          United States Court of Appeals
                      For the First Circuit


No. 10-2167

        ASOCIACIÓN DE SUSCRIPCIÓN CONJUNTA DEL SEGURO DE
                  RESPONSABILIDAD OBLIGATORIO,

                      Plaintiff, Appellant,

                                v.

   DORELISSE JUARBE-JIMÉNEZ, in her official capacity as the
   Insurance Commissioner of the Commonwealth of Puerto Rico,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jaime Pieras, Jr., U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
              Boudin and Thompson, Circuit Judges.



          Veronica Ferraiuoli Hornedo, with whom Nigaglioni and
Ferraiuoli were on brief, for appellant.
          Susana   I.  Peñagaricano-Brown,    Assistant   Solicitor
General, with whom Irene S. Soroeta-Kodesh, Solicitor General,
Leticia Casalduc-Rabell, Acting Deputy Solicitor General, and Zaira
Z. Girón-Anadón, Acting Deputy Solicitor General, were on brief,
for appellee.

                        September 29, 2011
           LYNCH, Chief Judge.         At issue is when a facial Takings

Clause claim attacking a statute and regulations accrues for

statute of limitations purposes. The district court concluded that

the claim here was untimely.          Asociación de Suscripción Conjunta

del Seguro de Responabilidad Obligatorio v. Juarbe-Jiménez, 720 F.

Supp. 2d 152 (D.P.R. 2010).          We agree and affirm the dismissal of

this case.

                                          I.

           This    case    arises     out      of    Puerto   Rico's    compulsory

automobile liability insurance scheme.                 In December of 1995 the

Commonwealth of Puerto Rico enacted Act 253, which required all

motor   vehicles   to     be    covered     by      certain   minimum   automobile

liability insurance.           The purpose of the insurance is to cover

"damages caused to motor vehicles of third parties as a result of

a traffic accident, for which the owner of the vehicle covered by

this insurance is legally liable and which, through its use, has

caused said damages."          P.R. Laws Ann. tit. 26, § 8051.

           At the same time, the Commonwealth created the Asociación

de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio

(the Association) to provide compulsory liability insurance to

those vehicle owners rejected by private insurers or who have opted

out of purchasing liability insurance.                   We have held that the

Association, while it was created "under some direction by the

commonwealth," is "private in nature."                Associación de Suscripción


                                       -2-
Conjunta    del    Seguro     de   Responsabilidad   Obligatorio       v.   Flores

Galarza, 484 F.3d 1, 20 (1st Cir. 2007) (quoting Arroyo-Melecio v.

P.R. Am. Ins. Co., 398 F.3d 56, 62 (1st Cir. 2005)) (internal

quotation      marks    omitted).       This   conclusion    has   since      been

reinforced by the passage of Act 201, in December 2009, which

amends   Act      253   and   defines    the   Association    as   a    "private

Association." P.R. Laws Ann. tit. 26, §§ 8052(c), 8055(a), amended

by Act 201 of Dec. 29, 2009, arts. 3(c), 6(a).               At present, the

Association provides compulsory insurance for over 80 percent of

the vehicles in Puerto Rico.1


     1
        The compulsory insurance scheme has spawned a great deal of
local and federal litigation.
        The payment scheme under the Compulsory Liability Insurance
Act is chronologically ordered as follows: (1) motorists pay
insurance premiums to the Secretary of the Treasury pursuant to
P.R. Laws Ann. tit. 26, § 8053(a); (2) the Secretary then transfers
those premiums to the Association pursuant to P.R. Laws Ann. tit.
26, § 8055(c); and (3) the Association then places 95 percent of
the profits from those premiums in a Special Reserve for the
benefit of the public under the Insurance Commissioner's Rule LXX.
In this case, the Association alleges that step (3) above effects
a regulatory taking.
        The Association has also sued the Secretary of the
Treasury, challenging another portion of the legislation.
Asociación de Suscripción Conjunta del Seguro de Responsabilidad
Obligatorio v. Flores Galarza, 484 F.3d 1 (1st Cir. 2007). In that
suit, the Association alleged a taking under step (2) above because
the Secretary withheld certain insurance premiums that it was
required to transfer to the Association pursuant to § 8055(c). Id.
at 11.
        In addition, insured automobile owners who have paid for
both the compulsory insurance and private insurance have sued the
Association, bringing constitutional challenges to the scheme under
which they may obtain reimbursement of the double premium. Colón-
Rivera v. Asociación de Suscripción Conjunta del Seguro de
Responsabilidad Obligatorio, No. 07-1875, 2010 WL 5376116 (D.P.R.

                                        -3-
              The legislation which created the Association also gave

the defendant Insurance Commissioner the power to regulate it. See

P.R.   Laws    Ann.   tit.   26,   §   8055(c),   (f).   In   1996,   through

Regulation 5493, called Rule LXIX, the Commissioner set up a scheme

which required the Association to annually determine its profits

and losses in the same manner as in the Annual Statement required

by the Insurance Code.       More pertinently, that Rule also provided:

              The Members shall share in the annual profits
              and   losses  of the    Association  in   the
              proportional participation of each of the
              Members for the year for which such profit or
              losses are determined.

The "members" are all of the insurance carriers who are licensed to

offer automobile insurance in Puerto Rico and underwrite more than

one percent of the total volume of such premiums in Puerto Rico.

P.R. Laws Ann. tit. 26, §§ 8052(b), 8055(a).

              That allocation of profit was changed by the Commissioner

in December 2000, by revisions contained in Regulation 6254, Rule

LXX, as follows:

              The members shall share in the annual profits
              or   losses   of  the   Association   in   the
              proportional participation of each of the
              members for the year for which such profits or
              losses are determined. With regards to the



Dec. 27, 2010), appeal docketed, No. 11-1148 (1st Cir. Feb. 10,
2011). In a separate case, a group of insured automobile owners
who have paid for both types of insurance have brought similar
claims against the Governor and Secretary of the Treasury of Puerto
Rico.   Garcia-Rubiera v. Fortuño, 752 F. Supp. 2d 180 (D.P.R.
2010), appeal docketed, No. 10-2507 (1st Cir. Dec. 22, 2010).

                                       -4-
          participation in the profits, the same shall
          not exceed the maximum percentage established
          in the premium dollar for the profit, applying
          the earned premiums for said year.

          The profit for each year in excess of the
          amounts distributed due to the participation
          provided for in this paragraph shall be
          accumulated in a special reserve that shall be
          exclusively used for the future stabilization
          of the premiums of the compulsory liability
          insurance and the future expansion of the
          benefits provided there under. Under no
          circumstance shall the excess accumulated in
          this reserve be used for the distribution of
          profits   provided   for   in   the   previous
          paragraph.

          Pursuant to this December 2000 regulation, which is

located in Article 20(e) of Rule LXX, the Commissioner established

that the Association's members may receive a distribution of up to

a maximum of five percent of the annual premium profits.2     The

remaining 95 percent of the profits must be placed in the Special

Reserve, where they must remain until the Association chooses to

use them to stabilize premiums or expand benefits.    Neither the



     2
        It is unclear from where this five percent limit
originated.   In 1999, the Association's board approved a five
percent distribution, and stated in a letter to the Commissioner
that this distribution was "for an amount equal to the portion of
each premium dollar earmarked as profits during said period, which
we understand is five percent (5%)." The Commissioner approved of
the distribution, noting that it "corresponds to the underlying
premium dollar distribution . . . [a]s presented to the Government
Commission of the Puerto Rico Senate, on July 15, 1995, and to the
Consumer Affairs Commission of the Puerto Rico House of
Representatives on July 19, 1995, in corresponding requests." The
complaint does allege that the Commissioner sets the percentage,
and the defendant's brief agrees.

                               -5-
Association, nor its members, challenged this rule when it was

enacted.

           Eventually, the Commissioner required an audit of these

distributions and the Special Reserve fund.     On June 12, 2008, the

Commissioner issued a resolution resulting from an audit of the

Association for the period from July 1, 2001 to December 31, 2004.

In the resolution, the Commissioner stated that distributions to

members were capped at five percent of the annual premium profits

and could not include any distribution of investment income3 or

"other" income.4   All investment and "other" income must be placed

in the Special Reserve.

           The   resolution   also indicated   that   distributions   to

members in any given year could not exceed the net underwriting

gain for that year.    Based on the audit findings, the resolution

ordered the Association to recover $8,266,767 in non-complying

distributions issued to members for the 2001-2004 audit period.


     3
        The Association's investment income is generated by the
investment of Association assets in bonds, stocks and other
investment vehicles. It is unclear whether the investment income
at issue is derived solely from investments of Special Reserve
funds, or whether it also includes investments of other Association
funds.
     4
        The Association's "other" income accounts for all income of
the Association derived from sources other than the insurance
business or investments.    Examples of the Association's "other"
income include legal settlements or judgments, and income from the
sale or decommissioning of Association assets such as furniture or
Association cars.

                                  -6-
Additionally,   because the Association realized a net underwriting

loss in 2005, the Association was directed to recover the full

distribution to members in that year, amounting to $7,593,556.5

          The Puerto Rico Court of Appeals upheld these portions of

the audit against claims by the Association that the Commissioner

lacked   statutory   authority   to    impose   restrictions   on   the

distribution of investment and other income.6       Comm'r of Ins. v.

     5
        Before the audit, the Association itself had interpreted
Rule LXX as requiring that its distribution not exceed five percent
of the earned underwriting premiums, but permitting distribution of
income earned from investments and other sources up to this limit.
Thus, even if the net result of the insurance business (the earned
premiums minus the benefits paid out and operating costs) was
negative, the Association would pay distributions out of profits
from investment and other income, up to the cap of five percent of
the gross premiums.       There is no claim that the Insurance
Commissioner    knew   of   or   acceded   to   the   Association's
interpretation.
     6
        The current statutory authority of the Commissioner to
regulate the Association's distribution of profits, and thus the
validity of Article 20(e) of Rule LXX, is disputed. In December
2009, Puerto Rico passed Act 201, which amends Act 253 in a variety
of ways. As is relevant here, Act 201 removes the portion of Act
253 which stated that the Commissioner "shall provide through
regulations the manner and form in which the distribution" shall
take place, and the portion providing the Commissioner authority to
"establish through regulations the structure and operation of the
Joint Underwriting Association."       P.R. Laws Ann. tit. 26,
§ 8055(c), (f). Instead, under Act 201, "[t]he operational plan of
the Joint Underwriting Association shall provide the form and
manner in which the distribution of the amount of the premiums
received by the Joint Underwriting Association will be carried
out." P.R. Laws Ann. tit. 26, § 8055(c), amended by Act 201 of
Dec. 29, 2009, art. 6(c).        The operational plan is to be
established by the Association; the Commissioner is only to be
"notified" of the plan. P.R. Laws Ann. tit. 26, § 8055(f), amended

                                 -7-
Compulsory Liab. Ins. Joint Underwriting Ass'n, No. E-2005-62,

KLRA200801403 (P.R. Cir. May 19, 2009).7

          The Association asserts that it has complied with these

requirements in the sense that it has put into the Special Reserve

all income in excess of the amount it was allowed to distribute to

its members.   It is unclear whether the Association has complied

with the audit resolution.   As of December 31, 2008, the Special

Reserve contained $159,267,250 in undistributed profits.

          The Association protests that it cannot be made to place

all of the profits (aside from the five percent distribution to its

members) into the Special Reserve fund, to be used only for the

benefit of the consumer insureds, because these restrictions amount

to an unconstitutional taking.   It also makes on appeal a related

argument that it cannot be forced to include in this Reserve its

investment income and its other income, as is required by the 2008

audit resolution.

                                 II.




by Act 201 of Dec. 29, 2009, art. 6(f).
       A Puerto Rico court of first instance has held that, given
Act 201, the Commissioner no longer has authority to regulate the
distribution of the Association.      See Asociación Suscripción
Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe
Jiménez, No. K PE 2008-3826 (P.R. Gen. Ct. of J. Mar. 16, 2011).
     7
        We are told that decision has been appealed to the Puerto
Rico Supreme Court.

                                 -8-
              On November 4, 2008, the Association brought suit against

Puerto     Rico      Insurance      Commissioner         Dorelisse    Juarbe-Jiménez

pursuant      to     42   U.S.C.    §    1983,    arguing     that    the   Insurance

Commissioner's limitation on the distribution of profits to the

Association's members, in conjunction with the restrictions placed

on the use of the Special Reserve funds, constituted a taking

without just compensation in violation of the Fifth Amendment's

Takings Clause. The complaint requested a declaration that Article

20(e)(2) of Rule LXX was unconstitutional under the Takings Clause

and    that    the     Commissioner       be     enjoined    from    enforcing     that

provision.

              The Commissioner filed a motion to dismiss under Federal

Rule     of   Civil       Procedure      12(b)(6)     on    the     basis   that   the

Association's claim was unripe because the Association had failed

to seek compensation through Puerto Rico's inverse condemnation

procedures. See Williamson Cnty. Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); Downing/Salt Pond Partners, L.P. v.

Rhode Island, 643 F.3d 16 (1st Cir. 2011).

              Attempting       to       avoid     this     ripeness     problem, the

Association conceded, in its "Opposition to Motion to Dismiss,"

that its claim "would be unripe" if the claim were an as-applied

claim, but asserted that because what it had "mount[ed] [was] a

facial challenge to the regulation," its claim was ripe the moment

that Rule LXX was issued.


                                           -9-
          On    November    16,     2009,    the     Association   and    the

Commissioner filed cross-motions for summary judgment. On June 25,

2010, the district court granted the Commissioner's motion for

summary judgment and denied the Association's motion because it

determined that the Association's facial challenge to Rule LXX was

time-barred    by   the   statute    of    limitations.      Asociación    de

Suscripción, 720 F. Supp. 2d at 159.         The district court reasoned

that because the Association was bringing a facial challenge to

Rule LXX, the statute of limitations accrued when Rule LXX was

enacted on December 28, 2000.        Id. at 157.     Further, the district

court explained, § 1983 claims in Puerto Rico carry a one-year

statute of limitations. Id. (citing Morán-Vega v. Cruz-Burgos, 537

F.3d 14, 20 (1st Cir. 2008)).       Because the Association did not file

its complaint until November 4, 2008, the district court determined

that its claim was time-barred.        Id. at 157, 159.

                                    III.

          "Our review of the grant of summary judgment is de novo,

taking all facts and reasonable inferences in the light most

favorable to [the Association], the nonmoving party."              Sterling

Merch., Inc. v. Nestlé, S.A., No. 10-1925, 2011 WL 3849828, at *6

(1st Cir. Sept. 1, 2011).

          As filed, the Association's suit raised a claim that Rule

LXX, on its face, constitutes a taking.            At times it appeared the

Association was also asserting a claim that Rule LXX, as applied


                                    -10-
each year to the Association, constitutes a taking.          Later during

the litigation, the Association's briefing mentioned that the 2008

audit, specifically the audit resolution's interpretation that

investment income and other income must be placed in the Special

Reserve, constitutes a separate taking.

A.   The Association's Facial Challenge to Rule LXX

            The Association raised only a facial challenge to Rule

LXX. The complaint, which was never amended, states only one cause

of   action:   "Violations   of    the    Taking   Clause   of   the   U.S.

Constitution."    The factual allegations underpinning this claim

focus entirely on Rule LXX — the Association contends that because

"Rule LXX provides that the funds accumulated in the Special

Reserve are to be used exclusively for a public purpose and only

for the benefit of the public in general," the Rule "provides for

a taking of [the Association's] private property by denying [the

Association] of any beneficial use of its property."

           The relief sought is also relevant to whether the claim

is a facial claim.    Here, the relief requested is a declaration

that Article 20(e)(2) of Rule LXX is unconstitutional, and an

injunction prohibiting its enforcement, rather than a request for

a declaration that a particular interpretation or application of

Rule LXX effects a taking.        This requested relief also indicates

that the Association mounts a facial, rather than an as-applied,

attack on the Rule.   See Doe v. Reed, 130 S. Ct. 2811, 2817 (2010)


                                   -11-
(noting that when the "relief that would follow" from a claim

"reach[es]   beyond     the   particular    circumstances   of   these

plaintiffs," the plaintiffs must "satisfy our standards for a

facial challenge to the extent of that reach").

          This attack on Rule LXX falls squarely within the Supreme

Court's definition of a facial taking: "a claim that the mere

enactment of a statute constitutes a taking," as opposed to an

as-applied claim that "the particular impact of government action

on a specific piece of property requires the payment of just

compensation." Keystone Bituminous Coal Ass'n v. DeBenedictis, 480

U.S. 470, 494 (1987).     It is clear that facial challenges may be

mounted on regulations; Keystone Bituminous itself involved an

assessment of whether certain regulations constituted a taking.

Id. at 474, 493.

          More recent cases also distinguish facial from as-applied

takings claims.    In Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the Court

noted that "[p]etitioners make only a facial attack on Ordinance

81-5 and Resolution 83-21. They contend that the mere enactment of

a temporary regulation that, while in effect, denies a property

owner all viable economic use of her property gives rise to an

unqualified constitutional obligation to compensate her for the

value of its use during that period."      Id. at 320; see also Suitum

v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736 & n.10 (1997)


                                 -12-
("[T]he only issue justiciable at that point was whether mere

enactment of the statute amounted to a taking. . . .                   Such facial

challenges    to    regulation    are     generally       ripe   the   moment    the

challenged regulation or ordinance is passed, but face an uphill

battle, since it is difficult to demonstrate that mere enactment of

a piece of legislation deprived [the owner] of economically viable

use   of   [his]    property."    (alterations       in    original)      (internal

quotation marks and citations omitted)).

            Beyond that, the Association's position, for strategic

reasons, has been that it is mounting a facial attack, and we

consider it bound by this position.            It took this position in order

to argue it did not need to comply with Williamson County's

ripeness    requirements.        The     district     court      relied    on   this

distinction in denying the Commissioner's motion to dismiss, and

explained    that   "[g]iven     that    Plaintiff    is     mounting     a   facial

challenge to Rule LXX, the Court finds that Plaintiff's claims are

ripe for review and that the Court's subject matter jurisdiction is

not foreclosed by the Williamson County requirements."8


      8
        In response to a motion to dismiss arguing that the
Association had failed to satisfy Williamson County's ripeness
requirements, the Association argued that "[w]hile the Insurance
Commissioner is correct that a claim that Rule LXX affects a
regulatory taking as applied to the [Association's] property would
be unripe for this reason, the [Association] mounts a facial
challenge to the regulation." The Association further clarified
that "[i]n this case, the [Association] has alleged a facial
challenge to the section of Rule LXX which establishes the Special
Reserve."
        The Association's opposition to the Commissioner's motion

                                        -13-
           Nevertheless, the Association now argues that it should

be permitted to change its position based on an intervening Supreme

Court decision, and that its case should not be treated as solely

a facial attack.       It argues that Citizens United v. Federal

Election Commission,       130   S.   Ct.    876   (2010),   has    relaxed    the

distinction between facial and as-applied claims.                The Association

points to the majority's statement that "the distinction between

facial and as-applied challenges is not so well defined that it has

some automatic effect or that it must always control the pleadings

and   disposition     in   every      case    involving      a   constitutional

challenge."   Id. at 893.

           Even aside from whether the Association is judicially

estopped from changing its position, the argument fails.                  Whatever

merit the Association's argument might have in the First Amendment

context, Citizens United did not purport to change the well-

established   rules   as   to    facial      challenges   under     the    Takings

Clause.9


for summary judgment further reinforces that the Association's
challenge to Rule LXX was facial, rather than as-applied.
      9
        Cf. Metzger, Facial and As-Applied Challenges Under The
Roberts Court, 36 Fordham Urb. L.J. 773, 798 (2009) ("[S]ubstantive
constitutional law drives the Court's approach to facial and
as-applied challenges. That substantive constitutional law
determines the availability of facial challenges has long been
acknowledged, and is not a new development with the Roberts
Court."); Fallon, As-Applied And Facial Challenges And Third-Party
Standing, 113 Harv. L. Rev. 1321, 1324 (2000) ("[T]he availability
of facial challenges varies on a doctrine-by-doctrine basis and is
a function of the applicable substantive tests of constitutional

                                      -14-
            The   Supreme   Court   has    explained   that   there   is   "an

important distinction between a claim that the mere enactment of a

statute constitutes a taking and a claim that the particular impact

of government action on a specific piece of property requires the

payment of just compensation."        Keystone Bituminous, 480 U.S. at

494 (emphasis added); see also Brubaker Amusement Co. v. United

States, 304 F.3d 1349, 1356 (Fed. Cir. 2002) ("The Supreme Court

has repeatedly emphasized a distinction between takings claims that

arise in the context of facial challenges and those that arise in

the context of challenges to the application of a statute or

regulation to a particular piece of property.").          Not only has the

Court outlined the appropriate test to be used in a facial Takings

Clause challenge — whether the passage of the statute "denies an

owner economically viable use of his land," Keystone Bituminous,

480 U.S. at 495, but it has also explained that facial challenges

are not subject to the second portion of Williamson County's

ripeness analysis, San Remo Hotel v. City & Cnty. of S.F., 545 U.S.

323, 345-46 (2005); Yee v. City of Escondido, 503 U.S. 519, 533-34

(1992); see also Levald, Inc. v. City of Palm Desert, 998 F.2d 680,

686 (9th Cir. 1993) (noting that facial and as-applied takings

claims "raise[] different ripeness and statute of limitations

issues").    As a result, it is clear that the Association raised

only a facial challenge with respect to Rule LXX.


validity.").

                                    -15-
                This facial challenge was barred by the statute of

limitations.10

                The Association's takings claim was brought under 42

U.S.C. § 1983.         Section 1983 does not contain its own statute of

limitations; instead, the courts apply the state's personal injury

statute of limitations to all § 1983 claims, regardless of the

underlying law on which the claim is based.                Owens v. Okure, 488

U.S. 235, 240-41 (1989).           In Puerto Rico, the relevant limitations

period     is    one   year.       P.R.   Laws   Ann.    tit.   31,    §    5298(2);

Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.

2008)     ("In    Puerto   Rico,    the    limitations    period      for   personal

injuries is one year.").             Further, "[i]t is federal law" that

governs "when the statute of limitations begins to run."                    Gorelick

v. Costin, 605 F.3d 118, 121 (1st Cir. 2010).              Section 1983 claims

accrue "when the plaintiff knows, or has reason to know of the


     10
        The Commissioner timely raised the statute of limitations
defense in both the answer and motion for summary judgment.
Because the statute of limitations is an affirmative defense, see
Fed. R. Civ. P. 8(c)(1), "the defendant bears the burden of
establishing its applicability. The party who has the burden of
proof on a dispositive issue cannot attain summary judgment unless
the evidence he provides on that issue is conclusive."      Torres
Vargas v. Santiago Cummings, 149 F.3d 29, 36 (1st Cir. 1998)
(internal citations omitted).    Once the defendant produces such
evidence, the burden shifts to the plaintiff to establish that the
statute of limitations does not apply. See Fed. R. Civ. P. 56(c),
(e); Citigroup Inc. v. Fed. Ins. Co., No. 10-20445, 2011 WL
3422073, at *3 (5th Cir. Aug. 5, 2011); Campbell v. Grand Trunk W.
R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001); Blue Cross & Blue
Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 (11th Cir. 1990).

                                          -16-
injury on which the action is based, and a plaintiff is deemed to

know or have reason to know at the time of the act itself and not

at the point that the harmful consequences are felt."             Id. at 122

(quoting Morán-Vega, 537 F.3d at 20) (internal quotation marks

omitted).

            In   the   context   of   a    facial   takings   challenge,   the

limitations period accrues when the purportedly unconstitutional

statute or regulation is enacted or becomes effective.            This is so

because, in such cases, the plaintiff alleges that the "mere

enactment of a statute constitutes a taking." Keystone Bituminous,

480 U.S. at 494.

            It is true that the question of "ripeness" of a takings

claim is analytically distinct from the question of when a takings

claim   accrues    for    statute     of     limitations   purposes.       See

Downing/Salt Pond, 643 F.3d at 20-22 (explaining Takings Clause

ripeness requirements); Addington v. U.S. Airline Pilots Ass'n, 606

F.3d 1174, 1182 n.6 (9th Cir. 2010) (explaining, in a non-takings

case, that while ripeness and accrual are related, "there are key

differences in the posture of a case that presents a statute of

limitations issue and one that presents a ripeness issue").                And

none of the Supreme Court takings cases we have cited are concerned

with the accrual of claims for statute of limitations purposes.

            Nevertheless, it is clear that a facial takings challenge

accrues at the time the offending statute or regulation is enacted


                                      -17-
or becomes effective.11        A facial challenge also becomes ripe at

that time.     The courts that have considered the relationship

between ripeness and accrual in the takings context have reached

this conclusion, reasoning that because the constitutional injury

is not complete until the claim becomes ripe, the statute of

limitations   cannot   accrue    before    that   point in time.         Norco

Constr., Inc. v. King Cnty., 801 F.2d 1143, 1146 (9th Cir. 1986)

(Kennedy,    J.)   (holding,   in   the    takings   context,   that    "[t]he

conclusion that a claim is premature for adjudication controls as

well the determination that the claim has not accrued for purposes

of limitations" because "[c]ourts have held consistently that a

cause of action does not accrue until a party has a right to

enforce the claim"); Hensley v. City of Columbus, 557 F.3d 693,

696-97 (6th Cir. 2009) (holding that the statute of limitations

accrues when the takings claim becomes ripe); New Port Largo, Inc.

v. Monroe Cnty., 985 F.2d 1488, 1496-97 (11th Cir. 1993) ("When

Williamson's two-prong test is met, the injury is complete, and the

claim accrues for purposes of the statute of limitations.");

Biddison v. City of Chicago, 921 F.2d 724, 728 (7th Cir. 1991)

(following Norco)

            We agree with this conclusion.           While the ripeness and

accrual   questions    are   conceptually     distinct,   as    a   functional


     11
        This case does not require us to assess the precise moment
of accrual when the date of enactment differs from the date the
statute or regulation becomes effective.

                                    -18-
matter, given the way the Court has formulated the Williamson

County    ripeness   requirements,    and   the    takings   law   on   facial

attacks, a facial takings challenge generally both ripens and

accrues for statute of limitations purposes at the same moment in

time.     See, e.g., Suitum, 520 U.S. at 736 n.10 (noting that

"'facial' challenges to regulation are generally ripe the moment

the challenged regulation or ordinance is passed" (quoting Keystone

Bituminous, 480 U.S. at 495)).

            Here, Rule LXX was promulgated, in its current form, on

December 28, 2000.    The Association was on notice, as of that date,

of the supposed taking of what it considers to be its property.              As

a   result,   the    Association's     claim      that   Rule   LXX     is   an

unconstitutional taking accrued on that date, and the statute of

limitations ran one year later.       The Association did not file suit

until November 4, 2008 and its suit is time-barred.

            The Association's arguments based on analogy to the

continuing violation doctrine in employment fail and miss the

point. Even under that doctrine, the "ongoing injuries" or harmful

"effects" of a single unlawful act do not extend the limitations

period.     Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990); see

also Gilbert v. City of Cambridge, 932 F.2d 51, 58-59 (1st Cir.

1991) (noting the "'critical distinction' between a continuing act

and a singular act that brings continuing consequences in its




                                     -19-
roiled wake" (quoting Altair Corp. v. Pesquera de Busquets, 769

F.2d 30, 32 (1st Cir. 1985))).

             A   complaint    about    the     ongoing   effects    of    the    2000

amendment to Rule LXX is not a continuing violation.                 Indeed, the

very concept of a facial takings challenge is that the "mere

enactment of the statute amounted to a taking."               Suitum, 520 U.S.

at 736.   This reasoning also requires rejecting the application of

the continuing violation doctrine to facial takings claims, as

several circuits have held.           See, e.g., Colony Cove Props., LLC v.

City of Carson, 640 F.3d 948, 956 (9th Cir. 2011) ("[I]n the

takings context, the basis of a facial challenge is that the very

enactment of the statute has reduced the value of the property or

has effected a transfer of a property interest.               This is a single

harm, measurable and compensable when the statute is passed."

(quoting Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th

Cir. 2010))); New Pulaski Co. v. Mayor & City Council of Balt.,

Nos. 97-2118, 97-2204, 2000 WL 1005207, at *6 (4th Cir. July 20,

2000) (rejecting continuing violation theory in the context of a

facial challenge to an ordinance, holding that "any taking occurred

at the time of the Moratorium's enactment"); Kuhnle Bros., Inc. v.

Cnty.   of   Geauga,    103    F.3d     516,    521   (6th   Cir.   1997)       ("Any

deprivation      of   property   that    [plaintiff]      suffered       was    fully

effectuated when Resolution 91-87 was enacted, and the statute of

limitations began to run at that time.").


                                        -20-
            This is so despite the fact that the Association did not

know the precise dollar amount that would be subject to Rule LXX in

future years.         The Association was aware that the Rule would

operate automatically on all profits earned after the Rule came

into effect. Its application to future earnings was mechanical and

automatic.     The transfer of funds into the Special Reserve each

year is simply a harmful effect of the passage of Rule LXX, the

underlying source of the Association's complaint.                  Thus, the

continuing violation doctrine is inapposite. Cf. Gilbert, 932 F.2d

at 59 (rejecting continuing violation theory in the context of an

as-applied takings challenge to a permit denial, explaining that

"[w]hatever harms were suffered add up to nothing more than the

predictable, albeit painful, consequences of the permit denial").

            The facial takings claims regarding Rule LXX are time-

barred.12

B.   The Audit and the Interpretation

            The Association never articulated a clear, distinct

claim     regarding    the   audit,   the    repayment   orders,    and   the

Commissioner's interpretation that other property was subject to



     12
        The Association also argues, for the first time on appeal,
that its claims were brought directly under the Constitution, and
thus subject to a different statute of limitations, and that
statutes of limitations are inapplicable to claims for prospective
relief for constitutional violations.    As neither argument was
raised before the district court, they are waived.       Chiang v.
Verizon New Eng. Inc., 595 F.3d 26, 42 (1st Cir. 2010)

                                      -21-
the Special Reserve requirements in the district court, and so has

waived any such claim.          We do not decide whether such a claim would

have been timely, whether there is a takings claim, or whether, if

so, it would be a facial or an as-applied challenge.

            The complaint does not contain any mention of the audit,

nor did the Association request any relief regarding the audit,

despite the fact that the complaint was filed on November 4, 2008

- nearly five months after the audit resolution was issued on June

12, 2008. Similarly, the opposition to the motion to dismiss makes

no claim regarding the audit; it explains that the Association

raises only "a facial challenge to the section of Rule LXX which

establishes the Special Reserve."               The Association did not argue

the effects of the audit should be viewed differently than its

challenge to Rule LXX until its opposition to the Commissioner's

motion for summary judgment, where the Association stated, without

analysis,    that      "this    announcement     of   a    new   official   policy

constitutes       an    additional       violation    of     the    Association's

constitutional rights under the Fifth Amendment which would entitle

the Association to seek judicial redress."

            The district court did not assess the timeliness of any

claim regarding the audit, because it found the belated assertion

was   "in   the   nature       of   an   as-applied   takings      challenge."

Asociación de Suscripción, 720 F. Supp. 2d at 158.                   The district

court determined that such a claim was not before it, because the


                                         -22-
Association had stated it was "bringing only a facial challenge to

the regulation in question."   Id.

          Given the Association's failure to raise the issue of the

audit resolution in the complaint or at any time before its

response to the Commissioner's summary judgment motion, or even to

assert it was a separate facial claim, this determination was not

error.   See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004) ("At the summary judgment stage, the proper

procedure for plaintiffs to assert a new claim is to amend the

complaint in accordance with Fed. R. Civ. P. 15(a).    A plaintiff

may not amend her complaint through argument in a brief opposing

summary judgment."); see also Wahi v. Charleston Area Med. Ctr.,

Inc., 562 F.3d 599, 617 (4th Cir. 2009) (collecting cases).

                                IV.

          We affirm dismissal of the action.




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