Gabelli v. Securities & Exchange Commission , 133 S. Ct. 1216 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GABELLI ET AL. v. SECURITIES AND EXCHANGE
COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 11–1274. Argued January 8, 2013—Decided February 27, 2013
The Investment Advisers Act makes it illegal for investment advisers to
defraud their clients, 15 U. S. C. §§80b–6(1), (2), and authorizes the
Securities and Exchange Commission to bring enforcement actions
against investment advisers who violate the Act, or against individu-
als who aid and abet such violations, §80b–9(d). If the SEC seeks civ-
il penalties as part of those actions, it must file suit “within five years
from the date when the claim first accrued,” pursuant to a general
statute of limitations that governs many penalty provisions through-
out the U. S. Code, 28 U. S. C. §2462.
In 2008, the SEC sought civil penalties from petitioners Alpert and
Gabelli. The complaint alleged that they aided and abetted invest-
ment adviser fraud from 1999 until 2002. Petitioners moved to dis-
miss, arguing in part that the civil penalty claim was untimely. In-
voking the five-year statute of limitations in §2462, they pointed out
that the complaint alleged illegal activity up until August 2002 but
was not filed until April 2008. The District Court agreed and dis-
missed the civil penalty claim as time barred. The Second Circuit re-
versed, accepting the SEC’s argument that because the underlying
violations sounded in fraud, the “discovery rule” applied, meaning
that the statute of limitations did not begin to run until the SEC dis-
covered or reasonably could have discovered the fraud.
Held: The five-year clock in §2462 begins to tick when the fraud occurs,
not when it is discovered. Pp. 4–11.
(a) This is the most natural reading of the statute. “In common
parlance a right accrues when it comes into existence.” United States
v. Lindsay, 346 U. S. 568, 569. The “standard rule” is that a claim
accrues “when the plaintiff has ‘ “a complete and present cause of ac-
2 GABELLI v. SEC
Syllabus
tion.” ’ ” Wallace v. Kato, 549 U. S. 384, 388. Such an understanding
appears in cases and dictionaries from the 19th century, when the
predecessor to §2462 was enacted. And this reading sets a fixed date
when exposure to the specified Government enforcement efforts ends,
advancing “the basic policies of all limitations provisions: repose,
elimination of stale claims, and certainty about a plaintiff’s oppor-
tunity for recovery and a defendant’s potential liabilities.” Rotella v.
Wood, 528 U. S. 549, 555. Pp. 4–5.
(b) The Government nonetheless argues that the discovery rule
should apply here. That doctrine is an “exception” to the standard
rule, and delays accrual “until a plaintiff has ‘discovered’ ” his cause
of action. Merck & Co. v. Reynolds, 559 U. S. ___, ___. It arose from
the recognition that “something different was needed in the case of
fraud, where a defendant’s deceptive conduct may prevent a plaintiff
from even knowing that he or she has been defrauded.” Ibid. Thus
“where a plaintiff has been injured by fraud and ‘remains in igno-
rance of it without any fault or want of diligence or care on his part,
the bar of the statute does not begin to run until the fraud is discov-
ered.’ ” Holmberg v. Armbrecht, 327 U. S. 392, 397. This Court, how-
ever, has never applied the discovery rule in this context, where the
plaintiff is not a defrauded victim seeking recompense, but is instead
the Government bringing an enforcement action for civil penalties.
The Government’s case is not saved by Exploration Co. v. United
States, 247 U. S. 435. There, the discovery rule was applied in favor
of the Government, but the Government was itself a victim; it had
been defrauded and was suing to recover its loss. It was not bringing
an enforcement action for penalties.
There are good reasons why the fraud discovery rule has not been
extended to Government civil penalty enforcement actions. The dis-
covery rule exists in part to preserve the claims of parties who have
no reason to suspect fraud. The Government is a different kind of
plaintiff. The SEC’s very purpose, for example, is to root out fraud,
and it has many legal tools at hand to aid in that pursuit. The Gov-
ernment in these types of cases also seeks a different type of relief.
The discovery rule helps to ensure that the injured receive recom-
pense, but civil penalties go beyond compensation, are intended to
punish, and label defendants wrongdoers. Emphasizing the im-
portance of time limits on penalty actions, Chief Justice Marshall
admonished that it “would be utterly repugnant to the genius of our
laws” if actions for penalties could “be brought at any distance of
time.” Adams v. Woods, 2 Cranch 336, 342. Yet grafting the discov-
ery rule onto §2462 would raise similar concerns. It would leave de-
fendants exposed to Government enforcement action not only for five
years after their misdeeds, but for an additional uncertain period into
Cite as: 568 U. S. ____ (2013) 3
Syllabus
the future. And repose would hinge on speculation about what the
Government knew, when it knew it, and when it should have known
it. Deciding when the Government knew or reasonably should have
known of a fraud would also present particular challenges for the
courts, such as determining who the relevant actor is in assessing
Government knowledge, whether and how to consider agency priori-
ties and resource constraints in deciding when the Government rea-
sonably should have known of a fraud, and so on. Applying a discov-
ery rule to Government penalty actions is far more challenging than
applying the rule to suits by defrauded victims, and the Court de-
clines to do so. Pp. 5–11.
653 F. 3d 49, reversed and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1274
_________________
MARC J. GABELLI AND BRUCE ALPERT,
PETITIONERS v. SECURITIES AND
EXCHANGE COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[February 27, 2013]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Investment Advisers Act makes it illegal for in-
vestment advisers to defraud their clients, and authorizes
the Securities and Exchange Commission to seek civil
penalties from advisers who do so. Under the general
statute of limitations for civil penalty actions, the SEC has
five years to seek such penalties. The question is whether
the five-year clock begins to tick when the fraud is com-
plete or when the fraud is discovered.
I
A
Under the Investment Advisers Act of 1940, it is unlaw-
ful for an investment adviser “to employ any device,
scheme, or artifice to defraud any client or prospective
client” or “to engage in any transaction, practice, or course
of business which operates as a fraud or deceit upon any
client or prospective client.” 54 Stat. 852, as amended, 15
U. S. C. §§80b–6(1), (2). The Securities and Exchange
Commission is authorized to bring enforcement actions
2 GABELLI v. SEC
Opinion of the Court
against investment advisers who violate the Act, or indi-
viduals who aid and abet such violations. §80b–9(d).
As part of such enforcement actions, the SEC may seek
civil penalties, §§80b–9(e), (f) (2006 ed. and Supp. V), in
which case a five-year statute of limitations applies:
“Except as otherwise provided by Act of Congress, an
action, suit or proceeding for the enforcement of any
civil fine, penalty, or forfeiture, pecuniary or other-
wise, shall not be entertained unless commenced
within five years from the date when the claim first ac-
crued if, within the same period, the offender or the
property is found within the United States in order
that proper service may be made thereon.” 28 U. S. C.
§2462.
This statute of limitations is not specific to the Investment
Advisers Act, or even to securities law; it governs many
penalty provisions throughout the U. S. Code. Its origins
date back to at least 1839, and it took on its current form
in 1948. See Act of Feb. 28, 1839, ch. 36, §4, 5 Stat. 322.
B
Gabelli Funds, LLC, is an investment adviser to a mu-
tual fund formerly known as Gabelli Global Growth Fund
(GGGF). Petitioner Bruce Alpert is Gabelli Funds’ chief
operating officer, and petitioner Marc Gabelli used to be
GGGF’s portfolio manager.
In 2008, the SEC brought a civil enforcement action
against Alpert and Gabelli. According to the complaint,
from 1999 until 2002 Alpert and Gabelli allowed one
GGGF investor—Headstart Advisers, Ltd.—to engage in
“market timing” in the fund.
As this Court has explained, “[m]arket timing is a trad-
ing strategy that exploits time delay in mutual funds’
daily valuation system.” Janus Capital Group, Inc. v.
First Derivative Traders, 564 U. S. ___, ___, n. 1 (2011)
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
(slip op., at 2, n. 1). Mutual funds are typically valued
once a day, at the close of the New York Stock Exchange.
Because funds often hold securities traded on different
exchanges around the world, their reported valuation may
be based on stale information. If a mutual fund’s reported
valuation is artificially low compared to its real value,
market timers will buy that day and sell the next to real-
ize quick profits. Market timing is not illegal but can
harm long-term investors in a fund. See id., at ___–___,
and n. 1 (slip op., at 2–3, and n. 1).
The SEC’s complaint alleged that Alpert and Gabelli
permitted Headstart to engage in market timing in ex-
change for Headstart’s investment in a hedge fund run by
Gabelli. According to the SEC, petitioners did not disclose
Headstart’s market timing or the quid pro quo agreement,
and instead banned others from engaging in market
timing and made statements indicating that the practice
would not be tolerated. The complaint stated that during
the relevant period, Headstart earned rates of return of up
to 185%, while “the rate of return for long-term investors
in GGGF was no more than negative 24.1 percent.” App.
73.
The SEC alleged that Alpert and Gabelli aided and
abetted violations of §§80b–6(1) and (2), and it sought civil
penalties under §80b–9. Petitioners moved to dismiss,
arguing in part that the claim for civil penalties was un-
timely. They invoked the five-year statute of limitations
in §2462, pointing out that the complaint alleged market
timing up until August 2002 but was not filed until April
2008. The District Court agreed and dismissed the SEC’s
civil penalty claim as time barred.1
The Second Circuit reversed. It acknowledged that
——————
1 The SEC also sought injunctive relief and disgorgement, claims the
District Court found timely on the ground that they were not subject to
§2462. Those issues are not before us.
4 GABELLI v. SEC
Opinion of the Court
§2462 required an action for civil penalties to be brought
within five years “from the date when the claim first
accrued,” but accepted the SEC’s argument that because
the underlying violations sounded in fraud, the “discovery
rule” applied to the statute of limitations. As explained by
the Second Circuit, “[u]nder the discovery rule, the statute
of limitations for a particular claim does not accrue until
that claim is discovered, or could have been discovered
with reasonable diligence, by the plaintiff.” 653 F. 3d 49,
59 (2011). The court concluded that while “this rule does
not govern the accrual of most claims,” it does govern the
claims at issue here. Ibid. As the court explained, “for
claims that sound in fraud a discovery rule is read into the
relevant statute of limitation.” Id., at 60.2
We granted certiorari. 567 U. S. ___ (2012).
II
A
This case centers around the meaning of 28 U. S. C.
§2462: “an action . . . for the enforcement of any civil fine,
penalty, or forfeiture . . . shall not be entertained unless
commenced within five years from the date when the
claim first accrued.” Petitioners argue that a claim based
on fraud accrues—and the five-year clock begins to tick—
when a defendant’s allegedly fraudulent conduct occurs.
That is the most natural reading of the statute. “In
common parlance a right accrues when it comes into exist-
ence . . . .” United States v. Lindsay, 346 U. S. 568, 569
——————
2 The court distinguished the discovery rule, which governs when a
claim accrues, from doctrines that toll the running of an applicable
limitations period when the defendant takes steps beyond the chal-
lenged conduct itself to conceal that conduct from the plaintiff. 653
F. 3d, at 59–60. The SEC abandoned any reliance on such doctrines
below, and they are not before us. See Response and Reply Brief for
SEC Appellant/Cross-Appellee in No. 10–3581 (CA2), p. 34 (“The
Commission is not seeking application of the fraudulent concealment
doctrine or other equitable tolling principles”).
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
(1954). Thus the “standard rule” is that a claim accrues
“when the plaintiff has a complete and present cause of
action.” Wallace v. Kato, 549 U. S. 384, 388 (2007) (inter-
nal quotation marks omitted); see also, e.g., Bay Area
Laundry and Dry Cleaning Pension Trust Fund v. Ferbar
Corp. of Cal., 522 U. S. 192, 201 (1997); Clark v. Iowa City,
20 Wall. 583, 589 (1875). That rule has governed since the
1830s when the predecessor to §2462 was enacted. See,
e.g., Bank of United States v. Daniel, 12 Pet. 32, 56 (1838);
Evans v. Gee, 11 Pet. 80, 84 (1837). And that definition
appears in dictionaries from the 19th century up until
today. See, e.g., 1 A. Burrill, A Law Dictionary and Glos-
sary 17 (1850) (“an action accrues when the plaintiff has a
right to commence it”); Black’s Law Dictionary 23 (9th ed.
2009) (defining “accrue” as “[t]o come into existence as an
enforceable claim or right”).
This reading sets a fixed date when exposure to the
specified Government enforcement efforts ends, advancing
“the basic policies of all limitations provisions: repose,
elimination of stale claims, and certainty about a plain-
tiff ’s opportunity for recovery and a defendant’s potential
liabilities.” Rotella v. Wood, 528 U. S. 549, 555 (2000).
Statutes of limitations are intended to “promote justice by
preventing surprises through the revival of claims that
have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared.”
Railroad Telegraphers v. Railway Express Agency, Inc.,
321 U. S. 342, 348–349 (1944). They provide “security and
stability to human affairs.” Wood v. Carpenter, 101 U. S.
135, 139 (1879). We have deemed them “vital to the
welfare of society,” ibid., and concluded that “even wrong-
doers are entitled to assume that their sins may be forgot-
ten,” Wilson v. Garcia, 471 U. S. 261, 271 (1985).
B
Notwithstanding these considerations, the Government
6 GABELLI v. SEC
Opinion of the Court
argues that the discovery rule should apply instead.
Under this rule, accrual is delayed “until the plaintiff has
‘discovered’ ” his cause of action. Merck & Co. v. Reynolds,
559 U. S. ___, ___ (2010) (slip op., at 8). The doctrine arose
in 18th-century fraud cases as an “exception” to the stand-
ard rule, based on the recognition that “something differ-
ent was needed in the case of fraud, where a defendant’s
deceptive conduct may prevent a plaintiff from even know-
ing that he or she has been defrauded.” Ibid. This Court
has held that “where a plaintiff has been injured by fraud
and ‘remains in ignorance of it without any fault or want
of diligence or care on his part, the bar of the statute does
not begin to run until the fraud is discovered.’ ” Holmberg
v. Armbrecht, 327 U. S. 392, 397 (1946) (quoting Bailey v.
Glover, 21 Wall. 342, 348 (1875)). And we have explained
that “fraud is deemed to be discovered when, in the exer-
cise of reasonable diligence, it could have been discovered.”
Merck & Co., supra, at ___ (slip op., at 9) (internal quota-
tion marks and alterations omitted).
But we have never applied the discovery rule in this
context, where the plaintiff is not a defrauded victim
seeking recompense, but is instead the Government bring-
ing an enforcement action for civil penalties. Despite the
discovery rule’s centuries-old roots, the Government cites
no lower court case before 2008 employing a fraud-based
discovery rule in a Government enforcement action for
civil penalties. See Brief for Respondent 23 (citing SEC v.
Tambone, 550 F. 3d 106, 148–149 (CA1 2008); SEC v.
Koenig, 557 F. 3d 736, 739 (CA7 2009)). When pressed at
oral argument, the Government conceded that it was
aware of no such case. Tr. of Oral Arg. 25. The Govern-
ment was also unable to point to any example from the
first 160 years after enactment of this statute of limita-
tions where it had even asserted that the fraud discovery
rule applied in such a context. Id., at 26–27 (citing only
United States v. Maillard, 26 F. Cas. 1140, 1142 (No.
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
15,709) (SDNY 1871), a “fraudulent concealment” case, see
n. 2, supra).
Instead the Government relies heavily on Exploration
Co. v. United States, 247 U. S. 435 (1918), in an attempt to
show that the discovery rule should benefit the Govern-
ment to the same extent as private parties. See, e.g., Brief
for Respondent 10–11, 16, 17, 33–34, 41–45. In that
case, a company had fraudulently procured land from the
United States, and the United States sued to undo the trans-
action. The company raised the statute of limitations as a
defense, but this Court allowed the case to proceed, con-
cluding that the rule “that statutes of limitations upon
suits to set aside fraudulent transactions shall not begin
to run until the discovery of the fraud” applied “in favor of
the Government as well as a private individual.” Explora-
tion Co., supra, at 449. But in Exploration Co., the Gov-
ernment was itself a victim; it had been defrauded and
was suing to recover its loss. The Government was not
bringing an enforcement action for penalties. Exploration
Co. cannot save the Government’s case here.
There are good reasons why the fraud discovery rule has
not been extended to Government enforcement actions for
civil penalties. The discovery rule exists in part to pre-
serve the claims of victims who do not know they are
injured and who reasonably do not inquire as to any
injury. Usually when a private party is injured, he is imme-
diately aware of that injury and put on notice that his time
to sue is running. But when the injury is self-concealing,
private parties may be unaware that they have been
harmed. Most of us do not live in a state of constant in-
vestigation; absent any reason to think we have been
injured, we do not typically spend our days looking for
evidence that we were lied to or defrauded. And the law
does not require that we do so. Instead, courts have de-
veloped the discovery rule, providing that the statute of
limitations in fraud cases should typically begin to run
8 GABELLI v. SEC
Opinion of the Court
only when the injury is or reasonably could have been
discovered.
The same conclusion does not follow for the Government
in the context of enforcement actions for civil penalties.
The SEC, for example, is not like an individual victim who
relies on apparent injury to learn of a wrong. Rather, a
central “mission” of the Commission is to “investigat[e]
potential violations of the federal securities laws.” SEC,
Enforcement Manual 1 (2012). Unlike the private party
who has no reason to suspect fraud, the SEC’s very pur-
pose is to root it out, and it has many legal tools at hand to
aid in that pursuit. It can demand that securities brokers
and dealers submit detailed trading information. Id., at
44. It can require investment advisers to turn over their
comprehensive books and records at any time. 15 U. S. C.
§80b–4 (2006 ed. and Supp. V). And even without fil-
ing suit, it can subpoena any documents and witnesses
it deems relevant or material to an investigation. See
§§77s(c), 78u(b), 80a–41(b), 80b–9(b) (2006 ed.).
The SEC is also authorized to pay monetary awards to
whistleblowers, who provide information relating to viola-
tions of the securities laws. §78u–6 (2006 ed., Supp. V).
In addition, the SEC may offer “cooperation agreements”
to violators to procure information about others in ex-
change for more lenient treatment. See Enforcement
Manual, at 119–137. Charged with this mission and
armed with these weapons, the SEC as enforcer is a far
cry from the defrauded victim the discovery rule evolved to
protect.
In a civil penalty action, the Government is not only a
different kind of plaintiff, it seeks a different kind of relief.
The discovery rule helps to ensure that the injured receive
recompense. But this case involves penalties, which go
beyond compensation, are intended to punish, and label
defendants wrongdoers. See Meeker v. Lehigh Valley R.
Co., 236 U. S. 412, 423 (1915) (a penalty covered by the
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
predecessor to §2462 is “something imposed in a punitive
way for an infraction of a public law”); see also Tull v.
United States, 481 U. S. 412, 422 (1987) (penalties are
“intended to punish culpable individuals,” not “to extract
compensation or restore the status quo”).
Chief Justice Marshall used particularly forceful lan-
guage in emphasizing the importance of time limits on
penalty actions, stating that it “would be utterly repug-
nant to the genius of our laws” if actions for penalties
could “be brought at any distance of time.” Adams v.
Woods, 2 Cranch 336, 342 (1805). Yet grafting the discov-
ery rule onto §2462 would raise similar concerns. It would
leave defendants exposed to Government enforcement
action not only for five years after their misdeeds, but for
an additional uncertain period into the future. Repose
would hinge on speculation about what the Government
knew, when it knew it, and when it should have known it.
See Rotella, 528 U. S., at 554 (disapproving a rule that
would have “extended the limitations period to many
decades” because such a rule was “beyond any limit that
Congress could have contemplated” and “would have
thwarted the basic objective of repose underlying the very
notion of a limitations period”).
Determining when the Government, as opposed to an
individual, knew or reasonably should have known of a
fraud presents particular challenges for the courts. Agen-
cies often have hundreds of employees, dozens of offices,
and several levels of leadership. In such a case, when does
“the Government” know of a violation? Who is the rele-
vant actor? Different agencies often have overlapping
responsibilities; is the knowledge of one attributed to all?
In determining what a plaintiff should have known, we
ask what facts “a reasonably diligent plaintiff would have
discovered.” Merck & Co., 559 U. S., at ___ (slip op., at 8).
It is unclear whether and how courts should consider
agency priorities and resource constraints in applying that
10 GABELLI v. SEC
Opinion of the Court
test to Government enforcement actions. See 3M Co. v.
Browner, 17 F. 3d 1453, 1461 (CADC 1994) (“An agency
may experience problems in detecting statutory violations
because its enforcement effort is not sufficiently funded; or
because the agency has not devoted an adequate number
of trained personnel to the task; or because the agency’s
enforcement program is ill-designed or inefficient; or
because the nature of the statute makes it difficult to
uncover violations; or because of some combination of
these factors and others”). And in the midst of any inquiry
as to what it knew when, the Government can be expected
to assert various privileges, such as law enforcement,
attorney-client, work product, or deliberative process,
further complicating judicial attempts to apply the discov-
ery rule. See, e.g., App. in No. 10–3581 (CA2), p. 147
(Government invoking such privileges in this case, in
response to a request for documents relating to the SEC’s
investigation of Headstart); see also Rotella, supra, at 559(rejecting a rule in part due to “the controversy inherent in
divining when a plaintiff should have discovered” a
wrong).
To be sure, Congress has expressly required such inquir-
ies in some statutes. But in many of those instances, the
Government is itself an injured victim looking for recom-
pense, not a prosecutor seeking penalties. See, e.g., 28
U. S. C. §§2415, 2416(c) (Government suits for money dam-
ages founded on contracts or torts). Moreover, statutes
applying a discovery rule in the context of Govern-
ment suits often couple that rule with an absolute provi-
sion for repose, which a judicially imposed discovery rule
would lack. See, e.g., 21 U. S. C. §335b(b)(3) (limiting
certain Government civil penalty actions to “6 years after
the date when facts material to the act are known or
reasonably should have been known by the Secretary but
in no event more than 10 years after the date the act
took place”). And several statutes applying a discovery
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
rule to the Government make some effort to identify the
official whose knowledge is relevant. See 31 U. S. C.
§3731(b)(2) (relevant knowledge is that of “the official of
the United States charged with responsibility to act in the
circumstances”).
Applying a discovery rule to Government penalty ac-
tions is far more challenging than applying the rule to
suits by defrauded victims, and we have no mandate from
Congress to undertake that challenge here.
* * *
As we held long ago, the cases in which “a statute of
limitation may be suspended by causes not mentioned in
the statute itself . . . are very limited in character, and are
to be admitted with great caution; otherwise the court
would make the law instead of administering it.” Amy v.
Watertown (No. 2), 130 U. S. 320, 324 (1889) (internal
quotation marks omitted). Given the lack of textual,
historical, or equitable reasons to graft a discovery rule
onto the statute of limitations of §2462, we decline to do
so.
The judgment of the United States Court of Appeals for
the Second Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.