     Case: 17-10235   Document: 00514663975     Page: 1   Date Filed: 10/01/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-10235                United States Court of Appeals
                                                                      Fifth Circuit

                                                                    FILED
                                                              October 1, 2018
UNITED STATES OF AMERICA,
                                                               Lyle W. Cayce
             Plaintiff - Appellant                                  Clerk


SIERRA CLUB,

             Intervenor Plaintiff - Appellant

v.

LUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER
COMPANY, L.L.C.,

             Defendants - Appellees




                Appeals from the United States District Court
                     for the Northern District of Texas


Before JOLLY, DENNIS, and ELROD, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Today we are presented with claims brought by the United States
asserting that Luminant Generation Company and Big Brown Power Company
violated the Clean Air Act by failing to obtain a statutorily mandated
preconstruction permit for the modification of their facilities. The government
seeks civil penalties and injunctive relief. Because the government filed its
action more than five years after construction began on the facilities, the
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                                  No. 17-10235
district court dismissed the government’s civil-penalty and injunctive-relief
claims as time barred under Federal Rule of Civil Procedure 12(b)(6). The
court also held that the injunctive-relief claims were subject to dismissal under
Rule 12(b)(1) for lack of jurisdiction.
      We join the other circuits in holding that such an action to recover civil
penalties for violation of the Preconstruction requirements for major emitting
facilities under 42 U.S.C § 7475(a) must be brought within five years of the
first day of the alleged construction period. Because the government waited
more than five years to file the instant suit, its legal claims are time barred.
Therefore, we affirm dismissal of the legal claims.
      But the government also asks for injunctive relief. We hold that the
government, in its sovereign capacity, is exempted from the concurrent-
remedies doctrine. We reach this conclusion because, generally, government
claims, brought in its sovereign capacity, are not subject to any limitations
period, unless Congress expresses its clear consent thereto. Here, the only
applicable statute of limitations makes no reference to injunctive relief. Thus,
the statute of limitations does not apply to the government’s claims for
injunctive relief that are not civil fines, penalties, or forfeitures. Finally, we
find no support for the district court’s assumption that it was without
jurisdiction to entertain any injunctive relief based on past violations of
§ 7475(a). Of course, that is not to say that the government is entitled to
injunctive relief here. We hold only that the district court is not barred by the
statute of limitations, nor by the absence of jurisdiction, from further
considering whether equitable relief may in some form be available to the
government. We remand the injunctive-relief claims to the district court for
further consideration.




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                                      No. 17-10235
                                             I.
       The Clean Air Act (“CAA”), through the Prevention of Significant
Deterioration Program, 1 mandates the following two “Preconstruction
requirements,” codified at 42 U.S.C § 7475(a), that are central to this appeal:
       No major emitting facility on which construction is commenced
       after August 7, 1977, may be constructed . . . unless--
              (1) a permit has been issued for such proposed facility . . .
              setting forth emission limitations . . . ;
       ....
              (4) the proposed facility is subject to the best available
              control technology [“BACT”] for each pollutant subject to
              regulation . . . .
42 U.S.C. § 7475(a) (2012). In other words, proposed facilities require a permit
to begin construction, and those proposed facilities must be “subject to” the
BACT in order to get a permit. 2 Each state must adopt a state implementation
plan (“SIP”) to meet these goals, and Texas’s SIP, which the EPA has approved,
requires “Permits for New Construction or Modification.” 3
       Important here, major emitting facilities built before August 1977 do not
escape the Preconstruction requirements because the term “construction”
“includes the modification” of a facility. 42 U.S.C. § 7479. “Modification” is
defined as “any physical change in, or change in the method of operation of a
stationary source which increases the amount of any air pollutant emitted by



       1   We have written extensively on the history and intent of the CAA and, more
specifically, the Prevention of Significant Deterioration Program. See CleanCOALition v.
TXU Power, 536 F.3d 469, 471–73 (5th Cir. 2008).
        2 “[B]est available control technology” is not technology in the general sense, but

instead “an emission limitation based on the maximum degree of reduction of each pollutant
subject to regulation . . . .” 42 U.S.C. § 7479(3).
        3 Specifically, the Texas SIP requires that “[b]efore any actual work is begun on the

facility, any person who plans to construct any new facility or to engage in the modification
of any existing facility which may emit air contaminants into the air of this state” must get
a permit or satisfy certain conditions. 30 Tex. Admin. Code § 116.110.
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                                       No. 17-10235
such source or which results in the emission of any air pollutant not previously
emitted.” Id. § 7411. In short, all pre-1977 major emitting facilities must
comply with the § 7475(a) permit requirements before undergoing a physical
change or change in operation that increases pollution above a set floor.
       Now for the facts.         We are concerned today with two power-plant
facilities built before 1977, each of which houses multiple power-generating
units. The first is the Martin Lake Power Plant, owned and operated by
defendant Luminant Generation Company, LLC. And the second is the Big
Brown Power Plant, 4 owned by Big Brown Power Company, LLC, and operated
by Luminant (collectively, “the defendants”). 5
       The district court did not address and the defendants do not contest on
appeal whether the defendants’ facilities were required to comply with the
§ 7475(a) Preconstruction requirements, so we proceed on the basis that they
were. 6 And at this early stage of the litigation, we must assume the defendants
constructed their respective facilities without a permit or ensuring the post-
construction facilities would be subject to BACT. In response to these alleged
violations, the government took legal action on August 16, 2013, filing suit in
Texas federal court. The government alleged that the defendants violated, and
are continuing to violate, the § 7475(a) Preconstruction requirements and
Texas SIP by (1) having constructed their facilities without obtaining the




       4   Big Brown decommissioned and retired on February 12, 2018.
       5   An environmental organization ranked Martin Lake 8th and Big Brown 72nd on a
list of “100 Most-Polluting Power Plants” in the United States. Jordan Schneider & Julian
Boggs, America’s Dirtiest Power Plants, ENVIRONMENT AMERICA 26, 28 (Sept. 2014),
https://environmentamericacenter.org/sites/environment/files/reports/EA_Dirtiest_power_pl
ants_scrn_0.pdf.
         6 “We are fundamentally a court of review, not of first analysis.” La. World Exposition

v. Fed. Ins. Co., 858 F.2d 233, 253 (5th Cir. 1988).
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                                       No. 17-10235
requisite permit and (2) operating without a permit and continuously failing
to meet BACT emission limitations. 7
       Dates are important here. The original complaint alleges nine CAA
violations, the following six of which are violations of the § 7475(a)
Preconstruction requirements:
       (1) Martin Lake Unit 1 underwent major capital projects from
       March 4, 2006 – April 13, 2006 without a permit.
       (2) Martin Lake Unit 2 underwent major capital projects from
       February 16, 2007 – April 5, 2007 without a permit.
       (3) Martin Lake Unit 3 underwent major capital projects from
       February 26, 2005 – April 2, 2005 without a permit.
       (4) Martin Lake Unit 1 underwent major capital projects from
       March 1, 2009 – April 1, 2009 and “at or near the same time . . .
       Luminant changed the method of operation of the boiler” without
       a permit.
       (5) Martin Lake Unit 3 underwent major capital projects from
       February 10, 2008 – April 5, 2008 and “at or near the same
       time . . . and/or within about a year thereafter, Luminant changed
       the method of operation of the boiler” without a permit.
       (6) Big Brown Unit 2 underwent major capital projects from
       October 15, 2005 – November 13, 2005 without a permit.
According to the government, these “unlawful major modifications” of major
emitting facilities caused “significant amounts of SO2 and NOx pollution.” As
to each claim, the government asks for civil penalties and injunctive relief
under 42 U.S.C. § 7413(b). 8




       7  The statutory basis for these claims is 42 U.S.C. § 7475 (2012) (Preconstruction
requirements), Texas Administrative Code §§ 116.110, 116.111, 116.160 (2001) (Texas SIP),
and 40 C.F.R § 52.21 (1996).
       8 In total, the government raises six § 7475(a) claims, two Title V claims, and one § 114

claim. The plaintiffs have withdrawn their fourth § 7475(a) claim and additional § 114
procedural claim. And although the district court dismissed the Title V claims, the plaintiffs
do not argue on appeal that the district court erred in doing so.
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                                   No. 17-10235
         The defendants moved to dismiss § 7475(a) claims one, two, three, five,
and six (not four) as time barred, arguing that the alleged unpermitted
construction periods occurred outside the five-year statute of limitations, i.e.
before August 16, 2008. In response, the government primarily argued that
claims under § 7475(a) do not need to be brought within five years of
construction because the Preconstruction requirements apply to constructing
a facility and operating it. Thus, according to the government, each day a post-
construction facility operates without a permit or BACT is a new, discrete
§ 7475(a) violation. In a footnote, the government also argued that it pleaded
a construction in claim five—a change in the method of operation of the
boiler—that occurred as late as April 2009, which falls within the limitations
period. So even if § 7475(a) claims accrue at the time of construction, the
government argued that the boiler-operation allegation in claim five should
have nevertheless survived.
         The district court acknowledged the government’s argument that the
boiler-operation allegation fell within the five-year period but, without further
explanation, found that claim five accrued more than five years before suit was
filed.    Ultimately, the district court agreed with the defendants that the
government’s claims “first accrued on the modification start dates,” and
dismissed claims one, two, three, five, and six (civil penalties and injunctive
relief) as time-barred under Federal Rule of Civil Procedure 12(b)(6). The court
also found that the claims for injunctive relief, as reflected in the complaint,
were subject to dismissal under Rule 12(b)(1).
         After the district court’s dismissal ruling, only the government’s fourth
§ 7475(a) claim and an additional procedural claim survived. Once Sierra Club
intervened as of right, joining the government as plaintiff (collectively, “the
plaintiffs”), the plaintiffs then filed a second amended complaint withdrawing
the surviving claims.       The district court entered final judgment for the
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                                      No. 17-10235
defendants. The plaintiffs now appeal the district court’s judgment dismissing
all claims. But they challenge only the dismissal of the first, second, third,
fifth, and sixth § 7475(a) claims.
                                            II.
       We review dismissals under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) de novo. Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th
Cir. 2001). Dismissal under Rule 12(b)(6) based on statute of limitations is
proper only “where it is evident from the [complaint] that the action is barred
and the [complaint] fail[s] to raise some basis for tolling.” Jones v. Alcoa, Inc.,
339 F.3d 359, 366 (5th Cir. 2003). It is well established that “the limitations
period runs from the moment a plaintiff’s claim ‘accrues.’”                King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 762 (5th Cir. 2015).
                                            III.
       We start our review by addressing two preliminary matters. First, we
hold that any challenge to the district court’s holding that the relevant
unpermitted construction periods fell outside the five-year statute of
limitations has been abandoned. 9 See Edwards v. Johnson, 209 F.3d 772, 775
n.1 (5th Cir. 2000); see also Jackson Women’s Health Org. v. Currier, 760 F.3d
448, 452 (5th Cir. 2014). For purposes of this appeal, each of the unlawful
construction periods alleged in the relevant claims took place more than five
years before the government filed suit.




       9  In its reply brief, Sierra Club re-urges the government’s argument made below that
the complaint’s fifth claim alleges a construction period that began within the five-year
limitations period. But that argument is not presented in either the government’s or Sierra
Club’s opening briefs. Moreover, Sierra Club, who now pushes the argument at this late
hour, explains in its opening brief that the complaint “alleged [the defendants] made six
[unpermitted] modifications,” seemingly ignoring the additional boiler-operation
modification in claim five. (Emphasis added). Therefore, we find this argument to be too
little, too late.
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                                  No. 17-10235
      Second, the parties do not dispute that 28 U.S.C § 2462 generally bars
all CAA claims for the enforcement of any civil fine, penalty, or forfeiture that
accrued more than five years before suit was filed. See United States v. Marine
Shale Processors, 81 F.3d 1329, 1357 (5th Cir. 1996). The government filed
suit on August 16, 2013, so the plaintiffs may enforce a civil fine, penalty, or
forfeiture only for violations accruing on or after August 16, 2008. Thus, the
legal question presented today is when does a § 7475(a) violation accrue as a
matter of law, i.e. what event(s) trigger the running of the statute of
limitations.   The defendants contend that a facility modified without a
preconstruction permit violates § 7475(a) as a one-time occurrence:           the
moment construction begins without a preconstruction permit. The five-year
clock then begins to tick away, never to be restarted for a § 7475(a) claim
related to that unpermitted construction period. The plaintiffs argue, on the
other hand, that a facility modified without a permit continuously violates §
7475(a) anew each day it operates post-construction. Stated differently, a new
five-year clock begins to run each day a modified facility operates without a
permit. Under the plaintiffs’ interpretation, the defendants could be held
liable for civil penalties for each day their modified facilities operated without
a permit on or after August 16, 2008; on the other hand, the defendants’
interpretation means that all of the claims for civil fines, penalties, or
forfeitures are time barred.
      Thus, we will now proceed to address when § 7475(a) violations occur as
a matter of law, which determines the date the statute of limitations begins to
run on the respective claims. Once that date has been established, we will
decide whether any of the civil-penalty claims on appeal are time barred. In
the light of that holding, we will then turn to the availability of injunctive
relief. Taking the issues in that order, we begin.


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                                       No. 17-10235
                                              A.
                                      Civil Penalties
       The parties’ disagreement over when § 7475(a) claims accrue focuses on
the point in time that a complete violation of the Preconstruction requirements
occurs: whether, as the defendants argue, only at the moment unpermitted
construction commences or, as the government argues, also each day thereafter
that the plant operates without a permit post-construction. See United States
v. Core Labs., Inc., 759 F.2d 480, 482 (5th Cir. 1985) (“[T]he date of the
underlying violation has been accepted without question as the date when the
claim first accrued, and, therefore, as the date on which the statute [of
limitations] began to run.”). The district court held that a § 7475(a) claim
accrues “when construction or modification begins without the permit in hand.”
Unsurprisingly, the defendants urge us to accept that clear and relatively early
point in time. The plaintiffs, however, argue that a discrete violation occurs at
the moment unpermitted construction begins and each day thereafter that the
facility operates without a permit. 10
       We are not the first appellate court to consider whether the
Preconstruction requirements apply also to the daily operation of a facility,
such that the operation of an unpermitted facility is a fresh, daily violation of
§ 7475(a). The Third, Seventh, Eighth, Tenth, and Eleventh Circuits each have



       10  Apparently, the government’s argument would mean that each day an unpermitted
facility is not in operation does not violate § 7475(a) anew. In any event, the underlying point
is that operation is one thing, and construction is another. The statute we are interpreting,
§ 7475(a), is a statute relating to construction only, not to post-construction operation.
        On a related note, the plaintiffs do not argue that a new § 7475(a) claim accrues each
day of unpermitted construction. See Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d
666, 671–74 (10th Cir. 2016) (rejecting argument “that the statute of limitations resets on
each day of unpermitted construction”). Thus, we do not consider that theory. Today, we
decide only whether a § 7475(a) violation is a one-time event occurring at the moment
construction begins or whether operating a modified facility without having obtained a
preconstruction permit also violates the statute post-construction.
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                                        No. 17-10235
held that a violation of the § 7475(a) Preconstruction requirements occurs only
at some point during the construction period, and not to the subsequent
operation of the modified facility. Sierra Club v. Oklahoma Gas & Elec. Co.,
816 F.3d 666, 674 (10th Cir. 2016); United States v. EME Homer City
Generation, L.P., 727 F.3d 274, 284 (3d Cir. 2013); United States v. Midwest
Generation, LLC, 720 F.3d 644, 647 (7th Cir. 2013); Sierra Club v. Otter Tail
Power Co., 615 F.3d 1008, 1018 (8th Cir. 2010).; Nat’l Parks & Conservation
Ass’n, Inc. v. Tennessee Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007). For
the reasons that follow, we will follow the other circuits.
      We quite naturally begin with the text of § 7475(a). 11 “Unless otherwise
defined, statutory terms are generally interpreted in accordance with their
ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006).
Starting with the title of the statute, it reads “Preconstruction requirements,”
not “Operating requirements” nor even “Preconstruction and Operating
requirements.” Then scrolling down to the text of subsection a, Congress tells
us that the § 7475(a) requirements must be met before a facility “may be
constructed.” As we see it, this language can be read only one way: the
Preconstruction requirements are terms and conditions with which the facility
must comply in order for the facility to begin construction. They are not
requirements that arise at a point in time after the facility has begun




      11   We repeat, § 7475(a) requires:
      No major emitting facility on which construction is commenced after August 7,
      1977, may be constructed . . . unless--
               (1) a permit has been issued for such proposed facility . . . setting forth
               emission limitations . . . ;
      ....
               (4) the proposed facility is subject to the best available control
               technology [“BACT”] for each pollutant subject to regulation . . . .
                                               10
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                                       No. 17-10235
construction or resumed operation. By its plain language, § 7475(a) itself does
not impose post-construction operational obligations on facilities. 12
       The plaintiffs point us to other related provisions of the CAA in support
of their position, but those CAA sections do not change the plain meaning of
§ 7475(a). For example, there are two CAA provisions that explicitly refer to
the operation of a facility. See, e.g., 42 U.S.C § 7411(e) (“[I]t shall be unlawful
. . . to operate such source in violation of any standard of performance
applicable to such source.”); id. § 7661a(a) (“[I]t shall be unlawful for any
person to . . . operate an affected source . . . except in compliance with a permit
issued by a permitting authority . . . .”). “[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” United States v. Wong Kim Bo, 472
F.2d 720, 722 (5th Cir. 1972).
       Although the statutory text of § 7475(a) leads us to a clear answer, i.e.
§ 7475(a) violations do not extend into post-construction operation, the
plaintiffs suggest that our jurisprudence offers a nod to their view. In United
States v. Marine Shale Processors, the government sued Marine Shale, a
hazardous waste-treatment facility, for, inter alia, “operating several minor
emission sources without a permit in violation of the [CAA].” 81 F.3d at 1352.
Marine Shale argued in defense that “because emissions from each minor
source began more than five years before the United States filed suit,” those



       12 Our conclusion that § 7475(a) imposes only preconstruction obligations on a facility
does not conflict with our opinion in Sierra Club, Inc. v. Sandy Creek Energy Associates, L.P.,
627 F.3d 134, 141 (5th Cir. 2010). In Sandy Creek, we held that a violation of 42 U.S.C § 7414,
which has statutory language similar to § 7475(a), occurs as long as construction is ongoing.
As we have noted, the plaintiffs in this case do not argue that a facility violates § 7475(a)
each day it constructs without a permit; instead, they argue a facility violates § 7475(a) each
day it operates without a permit. Our opinion in Sandy Creek does not speak to the question
of operational obligations.
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                                          No. 17-10235
claims were barred by the five-year statute of limitations. Id. at 1357. A panel
of this court disagreed, holding that because 42 U.S.C § 7413(b), the civil-
enforcement statute, “contemplates a fine for each day a minor source operates
in violation of law,” minor-source emissions from unpermitted facilities
occurring within the five-year limitations period are actionable even if the
unpermitted emissions began more than five years before suit was filed. Id.
Importantly, § 7413(b) is the civil-enforcement statute for violation of
§ 7475(a). 13
       Marine Shale does not, however, control our decision today. As Marine
Shale explained, “The CAA statutory scheme contemplates at least two
different types of air permits unhappily named ‘preconstruction permits’ and
‘operating permits,’” and “[t]he distinction between [them] is critical.” Id. at
1355–56. 14        Marine Shale addressed a violation concerning a facility’s
operation without a permit. See, e.g., id. at 1352 (referring only to “permit”



       13   The civil-enforcement statute, 42 U.S.C. § 7413(b), reads:
       The Administrator shall . . . commence a civil action for a permanent or
       temporary injunction, or to assess and recover a civil penalty of not more than
       $25,000 per day for each violation, or both, in any of the following instances:
                 (1) Whenever such person has violated, or is in violation of, any
                 requirement or prohibition of an applicable implementation plan or
                 permit. . . .
                 (2) Whenever such person has violated, or is in violation of, any other
                 requirement or prohibition of this subchapter, section 7603 of this title,
                 subchapter IV-A, subchapter V, or subchapter VI of this chapter . . . .
                 (3) Whenever such person attempts to construct or modify a major
                 stationary source in any area with respect to which a finding under
                 subsection (a)(5) of this section has been made.
       14 The Marine Shale panel noted that “confusion easily result[s]” in distinguishing
between the two types of permits “from the fact that preconstruction permits often include
limits upon a source’s operations.” 81 F.3d at 1356. For the reasons explained, however,
there is no indication that § 7475(a) per se limits a source’s operations. That is not to say
that a preconstruction permit may never impose such limits. But of course, we are here
because the defendants never obtained a permit.
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                                       No. 17-10235
and “air permit”). 15 In contrast today, however, we are solely addressing the
preconstruction permit mandated by § 7475(a). Moreover, in the context of
statute of limitations, the Marine Shale panel addressed only the government’s
claim that Marine Shale failed to get a permit for operating minor-source
emissions; and § 7475(a) applies only to major-emitting facilities. So, there is
no indication that the Marine Shale opinion, in discussing the statute-of-
limitations issue there, was considering preconstruction permits under §
7475(a). 16 These distinctions between Marine Shale and our case illustrate the
complexity of environmental statutes and regulations, as well as the
importance in not confusing the myriad permits, pollutants, and prohibitions
that are implicated in regulating the environment.
       Accordingly, we conclude that Marine Shale does not address the case
we have today, and considering the clear statutory language of § 7475(a), we
hold that a violation of the Preconstruction requirements under § 7475(a)
occurs on the first day of unpermitted construction and the violation does not
extend into operation. Let us be clear: any claim asserted under § 7475(a)
accrues at the moment unpermitted construction commences.
       Finally, the plaintiffs argue that, even if the violation of § 7475(a) is a
single occurrence at the commencement of construction, the Texas SIP
construction-permit requirements obligate facilities to apply BACT during


       15  As to one of the permits at issue, Marine Shale “in effect conced[ed]” that it was a
“preconstruction permit,” 81 F.3d at 1356, but the government’s position is unknown. And
in any event, it is uncertain whether that preconstruction permit was the absent permit at
the center of the statute-of-limitations dispute. Indeed, the government here refers to the
permit at issue in Marine Shale as “another type of [CAA] permit.”
        16 Other courts have eschewed Marine Shale’s conclusory analysis in the context of

the § 7475(a) statute-of-limitations issue. See, e.g., United States v. Murphy Oil USA, Inc.,
143 F. Supp. 2d 1054, 1082–83 (W.D. Wis. 2001); see also Ivan Lieben, Catch Me If You Can
- the Misapplication of the Federal Statute of Limitations to Clean Air Act Psd Permit Program
Violations, 38 ENVTL. L. 667, 692–93 (2008) (“Without any useful discussion of much
significance to the PSD statute of limitations issue, the [Marine Shale] court also found that
the statute of limitations did not apply to the minor source permitting violations.”).
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                                         No. 17-10235
operation. 17 See Nat’l Parks Conservation Ass’n, Inc. v. Tennessee Valley Auth.,
480 F.3d 410, 418–19 (6th Cir. 2007) (holding the Tennessee SIP imposed
ongoing operational obligations and avoiding the necessity of any statutory
analysis of § 7475 itself).          We have previously held, however, that “the
preconstruction requirements set forth in [Title 30 of the Texas Administrative
Code, section 116.111(a)], such as evidence that the facility will utilize the best
available control technology, are preconditions for granting a preconstruction
permit.” CleanCOALition v. TXU Power, 536 F.3d 469, 477 (5th Cir. 2008)
(emphasis in original). That is to say, Texas SIP section 116.111(a) instructs
facilities what they must do to get a permit, not what obligations are imposed
on the continuing operations of the facility.
       We sum up what we have decided: Section 7475(a) violations occur on
the first day of construction, and the Texas SIP does not alter that holding. As
we have said, for purposes of this appeal, each construction period that the
plaintiffs say the defendants embarked upon in violation of § 7475(a)
commenced more than five years before the government filed suit to recover
civil penalties. Thus, the government’s claims for civil fines, penalties, and
forfeitures are time barred under the five-year statute of limitations set in 28
U.S.C. § 2462. 18 The district court, therefore, did not err in dismissing claims
one, two, three, five and six asking for that legal relief.




       17 The plaintiffs point to Texas SIP § 116.111(a)(2)(C–D), under which a “new
construction or modification” permit application must include information demonstrating:
       (C) Best available control technology (BACT). The proposed facility will utilize
       BACT . . . .
       (D) New Source Performance Standards (NSPS). The emissions from the
       proposed facility will meet the requirements of any applicable NSPS . . . .
30 Tex. Admin. Code § 116.111(a)(2)(C–D) (2001) (emphasis added).
       18 The plaintiffs do not appeal the district court’s ruling on the applicability of a tolling

agreement between the parties.
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                                       No. 17-10235
                                              B.
                                     Injunctive Relief
       In addition to asking for civil penalties under 42 U.S.C § 7413(b), the
government also requests injunctive relief. 19 And the plain language of § 2462
does not explicitly bar the claims for injunctive relief. 20 Nevertheless, the
district court dismissed the government’s equitable claims on two bases. First,
the district court held that because the legal claims are time barred by § 2462,
the injunctive-relief claims are also barred under the concurrent-remedies
doctrine.    And second, the court held that “Congress did not provide for
injunctive relief for past violations in the [CAA].” On appeal, we limit our
analysis to whether the district court erred in dismissing the injunctive-relief
claims for those two reasons.
                                              1.
                            Concurrent-Remedies Doctrine
       The Supreme Court has long recognized that “when the jurisdiction of
the federal court is concurrent with that of law, or the suit is brought in aid of


       19 At oral argument, counsel for the government was asked why the government had
chosen to bring its claims expressly and only under § 7475 of the CAA instead of an
alternative CAA section perhaps more friendly to the operational claims it seeks to assert
here. Counsel explained that requiring the defendants to comply with § 7475(a) was the only
way to impose BACT emission limitations on their respective facilities for certain pollutants.
       20 Under 28 U.S.C. § 2462:


       [A]n 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 . . . .
So injunctive-relief claims are barred under § 2462 if they are a “penalty.” The defendants
concede they have not yet argued to the district court that the injunctive relief sought here is
a penalty. And we do “not consider issues raised for the first time on appeal except in
extraordinary instances when such consideration is required to avoid a miscarriage of
justice.” Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Engineers, 217 F.3d 393, 398 (5th
Cir. 2000). This case presents no such extraordinary instance. For the life of this case, the
defendants have been free to argue to the district court that the relief requested was a
penalty; but they have not yet done so. See, e.g., S.E.C. v. Bartek, 484 F. App’x 949, 956 (5th
Cir. 2012) (affirming certain equitable remedies are penalties under § 2462).
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                                  No. 17-10235
a legal right, equity will withhold its remedy if the legal right is barred by the
local statute of limitations.” Russell v. Todd, 309 U.S. 280, 289 (1940); see also
Cope v. Anderson, 331 U.S. 461, 464 (1947); Nilsen v. City of Moss Point, Miss.,
674 F.2d 379, 387 (5th Cir. 1982), on reh’g, 701 F.2d 556 (5th Cir. 1983). For
the reasons we have explained, § 2462 clearly bars the legal claims here. The
question is whether the government’s equitable claims are also barred.
      At the outset of our analysis, we should make clear that, in the case of
private litigants, the concurrent-remedies doctrine appears to be alive, well,
and strong. For example, here, the concurrent-remedies doctrine may properly
be invoked against Sierra Club, a private party acting on its own behalf. See,
e.g., Oklahoma Gas & Elec. Co., 816 F.3d at 675. Indeed, to allow equitable
claims to proceed where the legal claims are time barred is counter-intuitive
to general legal thought and reasoning. So we make clear, we address a very
narrow set of circumstances: the sovereign acting in its sovereign capacity
when it has not legislatively conceded, in any explicit terms, that a time bar
may be applied to its equitable claims. It is that set of narrow circumstances
that informs the following discussion.
      The plaintiffs argue that the concurrent-remedies doctrine does not bar
their equitable claims for two reasons. First, Sierra Club argues that the
concurrent-remedies doctrine does not apply to actions under the CAA because
the civil-penalty and injunctive-relief provisions of the CAA are not concurrent.
But courts agree “civil penalties and equitable relief . . . are concurrent [where]
‘an action at law or equity could be brought on the same facts.’” Tennessee
Valley Auth., 502 F.3d at 1327 (quoting United States v. Telluride Co., 146 F.3d
1241, 1248 n.12 (10th Cir. 1998)). The parties do not dispute that the legal and
equitable claims appealed here are brought on the same facts. The concurrent-
remedies doctrine, therefore, is not inapt to this CAA action. See Otter Tail
Power, 615 F.3d at 1018–19; Tennessee Valley Auth., 502 F.3d at 1327.
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                                        No. 17-10235
       Second, the plaintiffs urge us to follow the Tenth and Eleventh Circuits
and acknowledge an exception to the concurrent-remedies doctrine in actions
brought by the government in its sovereign capacity. Telluride, 146 F.3d at
1248–49 (analyzing application of general statute of limitations, § 2462, to
Clean Water Act claim asking for legal and equitable relief); United States v.
Banks, 115 F.3d 916, 919 (11th Cir. 1997) (same).                     This issue is of first
impression for our court, and there is, frankly, minimal precedent to guide our
analysis. 21
       The Supreme Court has been unequivocal in its general demand that
equitable relief is prohibited when a concurrent legal remedy is barred. See,
e.g., Russell, 309 U.S. at 289. But the Supreme Court has not had occasion to
apply that doctrine to an action brought by the government in its sovereign
capacity. Furthermore, the Supreme Court has been equally clear in holding
that “an action on behalf of the United States in its governmental capacity . . .
is subject to no time limitation, in the absence of congressional enactment
clearly imposing it.” E. I. Du Pont De Nemours & Co. v. Davis, 264 U.S. 456,
462 (1924); see also United States v. P/B STCO 213, 756 F.2d 364, 368 (5th
Cir. 1985) (“The sovereignty of the United States exempts it from all periods of




       21  In Federal Election Commission v. Williams, the Ninth Circuit, finding the Federal
Election Commission’s legal claims barred by § 2462, applied the concurrent-remedies
doctrine to also bar the Commission’s equitable claims. 104 F.3d 237, 240 (9th Cir. 1996).
But in our view, there is no circuit split on the narrow issue before us because the Ninth
Circuit did not consider that the government, acting in its sovereign capacity, is subject to no
time limitation in the absence of clear consent. See Banks, 115 F.3d at 919 n.6 (“[Williams]. . .
failed to distinguish between the application of the statute of limitations to the United States
in its private versus its sovereign capacity. No other circuit has addressed this issue.”). The
Ninth Circuit held only that “because the claim for injunctive relief is connected to the claim
for legal relief, the statute of limitations [§ 2462] applies to both.” Williams, 104 F.3d at 240.
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                                       No. 17-10235
limitations except where, by legislation, it expressly has consented to a time
bar.”). 22
       It is somewhat problematic to reconcile these two rules when they
coincide in a single case. Even though the government has subjected itself to
the limitations imposed by § 2462 in CAA actions, the application of that
statute “must receive a strict construction in favor of the Government.” E.I.
Dupont, 264 U.S. at 462. To apply the concurrent-remedies doctrine here and
thus bar the government’s equitable claims would exceed those explicit
boundaries of sovereign consent.           After all, the government has expressly
consented to a statutory time bar only in “the enforcement of any civil fine,
penalty, or forfeiture.” 28 U.S.C. § 2462. We therefore can find no error in the
Tenth and Eleventh Circuits’ decision to exempt actions brought by the
government in its sovereign capacity from the application of the concurrent-
remedies doctrine. In short, Congress has given no express consent. Thus, the
district court erred in dismissing the government’s equitable-relief claims
under Rule 12(b)(6) based on the concurrent-remedies doctrine.
                                             2.
                                       Jurisdiction
       The district court also dismissed the injunctive-relief claims on
jurisdictional grounds under Rule 12(b)(1). The district court “assume[d]” that
its “jurisdiction over Clean Air Act claims does not extend to injunctive relief”
because “Congress did not provide for injunctive relief for past violations in the
[CAA] but did provide a remedy for Prevention of Significant Deterioration
violations before construction or modification” under 42 U.S.C § 7477. 23



       22  This rule “rests upon the general principle of policy applicable to all governments
that the public interest should not be prejudiced by the default or negligence of public
officers.” Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 349–50 (1927).
        23 Section 7477 states:


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                                         No. 17-10235
       We have been referred to no authority that § 7477 is meant to displace
the enforcement authority provided under § 7413. 24 See Alaska Dep’t of Envtl.
Conservation v. E.P.A., 540 U.S. 461, 490 (2004) (referring to § 7413 and § 7477
as “two independent CAA provisions”); Miller v. French, 530 U.S. 327, 340
(2000) (“[W]e should not construe a statute to displace courts’ traditional
equitable authority absent the ‘clearest command,’ or an ‘inescapable
inference’ to the contrary . . . .” (citation omitted)).
       Nor can we agree with the district court’s broad holding that it simply
lacks jurisdiction to consider any aspect of the injunctive relief requested here.
Section 7413(b) plainly gives district courts jurisdiction to restrain a violation,
require compliance, and award any other appropriate relief whenever a person
has committed a § 7475 violation. The district court cited United States v. EME




       The Administrator shall, and a State may, take such measures, including
       issuance of an order, or seeking injunctive relief, as necessary to prevent the
       construction or modification of a major emitting facility which does not conform
       to the requirements of this part . . . .
42 U.S.C. § 7477.
       24 We repeat, § 7413(b) states:


       The Administrator shall . . . commence a civil action for a permanent or
       temporary injunction, or to assess and recover a civil penalty of not more than
       $25,000 per day for each violation, or both, in any of the following instances:
              (1) Whenever such person has violated, or is in violation of, any
              requirement or prohibition of an applicable implementation plan or
              permit. . . .
              (2) Whenever such person has violated, or is in violation of, any other
              requirement or prohibition of this subchapter, section 7603 of this title,
              subchapter IV-A, subchapter V, or subchapter VI of this chapter . . . .
       ....
       Any action under this subsection may be brought in the district court of the
       United States for the district in which the violation is alleged to have occurred,
       or is occurring . . . and such court shall have jurisdiction to restrain such
       violation, to require compliance, to assess such civil penalty, to collect any fees
       owed . . . , and to award any other appropriate relief.
42 U.S.C. § 7413(b) (emphasis added).
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                                       No. 17-10235
Homer City Generation, L.P. as the basis for its assuming the absence of
jurisdiction in this case.           That case, in a critical way, is factually
distinguishable from the case we consider today. The Third Circuit addressed
injunctive relief against former owners of a facility who “cannot violate the Act
in the future.” 25 727 F.3d at 292. The district court also relied on the Seventh
Circuit’s opinion in United States v. Midwest Generation, LLC. But that case
appears to have applied the concurrent-remedies doctrine, see United States v.
U.S. Steel Corp., 16 F. Supp. 3d 944, 950–51 (N.D. Ind. 2014), which, in this
case, we have found does not apply to the United States as a sovereign. Thus,
the district court erred when it assumed that injunctive relief was beyond the
authority granted in the statute.
       This opinion, however, should not be read as either favoring or
disfavoring the grant of equitable relief. We hold only that the statute of
limitations that barred the legal relief does not itself bar equitable relief unless
it constitutes a penalty. On remand, the district court must further consider
whether any equitable relief is appropriate and proper under the legal and
factual circumstances of this case in which the legal relief has been time
barred. 26 We recognize that we are not giving the district court much guidance
in this task. Nevertheless, this case does come to us from a dismissal under
12(b)(6) and 12(b)(1); and here the question of injunctive relief when no legal
relief is available, is not an up or down question, especially since we have held



       25 The Third Circuit “express[ed] no opinion” on whether injunctions are “available in
general to remedy ongoing harm from wholly past violations.” Homer City, 727 F.3d at 291
n.19. And as to current owners, the court there explained that the government could, after
completion of a facility’s modification, “obtain an injunction requiring the owner and operator
to comply with the PSD requirements.” Id. at 289.
       26 In considering whether equitable relief, if any, is available, we simply note without

further comment the Seventh Circuit’s holding, “Once the statute of limitations expired, [the
defendant-facility] was entitled to proceed as if it possessed all required construction
permits.” Midwest Generation, 720 F.3d at 648.
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                                        No. 17-10235
that the doctrine of concurrent remedies does not apply against the sovereign.
Perhaps the answer to this knotty question of injunctive relief will reveal itself
after a full hearing and the presentations of the parties. And we hope that we
are not being too cowardly when we sincerely wish the district court good luck.
                                              IV.
       Now, we briefly summarize our holdings:                        The Preconstruction
requirements under § 7475(a) impose a one-time obligation on facilities to get
a permit before they begin construction. So when a facility violates § 7475(a),
it violates the statute on that singular occurrence when construction
commences without a permit in hand.                    Section 7475(a) actions for the
enforcement of any civil fine, penalty, or forfeiture must be brought within five
years. The plaintiffs, having waited more than five years, are time barred from
pursing § 7475 claims for civil fines, penalties, and forfeitures.
       Whether such injunctive relief is, in any of its aspects, considered a
penalty has not been addressed in this appeal. See supra note 19. Because the
government has brought this suit in its sovereign capacity, those injunctive-
relief claims—which are determined not to be penalties under § 2462—are not
subject to the limitation bar here. Thus the concurrent-remedies doctrine itself
does not bar the government from pursuing non-penalty claims for injunctive
relief. Moreover, we find no support for the district court’s holding that its
“jurisdiction” does not “extend to injunctive relief” based on past violations of
the CAA. 27
       We repeat that we do not prejudge whether equitable relief is available
here. Inasmuch as this case comes to us on a motion to dismiss, there is more


       27  The role Sierra Club seeks to play in this litigation is unclear. But in any event, we
have noted that the concurrent-remedies doctrine is properly applied as to it. So we remand
the injunctive-relief claims to the district court, but once there, only the government may
pursue them. We make no suggestion as to whether the government may pursue injunctive
relief as to the now-closed Big Brown plant.
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                                 No. 17-10235
left to be done on remand. We leave it to the district court on remand to
consider further the availability of equitable relief as we have noted above.
The judgment of the district court is therefore
                                     AFFIRMED in part, REVERSED in part,
                                                               and REMANDED.




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                                   No. 17-10235


JENNIFER WALKER ELROD,                Circuit Judge, concurring in part and
dissenting in part:

      I concur in full with the portion of the majority opinion that holds—in
alignment with all other circuits to consider the question—that a violation of
42 U.S.C. § 7475(a) occurs only at the time of a facility’s unpermitted
construction or modification, and that the operation of an unpermitted facility
is not itself a violation of the statute. As such, I concur with the majority
opinion’s determination that the appellants’ civil-penalty claims are now time-
barred by 28 U.S.C. § 2462.         I also concur with the majority opinion’s
determination that the concurrent-remedies doctrine bars Sierra Club’s claims
for injunctive relief.
      I dissent from the majority opinion’s decision to remand this case for
further consideration of the government’s claims for purported injunctive
relief. It is a well-settled principle that “[t]he function of an injunction is to
afford preventative relief, not to redress alleged wrongs which have been
committed already.”        Lacassagne v. Chapuis, 144 U.S. 119, 124 (1892).
Because the statute is concerned only with the construction or modification of
a facility, and not its subsequent operation, there is no ongoing or future
unlawful conduct to enjoin. As the Supreme Court has explained, granting an
injunction without alleging an ongoing or future violation of the statute “makes
a sword out of a shield.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
109 (1998) (Scalia, J.).
      The fact that the government applies the term “injunction” to its
requested remedies does not mean those remedies are actually injunctive. In
remanding this case, the majority opinion focuses on the label and ignores the
substance.    The remedies being sought by the government simply cannot
properly be classified as injunctive. The remedies are being sought to redress

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                                     No. 17-10235
alleged past wrongs, and they are punitive in nature. As such, they are time-
barred, no matter what label they may be masquerading under. The district
court was correct to deny the government’s request for injunctions designed to
redress wrongs that are alleged to have occurred wholly in the past, and there
is no need for this case to be remanded for further consideration.
                                            I.
      The majority opinion explains why a violation of § 7475(a) can occur only
at the time of construction or modification. Understanding that point is critical
to understanding why the government’s requested relief is not properly
categorized as injunctive. That categorization—whether the relief is or is not
injunctive—is important in a case such as this, where the government has
failed to prosecute its case for an alleged failure to obtain a permit within the
applicable statute of limitations. As a result of the government’s delay, the
court cannot enforce “any civil fine, penalty, or forfeiture, pecuniary or
otherwise,” related to that failure to obtain a permit. 28 U.S.C. § 2462. 1
      The government’s brief lacks clarity as to the specific remedies it seeks
under the banner of “injunctive relief.”           However, at oral argument, the
government explained that the injunctive relief it seeks would take the form of
compelling the appellees to: (1) apply for permits (which presumably would
only be granted with an update of their emission technologies); and (2) “clean
up the pollution” (which presumably refers to the surrender of cap-and-trade




      1 During oral argument, the government conceded, as it rightly should have, that if
this court determines that a § 7475(a) violation occurs at the time of construction or
modification, then 28 U.S.C. § 2462 would bar the government from seeking penalties for the
alleged permitting violations at issue here. Oral Argument at 37:50, United States v.
Luminant Generation Co., L.L.C. (No. 17-10235), http://www.ca5.uscourts.gov/oral-
argument-information/oral-argument-recordings.


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                                    No. 17-10235
emissions credits requested in their complaint). 2             Unfortunately for the
government, neither of those remedies are properly categorized as injunctive.
      First, the operation of the facilities without proper permitting under
§ 7475(a) is not a violation of the statute. As such, the court cannot use an
injunction to compel the appellees to stop operations until they receive such
permitting. “The sole function of an action for injunction is to forestall future
violations,” United States v. Oregon State Med. Soc’y, 343 U.S. 326, 333 (1952),
and unpermitted operation simply does not violate the statute.                See also
Citizens for a Better Env’t, 523 U.S. at 109 (1998) (“Because respondent alleges
only past infractions of [the relevant statute], and not a continuing violation or
the likelihood of a future violation, injunctive relief will not redress its
injury.”). Thus, as Judge Easterbrook has said for the Seventh Circuit (and
which the majority opinion here notes without offering comment): “[o]nce the
statute of limitations expired, [the defendant-facility] was entitled to proceed
as if it possessed all required construction permits.” United States v. Midwest
Generation, LLC, 720 F.3d 644, 648 (7th Cir. 2013).
      Second, to the extent that the government seeks for the appellees to be
compelled to surrender their emission allowances to offset the additional
pollution caused by their past failure to obtain a permit, that requested remedy
cannot properly be considered injunctive either.           Such a remedy does not
prevent future permitting infractions.         Instead, that remedy would quite
clearly be a form of redress for operating today with permitting infractions that
occurred in the past. As the Third Circuit correctly held in a similar case,
“[s]uch injunctive cap-and-trade relief is the equivalent of awarding monetary
relief and could not be reasonably characterized as an injunction. . . . It would



      2 Oral Argument at 7:30, United States v. Luminant Generation Co., L.L.C. (No. 17-
10235), http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings.
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                                       No. 17-10235
amount to little more than an end-run around the five-year statute of
limitations on any civil fine, penalty, or forfeiture.” United States v. EME
Homer City Generation, LP, 727 F.3d 274, 295–96 (3rd Cir. 2013) (citations
omitted).
       Thus, both of these so-called forms of injunctive relief are really just
time-barred penalties in disguise. See, e.g., Kokesh v. S.E.C., 137 S. Ct. 1635,
1643–45 (2017) (identifying the hallmarks of a 28 U.S.C. § 2462 penalty as: (1)
a violation committed against the government rather than against an
aggrieved individual; and (2) a remedy that is imposed, at least in part, for
punitive rather than solely compensatory purposes). 3
       There may be good policy arguments for prohibiting the operation of
unpermitted facilities in addition to prohibiting their unpermitted construction
or modification. On the other hand, there may be good policy arguments for
grandfathering in changes to emissions requirements by tying them to each
facility’s construction or modification. See generally Homer City, 727 F.3d at
289–90 (summarizing arguments as to why Congress may or may not have
drafted the statute to apply only to a facility’s construction or modification).
However, in reaching our determination, such an argument is beyond the
proper role of Article III courts. See Rodriguez v. United States, 480 U.S. 522,
526 (1987) (noting that when statutory language is clear, the courts should not
examine additional considerations of policy that may or may not have
influenced the lawmakers). Simply put, as it is currently written, 42 U.S.C.
§ 7475(a) cannot be read to permit the government to obtain the remedies it is
requesting when it has waited longer than five years to initiate proceedings


       3 The Supreme Court decided Kokesh during the pendency of this appeal. On remand,
the district court is of course free to consider the so-called injunctive relief sought by the
government through the helpful lens of Kokesh.


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                                       No. 17-10235
alleging unpermitted construction or modification. If that outcome needs to be
changed, the remedy properly lies with Congress and not with the courts.
                                              II.
       Unfortunately, in its failure to remove the mask from the government’s
requested forms of relief and call them the time-barred penalties that they are,
the majority opinion unnecessarily dives into a circuit split on the question of
whether the courts should judicially create a sovereign actor exception to the
judicially-created doctrine of concurrent-remedies. Compare United States v.
Banks, 115 F.3d 916, 918–19 (11th Cir. 1997), and United States v. Telluride
Co., 146 F.3d 1241, 1248–49 (10th Cir. 1998), with Fed. Election Comm’n v.
Williams, 104 F.3d 237, 240 (9th Cir. 1996). By siding with the Tenth and
Eleventh Circuits in creating such an exception, the majority opinion throws
itself behind a holding that is, at the very least, questionable. 4 I would not be
so hasty. At this juncture, I see little wisdom in rushing headlong to judicially-
create yet another doctrinal exception that will generate a possibility of never-
ending liability in tension with statutory language. See Delek Ref., Ltd. v.
Occupational Safety & Health Review Comm’n, 845 F.3d 170, 177 (5th Cir.
2016). As such, I would not in this case reach the question of whether a


       4 The Banks opinion (which the Telluride court adopts without additional analysis)
rests on a shaky foundation for at least two different reasons. First, the Banks opinion is
built around an assertion that the Supreme Court has since contradicted, which is that “[t]he
plain language of section 2462 does not apply to equitable remedies.” Banks, 115 F.3d at 919.
Except that it does. See Kokesh, 137 S. Ct. at 1645 (holding that the SEC’s disgorgement
actions are time-barred as a penalty under 28 U.S.C. § 2462); Tull v. United States, 481 U.S.
412, 424 (1987) (noting that disgorgement is traditionally considered an equitable remedy).
Second, the Banks opinion (and all those that adopt it without further analysis, to include
this majority opinion) appears to conflate two entirely distinct but nuanced concepts: statutes
of limitations, from which the sovereign remains exempt unless it has clearly bound itself,
and the scope of equity’s reach, which is cabined by the concurrent-remedies rule. See also
United States v. U.S. Steel Corp., 966 F. Supp. 2d 801, 812–16 (N.D. Ind. 2013) (reversed in
part on reconsideration on other grounds) (analyzing how the Banks opinion appears to have
conflated these distinct concepts, and noting that its holding has since been parroted by many
other courts).
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                                No. 17-10235
sovereign actor exception should be created for the concurrent-remedies
doctrine.
                                     III.
      In remanding this case, the majority opinion takes great care to stress
that further review of the facts may lead to the conclusion that the
government’s remaining claims for “injunctive” relief are nonetheless time-
barred or otherwise inappropriate. However, I believe that this is all but a
foregone conclusion. I would affirm the district court’s judgment in full and
without remand. Therefore, I respectfully dissent in part.




                                     28
