Securities and Exchange Commissioner v. Barry J. Graham, eta l

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13562
________________________
D.C. Docket No. 4:13-cv-10011-JLK
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellant,
versus
BARRY J. GRAHAM,
FRED DAVIS CLARK, JR.,
a.k.a. Dave Clark,
CRISTAL R. COLEMAN,
a.k.a. Cristal Clark,
DAVID W. SCHWARZ,
RICKY LYNN STOKES,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 26, 2016)
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Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
JILL PRYOR, Circuit Judge:
With few exceptions, 28 U.S.C. § 2462 bars the government from bringing
suit to enforce “any civil fine, penalty, or forfeiture” after five years from when the
claim first accrued. The Securities and Exchange Commission (the “SEC” or
“Commission”) waited more than five years to commence an action for declaratory
relief, injunctive relief, and disgorgement against the defendants, who allegedly
violated federal securities law by selling unregistered securities. The defendants
raised the five-year statute of limitations as an affirmative defense in their motions
for summary judgment. The district court dismissed the case, ruling that the statute
of limitations set out in § 2462 is jurisdictional and that every remedy the SEC
requested was outside the court’s jurisdiction. The SEC appealed, arguing that
§ 2462 is nonjurisdictional and that the injunctive and declaratory relief and
disgorgement it sought were not subject to § 2462’s time bar. After careful
consideration of the briefs, and with the benefit of oral argument, we affirm in part,
reverse in part, and remand for further proceedings.
I. BACKGROUND
On January 30, 2013, the SEC filed a civil enforcement action against Barry
J. Graham, Fred Davis Clark, Jr., Cristal R. Coleman, David W. Schwarz, and
Ricky Lynn Stokes (collectively, the “defendants”). The Second Amended
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Complaint (the “complaint”) alleged that, from at least November 2004 to July
2008, the defendants violated federal securities law by selling condominiums that
were functioning, in reality, as unregistered securities. According to the complaint,
the defendants raised more than $300 million from approximately 1,400 investors
around the country but failed to pay out the returns they had guaranteed. The
Commission requested that the district court (1) declare that the defendants had
violated federal securities laws; (2) permanently enjoin the defendants from
violating federal securities laws in the future; (3) direct the defendants to disgorge
all profits from their illegal ventures, with prejudgment interest; (4) order the
defendants to repatriate any funds held outside the district court’s jurisdiction; and
(5) require three defendants, Coleman, Clark, and Stokes, to pay civil money
penalties.
Coleman, Clark, Stokes, and defendant Schwarz filed motions for summary
judgment on two main grounds: (1) the sale of their condominiums were not
investment contracts, and thus were not governed by securities laws; and (2) the
statute of limitations under 28 U.S.C. § 2462 barred all of the SEC’s requested
forms of relief. The SEC filed a competing motion for summary judgment. The
district court held a hearing on the defendants’ statute of limitations defense.
Without reaching the merits of the cross-motions for summary judgment, the
district court dismissed the SEC’s complaint as time-barred. The court held that
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§ 2462—which bars any action “for the enforcement of any civil fine, penalty, or
forfeiture” if brought more than five years from the date the claim first accrued—is
a “jurisdictional” statute of limitations; thus, if it applied, the court lacked subject
matter jurisdiction. The court found that the defendants’ alleged securities
violations took place more than five years before the SEC filed suit. It further
determined that § 2462 applied to all of the remedies the SEC sought, not just the
civil money penalty. Specifically, the district court concluded that the injunctive
and declaratory relief the SEC sought were penalties and that the disgorgement the
SEC requested constituted forfeiture, all within the meaning of § 2462.
Accordingly, the court dismissed the action with prejudice.
II. DISCUSSION
Although it accepts that § 2462 expressly bars its claim for civil money
penalties, the SEC appeals the district court’s ruling that § 2462 applies to the
remaining remedies it sought: injunctive relief, declaratory relief, and
disgorgement. 1 We review de novo issues of law, including questions of statutory
1
The SEC also challenges on appeal the district court’s conclusion that § 2462 is
jurisdictional in nature. We need not decide for purposes of this appeal whether § 2462’s time
bar is jurisdictional such that a time-barred § 2462 claim should be dismissed for lack of subject
matter jurisdiction. There is no question that we and the district court have jurisdiction to
consider and apply § 2462’s statute of limitations in this case. Whether § 2462’s time bar is a
jurisdictional requirement or only an affirmative defense does not impact our analysis here
because the parties raise no issue on appeal about whether the defendants waived the statute of
limitations, whether the SEC is entitled to equitable tolling, or who bears the burden of proof.
See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008) (discussing
whether time bars are jurisdictional or constitute an affirmative defense). For our purposes and
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interpretation. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir.
2006). “[A]ny statute of limitations sought to be applied against the United States
must receive a strict construction in favor of the Government.” United States v.
Banks, 115 F.3d 916, 919 (11th Cir. 1997) (internal quotation marks omitted). We
consider in turn the applicability of § 2462 to the SEC’s request for injunctive
relief, declaratory relief, and disgorgement.
A. Injunctive Relief
The district court held that § 2462 applied here because the injunction the
SEC requested was “nothing short of a penalty” and therefore covered by § 2462’s
plain language. SEC v. Graham, 21 F. Supp. 3d 1300, 1310 (S.D. Fla. 2014). We
cannot agree.
Our precedent forecloses the argument that § 2462 applies to injunctions,
which are equitable remedies. See Nat’l Parks & Conservation Ass’n v. Tenn.
Valley Auth., 502 F.3d 1316, 1326 (11th Cir. 2007) (noting, where the plaintiffs
sought an injunction to enforce EPA standards, “the statute of limitations set forth
in 28 U.S.C. § 2462 applies only to claims for legal relief; it does not apply to
equitable remedies”); Banks, 115 F.3d at 919 (“[S]ection 2462 does not apply to
equitable remedies.”). In Banks, the government obtained an injunction against a
the parties’, it makes no difference in this case whether we treat § 2462’s time bar as a
jurisdictional requirement or an affirmative defense. Accordingly, we do not reach this issue.
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landowner requiring that he stop discharging materials into the wetlands on his
property and take steps to restore the wetlands to their undisturbed condition
before he began discharging the materials. 115 F.3d at 918. Despite Banks’s
claim that the action was barred by § 2462, we upheld the injunction, observing
that it was an equitable remedy and thus beyond the reach of that statute. Id. at
919. An injunction requiring (or forbidding) future conduct is not subject to
§ 2462’s statute of limitations.
Even if we were not bound by Banks, still we would conclude that § 2462
does not apply to injunctions like the one in this case. Section 2462 does not
define the term “penalty”; we therefore look to the term’s ordinary meaning. See
Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012) (“When a term
goes undefined in a statute, we give the term its ordinary meaning.”); Consol.
Bank, N.A. v. U.S. Dep’t of Treasury, 118 F.3d 1461, 1463-66 (11th Cir. 1997).
Definitions of the term “penalty” abound. The Supreme Court has defined a
penalty as “something imposed in a punitive way for an infraction of a public law.”
Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 423 (1915). Similarly, the
Oxford English Dictionary says a penalty is “[a] punishment imposed for breach of
law, rule, or contract.” Penalty, Oxford English Dictionary (2d ed. 1989). Black’s
Law Dictionary defines the term as “[p]unishment imposed on a wrongdoer,
[usually] in the form of imprisonment or fine; [especially,] a sum of money
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exacted as punishment for either a wrong to the state or a civil wrong (as
distinguished from compensation for the injured party’s loss).” Penalty, Black’s
Law Dictionary (10th ed. 2014).
Each of these definitions has the common element of looking backward in
time. That is, a penalty addresses a wrong done in the past. See, e.g., Reich v.
Occupational Safety & Health Review Comm’n, 102 F.3d 1200, 1202 (11th Cir.
1997) (noting that “[u]nlike injunctive relief which addresses only ongoing or
future violations, civil penalties address past violations”).
Injunctions, by contrast, typically look forward in time. See United States v.
W. T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to
prevent future violations . . . .”); Strickland v. Alexander, 772 F.3d 876, 883 (11th
Cir. 2014) (“[I]njunctions regulate future conduct only; they do not provide relief
for past injuries already incurred and over with.”). An injunction therefore is not a
penalty within the meaning of § 2462. See United States v. Or. State Med. Soc’y,
343 U.S. 326, 333 (1952) (“The sole function of an action for injunction is to
forestall future violations. It is so unrelated to punishment or reparations for those
past that its pendency or decision does not prevent concurrent or later remedy for
past violations by indictment or action for damages by those injured.”). If
imposed, the injunction in this case would only prevent the defendants from
violating securities laws in the future.
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Giving the term “penalty” its ordinary meaning, as we must, the purpose and
effect of the SEC’s claim for injunctive relief are nonpunitive, and § 2462’s time
bar is inapplicable. Because the ordinary meaning of “penalty” is unambiguous,
our analysis ends here. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254
(1992) (“When the words of a statute are unambiguous, then, this first canon [of
statutory construction] is also the last: judicial inquiry is complete.” (internal
quotation marks omitted)).
Contrary to the defendants’ argument, Gabelli v. SEC does not compel a
different conclusion. 133 S. Ct. 1216 (2013). Although Gabelli cautioned against
“leav[ing] defendants exposed to Government enforcement action . . . for an
additional uncertain period into the future,” in that case the Supreme Court held
that for purposes of § 2462 a fraud claim brought by the SEC accrues when the
defendant’s allegedly fraudulent conduct occurred. 133 S. Ct. at 1221-24. In
declining to adopt the discovery rule, which would delay accrual “until the plaintiff
has ‘discovered’ his cause of action,” the Court distinguished between a private
action brought by “a defrauded victim seeking recompense” and “the Government
bringing an enforcement action for civil penalties.” Id. at 1221 (internal quotation
marks omitted). The Court emphasized that, unlike a private action seeking
compensatory damages, the SEC enforcement action “involve[d] penalties, which
go beyond compensation, are intended to punish, and label defendants
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wrongdoers.” Id. at 1223. But the Court did not hold that all remedies the SEC
may seek in an enforcement action are penalties and, in particular, did not address
whether an SEC action seeking injunctive relief or disgorgement falls within
§ 2462’s ambit. Id. at 1220 n.1. Thus, Gabelli does not inform our inquiry as to
whether § 2462 governs claims for injunctive relief.
Because injunctions are equitable, forward-looking remedies and not
penalties within the meaning of § 2462, we conclude that the five-year statute of
limitations is inapplicable to injunctions such as the one the SEC sought in this
case.2
B. Declaratory Relief
We agree with the district court, however, that the declaratory relief the SEC
sought is backward-looking and thus would operate as a penalty under § 2462. On
2
We note that the injunction the SEC requested in the operative complaint sought to
prevent the defendants from violating federal securities laws, otherwise known as an “obey-the-
law” injunction. Repeatedly we have said that, in the context of SEC enforcement actions and
otherwise, “obey-the-law” injunctions are unenforceable. See SEC v. Smyth, 420 F.3d 1225,
1233 n.14 (11th Cir. 2005); Fla. Ass’n of Rehab. Facilities v. Fla. Dep’t of Health & Rehab.
Servs., 225 F.3d 1208, 1222-23 (11th Cir. 2000) (citing cases holding that obey-the-law
injunctions are unenforceable). In particular, “an injunction which merely tracks the language of
the securities statutes and regulations,” as the injunction in this case presently is described, “will
not clearly and specifically describe permissible and impermissible conduct” as required by
Federal Rule of Civil Procedure 65(d). SEC v. Goble, 682 F.3d 934, 952 (11th Cir. 2012). We
“condemn these injunctions because they lack specificity and deprive defendants of the
procedural protections that would ordinarily accompany a future charge of a violation of the
securities laws.” Id. at 949. The SEC argues, however, and we agree, that it is premature to
review the precise nature of the injunction because, at this stage, the district court has issued no
injunction for us to evaluate. It is at least possible that the SEC could seek injunctive relief that
would be specific and narrow enough that the parties would be afforded sufficient warning to
conform their conduct.
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this point, Gabelli is instructive. There, the Supreme Court recognized that civil
penalties “go beyond compensation, are intended to punish, and label defendants
wrongdoers.” Id. at 1223. The declaratory relief at issue here is no different. A
declaration of liability goes beyond compensation and is intended to punish
because it serves neither a remedial nor a preventative purpose; it is designed to
redress previous infractions rather than to stop any ongoing or future harm. Cf.
Green v. Mansour, 474 U.S. 64, 67 (1985) (characterizing declaratory relief that
“related solely to past violations of federal law” as retrospective for purposes of the
Eleventh Amendment). A public declaration that the defendants violated the law
does little other than label the defendants as wrongdoers.
The SEC urges us to exempt declaratory relief from § 2462 because the SEC
may use findings of past violations of securities laws to obtain other remedies. We
are unpersuaded. First, some of the remedies the SEC could seek (i.e., civil
penalties and, as discussed below, disgorgement) are themselves subject to § 2462
and similarly would be time-barred after five years. Second, declaratory relief that
establishes past securities law violations is unnecessary for the SEC to secure an
injunction. The SEC need only establish “(1) a prima facie case of previous
violations of federal securities laws, and (2) a reasonable likelihood that the wrong
will be repeated.” SEC v. Calvo, 378 F.3d 1211, 1216 (11th Cir. 2004). A prima
facie case of previous violations may, but need not, come in the form of
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declaratory relief. In fact, the SEC may obtain an injunction when it is impossible
to use declaratory relief as a predicate, such as with a defendant who has never
before violated securities laws. See SEC v. Miller, 744 F. Supp. 2d 1325, 1336
(N.D. Ga. 2010) (“[N]umerous courts have found no requirement that a defendant
must have committed violations before the ones at issue. Indeed, the ‘previous’
violations relied upon by federal courts as a basis for injunctive relief are
frequently the same ones just proven in the liability portion of those cases.”).
Third, nothing in this analysis prevents the SEC from obtaining declaratory relief
as a predicate for other remedies as long as the SEC does so before the statute of
limitations expires.
Because the declaratory relief the SEC sought here fits the definition of a
penalty, we hold that such relief is subject to § 2462’s five-year statute of
limitations.
C. Disgorgement
The district court concluded that “the disgorgement of all ill-gotten gains
realized from the alleged violations of the securities laws—i.e., requiring
defendants to relinquish money and property—can truly be regarded as nothing
other than a forfeiture (both pecuniary and otherwise), which remedy is expressly
covered by § 2462.” Graham, 21 F. Supp. 3d at 1310-11. We agree with the
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district court that for the purposes of § 2462 forfeiture and disgorgement are
effectively synonyms; § 2462’s statute of limitations applies to disgorgement.
Following the same principles of statutory interpretation as we did with the
term “penalty,” we look to the ordinary meaning of “forfeiture.” Webster’s
Dictionary defines forfeiture as “the divesting of the ownership of particular
property of a person on account of the breach of a legal duty and without any
compensation to him.” Forfeiture, Webster’s Third New Int’l Dictionary (2002).
The Oxford English Dictionary likewise defines forfeiture as “[t]he fact of losing
or becoming liable to deprivation of (an estate, goods, life, an office, right, etc.) in
consequence of a crime, offence, or breach of engagement.” Forfeiture, Oxford
English Dictionary (2d ed. 1989). These definitions illustrate that forfeiture occurs
when a person is forced to turn over money or property because of a crime or
wrongdoing.
We find no meaningful difference in the definitions of disgorgement and
forfeiture. For example, Black’s Law Dictionary defines disgorgement as “[t]he
act of giving up something (such as profits illegally obtained) on demand or by
legal compulsion.” Disgorgement, Black’s Law Dictionary (10th ed. 2014).
Black’s Law Dictionary provides a very similar definition for forfeiture: “[t]he loss
of a right, privilege, or property because of a crime, breach of obligation, or
neglect of duty.” Forfeiture, Black’s Law Dictionary (10th ed. 2014). The
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Supreme Court, too, has used the terms interchangeably. See United States v.
Ursery, 518 U.S. 267, 284 (1996) (“Forfeitures serve a variety of purposes, but are
designed primarily to confiscate property used in violation of the law, and to
require disgorgement of the fruits of illegal conduct.”). We thus conclude that for
the purposes of § 2462 the remedy of disgorgement is a “forfeiture,” and § 2462’s
statute of limitations applies. 3
The SEC argues that disgorgement cannot be forfeiture because the two
terms refer to fundamentally different things: disgorgement only includes direct
proceeds from wrongdoing, whereas forfeiture can include both ill-gotten gains
and any additional profit earned on those ill-gotten gains (i.e., secondary profits).
Compare SEC v. Blatt, 583 F.2d 1325, 1335 (5th Cir. 1978) (recognizing that
“[t]he court’s power to order disgorgement extends only to the amount with
interest by which the defendant profited from his wrongdoing”), 4 with United
States v. Reed, 924 F.2d 1014, 1017 (11th Cir. 1991) (requiring defendants to
forfeit a building and its subsequent increase in property value between the time
the crime began and when the building was sold). But even under the definitions
the SEC puts forth, disgorgement is imposed as redress for wrongdoing and can be
3
Because we hold that disgorgement is a “forfeiture,” 28 U.S.C. § 2462, we need not
reach the defendants’ alternative argument that disgorgement is a “penalty.” Id.4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before the close of business on
September 30, 1981.
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considered a subset of forfeiture. Because forfeiture includes disgorgement,
§ 2462 applies to disgorgement.
Furthermore, to read the two terms according to the SEC’s interpretation
would violate the long-settled principle “that words in statutes should be given
their ordinary, popular meaning unless Congress clearly meant the words in some
more technical sense.” United States v. Nat’l Broiler Mktg. Ass’n, 550 F.2d 1380,
1386 (5th Cir. 1977), aff’d, 436 U.S. 816 (1978). We find no indication that in
enacting § 2462’s widely applicable statute of limitations, Congress meant to adopt
the technical definitions of forfeiture and disgorgement the SEC urges over the
words’ ordinary meanings. “Had Congress wished unique or specialized meanings
to attach to any of these terms, it readily could have taken the obvious and usual
step either of including a specialized meaning in the definitions section of the
statute or by using clear modifying language in the text of the statute.” Consol.
Bank, 118 F.3d at 1464. Particularly because § 2462 applies to a wide variety of
agency actions and contexts, we are loath to adopt the technical definition that the
SEC promotes. In sum, § 2462 applies to the declaratory relief and disgorgement
the SEC sought, but not to the injunctive relief.
III. CONCLUSION
We conclude that the SEC is time-barred from proceeding with its claims for
declaratory relief and disgorgement because, under the plain meaning of 28 U.S.C.
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§ 2462, these remedies are a penalty and a forfeiture, respectively. But, because an
injunction is not a penalty under § 2462, we remand for further proceedings on that
remedy in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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