structure and purpose make clear that when section thirteen b authorizes the commission to seek a permanent injunction it means just that a permanent injunction traditionally understood it does not mean injunctions and all equitable relief or injunctions and monetary relief are passed harm three features of the ass make that especially clear st thirteen b is limited to cases where someone is violating or is about to violate the at that limits to ongoing or i violations would make no sense if thirteen be authorized retrospective monetary relief or past our nd where the actual hours are only beyond injunctions it says so section five l authorizes an injunction and further the propre of that language would have been pointless if the word injunction itself implied all equitable relief rd another provision section nineteen authorizes monetary relief for past consumer injury but it provides safeguard including a statute of limitations hiding proof requirement and notice the victim those limits would be meaningless if they could be evaded under thirteen b even if there were a presumption that mentioning it specific type of equitable relief meant all equitable really and there should not be those three features overcome it to be clear the commission can get retrospective relief or consumer harm but it must invoke section nineteen the mechanism congress provided for that purpose that makes sense because the act prohibitions are broad and general congress in one thousand and fourteen agency process is the primary enforcement mechanism so the agency can apply it to expertise and give businesses notice on what is prohibited action can be by contrast is an arrow supplement for threatened harm where the commission will come to court to stop the conduct quickly where there is more time like for backward looking remedies there was no reason for congress to bypass the agency responsibility to provide guidance mr patel zero one of the issues with your reading of the statute is that it was passed roughly fifty years ago and in the intervening years there's been a significant change in how this court interpret statute statutes back when this was passed and we had a pretty free wheeling approach you know we weren't as confined to this specific language sort of look at what congress had in mind and figured out the meaning in light of that and of course today we have a more disciplined approach you know i think more suited to our role under the constitution but shouldn't we construe this statute in the environment in which congress passed it in light of the as i said more freewheeling approach and i think there'd be a lot more leeway to your friend on the other side argument about an expansive  of the language so why why do we sort of adopt i don't know what it is view that that is current today but wasn't current back then your honor i have to respond to that interpretation and we decline you know eleven last drink and i think that battle applies equally here whether or not that was the motive the time at thirteen the u n acted that the reasoning of alexander versus band of interpretating provisions you know we go back to the you know eight hundred and sixty treatise and say what did that mean back then and we don't look at a contemporary dictionary jabbering argument besides what we said in san  do the theory to congress on how thought of permanent injunction carried with it all equitable relief when it acted thirteen b itself defies the three features i mentioned in my opening in the very same legislation that impacted thirteen b congress six pressley authorized an injunction and other in further actable relief in section five though that cannot be reconciled with the notion that congress somehow thought the word injunction itself automatically included all  this court looks to how accessible terms are traditionally understood and permanent injunction traditionally acts clued monetary relief as compensation for past harm and great less noted and here  the phrase thirteen be it refers to a permanent injunction and you wouldn't ordinarily think of a one time order to turn over property as a permanent as a permanent injunction and the specific language used in thirteen  even without reference but also thirteen b is limited to cases of imminent or ongoing harm and it wouldn't have made any sense to authorize retrospective to to link the authority for retrospective monetary relief to the availability of imminent or ongoing harm consumers don't become more or less worthy of redress for their injuries depending on whether or not the conduct is ongoing or that ar all of those cases involved a situation where there was the parties had a general right to seek all equitable relief and that is simply not the case here this case thirteen b is just limited to injunctions so whether or not the other relief of an accounting might be available where all equitable relief is available to the plaintiff that's not the case here injunction means injunction in thirteen b and we know that and it's limited by the three features of the act that i've mentioned thank you just as pryor good morning to i thought the brits are very good in this case blue brief i think you're right red briefs i think you're right they can't both be right that's right all right you see that's the old joke but that's who i am so i'm pretty familiar with the arguments and i see which way we go and the argument seems to me that against you put the other half to the other side of the argument that's against you is simply this to me law isn't perfect courts make mistakes we make mistakes too  and this is it is a mistake it's been around for fifty years and there's a pretty uniform interpretation before the th circuit and if we never say that bygones be god guns i mean we're going to be here to marbury vs madison and beyond so took this approach old haida to wait for my question i'm assuming you're right on all that ok my question is still it's close and still the lower courts at least have been uniform for fifty years we cannot under everything that was in your opinion or mine or somebody else's decided not perfectly and may be wrong that's what i just asked well and so excuse me on their courts of appeals on either side there are now two courts of appeals that have rejected the notion that thirteen be carries with it all monetary relief and there's simply no rule that the st court of appeals to issue its ruling on a particular version of the law when and so there is no reason to give a presumption to the courts of appeals that decided it st thank you justice alito mr my understanding is that around five hundred million dollars has been distributed if we ruin your favor what will happen with respect to those individuals will they be required to return that money i honestly don't know i would be surprised if if that is the result one option would perhaps be for the commission would have to repay half out of out of the federal judgment fund which you know is the reservoir that exists for paying liability of the united states i suppose it would be up to the commission to decide whether  e united states bears the burden of the terror what is the relationship between the order in question here and the forfeiture order that was issued in the southern district of new york and tucker's criminal case there he was as i understand they're required to return three billion dollars is that the cope of the amount of money it's involved here is my understanding is that there is some overlap between the assets that were at issue i mean is it that or talk or just had one pool of resources and today my understanding is that the commission and the feather district had been giving out the different responsibilities but it's also worth noting here that the order in this case encompasses encompasses money paid by innocent parties as mrs tucker and to fix the nine dollars which were never alleged to have been and that amounted to over twenty seven million dollars they were never alleged to have participated in any wrongdoing and those that that certainly couldn't be subject to the criminal lawyers that was true when this provision was inactive even though those who were lawyers perhaps like me never heard of the word equity when they were in law school so i suppose one of those members said well you know we're going to authorize a commission to seek an injunction so i'm going to look at the most recent edition of black's law dictionary which defines an injunction in part as a judicial process operating in injunctions are broad and flexible and certainly as as the court explained in great west with literally inventiveness just about any order could be framed in terms of a under section nineteen if the f t c could obtain discouragement under thirteen b but it makes sense to me that the f t c might sometimes want to establish new rules through ages to  binding on absent parties as to which courts will defer so the more important question for me is and i hope you can answer it is why with congress authorized the f t c to seek a permanent injunction if no other equitable remedies were available it seems that under your understanding of the statute why would the f t c ever pursue a permanent injunction  that thirteen b is a it's a narrow supplement to the overall f t c act which is which almost every other single provision is about or in service of administrative processes thirteen b exists for situations where there is threatened or ongoing harm and it allows the commission to come to court to stop the conduct quickly in order to do that we could do that with a temporary injunction so it doesn't need to do if it if there is no need if it's a routine case where the agency doesn't need to pronounce as is it statutory obligations to define whether or not i apply its expertise to define whether a particular conduct is prohibited be the permanent injunction past their district court might be a quicker and more expedient remedy but the fact is that  and general and congress made agency process is the primary enforcement mechanism and its job is to apply it why why even give it a permanent injunction when it wasn't according to your reading able to recover sense to me because sometimes that would be that would be good enough sometimes just stopping the conduct is this efficient remedy in and of itself there was always need to be consumer address in every case and in fact for most of the most of the f t c early history it had no authority to see consumer address whatsoever until it was an active instruction th stopping the conduct with its primary responsibility justice tell you what congress intended and even under the old approach what if we're trying to discern whether congress thought that injunction actually meant all relief all we need to to see whether an implied remedy was considered it had to look and see if the implied remedy was consistent with the statutory scheme and porter found that even though there was nothing there for closure that implied restitution remedy it says there is another section of the emergency price control  and that provision addresses damages to the fact that the statute elsewhere mentioned damages supersedes the possibility that there could be an implied damages remedy congress in a match justice  morning counsel i'd like your help with the a line drawing problem i think you agree that an injunction can be used to provide certain forms of equitable relief including restitution perhaps an accounting acquiring a freezing of assets or handing over a thing of value but the but it's a can't go this far how would you have a straw that line to describe it i think it's i think it's a fairly simple line and we can look to how just the story described it there's a difference between there's a difference between the initial determination as to who owns the property whether property should be returned and that principle is articulate in terms of other at herbal doctrines such as restitution now there were instances in the past and these were you know more of the certainly more the exception than the rule where an injunction might you be used to enforce that prior decree where that where someone had already been given the award of restitution that determines the property right and then if there was some other reason why an additional coercive remedy was needed the injunction might issue to force that it's just a story explained in a treatise that type of injunction with issued quote after a decree in the nature of an execution to enforce the underlying decree and that's completely different from what the commission seeks here the commission doesn't think to use an injunction to enforce a right to restitution it doesn't have a right to restitution under thirteen restitution and knew how to give remedies and wish to confer there was no need to add this one nor do i think it did so it did not give it expressly that kind of argument what do we do with porter and mitchell  if we decide this case in your favor another warrants how should we write the opinion with respect to those cases this court doesn't need to overrule quarter material any more than it needed to do maghreb which held that in the contract that injunction did not mean all equitable relief neither quarter nor mitchell involve the statute with the three features that i mentioned at the outset in either case the congress elsewhere authorized an injunction and other and further equitable really making it clear that congress didn't presume that an injunction carried with it all equitable relief neither corner mitchell addressed the statute limited to ongoing or threatened violations which is the sort of thing that injunction would protections like a statute of limitations it would be rendered entirely meaningless if the commission could implicitly get the same relief under thirteen b instead so porter and mitchell are entirely distinguishable based on the statutory scheme and picking up on one of the justice priors questions when you have the combination of supporter in mitchell plus so maybe broad you would say to tangential but some congressional ra tim i don't think so long standing error doesn't make it any less error the statute is still the statute and now that the issue is before this court that is the court duty to get the correct interpretation of the statute notwithstanding oh a long history of error thank you notes disparate or counsel let's say that we agree with you about thirteen b your client i don't understand you to be arguing that he has clean hands i mean he's been convicted and he will has the dubious distinction of being the subject of an episode of dirty money on netflix but you you suggested in your brief that because of the safeguard section nineteen in particular you know the been reasonable man standard knowing and understanding that the conduct was deceptive that the f t c couldn't have gotten a monetary remedy from him under nineteen so it your position that if we adopt your view there's no way for the f t c to get the ill gotten gains back from someone who has violated the law like your client i'm sorry i didn't mean to suggest that the f could not have proven its case under section one teen although i do think there is a substantial question about that in the in judge b s dissent in the decision below he noted that you know the three judges on the th circuit have looked at the disclosures and they thought that they were accurate and they were not deceived by that but notwithstanding that the fact is that you know the decision here doesn't just affect my client it doesn't just  affect payday lenders as are making the chamber has pointed out and as you know this is the suite of the f t c act is about as broad as you can get reaching into every single area of commerce and it's precisely because the prohibitions of the act are so broad in general that it's important to hold the commission to its primary responsibility of you know telling business is what the law is prospectively instead of running to court the question here is whether thirteen b s reference to permanent injunction means permanent injunction or whether instead means all equitable relief and money for past harm the three features of the act that i've discussed confirms that injunction is limited to an injunction as that term was traditionally understood to be any clearer congress would have to take the absurd step of saying and by injunctions we mean only injunction not other remedies but this court does not impose and never has imposed any such requirement the f t c at moreover is striking in its consistent focus on agency processes to prospective lee define prohibited conduct you know under the commissions you the single senator that can't level proviso and thirteen be authorizing permanent injunction is virtually all the statute it needs the commission can get all the injunctive and monetary really could live without the burdens of the administrative processes that were at the very reason for being that cannot be right the commission to enforce the f t c act in federal court it intended that the court would merely stop the violation while letting the violator keep his stolen money such a ruling would radically depart from the foundation principle of equity recognized just last turning loose that long door should not profit from their own wrongdoing it would also profoundly deviate from the understanding of injunctive relief that was imbedded in the law with congress enacted section thirteen be as many of the court's questions have recognized courtship equity recognisance before the phone to the equitable power to issue an injunction inherent mean klute the power to order the return of unlawful games of the act which provide remedies when the commission chooses to enforce the act administrative leave do not create an unmistakable inference that congress intended to limit traditional equitable powers when the commission chooses instead order works like a prohibitory injunction congress therefore had to specify the additional remedies it wanted for a violation it did not need to do that in section thirteen b but could instead invoke its understanding of the traditional equitable powers of injunction without the need for elaboration together the sections nine sections thirteen be nineteen and five help work in harmony to give the commission a choice between effective enforcement pathways that can provide meaningful relief to victimize consumers counsel a lot of the cases you've cited in support of a broad reading of injuncti and construe their authority very carefully at least i don't think so but this involves an agency and an agency only has the authority delegated to it  congress and i'm not sure we can assume that those precedents involving court supply so smoothly in the context of an agency well certainly the agency has the whatever power congress has just that the court can enforce whatever authority the agency has it doesn't say enforce it says grant and the court can enforce under a different provision section five the commission's own orders but what section thirteen baby is doing if it's giving the commission the ability to go to court to seek the relief that a court can grant this is no different than what the price administrator did in order for the department of labor and be your friend on the other side makes the point that injunction appears in the united states code throughout the code hundreds of times and is your position that whenever it does broader range of that group ours is conferred on an agency well again it's not that power is conferred on the agency it's that the court has inherent powers now in many cases it may be appropriate  in conjunction with an injunction to engage in other types of equitable remedies but it's not always appropriate these are case by case determination thank you counsel justice thomas  in preventing a future or present actions seems that what you're doing here is using it for something that has already happened would you be kind enough to reconcile typically an injunction requires there to be ongoing or expected conduct but once the courts equity jurisdiction has been properly invoked the court can order associated media relief and that's what happened in all of the th century intellectual property cases and in fact in the case in particular the court said your junction or your timing has expired therefore you can't seek an injunction and you cannot get it and make it monetary remedy but here there was an ongoing conduct at the time yes g c sued the court granted an injunction and the question is once the court has had it take a minute and explain again why from my perspective it seems as though what you're doing here fits more comfortably under section nineteen but you do if you explain why the commission chooses to where it doesn't take a lot of commission expertise to explain why a particular act is deceptive and here certainly it did not take the agency or even the u s attorney's office for that matter to explain to scott tucker that of misleading people about the terms of their loan was a deceptive batch so when the commission feels that it doesn't need to expound  on that meaning in foundries of the f t c act it can bring cases under section thirteen that keep in mind when it does that it gives up a bunch of stuff it gives up the ability to find its own facts it gives off the somewhat broader remedies that section nineteen allows including section one can allows us to sue in state court as well as federal court and so each it's a little bit like the choice between rule making  ballet aerospace congress wanted to commission to have flexibility to choose between enforcement pathways just absolutely necessary to bring bad business practices under control so they compromise but compromise was you've got to do it the f c c says but before it tells you to do something it will find what you're doing now  damages some kind nineteen the same thing and now we have right in the middle thirteen no protection like that whatsoever do not worry says the f t c we will only use it in exceptional cases in two thousand and twelve they repealed that and now ten years later our road after this is been in effect for a few years i read that a one hundred cases of this provision are in the courts compared with ten or twelve under the regular cases and you say it's just obvious we're going to get those people who think they're bad conduct is obvious look at  look at the cardinals go back to the famous sunburn case add substantiation people who wouldn't know that it is an unfair practice that our chiropractor with married to a y who had some income from the company and therefore is conclusion as to the muscle toning of the company should be discounted and that the kinds of case i'm bringing you see my point on the one hand it's well established law in the lower court on the other hand if we interpret it your way we we say your fears business community were absolutely right it is now up to the f t c before you know the thing is wrong when the commission was created there was a bargain struck and in one thousand nine hundred and seventy three when consumer fraud became aware and into the economy and people were complaining about the two st f t c there was a new bargain struck where the commission could go into court and seek remedies in court as a litigant in the st instance of course are of course found by principles of constitutional due process and notice and if the court concludes that settlements that were made with the commission in the course of administrative proceedings if things do get complicated but those are companies that agreed to settle just another lead a restitution remedy when there is still ongoing activity but no restitution remedy when all of the harm has already been completed well but because the remedy goes along with  and seventy three his brief cites comments made by a former f t c official mr fitzgerald that addresses that directly and they are pretty damaging to your position mr fitzgerald says that thirteen b with some that acted nobody on the commission a magine for that would become an important part of its commission's consumer protection program but the commission disclose the basis to argue for broad equitable relief commissions attorneys thought these arguments were not going to succeed but to their surprise they were successful you know saying anything about mr fitzgerald you want to say something about h now i'd be happy to just leave mr fitzgerald for one thing is not taught risk so the question is what congress understood and there was a huge body of law indicating that congress understood what it was doing but beyond that of what mr fitzgerald  large industrial sectors and it did take a little while for the commission's mindset to change from a rule making to an enforcement perspective phone once a day if figure if we started invoking section thirteen and as has been pointed out by the questioning of courts for forty years they have accepted those things and before the f t c even did the courts have been accepting this exact same arguments in the  mandatory injunctions and further equitable weekly why would congress use a different language for injunctive relief in one section and just stop at  me administrative and and so they're already basically is an injunction on the books and it's an injunction that doesn't come with any traditional remedies so i always had to face zachary what remedies it was just and that's why it's limited to mandatory injunctions and other equitable relief but infection thirteen congress didn't need to do that they could rely on to piggyback on all of the traditional remedies inherent in a permanent injunction which is different from a mandatory injunction and so you know you could look at it that in fact what congress wanted to make sure of was that no matter how the commission proceeded whether preceded by now i'm following up slightly on justice alito is question legislative history is not important to me one of mine to make of the fact that i saw nothing in the history of this bill suggesting that congress understood that section thirteen b authorizes monetary awards quite to the contrary the prior version of what became sections nineteen triggered extensive debate because there wasn't money than midges available and section nineteen was passed to remedy what was perceived as a fault in the bill as it existed so what am i missing in terms of nineteen defacing about monetary remedy from section nineteen had to do with the commission's own ability to order monetary remedies and of its own administrative process which is part of the cease and desist order  was front and center answer to me which was a fear of congo's an agency would have too much power and if congress gave the commission the ability to address economy wide  practices under fairly broad terms and it was concerned that the agency was going to play or novel practices to be deceptive or unfair anti competitive and so congress was understandably one pathway more attractive in certain instances than another but if the commission does encounter a novel practice or of the commission which is to make its own fact finding of in particular particular complicated cases were difficult cases then it can do that only in the administrative pathway so it's not a just it's not just a freebie the commission has to give something up when it decides to go to federal court and it just so happens that you know there's protection cases but there's no question that the agency brings far more cases in court that it does in the administrative process but again  protection side because i think the any trust side there are a lot more standards out there that people are familiar with but the justice brier really does for mind some of the other history here you know th the finding and may lack some of the substance that we now have at least under the sherman act and in the any trust context laid out a bunch of protections in section one thousand before your money can be taken away that we've all kind of one around this question but it is in our i think our core concern is your rendering that those protections superfluous that there's very little incentive for the agency to see much other explanation for very broad provisions that clearly on their face say this is in addition to other remedies and you can't use the existence of this provision to interpret finding and use and joy its own legal conclusions to address but it was totally terribly difficult and section thirteen is so comparatively easy what incentive remains to do that i know it can but why would it just as it can come up with rules defining what unfair trade practices are but but choose not to do so well it well it does so it doesn't do it as often but it does do it and so that proves that there are cases where the commission we need to take this one this one is difficult enough this one is uncertain enough this one acquires our application of agency ex get all of that when it goes to federal court now some would say that it's actually better to have a commission litigation cases in federal court than it is to have a commission making broad based rules that may apply to the non fitzgerald's article which i read you obviously put forward good arguments on porter in the court's precedents and congress's intent as well as the body of court of appeals cases but it seems that the problem you have is the tax and in that sense this case really is a separation of powers case i i worked in the executive branch for many years so i understand how this happens when you're in the executive branch or an independent agency you want to do good things and prevent or punish bad things and sometimes your statutory authority is borderline and it could be war policy or immigration or environment or what have you both with good intentions the agency pushes the envelope and stretches the statutory language to do the good or prevent the bad the problem is that results in a transfer of power from congress to the executive branch to decide whether to exercise this new authority that's a particular concern at least for me with independent agencies so now why isn't the answer here for the agency to see this new authority for congress for us to maintain the principle that separation of powers that the agency should stick to the authority in the in the tax tamala and not go beyond that thirty thousand  question and trust in your responses to that well so again the question the real question is what was congress intent when it gave the commission the authority to see a permanent injunction in federal court and if it intended you know ultimately i think your concern is a valid one but it is resolved if you look at what congress would have understood the words to mean when to use them and there was in fact a common understanding because their money that's actually been distributed for consumers comes from different they're not tucker this is tucker or any of the petitioners before this court that comes from a bank that settles separately with their government and agrees to pay restitution remedy in the criminal case where the justice department then turned over to the f t c to distribute to consumers so none of that money is the judgment in this particular case and the money that's gained isn't all being distributed to the plaintiffs so it seems like it functions almost more like a fine it doesn't really seem analogous to say restitution to me well was stolen from them it's just a matter of collecting the money during the hour for this case whether we are allowed to give back the money and then basically cutting checks to everybody right now the money is being held in safekeeping  proof for the most part but of their bank accounts housing breaks cars whatever assets that were seized and are being held basically in trust court should not overlook is the basic principle backward that wrongdoers have to give back the money that they took unlawfully and she asked the court to disregard that principle but the court should have that principle firmly in mind when it decides this case it should uphold the history and tradition and affirm once again that a permanent injunction includes the power to restore victim money that was wrongfully taken from them and i don't think that anything in sections nineteen or five elf rise to the level of an unmistakable inference which is the standard that is required under porter so the court should affirm the judgment below thank you thank you counsel rebuttal mr patel oh i heard the commissioner say that this case should be decided by looking at congress's intent when it acted thirteen b and the way we determine congress of intent is by looking at the words on the page congress used the word injunction with a clear historical meaning even if in certain cases like porter and mitchell that term might be construed to carry with it other affable remedies we know that's not the case here even under porter and mitchell or in mitchell make clear that you must look at the statute and ask if another feature imply a belief precludes broader relief the commission suggests that standard isn't that here but all we have to do is look at porter and porter the existence of another provision pride providing it damages remedy with suspicion and for the court to conclude that it should not also imply that same damages remedy into the provision at issue that is what the commission is trying to do here is trying to get precisely the same relief that would have been available under five l injunctions and other equitable relief it's trying to get precisely the same relief available under section nineteen but without complying with any of its safeguards i heard the commission say that sometimes pathways one pathway might be more attractive well of course it's going to be more attractive for the commission to proceed under section thirteen and section nineteen where it doesn't have to comply with for example the heighten proof requirement where it doesn't have to comply with the limitations period i didn't hear a single response to why congress would have intended to allow the same relief under two pathways yet only provide protections in in one but not the other and in the absence of limitations period is something that megrims pointed out it would be truly striking for a statute to award monnet retrospective monetary relief but not include a statute of limitations that applies equally here but even more so when you consider what the commission's core mission is here here the commission st investigated this conduct is st asked mr tucker about his disclosures in two thousand and two yet subject to no limitations period it sat on the hands for a decade now if it were following the prescriptions that congress provided in two thousand and two if it's thought so there was something wrong with the disclosures it should have in and then it should have sought to bring a stop to it it could have gone you should have gone to administrative processes to make clear that this particular remedy or excuse me of these particular disclosures which were widespread throughout the industry were in fact not  important it's exactly what congress intended and the entire structure of the commission's mission is being altered by choosing to go down the easy path of rendered racking up huge judgments under thirteen b without th protections that congress provided under section nineteen if there are no further questions i would ask that the judgment of the court of appeals be reversed thank you counsel