                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       JUN 25 1998
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,

 v.                                                        No. 97-1236

 TELLURIDE COMPANY, named: The Telluride
 Company; MOUNTAIN VILLAGE, INC., d/b/a
 Telluride Mountain Village, Inc.; TELLURIDE
 SKI AREA, INC.,

       Defendants-Appellees.


                 Appeal from the United States District Court
                         for the District of Colorado
                            (D.C. No. 93-K-2181)


Ellen J. Durkee (Lois J. Schiffer, Assistant Attorney General, Peter Coppelman,
Acting Assistant Attorney General, Robert H. Foster, and Robert L. Klarquist,
Environment & Natural Resources Division, Department of Justice, Washington,
D.C.; Cathy Winer, Joseph G. Thies, and Alan Morissey, Environmental
Protection Agency, Washington, D.C.; Steven B. Moores, and Wendy I. Silver,
Environmental Protection Agency, Denver, Colorado, with her on the briefs),
Environment & Natural Resources Division, Department of Justice, Washington,
D.C., for Plaintiff-Appellant.

David C. Warren (James E. Scarboro, David S. Neslin, and Peter J. Krumholz
with him on the brief) of Arnold & Porter, Denver, Colorado, for Defendants-
Appellees.


Before BRORBY, BARRETT and LUCERO, Circuit Judges.
BRORBY, Circuit Judge.



      The United States appeals the district court’s grant of partial summary

judgment to the appellees, Telluride Co., Mountain Village Inc., and Telluride Ski

Area, Inc. (collectively “Telco”), dismissing the Government’s claims for

violations of the Clean Water Act, 33 U.S.C. § 1251 et. seq, that occurred prior to

October 15, 1988. See United States v. Telluride Co., 884 F. Supp. 404 (D. Colo.

1995). The issues on appeal are whether the five-year statute of limitations

provided in 28 U.S.C. § 2462 applies to the Government’s claims for injunctive

relief, where § 2462 by its terms applies only to the “enforcement of any civil

fine, penalty, or forfeiture,” and whether the district court erred in applying the

concurrent remedy rule to bar those claims. Our jurisdiction is exercised under 28

U.S.C. § 1291. For the reasons below, we reverse the district court’s judgment.



                                 BACKGROUND

      On October 15, 1993, the United States filed a civil action against Telco in

the United States District Court for the District of Colorado under § 309 of the

Clean Water Act, 33 U.S.C. § 1319. 1 As authorized by 33 U.S.C. § 1319, the


      1
         On the same day the Government filed its complaint, it also filed a
proposed consent decree for full settlement of the litigation. The district court
rejected the proposed decree because it “was not developed in a manner that was

                                         -2-
Government sought civil monetary penalties and injunctive relief for Telco’s

illegal filling of approximately forty-five acres of wetlands between 1981 and

1989, in violation of 33 U.S.C. § 1311(a). In its request for injunctive relief, the

Government sought to enjoin Telco from discharging additional material, and to

require Telco to restore damaged wetlands to their prior condition or create new

wetlands to replace those that could not be restored.



      Telco subsequently filed a motion for partial summary judgment on all of

the Government’s claims for violations that occurred before October 15, 1988,

contending these claims were barred by the five-year statute of limitations in 28

U.S.C. § 2462. Section 2462 states in relevant part: “[e]xcept 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.” 28 U.S.C. § 2462. The Government conceded § 2462 applied to

its claim for civil penalties, but argued the statute did not bar its claims for

injunctive relief. The district court disagreed, applying the concurrent remedy

rule to hold § 2462 barred the Government’s claims for injunctive relief. The



procedurally or substantively fair” and because of questions regarding whether it
adequately fulfilled the objectives of the Clean Water Act.


                                           -3-
court interpreted the concurrent remedy rule as providing when legal and

equitable relief are available concurrently, and a statute of limitations bars the

concurrent legal remedy, the court must withhold the equitable relief.

Consequently, because § 2462 barred the Government’s claims for legal relief,

civil monetary penalties, the court held § 2462 barred its claim for injunctive

relief. On May 2, 1995, the court granted Telco’s motion for partial summary

judgment, dismissing all of the Government’s claims for relief for wetlands

illegally filled prior to October 15, 1988. 2 The Government appeals the district

court’s judgment, claiming § 2462 does not apply to its claims for injunctive

relief, and the district court erred in applying the concurrent remedy rule to bar

those claims.



                                     ANALYSIS

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Kaul v. Stephan, 83

F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate “if the



      2
         The parties subsequently entered into a consent decree, which was
entered on April 25, 1997. The decree provides that if the Government is
successful in its appeal of the district court’s May 2, 1995, order relating to
injunctive relief, Telco will perform mitigation on fifteen acres of impacted
wetlands through “on-Project and off-Project” mitigation projects.


                                          -4-
pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). In applying this standard, we draw all justifiable

inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). The construction and applicability of a federal statute of

limitation is a question of law we review de novo. Wolfgang v. Mid-America

Motorsports, Inc., 111 F.3d 1515, 1524 (10th Cir. 1997) (stating this court

reviews questions of law de novo); Foutz v. United States, 72 F.3d 802, 804 (10th

Cir. 1995) (stating the construction of federal statues is a question of law);

Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d

963, 967 (10th Cir. 1994).



      Congress adopted the Clean Water Act (the “Act”) “to restore and maintain

the chemical, physical, and biological integrity of the Nation’s waters.” 33

U.S.C. § 1251(a). To accomplish this purpose, the Act prohibits the discharge of

any pollutants, including dredged or fill material, into waters of the United States

without a permit. See 33 U.S.C. §§ 1311(a), 1344. Certain wetlands enumerated

under 33 C.F.R. § 328.3(a) qualify as waters of the United States. Unpermitted

dredging and filling of these wetlands, as in Telco’s case, are subject to the Act’s


                                          -5-
enforcement sections. A violator may be subject to a “civil action for appropriate

relief, including a permanent or temporary injunction,” 33 U.S.C. § 1319(b), and a

civil penalty not to exceed $25,000 per day for each violation of 33 U.S.C.

§§ 1311 and 1319(d). It is under these sections that the Government sought relief

for Telco’s violations of 33 U.S.C. § 1311 that occurred prior to October 15,

1988.



        The parties do not dispute 28 U.S.C. § 2462 is the applicable federal statute

of limitations to the Government’s actions for civil penalties under the Act. See

also United States v. Banks, 115 F.3d 916, 918 (11th Cir. 1997) (applying § 2462

as the default limitation provision for actions under the Act), cert. denied, 118 S.

Ct. 852 (1998). However, the Government claims the district court erred in

applying § 2462 to bar its claims for equitable relief, because the ruling is

contrary to the well-settled principles restricting the application of time

limitations against the government, and is contrary to the plain language of the

statute.



Section 2462's Applicability

        We interpret § 2462 narrowly because “an action on behalf of the United

States in its governmental capacity ... is subject to no time limitation, in the


                                          -6-
absence of congressional enactment clearly imposing it.” E.I. DuPont de

Nemours & Co. v. Davis, 264 U.S. 456, 462 (1924). 3 In addition, “[s]tatutes of

limitation sought to be applied to bar rights of the government, must receive a

strict construction in favor of the government.” Id.



      Section § 2462 clearly applies to “action[s], suit[s] or proceeding[s] for the

enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise.” 28

U.S.C. § 2462. The express language of a statute is controlling, absent a clearly

expressed legislative intention to the contrary. Consumer Prod. Safety Comm'n v.

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The Government claims the

statute is inapplicable to non-monetary penalties because the phrase “pecuniary or

otherwise” only modifies “forfeiture” not “penalty.” Although we might agree

based on a common-sense reading of the statute as the commas are now located,

and in light of the last antecedent rule that applies modifying words or phrases to

the immediately preceding word or phrase, the history of § 2462 does not support

such a reading. See Nobelman v. American Sav. Bank, 508 U.S. 324, 330 (1993)



      3
         The Government uses its sovereign power in actions under the Act to
protect the public interest. See, e.g., Deltona Corp. v. Alexander, 682 F.2d 888,
892 (11th Cir. 1982) (stating the rationale behind the Act's permit system “is to
insure that the public interest in environmental safety and quality is preserved");
see also 33 U.S.C. § 1251 (stating the objective of the Act is to "restore and
maintain the chemical, physical, and biological integrity of the Nation's waters").

                                        -7-
(stating the rule of the last antecedent is not compelled). Prior versions of § 2462

read “penalty or forfeiture, pecuniary or otherwise.” See 3M Co. v. Browner, 17

F.3d 1453, 1458 n.7 (D.C. Cir. 1994). Based on this construction, we view

“pecuniary or otherwise” as modifying both the terms penalty and forfeiture. See

Bingham, Ltd. v. United States, 724 F.2d 921, 926 n.3 (11th Cir. 1984) (applying

a supplementary “rule of punctuation,” that provides when a “modifier is set off

from two or more antecedents by a comma, ... the modifier relate[s] to more than

the last antecedent”). In addition, according to the Reviser’s Notes on revisions

made to the statute in 1947, when the phrase “civil fine” was placed before

“penalty,” the purpose of the revisions was for a change in phraseology. See 28

U.S.C. § 2462 (Historical and Statutory Notes); Johnson v. SEC, 87 F.3d 484, 488

n.5 (D.C. Cir. 1996); 3M, 17 F.3d at 1458. Because a change in phraseology does

not render the new statute substantively different from its predecessor, unless

such intent is clearly expressed, see, e.g., Keene Corp. v. United States, 508 U.S.

200, 208 (1993), we construe § 2462 as applying to non-monetary penalties.



      The Government also maintains the plain language of § 2462 does not apply

to claims for equitable relief. We agree that actions for equitable relief typically

are not actions for penalties or fines. See Hartford-Empire Co. v. United States,

323 U.S. 386, 435 (1945) (“relief in equity is remedial, not penal”). We also do


                                          -8-
not ignore that, historically, “statutes of limitation are not controlling measures of

equitable relief.” Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946).



      However, Telco makes several claims why the restorative injunction in this

case is “a civil fine, penalty, or forfeiture, pecuniary or otherwise,” barred by

§ 2462. 4 Telco contends the restorative injunction is a penalty under § 2462 since

it imposes a sanction for violating a public law which is not determined or

predicated on actual damages to the Government. Because the term “penalty” is

not defined in the statute, we must construe the term in accordance with its

ordinary meaning. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 898 (10th

Cir. 1997), petition for cert filed (U.S. June 1, 1998) (No. 97-1943). Dictionaries

generally define “penalty” as relating to punishment. See, e.g., Black’s Law

Dictionary 1020 (5th ed. 1979) (defining penalty as “involv[ing] idea of

punishment”); Webster’s Third New International Dictionary 1668 (1981)

(defining penalty as “punishment for [a] crime or offense”). Telco relies on the

United States Supreme Court’s definition of a penalty in Meeker v. Lehigh Valley

R.R. Co., 236 U.S. 412, 423 (1915), as “something imposed in a punitive way for



      4
        Telco first contends the injunction is an "action for enforcement,"
required for § 2462 to apply. There is no dispute the Government's action for
injunctive relief is imposed under the enforcement provisions of the Act. See 33
U.S.C. § 1319.

                                          -9-
an infraction of a public law.” 5 Similarly, in Huntington v. Attrill, 146 U.S. 657,

673-74 (1892), the Court concluded whether a law is penal depended on “whether

its purpose is to punish an offense against the public justice of the state, or to

afford a private remedy to a person injured by the wrongful act.” In an analogous

case to the present one, the D.C. Circuit defined penalty for purposes of § 2462 as

“a form of punishment imposed by the government for unlawful or proscribed

conduct, which goes beyond remedying the damage caused to the harmed parties

by the defendant’s action.” See Johnson, 87 F.3d at 488. Based on these

definitions, we interpret a penalty for purposes of § 2462 as a sanction or

punishment imposed for violating a public law which goes beyond compensation 6

for the injury caused by the defendant.



      Telco also claims a penalty is any sanction that is imposed for a violation

of a public law and which fails to redress a private injury. Telco relies on the

Supreme Court's discussion in Huntington, 146 U.S. at 668, on whether a law was



      5
         In Meeker, the Court held that Mr. Meeker's action to recover
overcharges paid to the Lehigh Valley Railroad Company was not an action for a
penalty, for purposes of the predecessor to § 2462, since the action was strictly
remedial in restoring the alleged overcharges to Mr. Meeker. Meeker, 236 U.S. at
423.
      6
        In other words, a penalty goes beyond making the plaintiff whole. See
Black's Law Dictionary 256 (5th ed.) (defining “compensation” as “making
whole.”).

                                          -10-
“penal” as “whether the wrong sought to be redressed is a wrong to the public or

a wrong to the individual.” However, the Huntington Court defined “penal” for

the purpose of determining whether the United States Constitution’s Full Faith

and Credit Clause permitted a specific state judgment to be enforced in another

state. 146 U.S. at 666-68. Unlike the concerns of state sovereignty and comity

prevalent to defining “penal” in Huntington, 146 U.S. at 668-69, our concern in

defining “penalty” in § 2462 is to protect the Government’s sovereign

enforcement powers in conformity with traditional principles limiting the

application of time limitations against the government when it acts in its

sovereign capacity, and to construe statutes of limitation strictly in the

government's favor. 7 See E.I. DuPont de Nemours & Co., 264 U.S. at 462.

Therefore, we see no reason to include all wrongs to the public as penalties for

purposes of applying § 2462, irrespective of the remedy sought.



      Our focus in defining a penalty for § 2462 is whether the sanction seeks

compensation unrelated to, or in excess, of the damages caused by the defendant,


      7
         For the same reason the doctrine of laches does not apply to the
government, Nevada v. United States, 463 U.S. 110, 141 (1983), we interpret time
limitations against the government narrowly to protect the public from the
negligence of public officers in failing to timely file claims in favor of the
public's interests, unless Congress clearly allows those claims to be barred, see,
e.g., Guaranty Trust Co. v. United States, 304 U.S. 126, 132-33 (1938).


                                          -11-
rather than restricting the term by the type of injury, public or private. The injury

to the public’s resources in this case does not alter the remedial nature of the

injunction in restoring the damaged wetlands, or in other words, making the

injured party whole. We find the present case indistinguishable from other

situations where courts have ruled a sanction that only remedies damage caused

by the defendant is not a penalty for purposes of § 2462 even though it is imposed

by the government. See, e.g., Chattanooga Foundry & Pipe Works v. Atlanta, 203

U.S. 390, 397 (1906) (refusing to apply predecessor to § 2462 to bar Atlanta’s

action against defendants for recovery of damages for injury to property); United

States v. Perry, 431 F.2d 1020, 1025 (9th Cir. 1970) (ruling Government’s action

to recover sums allegedly paid in violation of the Anti-Kickback Act was not

barred by § 2462 because the sanctions were designed to make the Government

whole by recovering extra costs incurred when kickbacks were paid); United

States v. Doman, 255 F.2d 865, 869 (3d. Cir. 1958) (holding Government's action

under Surplus Property Act not barred by § 2462 since the recovery was

compensatory to the Government, not a penalty), aff’d, 359 U.S. 309 (1959).



      Consistent with our definition, the restorative injunction in this case is not

a penalty because it seeks to restore only the wetlands damaged by Telco’s acts to

the status quo or to create new wetlands for those that cannot be restored. The


                                         -12-
injunction does not seek compensation unrelated to or in excess of the damages

caused by Telco’s acts. Under the Government’s complaint and the parties’

consent decree, the Government seeks mitigation of damaged wetlands caused by

Telco’s acts. According to the decree, “mitigation” is defined as “actual

restoration, creation, or enhancement of wetlands to compensate for wetland

losses.” “Restoration” is defined as to “return from a disturbed or altered

condition to a previously existing natural condition.” From this language, we

conclude the compensation sought is related to and consistent with the damages

caused by Telco’s acts.



      Telco also claims the Government’s restorative injunction is a penalty since

it requires Telco to spend a significant amount of money to refill or create fifteen

acres of on-site and off-site wetlands without showing the actual amount of

damages suffered. We recognize it is difficult to place a precise dollar amount on

damages caused by environmental injuries. See United States v. Sexton Cove

Estates, Inc., 526 F.2d 1293, 1301 (5th Cir. 1976) (noting “[t]he full effects of

any environmental disturbance are difficult to measure”). However, in other

contexts, the lack of precise symmetry between actual damages sustained by the

Government and the costs of mitigation or the costs of the sanction, does not

change the nature of the remedy. See, e.g., United States v. Halper, 490 U.S. 435,


                                         -13-
446 (1989) (stating in the Court’s analysis of whether a section was punishment

for double jeopardy purposes “the Government is entitled to rough remedial

justice, ... it may demand compensation according to somewhat imprecise

formulas” without necessarily changing the nature of the remedy); Rex Trailer Co.

v. United States, 350 U.S. 148, 153-54 (1956) (ruling with respect to a liquidated

damages “type” provision, that the uncertainty as to the exact amount of damages

did not transform the sanction’s remedial character). Furthermore, Telco’s belief

the sanction is costly or painful does not make it punitive. Johnson, 87 F.3d at

488. If the determination of whether a sanction is a penalty was made from the

defendant’s perspective, then virtually every sanction would be considered a

penalty since “‘even remedial sanctions carry the sting of punishment.’” Id.

(quoting Halper, 490 U.S. at 447 n.7).



      Telco contends a restorative injunction is a penalty because some courts

have used factors unrelated to actual damages in determining the scope of the

injunction. In particular, Telco claims courts have used factors similar to those

used by courts in determining the amount of civil monetary penalties under 33

U.S.C. § 1319(d). 8 However, this argument is inapplicable to this case since the


      8
         Factors listed in 33 U.S.C. § 1319(d) include, inter alia: (1) “the
seriousness of the violation;” (2) “the economic benefit (if any) resulting from the
violation;” and (3) “the economic impact of the penalty on the violator.”

                                         -14-
Government’s scope of injunctive relief appears to be limited to restoration or

replacement of damaged wetlands. While such factors, including the

“seriousness” of the defendant’s culpability, see, e.g., United States v.

Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1165 (1st Cir. 1987),

cert. denied, 484 U.S. 1061 (1988), have been considered in determining whether

an injunction is equitable, this does not change the remedial character of the

injunction. These factors have only been considered in ensuring the restoration

injunction was equitable in light of the defendant’s culpability or economic

situation, not whether the restoration required in the order was related to the harm

caused by the defendant. Id. at 1164; see also United States v. Weisman, 489 F.

Supp. 1331, 1349 (M.D. Fla. 1980). If Telco contends the injunction is

inequitable based on Telco’s financial position or lack of culpability, then it

should have opposed the consent decree and made this claim later to the district

court when it would have to determine whether the injunction was equitable.



      Telco further argues the imposition of the restorative injunction for wholly

past violations makes the nature of the injunction punitive. We disagree because

other equitable remedies, such as disgorgement, which sanction past conduct, are

remedial. See, e.g., SEC v. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994). Similar




                                         -15-
to the purpose of a disgorgement action to restore only “ill-gotten gains” earned

by the defendant while in violation of securities laws, id., the restorative

injunction in this case restores wetlands to their prior condition before Telco’s

violations, or replaces damaged wetlands which cannot be restored. In both

instances, the amount “restored” relates to actual harm caused by the defendants’

prior actions. We are convinced the request for injunctive relief based on Telco’s

past conduct does not change its remedial nature. 9



      Based on the considerations addressed above, and in light of the traditional



      9
         Telco’s also relies on Gwaltney of Smithfield, Ltd.,v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 58-59 (1987), for its claim that injunctive relief cannot
ever be properly issued for wholly past violations. We disagree. In Gwaltney, the
Supreme Court only addressed whether citizen suits could be brought for wholly
past violations of the Clean Water Act under 33 U.S.C. § 1365 in the context of
the citizen suit provisions of the Act. Id. Although the language in § 1365 is
similar to § 1319(a) and (b), the Court has interpreted § 1319(b) broadly to allow
courts exercise discretion in achieving the goals of the Act “to maintain the
chemical, physical, and biological integrity of the Nation’s waters.” See
Weinberger v. Romero-Barcelo, 456 U.S. 305, 316-17 (1982).

      Contrary to Telco’s suggestion, we see no reason why United States Dep’t
of Energy v. Ohio, 503 U.S. 607, 608 (1992), should apply in this case to support
Telco’s claim the injunction is punitive because it sanctions past violations. The
Court in Dep’t of Energy only addressed whether specific provisions of the Clean
Water Act and the Resource Conservation Recovery Act waived federal sovereign
immunity for fines relating to past violations of those Acts. Id. Contrary to
Telco’s suggestion, the case did not broadly hold all claims for past violations are
in substance penalties.


                                         -16-
notions statute of limitations should be strictly construed in favor of the

Government, we do not consider the Government’s request for injunctive relief an

action for a “civil penalty” barred by § 2462. 10



Concurrent Remedy Rule

      The Government disputes the district court’s application of the concurrent

remedy rule to bar its equitable claims. 11 In its order, the district court relied on

United States v. Windward Properties, Inc., 821 F. Supp. 690, 693 (N.D. Ga.

1993), which applied the concurrent remedy rule 12 in a similar context, holding §


      10
         Telco also claims we should not construe the form of a restorative
injunction, serving a remedial purpose, over its substance of requiring Telco to
spend a significant amount of money analogous to civil monetary penalties.
However, as discussed earlier, the fact the injunction is costly to Telco does not
change its remedial nature in restoring the damage caused by Telco’s violations.

      11
         Telco maintains the district court’s ruling on the concurrent remedy rule
is reviewable only for an abuse of discretion because the district court
appropriately exercised its equitable discretion in applying the rule. We disagree
because the court cannot exercise its equitable discretion on this issue since such
discretion was withdrawn when the Supreme Court held “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. DuPont de
Nemours & Co., 264 U.S. at 462.
      12
         The concurrent remedy rule provides: “when legal and equitable relief
are available concurrently (i.e., when an action at law or equity could be brought
on the same facts), ‘equity will withhold its relief in such a case where the
applicable statute of limitations would bar the concurrent legal remedy.’"
Windward, 821 F. Supp. at 693 (quoting Cope v. Anderson, 331 U.S. 461, 464
(1947)).

                                          -17-
2462 barred the Government’s claims for legal and equitable relief. However, the

Windward decision was expressly abrogated by the Eleventh Circuit in United

States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. denied, 118 S. Ct. 852

(1998). In a case that involved the identical issue, the Banks Court rejected the

concurrent remedy rule’s application to the Government when it seeks equitable

relief in its enforcement capacity under the traditional principles of construction

discussed above. Id. Specifically, the Banks Court refused to apply the

concurrent remedy rule based on the principles that a suit by the United States in

its governmental capacity is not subject to a time limitation unless Congress

explicitly imposes one and “‘any statute of limitations sought to be applied

against the United States “must receive a strict construction in favor of the

Government.”’” 13 Id. (quoting United States v. Alvarado, 5 F.3d 1425, 1428 (11th

Cir. 1993)). For the same reasons applied in Banks, we conclude the concurrent

remedy rule does not bar the Government’s claims for equitable relief. 14




      13
          The Banks court also rejected the Ninth Circuit decision, Federal
Election Comm’n v. Williams, 104 F.3d 237 (9th Cir. 1996), cert. denied, 118 S.
Ct. 600 (1997), which applied § 2462 to bar the Commission's action for
injunctive relief because that decision, “not unlike the Windward opinion -- failed
to distinguish between the application of the statute of limitations to the United
States in its private versus its sovereign capacity.” Banks, 115 F.3d at 919 n.6.

      14
        We distinguish this case from our decision in Clulow v. Oklahoma, 700
F.2d 1291, 1302-03 (10th Cir. 1983), where this court applied the concurrent

                                         -18-
      Based on our conclusions that the Government’s claims for injunctive relief

are not actions for a penalty within the meaning of § 2462, and the concurrent

remedy rule cannot apply, we REVERSE.




remedy rule to bar Mr. Clulow’s claims for declaratory relief, because Clulow did
not involve a suit by the Government in its sovereign capacity.


                                        -19-
