 504 repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity?” Id. at 1097. We answered “no” to the first question and “yes” to the second. See id. As we explained, “a public entity repeatedly violates those two statutes each day that it fails to remedy a non-compliant service, program, or activity.” Id. at 1103.
Our analysis began with the plain language of the statutes under which the plaintiff brought suit. Phrased in the present tense, both statutes suggest that a qualified individual who currently experiences discrimination suffers an actionable injury. See id. at 1104.14 “And so the same language also suggests that a qualified individual suffers new discrimination and a new injury each day that she cannot utilize a non-compliant service, program, or activity—even if the barriers giving rise to her claim were ones she encountered before.” Id. Moreover, the Supreme Court “recognized “that [a] failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion,“” demonstrating that Title II “imposes “an affirmative obligation to accommodate persons with disabilities.“” Id. at 1104-05 (quoting Tennessee v. Lane, 541 U.S. 509, 531, 533 (2004)).
We also examined the broader context of the two statutes. Regarding the ADA, we noted that Congress enacted the statute to “assure . . . full participation” of “individuals with disabilities” in society. Id. at 1106 (quoting
[E]ach time a qualified individual with a disability encounters or “actually become[s]
aware of” a non-compliant service, program, or activity “and is thereby deterred” from utilizing that service, program, or activity, he or she suffers discrimination and a cognizable injury. So long as the service, program, or activity remains non-compliant, “and so long as a plaintiff is aware of [that] and remains deterred,” the qualified individual‘s injury repeats.
Id. at 1107 (second and third alterations in original) (quoting Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002)).
Following Hamer, we also extended the repeated violations doctrine to claims brought under
We believe that the logic and reasoning of Hamer and Herrera map onto the circumstances before us. And we conclude that Wyo-Ben‘s claim is timely under the repeated violations doctrine.
a
More specifically, the plain language and statutory context of
Moreover, as with Title II of the ADA, the relevant appropriations statutes at issue here create “an affirmative duty” to act. Hamer, 924 F.3d at 1105. In Mt. Emmons, we held that “the provision [adopting the exemption from the moratorium] clearly requires the Secretary to determine . . . whether the application is complete in that the applicant has complied with all requirements for applying for a patent.” 117 F.3d at 1171. The Secretary
And “the broader statutory context,” Hamer, 924 F.3d at 1106, underlying the relevant appropriations acts demonstrates that they impose a continuing duty to determine whether pending applications are exempt from the moratorium. When Congress reenacted the moratorium and exemption for the fiscal year ending September 30, 1996, it included a provision requiring the Secretary to develop a plan to review 90% of the pending applications within five years and to carry out the plan. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Department of the Interior and Related Agencies Appropriations Act, 1996, tit. III, § 322(c), 110 Stat. 1321, 1321-203-1321-204 (Apr. 26, 1996) (“1996 Act“); see also Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, Department of the Interior and Related Agencies Appropriations Act, 1997, tit. III, § 314(c), 110 Stat. 3009, 3009-221-3009-222 (Sept. 30, 1996) (“1997 Act“) (requiring the Secretary to review 90% of the pending applications within five years after Congress enacted the 1997 Act).
By 2001, the Secretary had not reviewed 90% of the pending applications as required, and Congress did not enact a new deadline. But in each subsequent appropriations act through 2019, Congress required the Secretary to submit a report by the end of the fiscal year documenting the Secretary‘s progress toward completing the plan submitted in accordance with the 1997 Act. See, e.g., Department of the Interior and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-63, tit. III, § 309(c), 115 Stat. 414, 465 (Nov. 5, 2001); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. E, tit. IV, § 407(c), 125 Stat. 786, 1038 (Dec. 23, 2011); 2019 Act, § 404(c). By reenacting the exemption annually and requiring reports on progress toward completing a plan that the Secretary first submitted in 1997, Congress evidently imposed an ongoing duty to review pending applications.15
As we explained in Hamer, “[f]ailing to act in the face of an affirmative duty to do so axiomatically gives rise to liability.” 924 F.3d at 1105. And “if the actor under the affirmative duty keeps failing to act while the underlying problem remains unremedied,” then the repeated instances of inaction constitute new violations.
In sum, the repeated violations doctrine fits the circumstances that Wyo-Ben alleges in its complaint.16
Under those allegations, the Secretary has an affirmative, ongoing duty to review pending applications. See, e.g., Mt. Emmons, 117 F.3d at 1171; 2019 Act, § 404(b)-(c). Once the Secretary had allegedly withheld action unlawfully or delayed unreasonably in reviewing Wyo-Ben‘s application, each time the Secretary continued thereafter to violate its duty to review the application constituted a discrete instance of “agency action unlawfully withheld or unreasonably delayed.”
b
Because the repeated violations doctrine implies that at some point an initial violation occurred, we identify the initial violation Wyo-Ben alleges in its complaint. See Hamer, 924 F.3d at 1097 (implying that a public entity first “violate[s] Title II and section 504 . . . when it initially constructs or creates a non-compliant service, program, or activity“); see also Herrera, 32 F.4th at 1001 (explaining that the plaintiffs’ “§ 1983 claims based on the City policy conditioning the provision of water service on payment of the prior account holder‘s arrearages arose upon the City‘s termination of water service“). Identifying the initial violation will then allow us to determine the period during which the violations repeated and for which Wyo-Ben may recover.
“[A] claim under
Though we do not address the viability of Wyo-Ben‘s
With respect to agency action “unlawfully withheld,” we can reasonably construe the complaint as alleging that the Secretary first “unlawfully withheld” action when the 1995 Act expired. Specifically, Wyo-Ben alleges that Congress first enacted the moratorium and exemption in the 1995 Act and reenacted them annually through fiscal year 2019,17 and it alleges that the Secretary‘s failure to determine whether its application qualifies for the exemption, as required under each appropriations act, amounted to agency action “unlawfully withheld.” See id. Further, on appeal, Wyo-Ben argues that the Secretary‘s failure to act as required under any of the appropriations statutes enacted prior to the 2019 Act amounted to “separate and discrete” violations. See Aplt.‘s Opening Br. at 41; see also Aplt.‘s Reply Br. at 21 (“[E]ach time the Secretary unlawfully withheld action required by the statute governing a given year constituted a separate, discrete repeated violation.“).18 In other words, if the Secretary unlawfully withheld action by the end of each relevant fiscal year, then—according to Wyo-Ben‘s theory—the Secretary necessarily unlawfully withheld action for the first time by the end of fiscal year 1995. We therefore construe the complaint as alleging that the Secretary first “unlawfully withheld” action by failing to exercise her duty under the 1995 Act.19
The complaint alleges that Congress first established the Secretary‘s duty in the 1995 Act and that the Secretary‘s failure to review its application as required under the 2019 Act amounted to agency action “unreasonably delayed.” See Aplt.‘s App., Vol. I, at 10-11. Notably, Wyo-Ben argues that the Secretary‘s inaction during the period when the 2019 Act was in effect constituted a repeated violation, see Aplt.‘s Opening Br. at 41—implying that an unreasonable delay had materialized by the time the 2019 Act took effect. Stated otherwise, given that the duty first arose under the 1995 Act, and Wyo-Ben alleges that the Secretary delayed unreasonably by failing to review its application during fiscal year 2019, we construe the complaint as alleging a delay that became unreasonable, at the latest, by the time the 2019 Act went into effect. We do not rule out the possibility that the delay first became unreasonable before then. Nevertheless, that the initial violation allegedly materialized by the time the 2019 Act went into effect suffices for purposes of applying the repeated violations doctrine on the alleged facts before us.
c
We thus have determined that Wyo-Ben alleges an initial violation of
We begin with the claim that the Secretary “unlawfully withheld” agency action. As explained previously, we construe the complaint as alleging that the Secretary
Under a second, more limited approach, after the 1995 Act expired, the Secretary committed a new and discrete violation at the end of each fiscal year the Secretary failed to carry out the requisite review. Wyo-Ben appears to adopt this latter approach on appeal. See, e.g., Aрlt.‘s Opening Br. at 41 (explaining that a “violation of any one of” the statutes enacted prior to the 2019 Act “is necessarily separate and discrete“); Aplt.‘s Reply Br. at 21 (arguing “each time the Secretary unlawfully withheld action required by the statute governing a given year constituted a separate, discrete repeated violation” (emphasis added)); id. (arguing “the Secretary‘s unlawful inaction causes Wyo-Ben a new, discrete . . . injury every year” (emphasis added)). For purposes of our analysis, we assume that this is so. But under either approach, Wyo-Ben has alleged an initial instance in which the Secretary “unlawfully withheld” required action and subsequent, discrete instances in which the Secretary repeatedly failed to carry out her duty up to the time of the 2019 Act. That suffices for timeliness under the repeated violations doctrine.
We also conclude that the repeated violations doctrine applies to Wyo-Ben‘s claim of unreasonable delay. As we explained, although Wyo-Ben does not specify the precise point at which the Secretary‘s delay first became unreasonable—that is, the temporal point where the initial violation occurred—we construe the complaint as alleging that the delay became unreasonable by the time the 2019 Aсt went into effect. After the violation first materialized, each subsequent day that the Secretary failed to carry out her duty constitutes a discrete violation that would seemingly be actionable under
In sum, the repeated violations doctrine applies here. A violation allegedly arose when the Secretary first unlawfully withheld or unreasonably delayed in taking agency action by failing to review Wyo-Ben‘s application. Each day—or, as to action “unlawfully withheld,” fiscal year—that the Secretary delayed or withheld its review after the initial violation mаterialized constitutes a separate alleged violation under
d
We conclude our discussion of the statute of limitations by briefly addressing the applicable recovery period. Under the repeated violations doctrine, plaintiffs may recover “for only that part of the injury the plaintiff suffered during the limitations period,” stretching back in time from the date the plaintiff filed suit. Hamer, 924 F.3d at 1100, 1103 (quoting White, 129 F.3d at 1430); see also Herrera, 32 F.4th at 1000 (explaining that “the repeated violation[s] doctrine . . . limits [plaintiffs‘] damages to the [statute-of-limitations] period preceding initiation of the action“). Plaintiffs may not “recover[] for the part of the injury suffered outside of the limitations period.” Hamer, 924 F.3d at 1100. Applying Hamer, Wyo-Ben maintains that the repeated violations doctrine authorizes recovery for injuries dating back six years from the day it filed its complaint—that is, October 17, 2013. See Aplt.‘s Opening Br. at 42; id. at 32-33 (quoting Hamer, 924 F.3d at 1097); see also
Although Wyo-Ben invokes Hamer in demarcating the relevant recovery period, its complaint differs from that case and Herrera in a critical respect. The plaintiffs in Hamer and Herrera both sought money damages and argued that they experienced repeated compensable injuries over periods spanning at least several months, in Hamer, and several years, in Herrera. See 924 F.3d at 1098; 32 F.4th at 987-88. Identifying the relevant recovery period was therefore essential in determining the amount of damages the plaintiffs could recover. By contrast, Wyo-Ben does not seek damages in its complaint. See Aplt.‘s App., Vol. I, at 11. It asserts a single сlaim under
Nevertheless, we leave open the possibility that a recovery period will become relevant on remand. For instance, Wyo-Ben also “requests such other and additional relief as the Court deems proper.” Id. If the district court awards additional relief and the scope of that relief depends on the relevant period of recovery, the principles set forth in Hamer and Herrera govern. Wyo-Ben may only recover for injuries it incurred after the point at which the Secretary first “unlawfully withheld” action or “unreasonably delayed” in reviewing Wyo-Ben‘s application. See Herrera, 32 F.4th at 1001 (finding plaintiffs could recover for damages incurred after the unlawful condition first “arose“). As we have explained, that point may differ depending on whether the district court finds the Secretary‘s action was “unlawfully withheld” or “unreasonably delayed.” Further, Wyo-Ben may only recover for injuries it incurred stretching back six years from the date it filed suit. See, e.g., Hamer, 924 F.3d at 1100;
C
Because we conclude the district court erred in dismissing Wyo-Ben‘s complaint as untimely, we next turn to Wyo-Ben‘s
Two factors are relevant in determining whether an application is exempt from the moratorium. First, “the application must [have] be[en] filed with the Secretary on or before the date” on which the 1995 Act took effect. Mt. Emmons, 117 F.3d at 1170. Filing a patent application with a BLM state office satisfies this condition. See id. To satisfy the second condition, the applicant must have fulfilled all relevant statutory requirements before September 30, 1994. See id. at 1170-71. For placer claims like Wyo-Ben‘s, the relevant statute—
On appeal, Respondents maintain that (1) Wyo-Ben submitted an incomplete application in that BLM rejected its tender of the purchase price before the moratorium took effect, and (2) BLM properly determined in 1994, pursuant to authority the Secretary lawfully delegated to BLM, that Wyo-Ben‘s application falls within the moratorium. See Aplees.’ Resp. Br. at 45-48. The district court did not resolve either of the foregoing two issues in dismissing Wyo-Ben‘s claim. And, more specifically as to the second issue, the court did not determine whether the lawful effect of any such delegation from the Secretary was that BLM properly stood in the shoes of the Secretary for purposes of determining that Wyo-Ben‘s application was subject to the moratorium.
“Where an issue has not been ruled on by the court below, we generally favor remand for the district court to examine the issue.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013); see also Kerr v. Hickenlooper, 824 F.3d 1207, 1217 (10th Cir. 2016) (“Appellate courts have “discretion to remand issues . . . to the trial court when that cоurt has not had the opportunity to consider the issue in the first instance.“” (quoting Salmon Spawning & Recovery All. v. U.S. Customs & Border Prot., 550 F.3d 1121, 1134 (Fed. Cir. 2008))); cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.“); Tae Chon v. Obama, 718 F. App‘x 653, 660 (10th Cir. 2017) (unpublished) (“It is certainly preferable for an appellate court considering a claim to have the benefit of “a reasoned district court decision resolving it.“” (quoting Sylvia v. Wisler, 875 F.3d 1307, 1326 (10th Cir. 2017))).
Accordingly, we remand the action to the district court for further proceedings. If the district court does have occasion to address Wyo-Ben‘s claim on the merits, the court should consider, among other issues it finds relevant: (1) whether Wyo-Ben‘s application was incomplete according to the relevant statutory criteria; and (2) whether the Secretary lawfully delegated authority to BLM to
IV
For the foregoing reasons, we REVERSE the district court‘s dismissal of Wyo-Ben‘s complaint as untimely. We REMAND the case for further рroceedings consistent with this opinion.
Notes
Section 706(1) provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed . . . .
The provision establishing the moratorium states in relevant part:
[N]one of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to accept or process applications for a patent for any mining . . . claim located under the general mining laws or to issue a patent for any mining . . . claim located under the general mining laws.
Section 113 of the 1995 Act, which provides the exemption, states in relevant part:
The provisions of section 112 shall not apply if the Secretary of the Interior determines that, for the claim concerned: (1) a patent application was filed with the Secretary on or before the date of enactment of this Act, and (2) all requirements established under . . . (
30 U.S.C. 29 and30 ) for vein or lode claims and . . . (30 U.S.C. 35 ,36 , and37 ) for placer claims, and . . . (30 U.S.C. 42 ) for mill site claims, as the case may be, were fully complied with by the applicant by that date.
We helpfully elaborated on the nature of a FHFC in a footnote in Mt. Emmons: “[T]he FHFC ‘[c]ertifies that the applicant has satisfactorily complied with all of the ‘paperwork’ requirements of the Mining Law (title, proofs, posting requirements, purchase money).‘” Mt. Emmons, 117 F.3d at 1168 n.1 (quoting BLM Manual H–3860–1, ch. VI, pp. VI–1 and –2). Respondents in their briefing before us speak of the FHFC this way: “The issuance of an FHFC is the Interior Department‘s internal, administrative recording of the application, and acknowledges that the patent applicant has satisfied the ‘paperwork’ requirements of the Mining Law of 1872.” Aplees.’ Resp. Br. at 1.