935 F.3d 738

BYBEE, Circuit Judge, concurring:
I fully concur in the per curiam opinion of the court that Ms. Bird's complaint is barred by the applicable statute of limitations. I regret that result, however, and write separately because I fear that a great injustice may have been done. Ms. Bird alleges that the State of Hawai'i has violated her Fourteenth Amendment right to procedural due process when, without giving her notice and an opportunity for a hearing, the state placed her on its Central Child Abuse Registry ("CCAR"). Were we permitted to reach the merits of her argument, Ms. Bird has assuredly stated a plausible due process claim. Regrettably, if Ms. Bird was erroneously listed on the CCAR, she may suffer the effects of the state's error for the remainder of her life.
We analyze procedural due process claims in two familiar steps: we first ask "whether there exists a liberty or property interest which has been interfered with by the State." Ky. Dep't of Corr. v. Thompson , 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). We then ask "whether the procedures attendant upon that deprivation were constitutionally sufficient." Id.
Unfortunately, this is not a case of first impression. We previously addressed the adequacy of state procedures for listing and maintaining names on child abuse registries in Humphries v. County of Los Angeles , 554 F.3d 1170 (9th Cir. 2009), overruled on other grounds by Los Angeles County v. Humphries , 562 U.S. 29, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010). There, we addressed a challenge to California's Child Abuse Central Index ("CACI") and held at step one of the due process inquiry that an individual's liberty interest has been "interfered with by the State" where "a state statute creates both a stigma and a tangible burden on an individual's ability to obtain a right or status recognized by state law." 554 F.3d at 1185, 1188. We recognized that "being labeled a child abuser by being placed on [a child abuse registry] is 'unquestionably stigmatizing.' " Id. at 1186. Moreover, "a tangible burden ... exists where the plaintiff can show that, as a practical matter, the law creates a framework under which agencies reflexively check the stigmatizing listing-whether by internal regulation or custom-prior to conferring a legal right or benefit." Id. at 1188. In this case, there is no question that by listing Ms. Bird on its CCAR-irrespective of whether she is "confirmed" or "not confirmed"-Hawai'i has placed a stigmatizing label on Ms. Bird. Indeed, there is perhaps no name more deserving of our opprobrium than to be called a child abuser-or, as Hawai'i euphemistically refers to them: a "perpetrator" or "maltreater." Haw. Admin. R. § 17-1610-11(c).
There are real consequences for those who find themselves on a state registry. State-created child abuse registries form an organic network of accusations from which consequences flow: those listed may be denied the privilege of teaching or working with children, adopting, fostering, and coaching youth sports or other activities. See Wright v. O'Day , 706 F.3d 769, 771 (6th Cir. 2013) (describing how Tennessee law prohibits people listed on the state's child abuse registry from working in child-care agencies, child-care programs, and adult-daycare centers); Humphries , 554 F.3d at 1177-78 (describing consequences of being listed on California's CACI); Behrens v. Regier , 422 F.3d 1255, 1257 (11th Cir. 2005) (describing how plaintiff was unable to adopt another child after inaccurate listing on Florida's child abuse registry); Dupuy v. Samuels , 397 F.3d 493, 497-98 (7th Cir. 2005) (describing how Illinois law requires licensed facilities in childcare to check the state's child abuse registry).
When a state places legal disabilities on its citizens, we ask "whether the procedures attendant upon that deprivation were constitutionally sufficient." See Thompson , 490 U.S. at 460, 109 S.Ct. 1904. The answer here is a resounding "NO." Hawai'i offers little process-pre-listing or post-listing-for persons it lists on its CCAR. In the same provision that creates the CCAR, Hawai'i requires DHS to notify police and prosecutors of any reports DHS receives. Haw. Rev. Stat. § 350-2(a), (b). Although nothing in the statute requires DHS to notify the individual who has been branded a perpetrator or maltreater, DHS's regulations require it to give notice of the listing and the right to an administrative appeal. Haw. Admin. R. § 17-1610-11(c). In this case, however, DHS did not follow its regulations; Ms. Bird received no notice. She had no way of knowing that she was on the registry until years later, after her ex-husband had been convicted of killing their daughter, Hawai'i family court restored her older daughter to her custody, she had left Hawai'i for her family's home in Tennessee, she remarried, and she and her new husband sought to adopt a special-needs child from a third-world country. By the time Ms. Bird learned that she was on Hawai'i's CCAR, the damage had been done. She was disqualified by Tennessee from adoption (and probably many other things she hadn't figured out yet), and her only recourse was to go back to Hawai'i five years after the incident and try to persuade an agency that didn't want to deal with her to give her a hearing. In the end, DHS begrudgingly offered her "an administrative hearing for the sole purpose of deciding whether DHS properly confirmed (i) abuse of a minor and (ii) threat of abuse of a minor."
We have seen this bad movie before. In Humphries , we concluded that California's procedures for listing and maintaining individuals on the CACI were constitutionally deficient because they created a high likelihood that innocent names would remain on the registry. We first emphasized that the statutory standard for inclusion on the CACI was "a very low threshold" that created a high likelihood of "false positives." 554 F.3d at 1195. We observed that California law essentially "reverse[d] ... the presumption of innocence in our criminal justice system: the accused [was] presumed to be a child abuser and listed [on the registry] unless the investigator [affirmatively] determine[d] that the report [was] false, improbable, or accidental." Id. The danger of an erroneous listing was further compounded by the lack of any statutory procedure by which an individual could challenge his or her inclusion on the CACI. Id. at 1195-1200. Rather than decide for ourselves what procedures California should adopt, we ordered California to "provide 'some kind of hearing' by which [an accused individual] can challenge his inclusion." Id. at 1201.
Hawai'i's procedures for creating and maintaining its registry perpetuate some of the same problems we identified in Humphries . First, Hawai'i regulations require that even "not confirmed" reports of child abuse be listed on the CCAR, thereby creating a high likelihood of "false positives." Haw. Admin. R. § 17-1610-19(a)(1)(A). The danger of erroneous listings in the CCAR is magnified by inadequate procedures by which an individual can challenge his or her inclusion in the CCAR. Unlike the statutory scheme at issue in Humphries , Hawai'i regulations do require notice and do allow for administrative review of CCAR listings in some circumstances. At least one of the two means for review occurs on DHS's initiative and can be terminated on DHS's initiative. See Haw. Rev. Stat. § 350-2(d)(1). If DHS petitions for a separate family court proceeding in which it claims custody of the listed individual's child, the listed individual is not permitted to seek administrative review of his or her registry listing. See Haw. Admin. R. § 17-1610-12. Instead, the listed individual must prevail at an adjudicatory hearing before the family court can expunge the report. Haw. Rev. Stat. § 350-2(d)(2).
At first blush, this statutory scheme appears more protective than the scheme at issue in Humphries , where listed individuals were offered neither administrative review nor a court hearing capable of expunging the listing. Ms. Bird's unfortunate situation, however, highlights a glaring hole in Hawai'i's regulations: In cases where DHS chooses to return a child to his or her parents rather than pursue the family court proceeding to the adjudicatory phase, listed individuals are denied access to both an administrative hearing and a court adjudication. See Haw. Rev. Stat. § 350-2(d) ; Haw. Admin. R. § 17-1610-12(c). In other words, under Hawai'i procedures, DHS can both return a child to the parents and keep the parent's names on the CCAR. In that circumstance, the only way the parent can get a hearing on the CCAR listing is to decline the opportunity to get the child back and pursue litigation in the family court to a full adjudication. This makes no sense. The parents who settle with DHS and thus forego adjudication get their child back, but may be barred forever from teaching school or coaching Little League. See , e.g. , Humphries , 554 F.3d at 1183 & n.9. Persons such as Ms. Bird have no recourse for expunging their names from the CCAR, except to file a civil rights action under 42 U.S.C. § 1983.
The state suggests that the hole in its regulations, by which certain individuals are offered neither administrative review nor a court adjudication, is immaterial because parents who are listed on the CCAR should know better than to regain custody of their children from DHS without enduring a court adjudication. According to the State, the onus lies on the parents to insist that the district court proceed to an adjudication where it would otherwise be unnecessary.
The flaw in the state's procedures is compounded in this case by the fact that it never told Ms. Bird she was listed on the CCAR. The state's position that it was, nevertheless, Ms. Bird's burden to insist on an adjudication is just astounding. Even worse, the State argues that the lack of notice in this case is also immaterial because Ms. Bird was represented by counsel in the dependency proceeding before the family court and thus should have "just known" that she was listed on the CCAR and that the only way for her to get off was to insist on proceeding to an adjudicatory hearing in spite of the fact that DHS had effectively mooted the family court proceeding by agreeing that Bird's daughter could be safely returned home.
I don't understand how the State of Hawai'i can maintain such arguments with a straight face. Ms. Bird was plainly denied due process of law. And, if the facts are as she alleges them, not only was she denied notice and an opportunity to contest her placement on the CCAR, she was erroneously listed in the first place. The state has twice wronged her: first, by listing her at all; second, by denying her an opportunity to prove that she didn't deserve to be blacklisted.
Hawai'i prevails here only because of a statute of limitations. Statutes of limitations are important to the search for truth. They " 'promote justice by preventing surprises through [plaintiffs'] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' " CTS Corp. v. Waldburger , 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) (alteration in original) (quoting R.R. Telegraphers v. Ry. Express Agency, Inc. , 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944) ). The state gets the benefit of that rule today, because Ms. Bird filed her suit just outside the two-year statute of limitations. The irony is that while Ms. Bird filed her suit just two months late, she didn't even learn of the CCAR-and her cause of action-until five years after the state listed her. Hawai'i will not be compelled by law-at least not by us-to give Ms. Bird an opportunity to show she doesn't deserve to be on its CCAR, but it can always choose to do the right thing voluntarily. In any event, DHS should not interpret our decision today as in any way condoning the blatantly insufficient procedures by which it maintains Ms. Bird's name in its Central Child Abuse Registry.
I recognize that on May 29, 2017, the statute governing listings on the Registry, Haw. Rev. Stat. § 350-2(d), was amended so that "not confirmed" reports of child abuse may be expunged from the CCAR. See 2017 Haw. Laws Act 16 (H.B. 1099) (May 18, 2017). As our per curiam opinion notes, the regulations governing listings in the CCAR, however, still require that "not confirmed" reports remain on the CCAR. Haw. Admin. R. § 17-1610-19 ; see Panel Op. at 6 n.2.

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