Wyo-Ben Inc. v. Haaland

63 F.4th 857

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 20, 2023
• Docket: 20-8065
• Status: Published

Opinion

Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 20, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

WYO-BEN INC., a Montana corporation,

Petitioner - Appellant,

v. No. 20-8065

DEBRA HAALAND, an individual, in her capacity as Secretary of the United States Department of the Interior; TRACY STONE-MANNING, * an individual, in her capacity as Acting Director of the United States Bureau of Land Management,

Respondents - Appellees. _________________________________

Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:19-CV-00215-ABJ) _________________________________

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 Fed. R. App. P. 43(c)(2), Tracy Stone-Manning, the current director of the United States Bureau of Land Management, is substituted for William Perry Pendley. Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 2

_________________________________

Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges. _________________________________

HOLMES, Chief Judge. _________________________________

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 single claim under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). 1

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, Pub. L. No. 103-332, tit. I, § 112, 108 Stat.

1 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 . . . .

5 U.S.C. § 706(1).

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2499, 2519 (Sept. 30, 1994) (“1995 Act”). 2 In the same legislation, Congress also

enacted an exemption to the moratorium. See id. § 113. Under the exemption, if a

patent application was still pending by September 30, 1994, and it otherwise

complied with certain conditions, the patent application was not subject to the

moratorium and the Secretary was required to process the application. On October 3,

1994, BLM—but not the Secretary—determined that Wyo-Ben’s mineral patent

application did not qualify for the exemption. Congress thereafter reenacted the 1995

Act—including the moratorium and exemption—annually through 2019. See, e.g.,

Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, div. E, tit. IV, §§ 404(a),

404(b), 133 Stat. 13, 258 (Feb. 15, 2019) (“2019 Act”). 3

In 2019, Wyo-Ben brought the instant action against Respondents, alleging

that, pursuant to § 706(1) of the APA, the Secretary “unlawfully withheld” and

“unreasonably delayed” agency action by failing to review Wyo-Ben’s pending

application to determine whether it is exempt from the moratorium. Respondents

submitted a motion for “bifurcated proceeding on timeliness defense,” arguing that

2 We refer to each appropriations act by reference to the calendar year in which the act expires, even though Congress may have enacted the particular appropriations act during the previous calendar year. For example, although Congress enacted the Department of the Interior and Related Agencies Appropriations Act, 1995, in September 1994, we refer to this appropriations act as the “1995 Act” because the act provides appropriations “for the fiscal year ending September 30, 1995.” 1995 Act, 108 Stat. at 2499. We apply the same approach in referring to each of the other appropriations acts cited herein. 3 The moratorium and exemption were contained in §§ 112 and 113 of the 1995 Act. The same provisions appear in §§ 404(a) and 404(b) of the 2019 Act.

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Wyo-Ben’s complaint was time-barred. Applying the legal standard governing the

resolution of motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the district court agreed. The court found that Wyo-Ben’s claim was

statutorily barred by 28 U.S.C. § 2401(a), which is the statute of limitations

applicable to claims against the United States. 4 The court reasoned that Wyo-Ben’s

§ 706(1) claim first accrued on the date BLM determined that Wyo-Ben’s patent

application is not exempt (i.e., October 3, 1994) and that the limitations period

expired six years later (i.e., October 3, 2000).

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

4 Section 2401(a) provides, in relevant part, “[e]xcept as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C § 2401(a).

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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 least

one of which accrues within the limitations period prior to suit.’” Hamer, 924 F.3d at

1100 (quoting Kyle Graham, The Continuing Violations Doctrine, 43 GONZ. L. REV.

271, 275 (2008)). Because the district court concluded that the only allegedly

unlawful conduct occurred when BLM found in 1994 that the moratorium applied to

Wyo-Ben’s application, the district court held that neither doctrine applied.

On appeal, Wyo-Ben avers that the district court misconstrued its § 706(1)

claim by characterizing the allegedly unlawful conduct as BLM’s decision that Wyo-

Ben’s application falls within the moratorium. According to Wyo-Ben, it is not

challenging BLM’s agency action, but rather the Secretary’s inaction as to its patent

application, which is allegedly unlawful in light of the 1995 Act and subsequent

statutory iterations of like effect, including the 2019 Act. Because the Secretary

allegedly failed to review Wyo-Ben’s application each year from 1995 through 2019,

Wyo-Ben argues that the continuing violation and repeated violations doctrines apply

to its § 706(1) claim, asserted in 2019. And, assuming its claim is timely, Wyo-Ben

petitions us to rule on the merits and compel the Secretary to review Wyo-Ben’s

pending application in accordance with the 2019 Act.

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Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s

judgment and remand the action for further proceedings consistent with this opinion.

I

A

Because the district court’s order granted Respondents’ motion to dismiss

pursuant to Rule 12(b)(6), we rely primarily on the “allegations from the

[c]omplaint[, taken] as true.” Herrera v. City of Espanola, 32 F.4th 980, 986 (10th

Cir. 2022) (addressing a 12(b)(6) motion to dismiss a claim on timeliness grounds

and—in addition to placing primary reliance on the complaint’s allegations—

considering materials in the administrative record of which the district court properly

took judicial notice); see also 5B Charles Alan Wright & Arthur R. Miller, FEDERAL

PRACTICE AND PROCEDURE § 1357 (3d ed.), Westlaw (database updated Apr. 2022)

(explaining that while courts primarily consider the allegations in the complaint in

determining whether to grant a Rule 12(b)(6) motion, courts may additionally

consider “matters incorporated by reference or integral to the claim, items subject to

judicial notice, matters of public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint whose authenticity is unquestioned[,] . . .

without converting the motion into one for summary judgment”).

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

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rock” that is “in place.” 30 U.S.C. § 35. From April through August 1993, Wyo-Ben

submitted various documents relevant to its application.

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 Wyo-Ben’s March 14 letter, again finding that the documents Wyo-

Ben submitted were premature.

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

5 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.

Pub. L. No. 103-332, tit. I, § 112, 108 Stat. at 2519.

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criteria under the 1995 Act. 6 Pub. L. No. 103-332, tit. I, § 113, 108 Stat. at 2519.

The following week, on October 3, 1994, BLM determined that Wyo-Ben’s mineral

patent application, serial number WYW128934, was subject to the moratorium. A

few weeks thereafter, on October 26, 1994, BLM circulated an official list of all

mineral patent applications that were exempt, and Wyo-Ben’s application was not on

the list. Wyo-Ben’s last communication with BLM was the March 14, 1994, letter.

Congress thereafter renewed and reenacted the 1995 Act annually through 2019.

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 § 706(1) of the APA. Aplt.’s App., Vol. I, at 10–11 (Compl., filed Oct. 17,

6 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 and 30) for vein or lode claims and . . . (30 U.S.C. 35, 36, and 37) 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.

Pub. L. No. 103-332, tit. I, § 113, 108 Stat. at 2519.

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2019). Wyo-Ben sought an order requiring “the [Respondents] to review the

Application to determine whether it qualifies for the Section 404(b) exception [of the

2019 Act]” within thirty days. Id. at 11. On March 30, 2020, Respondents filed a

motion for “bifurcated proceeding on timeliness defense.” Id. at 118–21 (Mot. for

Bifurcated Proceeding on Timeliness Defense, filed Mar. 30, 2020). The district

court granted that motion and ordered briefing. See id. at 138 (Dist. Ct. Order, filed

May 5, 2020).

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 5 U.S.C. § 706(1)). It also noted that a

§ 706(1) claim can proceed “only where a plaintiff asserts that an agency failed to

take a discrete agency action that it is required to take.” Id. (quoting Norton v. S.

Utah Wilderness All. (SUWA), 542 U.S. 55, 64 (2004)). And the court interpreted the

relief Wyo-Ben had requested as “a Court order requiring the Secretary to continue

processing [Wyo-Ben’s] patent application to see if it qualifies for the grandfather

clause in the moratorium.” Id.

7 Due to difficulties we have experienced in reading the copy of the district court’s order that is included in the Appellant’s Appendix, see Aplt.’s App., Vol. I, at 202 (Dist. Ct. Order, filed Sept. 23, 2020), we cite to the version of the order attached as Exhibit 1 to the Appellant’s Opening Brief.

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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 28 U.S.C. § 2401(a)). According to the district court, Wyo-Ben alleged

only “one violation,” which BLM—not the Secretary—committed, namely, “BLM

improperly making a determination [that] Wyo-Ben’s application was subject to the

moratorium.” Id. at 19; see also id. at 20 (stating “the only allegedly unlawful act

was BLM classifying Wyo-Ben’s patent as suspended by the moratorium”). Because

there had ostensibly “been no acts amounting to new violations since” 1994, the court

found that the statute of limitations expired in 2000. Id. at 19; see also id. at 19–21.

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

continuing 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,

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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 issues

when an “application is complete in that the applicant has complied with all

requirements for applying for a patent.” Id. at 1171. 9 Because the plaintiff’s

8 The Secretary adopted this interpretation in Instruction Memorandum No. 95-01 (“IM 95-01”). See Mt. Emmons, 117 F.3d at 1169; see also Aplt.’s App., Vol. III, at 23 (IM 95-01, dated Oct. 4, 1994). 9 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 11 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 12

application did not satisfy either criterion in the interpretive memorandum, BLM had

determined that its application did not qualify for the exemption. See id. at 1169.

We concluded that the Secretary’s interpretive memorandum conflicted with § 113 of

the 1995 Act because the exemption “clearly requires the Secretary [of the Interior]

to determine eligibility of pending applications for FHFC[s].” Id. at 1171.

Accordingly, we held that the Secretary had “unlawfully withheld” agency action and

granted relief pursuant to § 706(1) of the APA—requiring the Secretary “to continue

processing Mt. Emmons’ patent application to determine whether it is sufficiently

complete to qualify for the § 113 exemption.” Id. at 1168, 1172–73.

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).

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.

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Having found Wyo-Ben’s claim untimely, the district court entered 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 Rule 12(b)(6) motion to dismiss the plaintiffs’ claims as untimely).

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, entitling Wyo-Ben to relief under § 706(1).

Aplt.’s App., Vol. I, at 10–11. The district court held that Wyo-Ben’s claim is time-

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barred under 28 U.S.C. § 2401(a), which adopts a six-year statute of limitations for

“every civil action commenced against the United States.” 28 U.S.C. § 2401(a); see

Aplt.’s Opening Br., Ex. 1 at 19, 21. On appeal, Wyo-Ben argues that the district

court erred by misconstruing its claim as a challenge to BLM’s October 3, 1994,

determination that Wyo-Ben’s pending application did not qualify for a statutory

exemption. See Aplt.’s Opening Br. at 20–22. Wyo-Ben argues that its complaint

instead challenges the Secretary’s inaction in failing to review Wyo-Ben’s patent

application to determine whether it qualifies for the exemption, as required under the

relevant appropriations acts. See id. Construed properly, Wyo-Ben argues that its

claim is timely under either the continuing violation doctrine or the repeated

violations doctrine. We agree with Wyo-Ben that the district court misconstrued its

claim and that its claim is timely under the repeated violations doctrine. 10

10 Wyo-Ben also posits that the district court erred when it took judicial notice of BLM’s 1994 determination. We do not agree. It is well-established that district courts may take judicial notice of, and consider, documents in the administrative record on a Rule 12(b)(6) motion to dismiss. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” (citing 5B Wright & Miller, supra, § 1357)); see also Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1213 (10th Cir. 2012) (“The contents of an administrative agency’s publicly available files, after all, traditionally qualify for judicial notice, even when the truthfulness of the documents on file is another matter.”); Hodgson v. Farmington City, 675 F. App’x 838, 840–841 (10th Cir. 2017) (unpublished) (“[T]he district court [did not] err[] in taking judicial notice of public records from the parties’ administrative and judicial proceedings without converting [the defendant]’s motion to dismiss into a motion for summary judgment” because “[t]he records at issue . . . document[ed] the review and authorization of [the defendant]’s actions and thus [had] ‘a direct relation’ to [the] case.” (appearing to 14 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 15

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 § 706(1) of the APA, which authorizes courts

to “compel agency action unlawfully withheld or unreasonably delayed.” SUWA, 542

U.S. at 62 (quoting 5 U.S.C. § 706(1)). It is clear from the complaint that Wyo-Ben’s

theory concerns the Secretary’s inaction, not BLM’s action in the form of the 1994

determination. According to Wyo-Ben, it has a pending patent application that,

contrary to statutory mandates, the Secretary never reviewed to determine whether

the application is exempt from the moratorium—inaction by the Secretary that, under

Wyo-Ben’s theory, effectively violated the law each time Congress renewed the 1995

quote from St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979))).

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Act. See Aplt.’s App., Vol. I, at 8–11. To remedy that injury, Wyo-Ben requested

that the district court compel the Secretary to review its pending application in

accordance with the 2019 Act. See id. at 11.

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

11 It is certainly possible that BLM properly resolved Wyo-Ben’s application in 1994 pursuant to authority the Secretary delegated lawfully, as Respondents claim in their briefing on appeal. See Aplees.’ Resp. Br. at 28 n.11, 46. But that is not what the district court held. It held that because BLM in its own right determined in 1994 that the application did not qualify for the exemption, Wyo-Ben needed to bring its § 706(1) claim within six years of that determination. But, again, that is a misconstruction of what Wyo-Ben alleges in this action.

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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 § 706(1) lawsuit to compel the Secretary to act.

Thus, we conclude Wyo-Ben is correct that the district court misconstrued its

§ 706(1) claim.

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 28 U.S.C. § 2401(a), which

purportedly expired in 2000. Respondents alternatively suggest that Wyo-Ben’s

claim accrued at the latest by 1997, when we decided Mt. Emmons, which gave Wyo-

Ben notice of its potential claim against the Secretary under § 706(1). Wyo-Ben

argues that its claim is timely under the continuing violation doctrine and the

repeated violations doctrine.

At the outset, we acknowledge that there is a more-than-colorable question

concerning whether § 2401(a) applies at all in these circumstances. We have applied

§ 2401(a) to claims challenging arbitrary and capricious agency action under

§ 706(2) of the APA. See, e.g., Nagahi v. Immigr. & Naturalization Serv., 219 F.3d

1166, 1171 (10th Cir. 2000) (“In the absence of a specific statutory limitations

period, a civil action against the United States under the APA is subject to the six[-

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]year limitations period found in 28 U.S.C. § 2401(a).” (citing Chem. Weapons

Working Grp., Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1494–95 (10th Cir.

1997))). But we have never explicitly applied the six-year statute of limitations of

§ 2401(a) to claims challenging agency inaction under § 706(1).

Moreover, the D.C. Circuit has “repeatedly refused to hold that actions seeking

relief under 5 U.S.C. § 706(1) to ‘compel agency action unlawfully withheld or

unreasonably delayed’ are time-barred if initiated more than six years after an agency

fails to meet a statutory deadline.” The Wilderness Soc’y v. Norton, 434 F.3d 584,

588 (D.C. Cir. 2006); see also id. at 588–89 (first citing In re United Mine Workers

of Am. Int’l Union, 190 F.3d 545, 549–50 (D.C. Cir. 1999); and then citing In re

Bluewater Network, 234 F.3d 1305, 1314–16 (D.C. Cir. 2000)). Although

Wilderness Society relied on an alternative ground in resolving the case before it, and

therefore had no “need” to make a “final determination” on whether the plaintiff’s

suit was properly dismissed as time-barred, the panel did shed light on the rationale

underlying the D.C. Circuit’s position. Id. at 588. Specifically, Wilderness Society

analyzed an earlier D.C. Circuit decision—United Mine Workers—that had rebuffed

an analogous timeliness challenge to a litigant’s effort to secure § 706(1) relief

through a writ of mandamus, by reasoning that “[the claim] ‘does not complain about

what the agency has done but rather about what the agency has yet to do.’”

Wilderness Soc’y, 434 F.3d at 589 (quoting United Mine Workers, 190 F.3d at 549);

see also Am. Canoe Ass’n, Inc. v. Env’t Prot. Agency, 30 F. Supp. 2d 908, 925 (E.D.

Va. 1998) (holding that plaintiff’s § 706(1) claim was not time-barred because

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“application of a statute of limitations to a claim of unreasonable delay is grossly

inappropriate, in that it would mean that EPA could immunize its allegedly

unreasonable delay from judicial review simply by extending that delay for six

years,” and opining that “EPA’s delay is better understood as a continuing violation,

which plaintiffs may challenge at any time provided the delay continues” (citing Nat.

Res. Def. Council v. Fox, 909 F. Supp. 153, 159 (S.D.N.Y. 1995))). 12

However, under the circumstances here, we need not opine on whether

§ 2401(a)’s limitations period applies to a § 706(1) case. That is because the parties

have litigated this case on the ground that § 2401(a)’s limitations period is applicable

and controlling—not to mention the fact that the district court followed suit and

rested its holding on § 2401(a). Given what amounts to an effective agreement of the

parties regarding the applicability of § 2401(a)’s limitations period, we are content to

assume without deciding that this limitations period does apply and proceed with our

analysis of whether Wyo-Ben’s claim is time-barred. Stated otherwise, the parties’

litigation posture regarding the applicability of § 2401(a)’s limitations period to

12 At least arguably, the Ninth Circuit also has signaled its endorsement of this approach, which would render § 2401(a)’s limitations provision inapplicable in actions under § 706(1) of the APA. Compare Hells Canyon Preservation Council v. United States Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010) (as to a § 706(1) claim, concluding that “the timeliness of [the] plaintiffs’ claim [wa]s beside the point,” and holding instead that the plaintiffs failed to state a claim because they did “not identif[y] an ‘ongoing failure to act’”), with Pit River Tribe v. Bureau of Land Mgmt., 512 F. Supp. 3d 1055, 1064–65 (E.D. Cal. 2021) (citing Hells Canyon, and noting that “[t]he Ninth Circuit has suggested, without specifically addressing the issue, that § 2401(a) may not be applicable in [§] 706(1) failure to act claims under the APA”).

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Wyo-Ben’s claim provides the conceptual baseline from which our analysis proceeds,

and we turn to the inquiry concerning whether Wyo-Ben’s claim is timely under

either the continuing violation doctrine or the repeated violations doctrine. Although

we conclude that Wyo-Ben has waived its argument concerning the continuing

violation doctrine, we hold that Wyo-Ben’s claim is timely under the repeated

violations doctrine.

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 28 U.S.C.

§ 2401(a) does not bar the filing of the Complaint”). The continuing violation

doctrine applies “‘when the plaintiff’s claim seeks redress for injuries resulting from

a series of separate acts that collectively constitute one unlawful act,’ as opposed to

‘conduct that is a discrete unlawful act.’” Sierra Club, 816 F.3d at 672 (quoting

Shomo, 579 F.3d at 181). “[O]ne violation continues when ‘the conduct as a whole

can be considered as a single course of conduct.’” Id. (quoting Birkelbach v. Sec. &

Exch. Comm’n, 751 F.3d 472, 479 n.7 (7th Cir. 2014)). “The utility of the continuing

violation doctrine lies in the fact that as long as one of the separate wrongful acts

contributing to the collective conduct ‘occurs within the filing period,’ a court may

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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).

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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.

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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

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

13 We recently held that the continuing violation doctrine is available as to actions involving claims brought under 42 U.S.C. § 1983. See Herrera, 32 F.4th at 994. But because we find that Wyo-Ben waived its right to rely on the continuing violation doctrine, we do not address whether the continuing violation doctrine also applies to claims under § 706(1) of the APA.

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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

violations 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

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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)).

14 Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Likewise, § 504 of the Rehabilitation Act mandates in part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

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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 42 U.S.C.

§ 12101(a)(7)). And concerning the Rehabilitation Act, Congress similarly hoped to

achieve the “full [societal] inclusion and integration” of disabled individuals. Id.

(quoting 29 U.S.C. § 701(a)(6)(B)). We found those goals “consistent with and

suggestive of the repeated violations doctrine.” Id. Thus, we held:

[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 42 U.S.C. § 1983. See Herrera, 32 F.4th at 986. In Herrera, the

plaintiffs alleged that the City of Espanola violated their constitutional rights by

turning off the water supply to their home and refusing to resume service unless the

plaintiffs paid an outstanding water bill that the previous residents had accrued. See

id. at 986–88. The district court dismissed their claims as untimely, concluding that

their claims first accrued when they notified the city that its policy violated their

constitutional rights and, consequently, that they had failed to bring their claims

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within the applicable limitations period. See id. at 989. We reversed, holding that

the claims were timely under the repeated violations doctrine. See id. at 999–1001.

As we explained, the plaintiffs’ claims first arose when the city terminated water

service to their home based on the previous resident’s outstanding bill. See id. at

1001. “And each day the City failed to provide water service to [the plaintiffs]

constituted a separate violation that triggered a new limitations period.” Id. In short,

we explained that the repeated violations doctrine applies when “[a]ppellants

challenge a series of unlawful acts each of which constitutes an alleged violation.”

Id. at 999.

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

More specifically, the plain language and statutory context of § 706(1) and the

relevant appropriations acts, see Hamer, 924 F.3d at 1103–07, bolster Wyo-Ben’s

position that the repeated violations doctrine applies here. Begin with § 706(1).

Similar to Title II of the ADA and § 504 of the Rehabilitation Act in Hamer, see id.

at 1104, the language of § 706(1) applies to present and ongoing violations. Section

706(1) authorizes the court to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). This provision authorizes courts to

compel action that the agency continues to withhold unlawfully or delay

unreasonably. As both a practical and legal matter, the court could not compel action

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that the agency unlawfully withheld or unreasonably delayed in the past but then

subsequently performed. Cf. Brown v. Buhman, 822 F.3d 1151, 1166 (10th Cir.

2016) (“[A] case becomes moot when a plaintiff no longer suffers actual injury that

can be redressed by a favorable judicial decision.” (quoting Ind v. Colo. Dep’t of

Corr., 801 F.3d 1209, 1213 (10th Cir. 2015))).

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 therefore has an affirmative duty to determine whether

an application qualifies for the exemption. See id. at 1172–73 (ordering the Secretary

to “continue processing Mt. Emmons’ patent application to determine whether it is

sufficiently complete to qualify for the § 113 exemption”).

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. 104-

134, Department of the Interior and Related Agencies Appropriations Act, 1996, tit.

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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

15 As is common when Congress enacts appropriations legislation, in many instances gaps exist between the dates on which an appropriations act expired and the next year’s act took effect. These gaps run from several days to nearly seven months. Compare Department of Interior and Related Agencies Appropriations Act, 2001, Pub. L. No. 106-291, 114 Stat. 922 (Oct. 11, 2000) (enacting Department of the Interior appropriations for fiscal year ending September 30, 2001), with Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, div. B, tit. I, § 1101, 125 Stat. 38, 102 (Apr. 15, 2011) (extending fiscal year 2010 29 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 30

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. Id.;

see also Pit River Tribe, 512 F. Supp. 3d at 1064–65 (holding § 706(1) claim seeking

to compel BLM to ensure compliance with certain statutory and regulatory

requirements was timely notwithstanding the six-year statute of limitations in

§ 2401(a) because “[e]ach day that BLM fails to ensure compliance with the

[relevant] requirements constitutes a single, discrete violation of the statute”).

In sum, the repeated violations doctrine fits the circumstances that Wyo-Ben

alleges in its complaint. 16

appropriations act for Department of the Interior to apply in fiscal year 2011). At most, these gaps demonstrate that new, separate violations did not occur when an appropriations act containing the moratorium and exemption was not in effect. Nevertheless, going back to fiscal year 1995, there were a substantial number of days each year when the duty was in effect and the Secretary failed to review Wyo-Ben’s application. Moreover, by repeatedly reenacting the exemption along with a requirement that the Secretary report annually on progress toward completing the plan developed in 1997, Congress demonstrated its intent that the Secretary continue to review pending applications on an ongoing basis until the queue is eliminated. 16 The district court did not apply the repeated violations doctrine based in part on its conclusion that Hamer applies only to claims under the ADA and the Rehabilitation Act. See Aplt.’s Opening Br., Ex. 1 at 20. In Hamer, we held “that the repeated violations doctrine applies to claims under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973.” 924 F.3d at 1103. But we did not hold that the doctrine applies only to those statutes, and we have since extended the doctrine to claims asserted under statutes beyond those at issue in Hamer. See Herrera, 32 F.4th at 995 (concluding the repeated violations 30 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 31

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.” 5 U.S.C.

§ 706(1); see also Herrera, 32 F.4th at 1001 (“[E]ach day the City failed to provide

water service to Appellants constituted a separate violation that triggered a new

limitations period.”).

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

doctrine applies to § 1983 claims). As we explain herein, the doctrine we applied in Hamer and Herrera readily extends to Wyo-Ben’s claim under § 706(1) of the APA.

31 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 32

us to determine the period during which the violations repeated and for which Wyo-

Ben may recover.

“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take.” SUWA, 542

U.S. at 64. If the plaintiff plausibly alleges both elements identified in SUWA, the

court must then determine whether the agency “unlawfully withheld” or

“unreasonably delayed” in carrying out its duty. 5 U.S.C. § 706(1).

Though we do not address the viability of Wyo-Ben’s § 706(1) claim on the

merits, we are able to discern from the complaint allegations of an initial violation

such that the repeated violations doctrine comes into play. Wyo-Ben alleges that the

Secretary had a mandatory duty under the relevant appropriations acts to review its

application in order to determine whether it is exempt from the moratorium, see

Aplt.’s App., Vol. I, at 10, thereby invoking the elements adopted in SUWA, see 542

U.S. at 64. And Wyo-Ben also alleges that the Secretary “unlawfully withheld” and

“unreasonably delayed” in exercising her statutory duty. See Aplt.’s App., Vol. I, at

10–11.

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

32 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 33

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

17 Wyo-Ben also alleges that Congress extended the moratorium and exemption provisions enacted in fiscal year 2019 through the end of fiscal year 2020. See Aplt.’s App., Vol. I, at 10 (citing Continuing Appropriations Act, 2020, and Health Extenders Act of 2019, Pub. L. No. 116-59, §§ 101(7) and 104, 133 Stat. 1093, 1093–95 (Sept. 27, 2019)).

And we also note that Congress has continued to reenact the moratorium and exemption in each appropriations act through the present fiscal year. See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. G, tit. IV, §§ 404(a)–(b), 134 Stat. 1182, 1535 (Dec. 27, 2020); Aplt.’s 28(j) Letter at 1 (filed Feb. 15, 2023) (first citing Consolidated Appropriations Act, 2022, Pub. L. No. 117- 103, div. G, tit. IV, §§ 404(a)–(b), 136 Stat. 49, 409 (Mar. 15, 2022); and then citing Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, div. G, tit. IV, §§ 404(a)–(b) (Dec. 29, 2022)). Though these subsequent reenactments carry limited relevance for our resolution of the present appeal, they do demonstrate that this matter is not moot given that Congress has continued to impose the same duty on the Secretary. 18 As we discuss further infra, Wyo-Ben appears to have taken a more limited view of the temporal unit for repetition of “unlawfully withheld” violations than our caselaw would seem to require, centering the violation on each fiscal year. But cf. Hamer, 924 F.3d at 1105 (concluding that the defendant city “commit[ted] a ‘new violation’ each day that it fail[ed] to remedy [the] non-compliant service, program, or activity” (emphasis added)). 33 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 34

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

19 In Mt. Emmons, where the Secretary had “unlawfully withheld” agency action by failing to review the plaintiff’s application, the Secretary had affirmatively disavowed his responsibility to review the plaintiff’s application by issuing an interpretive memorandum under which the plaintiff’s application was not subject to review. See 117 F.3d at 1168–69 (explaining the Secretary’s interpretive memorandum only permitted review of applications for which a FHFC was signed by October 1, 1994, or for which a FHFC was pending in Washington, D.C., by September 30, 1994, neither of which covered the plaintiff’s application). We are unable to glean anything from the record suggesting that, in the years after we decided Mt. Emmons, the Secretary affirmatively disavowed her duty to review Wyo- Ben’s application. Rather, Wyo-Ben alleges that the Secretary simply failed to do so. See Aplt.’s App., Vol. I, at 10 (alleging that “[t]he Secretary has not applied the criteria required by applicable law to determine whether” Wyo-Ben’s application qualifies for the exemption “and will not make that determination unless required to do so by [the district court],” without identifying a particular action or policy through which the Secretary affirmatively disavowed her duty to review the application). Therefore, it is not clear under what mechanism the Secretary purported to withhold action in each fiscal year after Mt. Emmons invalidated the Secretary’s interpretive memorandum. This is a matter that the parties and the district court will need to address in resolving Wyo-Ben’s claim on the merits.

Furthermore, we note that we decided Mt. Emmons two years before Forest Guardians, where we held that agency action “unlawfully withheld” may arise “when an [agency] . . . fails to comply with a statutorily imposed absolute deadline.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999). On the record before us, Wyo-Ben does not identify a statutory deadline by which the Secretary was required to review its application in any of the relevant appropriations acts. Whether there is any tension between the decision in Mt. Emmons, holding that the Secretary had “unlawfully withheld” agency action by explicitly disavowing his duty to review pending applications, see 117 F.3d at 1168–69, and our subsequent decision in Forest Guardians, which seemingly indicates that violating a statutory deadline is the typical mechanism by which an agency withholds action unlawfully, is a question that we leave for consideration in the first instance (if at all) by the district court in the merits phase of this litigation. 34 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 35

Wyo-Ben also alleges that the Secretary delayed unreasonably in carrying out

her duty. In its complaint, Wyo-Ben alleges that the “Secretary’s failure to apply the

criteria required by applicable law . . . constitutes agency action . . . unreasonably

delayed within the meaning of Section 706(1).” Aplt.’s App., Vol. I, at 10–11. Wyo-

Ben does not allege precisely when the Secretary’s delay in reviewing its application

first became “unreasonable,” and unlike agency action “unlawfully withheld,” Wyo-

Ben does not suggest anywhere in the record that the delay became unreasonable by

the end of fiscal year 1995. Cf. Aplt.’s Reply Br. at 21 (arguing that the Secretary

“unlawfully withheld” action each fiscal year he or she failed to review Wyo-Ben’s

application). But we can infer Wyo-Ben’s position to be that, at the latest, the delay

became unreasonable by the time the 2019 Act went into effect.

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

35 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 36

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 § 706(1).

We turn next to examine the temporal unit by which repeated violations are measured

under the circumstances here.

We begin with the claim that the Secretary “unlawfully withheld” agency

action. As explained previously, we construe the complaint as alleging that the

Secretary first withheld action unlawfully by the time the 1995 Act expired. We

believe that either of two plausible approaches satisfies the repeated violations

doctrine. Under one approach, after the 1995 Act expired, the Secretary allegedly

committed a new and discrete violation each day that the duty remained in place and

the Secretary failed to review Wyo-Ben’s application. This approach follows

naturally from our precedent. See Hamer, 924 F.3d at 1103 (explaining that “a public

entity repeatedly violates [Title II of the ADA and Section 504 of the Rehabilitation

Act] each day that it fails to remedy a non-compliant service, program, or activity”

(emphasis added)); Herrera, 32 F.4th at 1001 (same with respect to constitutional

violations asserted under § 1983).

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

36 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 37

latter approach on appeal. See, e.g., Aplt.’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 Act 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 § 706(1). See Hamer, 924 F.3d at 1103; Herrera, 32 F.4th at 1001.

Unlike the claim for action “unlawfully withheld,” we believe days are appropriate

units by which to delineate repeated violations in the context of an unreasonable

delay. Whereas Wyo-Ben apparently takes the position that the Secretary

37 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 38

“unlawfully withheld” agency action each fiscal year she failed to review Wyo-Ben’s

application, we do not detect any similar, end-of-fiscal-year allegations concerning

unreasonable delay. We therefore follow Hamer and Herrera in characterizing the

“repeated” violation as each day the Secretary failed to review Wyo-Ben’s

application after the point at which her delay first became unreasonable. See 924

F.3d at 1103; 32 F.4th at 1001.

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 materialized constitutes a separate alleged violation

under § 706(1) of the APA. Thus, the district court erred in holding that Wyo-Ben’s

§ 706(1) claim was untimely.

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

38 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 39

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 28

U.S.C. § 2401(a) (setting the limitations period at six years).

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 claim under § 706(1) and—consistent with the relief available under

that provision—requests an “order requiring the [Secretary] to review [its]

Application to determine whether it qualifies for the Section 404(b) exception to the

Temporary Moratorium.” Id. Wyo-Ben requests, in effect, an injunction requiring

the Secretary to review its application. Unlike the damages actions at issue in Hamer

and Herrera, a court can award the relief Wyo-Ben requests without regard to any

particular recovery period.

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

39 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 40

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; 28 U.S.C. § 2401(a). It may not recover for any injuries outside the six-year

limitations period. See Hamer, 924 F.3d at 1100.

Because we conclude the district court erred in dismissing Wyo-Ben’s

complaint as untimely, we next turn to Wyo-Ben’s request that we compel

Respondents to act. Specifically, Wyo-Ben argues that “the omitted action is both

discrete and required by law,” and “because the dispositive facts are undisputed,” it

maintains “the district court erred by failing to” compel the Secretary to carry out her

duty under the 2019 Act. Aplt.’s Opening Br. at 44 (citing SUWA, 542 U.S. at 55);

id. at 46. Accordingly, Wyo-Ben requests that we compel the Secretary to review its

patent application. See id. at 46. This we decline to do. Contrary to Wyo-Ben’s

40 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 41

assertions, there remain factual disputes and issues on which we currently lack

adequate briefing to address.

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—30 U.S.C § 35—requires the applicant

to tender “payment of the purchase price.” R.T. Vanderbilt Co. v. Babbitt, 113 F.3d

1061, 1066 (9th Cir. 1997); see also Mt. Emmons, 117 F.3d at 1171 (explaining that

the “application is not ‘complete’ so as to qualify for continued processing under

§ 113 if purchase price is not paid”).

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

41 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 42

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 court 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 determine whether an

application falls within the moratorium or qualifies for the exemption—such that the

BLM’s action is, in lawful effect, the action of the Secretary. If the district court

determines that the statute required the Secretary (rather than the BLM) to review

42 Appellate Case: 20-8065 Document: 010110829207 Date Filed: 03/20/2023 Page: 43

Wyo-Ben’s application, the court must then decide the merits—that is, whether the

Secretary “unlawfully withheld” or “unreasonably delayed” in taking the requisite

action.

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 proceedings

consistent with this opinion.