good morning they please the court to begin with the like to thank the court for agreeing to hear our case at this juncture and i'm honored to be standing in a court room outside of which we see a bust of chief justice john marshall because you would have seen his words in our brief his clarion call uttered in eighteen o five in adams that it would be utterly repugnant to the genius of our laws if actions for civil penalties could be stops both as i'll explain yield an infinite statute of limitations that was all cannot stand so we respectfully submit you should reverse to begin with if we look at the decision below  just think about two thousand four hundred and sixty two and what it says and with the courts have said for over two hundred years something about by the way the structure of limitations must ring deep in the souls in the minds of jurors because you see landmark jurists wax poetic about it it's something really important to our system of laws but section two thousand four hundred and sixty two sets an unqualified deadline for civil penalties across the entire federal government it does not say unless congress does say let's congress provided otherwise which doesn't say unless some statute without expressly altering the civil penalties leads to a different outcome it doesn't  didn't car didn't congress leave it to far to flesh out that section no your honor i don't think that's right i also think however that that goes to the st subsidiary argument which i can turn to now but it does not go to the to the court's decision which was resting only on the statute it doesn't turn on for its administrative injection of new procedures i can go to for its subsidiary argument but i plan to address that nd however you'd like to proceed your honor the statute is supposed to have a limitation and what she found is that the five year clock started running upon the issuance of this penalty assessment were plus sixty days that is an event that could happen at any distance in our reason i think that it can accrue at the time of a violation there's no there's no question about that and perhaps in most cases it does accrued i mean if the statute of limitations does start to run at the time that there is a violation but there's nothing in natural all common law whatever that requires that it be so you can say that a claim accrues either at the time of the violation or a claim can accrue at the time that turkey has a complete case that it can take to court either one of those is possible ok which of those should reach choose that's not up to us it seems to me that the point at which a claim accrues is not some matter of natural law but some kind of but is subject to statutory definition and here the way it's set up is that st doesn't have the right to seek enforcement of its order until that sixty day period has elapsed and as a failure to pay and why are we obliged to say that a claim of cruise the form of the very time that an the claim doesn't accrue until we have the right to see to go to court and and and and get a court order in enforcing the civil penalty and what this congress said about that that's the question that the judge below we know what two thousand four hundred and sixty two dollars says because the supreme court told us that in delhi the natural reading is the claim clues on the conduct the judge found otherwise here because she confused what the claim is she found it under the j route the claim she said clearly is the occurrence of the conduct which is what the belly says she found the claim here to be something different rather than a claim that the defendants violated the power act does not support that reading for several reasons over to just try to put it in the simplest terms what good is a claim if you can't go to court to enforce the the order that we're speaking of your honor for one thing is entirely with the can in the control of the government and the outcome from going down the road you you're sketching out is an infinite statute of limitations which should give us pause it's also not what congress provided for section thirty one if this were a collection action we're live billeted and penalty levels were litigated to finality the question would be there's a claim for the government for penalties lets go meant the penalty with the fact that there is a distinct and parallel route that may be selected by a litigant that litigant has to two options in parallel formation for a separate litigation and what occurs in the district court is not merely a collection it's a litigation of the merits of the case after which the district court will solve it by judgment and you tell me if you will is that the essence of where you think the district court erred that is your honor there are two routes to adjudication under the statute she got that completely correct one route to adjudication leads to an a m j and for the other leads here to the eastern district of virginia that's where judith cation is had we had been below if you look at it the i think where she really went wrong was she she confused what the claim is counter intuitively under her decision at the point an election is made the claim can pivot dramatically if you choose the a l j option the claim is the conduct is unlawful and sanctions must follow if you choose the court  not a claim it's when the claim of cruise well your honor but we have to do both right because if the question is if the claim is the conduct is a lawful pay then that claim a cruise with conduct if the claim is in force in order then yes you need to have an order you can't and there's no claim to enforce an order that doesn't exist i entirely agree with that that is not however what the district court option involves or there was a way it works so is it fair then that you what you're saying wrongful conduct that it accrues a different time depending on whether the administrative route is chosen or the or the district court litigation is chosen and that is the fallacy of the district court three thing is that what you're saying yes and i would add to lin's there was no adjudication at fir all st as required by statute is issue and order and they could do that at any distance in time the statute tells the district court it is to engage in review of the facts and the law involved which is the underlying claim for conduct it does not say congress did not say that the decision that the action has resulted in this case was was was for review of the penalty assessment order and if i just might point out two things that i think bring that home when i want to came out we saw it we could not do anything we could not seek agency rehearing we could not take it to court we couldn't appeal it our clients were not a grief because it didn't decide anything further had to bring it to court or you could have paid it i suppose you could have paid the bill except that our clients we think the the somebody had an automobile accident and they claim a cruise at the time of the accident because the victim of the opposing party is negligence has a right to go to court but can't do anything and that and that whole business is and in a sense for your benefit at least to give you some kind of notice of what you're saying you're facing in terms of the civil penalty and give you an opportunity to pay before and before a cause of action is initiated and that  you have a state finance i think there's a one million dollars a day or something where if we take your view of it it takes us so long to work these cases up as you know the records are thousands and thousands of pages place is norma's incentives to delay and drag it out and this and this and then the five year period will be up before you know it you think five years is a long time is not in a case that involves the complexity that these cases involve two points in response your honor the st is what greater element of being able to follow a lawsuit could exist or the knowing of the claim and if you look at judge randolph's excellent decision in three m just to suit her piece of work you see him talking about the fact that well harm is an ingredient of a lawsuit what if the car crash hurts and you don't find out your harm for three years in the statute of limitations has run does that mean because you haven't discovered the harm that you get to start the clock again no it does not but if you ju step back for a nd interest explain what actually happens here is a matter of statute and what happened in this case the government investigative operation is a one sided show we've never had any discovery we answered their questions we showed up for depositions we add to this day i spent nine years asking the government can you tell me what particular treats are unlawful they've never told us because they don't have to we never had any process at all there were dark periods in the lasting months and years you'll see it in their brief in their chart where they did nothing i don't know what they did with their five years but they had control all the time and congress has told us after five years the clock starts with conduct it stops at five years it st thinks it's got some special need that argument is better placed as judge randolph said in front of a congressional oversight committee not before this court so if you look at the statute though just to go back to where i was all fergus opposed to do is issue an order it could be a few pages they have seized upon themselves the job without statute and actually there's no regulation that authorizes on this one often on behalf of the commission this case turns on a simple rule that the supreme court has faithfully followed since the early th century a claim a cruise on a plaintiff as a complete and present cause of action so your honour's had a number of questions for my friend and there is other side i'd like to turn to this now if i can judge wilkinson you focused on the issue of accrual so let me address that there are obviously been many cases cited in the briefs on this issue of cruel all those cases really come down to two different kinds of statutes the st category of statutes allows the plaintiff agency or government to file a civil essentially it will there's no country under the statutes as to when the government may file its action as to those kinds of statutes courts of rightfully found that the cause of action accrues at the time of the violations there's a  nd category of statutes in which the federal power that category statute requires the agency to conduct mandatory penalty assessment process and find a violation and only then does even see have  government has completed its merits statutorily mandated agency process st so that's not how it works you're saying is that it's a pretty basic rule that's been reiterated over and over again that in this type of statute  claim of cruise where a party has the right to enforce it or to seek order to force one of its order that's exactly right trade shows a so the government could take seventy five years to turn into another jarndyce vs jarndyce right they could they could take a one hundred and fifty years to look into a matter and from your perspective there'd be no problem right absolutely not your honor and that's because the commission has said quite clearly perspective the government can totally manipulate the statute of limitations the government defines the statute of limitations then by determining how long it wants its investigation to last correct with respect john that's not our position i agency to conduct its own process and actually find violations before it can go to court and so the way that that works out in these kinds of cases well is that what they find a violation but the defendant doesn't have an opportunity to the merits of the issue if that if the defendant is picking a district court route as opposed to the age group the defendant doesn't have any opportunity to weigh in on the merits of the case during this great but they did they they don't they don't they are not fully litigating by choosing the district court route they are saying we want the court to decide the merits of this issue rather than have the agency or that that is the nature of the choice in the statute of course it is their choice because if they do want to litigate it is possible be just you know what you're saying is it's a tradeoff that they want the district court to make the determination from the beginning of the merits then they have to essentially agreed to an unlimited statute of limitation no your honor that we under no circumstances is there an unlimited statue of limitations the statute of limitations for the agency to commence a process to assess of penalties five years the commission has said that quite clearly in section four of our brief the commission commenced an action here  the vessel ok so but that's the that's the sort of the process for initiating the investigation but i think this point is that investigation can take as long as the agency cares it to take it that's that's not true circuit for example and the court in those instances disagreed because the implication would be that if two thousand four hundred and sixty two dollars did not bind the agency process then the agency could take all the time it wants of course that's not our position that's never been statute so what it says this is sixteen u s c eight hundred and twenty three b it states that once the commission assesses the penalty after finding violations if the subject of that proceeding  cruel there was an argument raised appellants briefs that according to the supreme court's decision as a result of that decision all government causes of action must occur at the time of terms of what the supreme court said as far as the off the the issue of discovery and that you aren't aided by the fact that you didn't know about  a lation they're arguing by inference aren't they relate they're not saying it's a per se rule i think they explicitly said in their opening brief that it is it is a five year fixed clock that starts at the time of violations for all cause of action that is absolutely not would compel the city i don't know well i don't think that i can to say i don't think we accept that compelling would necessarily govern the case get belling might give us some helpful insight in terms of what the supreme because the statute does not permit the agency to file an action until the various perec because it's in the statute will it let me tell you what bothers me about your position among other things is that the claim accrues to different time depending on which action you take the administrative ridge or the district court route you have the exact same violative conduct the exact same conduct but the claim can accrue one hundred years later if you assume the district court route as opposed to you go the administrative law route how can that possibly be so thank you and this is a really important point i think the genesis of this confusion and there is some support for that statement the statement is not true under the statute so if we are and i think what you are her point was she was talking if you go the administrative route when does the claim occur if you go to the administrative region the claim in other words the civil action is what you're talking about that accrues after the entirety of the process in the statute is complete so what that means is i'm talking i'm talking about the agency route i don't know for using the same terminology if you elect not to go to the district court right right that's i think that's been called the default option and reduce assuming that we're talking about the default option and we're talking about a civil because with respect to the administrative penalty assessment whether we're talking in other words the agencies alternate at the time of the violations but if we're talking about a civil action to enforce the agency's assessment of a penalty that's when we get different answers based is saying you get twenty five year periods then really  pouncey at the agency level accrues at the same time it's the time of violations once you get to the point where the agencies actually assess the penalty and let's assume under either option the subject has refused that we know under the alternate option that the subject if they don't pay for sixty dollars days that's when the agency can assess can file an action just report if i were under the default option the process is different because there is the assuming that judge recommends i don't tease the commissioner abuses the commission assess the penalty after that were in the normal administrative review the routine traditional path of been should review where the subject of that can request rehear assuming the agency denies rehearing the subject again traditional administrative group here the subject can file a petition for review in a court of appeals and the court of appeals would review the agency's substantive the commission could bring a civil action suit so once the subject refuses to pay it court of appeals court refused to pay the penalty after court of appeals affirm and some of the penalty that's when the civil action to collect on is the argument was and i think some of the questions were about there being a different point of a cruel for default an alternate and i think some of that confusion is based on the additional court saying that default option accrues at the time violations not exactly true what the question has been raised about your position and i was very interested in hearing your answer on this and that is that your interpretation of things allows the government to keep a private company statute of limitations has essentially no statute of limitations of tall now what what is your response to grab well i want my response is that a five year  of limitations that means from the time of misconduct the agency has five years to start the process by issuing an order to show cause to assess a penalty if he fails to do that then it can't go for the action would be on time  of limitations begin to run from the time that the manipulation violation has occurred for the civil action because the agency has a new complete and present cause of action it has of statutory agency doesn't always know whether a violation has occurred in this kind of situation in an automobile accident you know when a violation has occurred in a breach of contract action you're likely to know when a violation has occurred in this kind of action you're not certain whether a violation has occurred or when it has occurred and that's i suppose something that you can only come to a determination of after looking at all the evidence looking at the voluminous discovery going through a complex of complex series of documents in other words it to say well this limitations period begins to run from the file to time a violation occurred ilads the fact that you don't know when a violation has occurred until you have undertaken a rather extensive investigation and investigations o unlawful private conduct occur all the time without any kind of statute of limitations beginning to run so is is that a fair assessment of this well your honor certainly at the time of the misconduct the agency does not know whether a violation occurred the statute requires the agency to if it's going to assess a penalty if you know the process it has to a violation has occurred that's why we correct that's why the statute is different in a case like the us and if we start holding that every that every statute of limitations begins to run before the government has a cause of action it's not only before the government has a cause of action to enforce a civil penalty it's also will for the government would even know whether a violation has taken place you see what i'm saying and i do you well isn't that the problem in the belly too they didn't know about the fr in the supreme court said that's not good enough well you know there are a lot of situations were the inviolate of conduct is not immediately known so why is your situation different well i mean i think when we're talking about belly that's when we start getting into the discovery and what the court held there was that the agency could not take advantage of the discovery rule that's not and you're not suggesting that should happen here within that five year period there's no discovery extension you're out there right that's that's our position that's correct and we're not trying to argue that the discovery rule plies here i think that the committee the congress gave the commission broader message or authority to look into whether violations have occurred and so the chart that we included in our brief shows a timeline of all the various things that happened during the course of that four year investigation of the office and forstmann as i mentioned earlier for the commission to actually suss polities needs to make a finding that violations have occurred that is no small thing because it involves the commission making a public statement that a company or a group of individuals engaged in serious violations of would we be encouraging the government in order to avoid statute of limitations problems to assess civil penalties earlier rather than later because it didn't have a government made out of heads complete information but in order to avoid statute of limitations problems the government would would assess the civil penalties on the basis of an incomplete investigation and that doesn't redound to the benefit of a company atol to put to put the government in a position of assessing so civil penalties simply as a protective measure that doesn't seem to be good and i'm from told about that and and the statutory scheme here at least has the advantage of having the penalty assess the time to pay notice is given to the party against whom the penalty is assess the party at that point has the option of paying the civil penalty and avoid it and avoiding a a cause of action altogether or it can can work to the benefit of a company in several ways it can provide fair notice an opportunity to pay and avoid litigation or going into litigation at which companies to have another benefit it does seem to me is that you don't want the statute of limitations running before the government even knows that a violation has taken place and you don't want the government slapping civil penalties on people as a protective measure purely in order to avoid a statute of limitations problem down the road and you're going to have that happen on the basis of very incomplete investigations so you know i don't i'm not clear that this is an anti industry position i can see benefits to it you know i mean powertrain resistive in this in this case but i can see benefits to it and i think all of that is absolutely correct your honor it is absolutely  energy company you know i'm not sure that that would redound of my benefit none of this is pleasant from the standpoint of an energy company because you know whether it's whether to you or the f c c or whatever these these proceedings  you know they're they're long and in their very own they're very unpleasant for the company involved but the alternative could be substantially worse that issue is that if this court accept out its position it gives the subject of subjects of these kinds of investigations a significant incentive to go as slow as possible to force the the agency to act quickly these  later with their position the incentives are all to drag it out that's exactly best contrary to the purpose of the statute of limitation that's absolutely correct i see that my your honour's just pivoted away from the district court's decision away from the discussion you and i had to do a concern about the claim accruing when all causes of action are cymbalta and orcus is ready to say they agree that they're cruel happens in the st instance with the conduct they want the two clocks rule from meyer that's their alternative feel cool hear that rule is flawed for the reasons we laid out and judge keenan you talked about it it's five years the five years you know when it starts and all parties or praise of the point at which this starts he begins to run but i don't under your position it's five years or what because it could be a lot of disagreement about number one is a violation of the white house of year it isn't how severe the civil penalty should be and whether certain violations sometimes violations currall over a large period of time that you can have multiple violations are going to have a difference actually limitations for each of those but the park situation here at least provides a certain certitude independent of this to it that i don't that i think is what is maybe lacking respectfully in your perspective your honor my friend from further just said they're on the clock from the point of the aisle lesions they have to issue their show cause order which is completely extra statutory we've dealt with that in our brief then after a promptly period they get another statute so they're claiming the same point of initial crew as we are the district court did not view it that way they've thrown that decision over the side and now they're posing something very different to you which is completely wrong if you look at what actually i think both sides what that wants the civil penalty is a sales ok that there's no incentive for the agency to do like one of the incentives for the agency to delay once a civil penalty is a a and there's a failure to pay it he would think the agency would want enforcement of this it's order and if there's a violation you would think that the very agency would want to investigate and learn about the worst there may be incentives for the agency to delay i grant you that but there are also within the scheme incentives for the agency to move so that it can collect on what civil penalties are due and can enforce the statutory mandate so to say that there are purely incentives to delay good it seems to me overlooks the fact that there are some that yes there are always where agency action is concerned they're not the most prompt people in the world that they would want to bring to bed and so to say that the incentive is right all one way that's not true they run both ways with respect to agency behaviors with all due respect your honor i am not here talking to belly was not talking the statute does not talk about agency incentives we don't have to go try and parse through what subtle incentives the law gives to the agency or the defendants we have a statute it gives a clock agrees the clock starts ticking but they've got the wrong stopping point and they're proposing an infinite statute but stopping point they pose is is their show cause order process which is not the sort of proceeding the th in the belly talked about that would arrest fading memories and deal with evidence being lost it's not in evidence surely proceeding it's their own invention when st passed regulations two years after q the settled understanding that a claim of cruise when an agency has a complete action to reinforce an order or to bring or when a party has a complete  before a party has a right to go to court to enforce the claim that's that's that's the proposition but your honor for agrees with me on this you're talking about the integrating the claim from beginning of the violation to the order to cause within five years that other agencies have not done that but that ultimately the statute of limitations that matter is at the tail end of the process when the  sixty day window as expired and the penalty has been applied to your client but that that st process is not anything that's dictated by regulation or by statute or otherwise but they're committing themselves to that in order to avoid this issue of an endless investigation there are litigation position below and their alternative position here you can look at the briefs there's no mystery about it is that there are two clocks right so they're imposing on themselves a statute of limit set forth for the finish line here because we had no id you could do process no feeded memories or arrested if i understand your honor is that this is a bit of an odd so much before you sit down i want to make sure that each of my colleagues has the opportunity to ask every single question if they want to hear a we'd like to come down very counsel and we'll take