Since 1955, a company called Tri-Dam has operated a dam that provides electricity to the residents of California. Tri-Dam v. Schediwy, No. 1: 11 - CV - 01141 AWI-SMS (E.D. Cal. Dec. 21, 2011). As a licensed dam operator, Tri-Dam was authorized by the federal government to grant permits to property owners who wished to build boat docks and other small structures on the project site, as long as the structures complied with the Federal Power Act (FPA). In 2004, Tri-Dam gave two shoreline property owners, Richard Schediwy and Laura Straus, permission to build a dock and retaining wall near the dam. Shortly thereafter, Tri-Dam discovered that the wall violated the FPA. Over the course of the next several years, Tri-Dam and the two property owners exchanged numerous communications attempting to resolve the matter, but the wall was never fixed or removed. Finally, on July 25, 2011, Tri-Dam filed an action seeking a permanent injunction that would force the two property owners to tear down their wall.
The defendants argued that Tri-Dam waited too long to seek such equitable relief, however, contending that Tri-Dam had actual knoweldge of the structure's nonconformity since 2004 and therefore should be statutorily barred from bringing such a claim. Since “[t]he FPA has no statute of limitations of general applicability,” the parties instead applied Congress's civil "catch-all" limitations statute, 28 U.S.C. § 2462, which reads,
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 otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, . . . .
According to the Eastern District of California, “The issue, therefore, is whether Tri-Dam's action for equitable relief is barred by the five-year statute of limitations under 28 U.S.C. § 2462” since the statute doesn’t explicitly bar actions seeking injuctive relief.
This question, as the district court points out, has led to the following circuit split:
There appears to be a circuit split on the issue of whether 28 U.S.C. § 2462 applies to injunctive relief. The plain language of the statute does not address equitable remedies. Some courts have held that § 2462 therefore bars only penalty suits and not declaratory or injunctive relief when sought by the government. See e.g., U.S. v. Telluride Company, 146 F.3d 1241, 1248 (10th Cir. 1998) (holding that traditional notions of justice requires that statutes of limitations be strictly construed in favor of the Government, such that the Government's request for injunctive relief was not barred by § 2462); U.S. v. Banks, 115 F.3d 916, 919 (11th Cir. 1997) (holding that limitations period does not apply where the government seeks equitable relief in its official enforcement capacity); Federal Election Com'n v. National Republican Senatorial Committee, 877 F. Supp. 15, 20-21 (D.C. Cir. 1995) (allowing FEC's claims for declaratory and injunctive relief to proceed). The Ninth Circuit, however, has invoked the concurrent remedy rule, holding that where a "claim for injunctive relief is connected to the claim for legal relief, the statute of limitations applies to both." Federal Election Com'n v. Williams, 104 F.3d 237, 240 (9th Cir. 1996). In Williams, an action by the Federal Election Commission ("FEC") for violations of campaign contribution laws, the district court imposed a $10,000 civil penalty and enjoined the defendant from similar violations for a period of ten years. Id. at 239. The Ninth Circuit reversed, holding that § 2462 five-year statute of limitations barred the FEC's action for civil penalties as well as equitable remedies because "equity will withhold its relief in such a case where the applicable statute of limitations would bar the concurrent legal remedy." Id. at 240 (quoting Cope v. Anderson, 331 U.S. 461, 464, 67 S. Ct. 1340, 1341 (1947)).
The court ultimately concluded that parties “may seek equitable relief beyond the five-year statute of limitations in § 2462 because there is no concurrent legal remedy that would be barred by the statute.”