know your argument this morning first thing case sixteen five twenty nine coke cash vs the securities and exchange commission was mr chief justice and may it please the court the government contends it can bring sovereign in foresman actions seeking backwards looking monetary liability based on conduct dating back for ever with no statute of limitations at all that position both contradicts the text of section twenty four sixty two and is anti legal traditions dating back to the early republic i guess your phraseology is technically correct but the government says there's a multi factor analysis that a court would go through to determine that maybe the government's brought its action too late your honor i actually the government doesn't really take that position because it contends that latches does not apply to the government at all so the government's supposed equitable restriction or at least the government has taken that position in every court and certainly does not contradict that position in its brief so the government's view is that there is some kind of equitable limitation that only applies at the remedial stage after the trial and the remedial stage is already over so the person is already stood trial after you know ten twenty thirty years after the incident and even then it's a pretty weak equitable restriction i think the recent wiley case kind of illustrates this restriction in action where the government sought twenty two years of prejudgment interest at a very high interest rate and the government and excuse me the district court said that because c was partially responsible for the delay it was going to apply a somewhat lower prejudgment interest rate that lowered the amount of prejudgment interest from two hundred to one hundred million dollars and that is not really an adequate substitute for a statute of limitations in our view so we think that a statute of limitations is necessary for actions to be dismissed pretrial and we think that also our position falls within the heartland of the word forfeiture we asked the court to apply the ordinary definition of forfeiture which is not changed between the one nine hundred centuries and today it's an order requiring turnover of money or property to the government as a result of wrongdoing i think it's clear before the one nine hundred seventy s and you haven't showed me anything to the contrary forfeiture was in ren proceeding where the property was attached the money the bank account a piece of property a home whatever but it was not a personal action against an individual so how do we get from the traditional understanding which governed this statute to your meaning today because there is a vast difference between in america and in pursuit of them actions well i give two responses to that first of all i would i would dispute the premise that there  a difference there right i do with eggs the question you know i agree with you just as sort of my or the position i'm trying to say is that the government says that the word forfeiture encompasses these in persona money finds and also encompasses these in ram turnovers of tainted property and discouragement is kind of right in between those two forfeitures the government recognises so like a fine it's an opinion of money and like in rent forfeiture it's a turnover order of tainted property to the government and so it's stale disgorgement are quite new so for instance the government says that in one nine hundred ninety congress implicitly ratified its position about the statute of limitations we boiled the oceans and could not find a single case ever before nine hundred ninety in which the government restitution at least that is their specific statutory authority that makes it clear that the district court can entertain this remedy there is no specific statutory authority so we've never challenge the capacity of the district court to seek discouragement we've just said that there's a time limitation when directed discords meant go to a victim as opposed to the government one of the amicus briefs the american investment council quotes numbers and i haven't personally checked their accuracy of something like eight hundred million dollars out of six billion six billion includes penalties although by statute penalties also have to go to victims again i haven't personally verify the accuracy of those numbers but i think it's quite pertinent actually that the biggest money disgorgement in tend to be in these foreign corrupt practices that cases where the government gets often multi hundred millions of dollars discouragement on the gains derived from having bribed foreign officials and those aren't compensatory although those monies are just the popular we go back to the authority seventy eight which is the only authority i can imagine says a court may grant any equitable relief that may be appropriate or necessary for the benefit of the investors if you are not julie rest if they're not doing restitution how could that be the basis of discouragement so that statute was an active thirty years after the f c c already started seeking discouragement so the f c c i don't think views that as the fountain of its judicial authority to do it given that it had been doing it for so long before that i think some of the monitor adversary tell me what the source of their power is but it is unusual i do we do argue at some length in our brief that it doesn't genuinely count as an equitable form of relief and it's notable that the government really doesn't you tell me why you think this is punitive sure best arguments i've read your brief but a good government responded to some of it in we're pursuing what persuasive so what do you think remains that your strong this argument as to why it's punitive and not restored if it will iran or first of all i think the legal standard is that if it has components of both a penal and remedial remedy it's considered penal so the question is whether it has some penal component i think that the answer is yes because when one defines the purpose of the discouragement remedy it's to say it's to create is to ensure that someone doesn't benefit from wrongdoing but when you say that you are talking about wrongdoing in other words the purpose of the remedy is to impose unpleasant legal consequences of wrongdoing at that separate restitution is that way you don't think of restitution as punitive i agree or honor but i think in restitution you can define a purpose independent of the person's wrongdoing which is to say that there's a victim and we want to compensate that victim so you can define a purpose of that remedy that's independent of addressing the wrongdoing of the it's a question of the national after syria but what do you see is the difference between besides the statute of limitations what's the difference between restitution and discouragement well i think that restitution historically was a judgment requiring money to go to the victims so for instance there's an old case called porter which we talk about which the district court actually orders a landlord who charged illegally high rents to pay money to the tenants that was the judgment it wasn't like the score judgment which is this non compensatory remedy that goes straight to the government and the government has the discretion to put it in the treasury or not wherever and however limitations applies there's some old cases from the one nine hundred century that hold that if the government is just bringing an action standing in the shoes of a private plaintiffs then private statutes of limitations are political and actually in the know what is the private statute of limitations i think i think it would be two years and then five years statute of repose but i'm not certain that i think that that's probably what it would be but it's interesting to note that several years ago in the ninety's a litigant made that argument and if this case called ryan from the ninth circuit and the f c c successfully persuaded the ninth circuit that really discordant was not a compensatory remedy it wasn't about compensation what's really ridiculous reindex from the ninth circuit we stayed in the reply brief and so the government is trying to sort of have it both ways when people are arguing that it's compensatory the commissions as it is and when people argue that it isn't which we argue here which is consistent with many briefs the f c c aside from the has filed in lower courts the f c c is saying that it is sort of defining discouragement in this twilight zone of sometimes compensatory sometimes not and trying to avoid statues the mutations a political to both types of them in this case puts us in a rather strange position because we have to decide whether this is a penalty or a forfeiture but in order to decide whether this thing is a penalty or fo need to understand what this thing is and in order to understand what it is it would certainly be helpful and maybe essential to know what the authority for it is so how do we get out of that out of that situation how do we decide whether it is a penalty or a forfeiture without fully understanding what this form of this remedy or this what i it is where it comes from and it's exact nature i think that i agree the court has to decide that question i mean what we had to create is just look at discouragement as it's actually being applied in the real world in the lower courts and so for instance we give a bunch of examples where the commission is seeking discouragements going beyond restoring the person to the status quo ante so the f c c is position that you've got to scorch money that went to everyone not just you so in tipper to be situations and insider trading cases the tipper has to disgorge all the money that went to the tipi and so i don't think the court i don't know why that cruz anything if i commit crime and take my proceeds to africa justice prior i don't know what i was gonna put i bought something i got the benefit just because i was able to direct it so i  don't know that that moves me well but that what i did the example i gave is beyond cases where you just direct the money it's just a tipper who gives information to a to b and never has control over any of the money at all and the tipi trades on it and gets the money the tipper has to disgorge money which never even controlled and so i get to answer just as a legal question i think that it's true that there's some dispute about what this question is where it comes from we argue it's not genuinely equitable and the government doesn't really defend its equitable nature i think the court should take this discour finds it right now in the lower court but why don't we take it as we find in this particular case so is there any difficulty in identifying the victims in this particular case and ensuring that the money that was misappropriated from them by your client goes to them and into the government's coffers so i believe on the on the facts of this case the disgorgement is a penalty as well as a forfeiture and the reason why is that it's true that i actually don't know if the victims are readily identifiable but whether they are not we don't think it really matters ultimately because this remedy is a remedy that ultimately goes to the government in the first instance which mean directed however it wants to it's not a judgment in favor of the victims at all and so but again we don't know well how do we know that the government has the authority to direct it briefs is that it has the discretion to decide where the district court has the discretion to decide there's no legal requirement that this money be distributed the government has taken the position for instance that because discouragement is not compensatory victims don't even have standing to challenge how the discouragements distributed and it's also taking the position that there is no legal requirement at all as opposed to a discretionary rule to distribute the money  immaterial because first of all the money in the first instance goes to the government just like civil penalties also in the first instance go to the government and they're still penalties and second of all i just urge the court to read the government's many many lower court briefs were takes the position over and over again for litigation benefit that discouragement is not a primarily compensatory remedy that the case is presented to disgorge when does this category we must adopt and correct me if it's mistaken but it seems to me that the parties seem to order argue a categorical rule that's always a penalty which always not a penalty it seems to me that maybe we can give guidance as to when it is a penalty and and if it and i correct that that's the way the case was presented to us of all or nothing so i think that as a matter both doctrine and practicality it should be all or nothing first of all doctrinally i think that the court should look at the definition of discouragement rather than how it applies in a particular case and they're also practical problem it is not a well that is true but i think that there are problems within a particular case looking how the monies are directed but i just want to step back and say that our position is even just looking at the facts of this case this discouragement is both a forfeiture and a penalty because it's a forfeiture because it's an order requiring petitioner to turn over his money as a result of wrongdoing i think it's very natural to say petitioner was required to forfeit thirty four point nine million dollars to the government because he did something wrong as found by a jury in fact forfeiture of proceeds of illegal activity are those statutes such as twenty one u s c eighty three a one are essentially identical to discouragement the government's no differences no material differences between those forfeiture of proceeds statutes and discouragement and when congress enacted those statutes it called them forfeiture now it's true those statutes are pretty new but the reason congress uses the word forfeiture is that it falls within the definition of a forfeiture so we give the example of injunction so school desegregation or prison the crowding orders those are injunctions the injunctions they didn't exist in eighteen thirty but they're still injunctions and in the same way these forfeitures of proces which are identical in every way to discouragement as far as we can tell were called forfeitures so even just focusing on the facts of my client's case ignoring all those other cases from the second so i'm very happy on the facts of this particular case to defend our position that this is a forfeiture and as well as a penalty i would say in response to justice sort of myra's question i have to say that the penal vs remedial dispute there's a certain angels on the head of a pin quality of whether something is really penal or not i think the best way to answer this question is to look at historically what was the reason and the purpose of the taxonomy and it's actually quite clear historically and the government doesn't even agree we disagree with this that historically there were basically two categories  money payments to the government there was compensatory payments and there's punitive payments and in fact there's this case called brady versus daley which in fact this court held applied to section twenty four sixty two in the subsumed case called chattanooga where the court says that a payment to a victim is remedial and the same payment to the government in the context of the key term action is punitive and those are the two categories and so we think that that is what congress had in mind when acted twenty four sixty two in new of two categories compensatory and penal compensatory remedies go to victims or it can be or are intended to compensate the government for its own harm and people remedies are not intended because of that that might suggest something along the lines of what justice ginsburg suggested that if the government in fact puts this money into the hands of dems then it is compensatory whereas if the government keeps it it's not and that the rule should follow the pending on which is true so i think that the government takes this money in the first instance and i don't think that the way the government happens to distribute the money should affect the earlier which is if it's being paid to the victim is it really restitution as opposed to discourse and if it's restitution is it compensatory damages subject to the existing statute of liberty so if this was genuine restitution in other words if the district court entered a judgment and the judgment was the government is standing in the shoes of a private plaintive and there's a judgment in favor of some class of victims then it's possible that a different set of statute of limitations would come into play and that a statute of limitations for private plaintiffs who said an old case called b b in a reply brief in which the court rules that in that case those statutes of limitations are important as against the government but because the government has been arguing for decades that that's the wrong rule both in the context of the statute of limitations and many other contexts like for instance in the question of whether disgorgement equitable we quote a brief that the commission filed in the eighth circuit where it says the reason that disgorgement equitable is that it's not restitution it's not compensatory the government says that criminal restitution judgments are completely irrelevant to the calculation of discouragement because it's not compensatory as i mentioned the government's position is that victims don't even have standing to challenge the way these funds are distributed because discouragement is not compensatory so i think that the f c c should be taken at its word and taken the positions they've been taking for decades and because the f c c has taken that position that this is not restitution the fact that sometimes you can distribute the money to the victims shouldn't affect the nature of the remedy as the f c c has been arguing for a long time the same thing is true in the criminal context right i mean we have criminal forfeitures where the money goes to the government sometimes distributed to victims but we don't doubt that those are people and i agree justice courses and in fact in the case the court recently heard on section eight in many cases must go to victims but that doesn't mean it's not a penalty because it's not a restitution judgment for the victim it's money that goes to a government official who can distribute it to victims but it's still ultimately a payment to the government is everything turned on whether the government labels  a particular discordant civil versus criminal no your honor we think that we agree that both you know clearly section twenty four sixty two applies does in fact only applies to civil remedies the word civil is right there in the statute so that is a statute of limitations applicable to t civil remedies and we think that this is a civil forfeiture or penalty because it's ultimately in the first instance a payment to the government and because the government has successfully opposed the argument that discouragement is a form of restitution i think should be taken at its word and this is  payment to the government and so the restrictions against payments to the government apply could congress pass a statute giving the s e c the authority you bring these actions for however long a period congress chooses yes so section twenty four sixty two has language that says something to the effect of unless otherwise specified by congress and we don't we're not making a constitutional argument congress can enact unlimited statutes of limitations we just don't think it did that and we also think that just looking at the historical perspective as well as related statutes the court it would be very surprising that this didn't have a statute of limitations what's so odd about the government's position is that really everything else in this area has a statute of limitations so just to give a few examples e the three a one which is forfeiture of the proceeds of crime very similar to this has a statute of limitations as does the civil actions for forfeitures of proces compensatory actions by the government also have statutes of limitations so if the government sue someone for conversion to get money back there is a statute of limitations for that private cause of action under the securities laws also have statutes of limitations and all those actions in some way could be characterized as trying to get money back that was taken away so essentially what the government is saying is there's this implied remedy that's kind of right in between everything and therefore there's no statute of limitations at all because it kind of fits somewhere in a slightly different from everything and that's just not a particularly plausible position in our view i mean there's been a lot of questions from the bench today about whether this is like restitution we've said isn't but i think a more salient point is that restitution is also subject to statute of limitations so the government's position that by sort of wedging discouragement in between all these other things it could bring actions and limited in time we view as quite an implausible position i just like to say one more word about some of the government's inconsistency in its positions because the government really has taken the position in its brief that discouragement is a penalty for some reasons and not others so for instance take taxes the government's position is that if petitioner wants to deduct this award from his taxes he can't do that and the reason why per the government is that disgorgement is a penalty that's what they say and you know that the i r s has taken this position and i thought the government might just say in its brief where the estes office we're not going to agree with the s we can state the position of the government and they could have done that but they actually don't do that the i r s then excuse me the government stands by that position that it is a penalty for purposes of this statute but it is not a penalty on his taxes and the government why the government says that position they can clarify if this is incorrect is that disgorgement such as this discourse mint is a penalty for his taxes but is not a penalty for section twenty four sixty two purposes simultaneously and it's also true for bankruptcy law the question is whether the words find penalty and forfeiture are in the federal bankruptcy statute and the government's position really is that discouragement is not dischargeable because it is a fine penalty of forfeiture but it is not a fine penalty or forfeiture for purposes of limitation period and it's true that there's a separate provision for in the bankruptcy laws but that doesn't apply to discouragements under other statutes such as the statute in which the government previously took the position in this court that discouragement was a fine penalty or for so i think that citizens are entitled to basic consistency for the regulators which doesn't seem to have happened in the context of this watchman and i'd like to reserve my time thank you coun school mr chief justice and late please the court for almost fifty years courts have been ordering discordant in f c c enforcement actions to remedy i'm just in richmond put the defendant in the position he would have been in if he had violated the law court sometime send that money to the treasury but when feasible at the direction of the court it's distributed to the injured victims either by the court itself by the trustee by receiver in those fifty years has has the s c c or has the justice department ever sat down and write in what the guidelines are for how the f c c is going to use discouragement and what's going to happen to the monies collected i'm not aware that it has the ses policy that it's been stated in various court decisions to ask the court to distribute the money wherever that is feasible and in some circumstances we've given an example of this in our brief the f c c has said well we don't think it's feasible in the chorus that well we think it is feasible this money is going to be distributed so it's alternately in the control of a court i must say i find it u nusual that the f c c has not so much department or that the department of justice hasn't become involved in some way that everything's just sort of up to the particular deciding whether discordant should be ordered in the first place and if so how much and if discordant is ordered what should happen to that money and where it should go so i think that can you give us any indication can you give us any indication of in what percentage of the cases the funds go to  victims can your honor this information isn't in the rec and it also is not completely derive of all from f c c public reports but i can tell you that the f c c has calculated that looking back at the years two thousand and thirteen to two thousand and sixteen that the money caught on judgments entered during those years was dispersed to the treasury forty three percent of the time from two thousand and thirteen to two thousand and fifteen it was thirty three percent of the time so it is very often going to be the case that this money is going to g victims my friend referred to an amicus brief that talks about an f c c public report that talks about collection amounts and disbursement amounts and that report just is comparing apples and oranges because it's talking about amounts that are collected as to judgments in certain in a particular year so that report is not a good source of information about us one reason we have this problem is that the f c c devised this remedy you're relied on this remedy without any support from congress if congress had provided here's a distro gorge mint remedy you would expect them as they typically do to say here's a statute of limitations that goes with it in including as your friends is usually a statue imitations and an accompanying statute repose now it was a concern you know chief justice marshall said it was utterly repugnant to the genius of our laws to have a penalty remedy without limit  those were the days when you could write something like that and it's about a statute of limitations it's utterly repugnant and it concerned it seems to me is multiplied when it's not only no limitation but it's something that the government kind of devised on  isn't a penalty it remedies unjust enrichment and just takes the person back to where they would have been and i also i guess would disagree with the premise that congress hasn't thought about this issue or has it addressed it it's true that the security statutes don't have a specific authorization that says courts may order discourse when they give injunctive power and they give power for a couple relief and that's the power of the courts have relied on consistent with this court's decisions like porter and mitchell in ordering discordant but subsequent to the enactment of those provisions congress has enacted many provisions that talk about discordant that express approval of discord meant that show that congress understands well there are sort of backing and where it's at order and that congress approves of that there's no there's sort of backing and filling i mean this remedy is out there and yes to say this but it does seem to me that we have a special special obligation to be concerned about how far back the government can go when it's something that congress did not address  specify the remedy again i think the remedy is the equitable remedy that congress did specify when it gave that authorization to courts but here is where i think the narrow construction principle comes into play it's not the case that as my friend suggests that you should sort of take a gestalt look at the world and say well it seems like congress meant to have covered a bunch of things with different statutes of limitations and so we should assume that congress meant to cover this also under the narrow construction principle you need to look look at the french windows look at the venetian blind or no tax i think that would last about five minutes that argument or it so i would like to know from you a list of the categories hundred thirty nine our punishment and discordant is not a punishment because it doesn't take away anything that anyone was rightfully entitled to in the first place it just remedies unjust enrichment and it takes the defendant back into the position the defendant would have been in if the defendant had an engagement securities law violation in the first and those are the two and while those are the things i think that distinguishes those in the things that distinguish it now let's look at those punishment it doesn't take it takes away from somebody something he normally he would not be rightfully entitled to so a person who is walking along the street and commits a crime and is thrown into jail is not deprived of his liberty i mean i would have think his liberty is something he is normally rightfully entitled to and i would think it is a punishment to put the person in jail so i suspect but that characteristic is not much of a distinguishing characteristic well from a serious punishment i think that i mean i think that's certainly true of depriving  might not a punishment you say does take something away from you that you're rightfully entitled to often does yes yes often does sometimes doesn't it can and i think that one of the reasons why one  punishment takes from someone a thing that he was not rightfully entitled to but this gorge meant takes from the person a thing that he you know the other way around don't want to be another way really i just doesn't it takes away from a person something that otherwise he would be rightfully entitled to and the disgorgement takes away from a thing he would not be right and i think maybe another have i got it now i do and i that something that he's being punished by say two million but how much was the disgorgement in this case thirty five million dollars thirty five million dollars so it's much larger than the penalty it is and that's because the penalty was time limited under this court's decision in the belly so the penalty only covered the five years of conduct before the filing of the i c c is action or this discordant covered all of the bad conduct which went back farther than five year and i think that's something that's really critical so what is the difference from restitution well i think is this restitution i think there is an analogy to restitution it is not dissimilar to restitution in that both discords men and restitution are trying to put the world back in joint when the world has been put out of joint by something that the defendant has done so i think this is the house call why don't we call this research to show well it's not restitution in full because restitution goes back to the harmed parties and this word meant sometimes goes back to harm parties sometimes it doesn't and we don't think it's necessary that it does go back to the harm parties for it to escape from the reach of the statue and now in forfeiture your tracing in some metaphysical way a car that has been wrongfully to you can yes and you are in traditional forfeiture saying give back that in this situation we're not asking for that we don't care where the money comes from we're saying you're liable for a fixed money judgment that you're going to give up so how is that not the same as a penalty because a penalty is saying to someone you've committed a wrong we don't care what you did with that pot that you got we're not asking you in a traditional fo chime that part over we're asking you to give money from whatever sources you may have other sources and pay for the wrong that you did so isn't it come into the law until much much there's a matter to cliff i understand looks like a four for sure but i don't we treat it like a forfeiture well as i say i would like to talk about your your tracing point but just to make the point just to be clear that proceeds forfeiture didn't come into our law until one nine hundred seventy eight that's what says you got these proceeds from your crime now you have to give them up you have to give them back and we don't think that for sure would've been understood that way when the statute was enough to eight hundred thirty nine which is about your tracing question no i'm sorry it's true that there isn't a tracing requirement for discourse mitt that's true as among private parties as well and actually the restatement unjust enrichment spells this out i think very very well it's that you're trying to get the money back money is fungible and so there's not a tracing requirement the way that there is an forfeiture of i think basically for historical reasons because of the history of in ram forfeiture but nevertheless as between private parties discord jamin or restitution is not considered a penalty liable for the four hundred one hundred thousand dollars right well that would be joining several liability that's not necessarily the same thing is that recovering on top of that from someone else i mean our position is that the court should decide whether the discourse in this case falls  section twenty four sixty two and leave for another day the question of whether discordant extends to situations like that it would seem wrong to us for the court to assume that discouragement is as broad as courts have ever made it and to rule on that basis when perhaps the issue could come before this once  statute of limitations but if that same defendant tried to deduct that remedial relief you would say you can't do that because it's punitive so the same payment is characterized by your client as remedial in one context and money goes back to the injured investors and so we think that it's true not only is it one thing in one context but something else in the other context sometimes it's revealed sometimes it's proven each context but we think it's legitimate to have different interpretations of different e should be understood under the score cision in meeker they both refer to doing something punitive that discourse is not a penalty or a forfeiture under this provision all i'm saying now is that it's possible that there may be other arguments to be made under other statutes even though they c best set out in a ninth circuit decision called wallen brock which points out that sometimes expenses can be deducted for instance if you have a legitimate business that you're running and you just are skimming some money out of your client's accounts but you really do have a gym at business expenses in that circumstance courts have allowed the duction of expenses so as to make sure that you're just getting the unjust enrichment if you're running a ponzi scheme or something of that nature and your whole business is a fraud in that circumstance courts have not allowed the duction of expenses because those right so why does it make a difference that we just happen to be in the civil context well there are four jurors and there is restitution in the criminal contacts that's certainly true the very circumstantial as well i don't think they're actually the same in circumstances in  which for instance the government forfeits things in a criminal context and eventually sends money back to the victims that's in the government's discretion rather than the control the court i think makes them want to for more this is civil versus criminal make all the difference well this court's decision how do we ever know i mean property money or the equivalent that he the defendant did not rightly have perhaps he stole it ok now we have a criminal case judge you stole the hope diamond i can not take that value which you've got rid of the diamond that you have several million i can't take that and give it to the victims i don't even know where they are so i'm going to impose a penalty a fine and the fine will equal the value of the hope diamond is that a fine well i think i said it was a fine yes that would be that would be a fine you could do something that's the question that's being asked if it is a fine when the judge sentences your distinction the main one between discordant and fine or forfeiture what happens to it just to be clear i think what you're talking about now is proceeds forfeiture that would be the equivalent of what your honor described in the criminal law and i think in the criminal context it really is different in this court's decision and kelly explains that the whole purpose of a criminal proceeding is to punish forfeiture is imposed as part of the criminal sentence in a criminal proceeding as i'm sorry sometimes for money goes to the victim and sometimes it doesn't just like here well as i say that's in the government's discretion and that is not like here here it's in the you know we don't know because there's no statute governing it we're just making it up well i wouldn't say that your honor their own most fifty years of precedents on how this should work and i think this works this is is clear it's true that this court doesn't have precedent about discourse in the f c c context but as i pointed out earlier the court does have precedent in other contexts were there and it's are there any time limits and if so where do they come from courts that have ruled that there is no satchel limitations for discordant have said that the district court can take into account as part of this equitable remedy what words that come from a civil list like latches but latches you say it doesn't apply to the government that's true it just doesn't apply to the government i think it is just the fact that in exercising this kind of equitable discretion under the authority given in the statute the court can consider all kinds of facts and circumstances and the court is assessing things like is causation article established is the amount adequately established the cases say over and over again that what the court is trying to do is to get it unjust enrichment and not to go beyond that because that would be a were decided through that's only with respect to the amount of the remedy not with respect to liability so twenty years from the time that the fraud or whatever is committed the government can bring an action for disgorgement against against the wrongdoer and that action would proceed despite this equitable limitation you're talking about yes that's true but the government has many incentives to move more quickly than that you don't see cases like that and in addition i think that it's clear that all along the way since discordant has been the right idea that we think that's inappropriate and bad we're not going to come out the other way because we trust the government not to bring an action like that i'm not suggesting that you actually trust the government what i'm saying is that we're defending the status quo this is the way it's worked for almost half a century and i think if there had been some about all this is changed a lot after the gabelli decision that was your answer to justice ginsburg why did you get this huge amount from discouragement now in only small amount under the other thing and you said well that was because goodell he said we have to be bound by a particular construction of the statute limitations that have that cut us off now we're going to rely on discordant to get all the money we the court said under the belly that you couldn't get under and your honor but the belly is actually an incentive for the f c c to move faster so that it gets the civil penalties and actually is there was actually way more discouragement compared to penalties over two billion dollars compared to only three hundred some million dollars in penalties in two thousand and nine long before gabelli so to the extent that the belly has shifted the government's incentives it's to move faster so the penalties are still on the table and  that's really important i think that the facts of this case illustrates which is that even if the court were to rule that section twenty four sixty two covered discord the government could still bring actions more than five years after bad conduct seeking injunctions it could still bring actions like this action more than five years after the earliest of the bad conduct seeking discordant and penalties and so it's not as if the defendant would be protected from having to defend himself against claims from having to bring witnesses from having to come forward with evidence a circumstance you would show that there were some danger of bad conduct in the future but you use the existence of the bad conduct in the past as part of that evidence so i think that there is not a danger that things are going to go right here congress has been aware of this whole time that discordant is operating this way including in pre one thousand nine hundred cases that were brought more than five years after the earliest of the bad conduct i would like to emphasize one more time if i could the narrow construction cannon here because i think if the court has any doubt about the meaning of penalty and forfeiture at the very least those terms are ambiguous we come forward with all kinds of contemporaneous sourceless a lot of the criminal cases so why should we pli in a case where the penalty is identical to what might be a criminal penalty well it's true that it's not applied in criminal cases where there are other canons that are at play like atlanta you can't well write and like a cannon against penalties the chief justice was referring to earlier but that can't decide whether something is a penalty or not in the first instance that would be a completely circular enterprise you agree or disagree i left a little bit unclear mr unit koski standard is that if something is not soley remedial then it's a penalty do you agree with that i don't disagree that if something punitive aspect then it can be a punishment when you disagree and the punitive aspect so about something that's not soley remedial it is a penalty i disagree with the principle that just because something has some deterrent effect or deterrent the mere fact that something is deterrent isn't enough to make it punitive damages or deterrent injunctions and or deterrent lots and lots of things are because i look at this and seems to be a commonsensical kind of way of looking at the way this remedy works the way the  used it is that it's trying to do a lot of things it's trying to compensate it's trying to deter it's trying to some extent to punish misconduct that it's see is you know that it's a little bit artificial to try to tear them apart and then if you accept mr unocal ski standard that suggests that he has the better of the argument so why is that wrong excuse me i disagree that the swordsman is in any way intended to punish for the reasons is but that's because that's the conduct that gave rise to the unjust enrichment that needs to be remedied and that is a remedial thing to do to say to the defendant you got this money that you were never supposed to have let's take it back and try to put the world back the way that it was before and in many cases we're going to go on and then give it to the injured parties and we're going to put the world completely back to the way that it should have been if you hadn't acted the mere fact that somebody has engaged in wrongdoing is not enough to make any consequence that flows from that punishment or injunctions would be punishments declaratory judgment of the punishments all kinds of things would be punishments that we wouldn't consider to be a punishment and so i think again there is at least some ambiguity here about what congress meant in eight hundred thirty nine about what penalty and and in that situation the american struction can and comes into play in favor of the government and resolve this case in favor of the government petitioner has suggested that the narrow construction can and has no application here because this is not a situation in which the government is trying to get back its own money or its own property that is just not correct as a statement of how the narrow construction can and works the very cases that petitioner cites talk about the rationale for the narrow construction can and being protection of public interest public rights and property and what americans fraction of section twenty four sixty two to say that the words penalty and forfeiture should be understood narrowly rather than as petitioner would have it extremely broadly to cover basically any payment that ever goes to the government in any way and once you construe them merrily to mean punishment then discordant doesn't fall within the scope of that and again i think it can't be that you can sort of say well congress would have meant to cover this if it had thought about it can then just as the cannons that would have to do with waivers of government sovereign immunity and the like says you have to look specifically at each of the categories that congress set up and see whether the remedy that you're talking about falls within the scope of that and here that's certainly not the case we know that congress has been active in this area the congress has it's usually relating to continuing misconduct there aren't very many cases where the i c c has ever reached back more than five years before the filing of the complaint but in the ones there that exist again not a huge number they are generally cases that are brought within five years of some of the misconduct as was true in this case thank you counsel mr yuna koski five minutes thank you mr chief justice i just like to make a couple of quick points first of all the government counsel characterized our position as saying that we're relying on some general good style to about the implicit intent of congress and i want to be emphatic that is not the position we're raising we are relying on the text of the statute we think this is a forfeiture and is a penalty under the dictionary definitions of those terms so first  word forfeiture we just cite the dictionary and say that it's an order to turn over money or property to the government as a result of wrongdoing which this is and we also point to the real world usage of forfeitures that are almost identical to this and by the way i point out that the government says th not forfeiture because it's not punishment but we cite lots of old sources dating back to the nineteenth century in which courts were emphatic that certain types of forfeitures like these customs forfeitures which are very similar to discourse meant remedial they weren't even punitive so we're relying on the literal of the word forfeiture and the history the way this court has interpreted that word and we think that discordant falls within that and it's true that this is not identical to forfeitures in eight hundred thirty but it's the same way that school desegregation injunctions are not identical t injunctions from one thousand nine hundred thirty either but they're still injunctions because they fall under the meaning of that word and in the same way discordant is a type of forfeiture similarly we rely on what the word penalty means accompanied by this court's decision saying that partially penal remedies are in fact considered penalties for various legal purposes the word penalty means a negative negative consequence of wrongdoing because of that wrongdoing in other words you did something bad you've got to pay money to the government because you did something bad as opposed to because you want to compensate the victim and that characterizes discouragement there's a jury finding that petitioner committed securities fraud as a result he has to give money to the government and it's true that the measure of that money is the amount of money he gained this concept of tainted assets but there's just no historical record that that's somehow not a penalty as you mentioned for instance forfeiture of the proceeds of crime is punitive the government always said it's punitive it's part of a criminal sentence and yet it's essentially the same thing as discordant so we're happy to rely on the text in this case i also want to talk about the dangers of this implied remedy because as there are some questions from the bench that discouragement seems to be an implied remedy there's no clear statutory authority and the danger of that is that discouragement seems to keep more thing in the government's br and positions so for instance the government always claims as i mentioned lower courts that the compensation is just an ancillary aspect of its discouragement its primary function is not compensatory and did that to beat down a whole bunch of legal arguments such as the argument that private compensatory statutes of limitations apply and now in this court when you point out those positions the f c c says well it's sometimes compensatory sometimes isn't but the fact that merely sometimes we're compensating people that's enough to make it and compensatory enough to fall outside of section twenty four sixty two and by the way the government council today made very clear the ses position that it wants a categorical rule under section twenty four sixty two they don't want that rule under bankruptcy law or tax law because that might decrease the amount of money that goes to the treasury but under section twenty four sixty two the government emphatic that it wants a categorical rule discouragements always one hundred percent of the time not a penalty or forfeiture under the statute so even on in these foreign corrupt practices that cases were billions of dollars going to the united states treasury and there's no prospect of compensation victims the government says that's discouragement and so that is not a penalty or forfeiture and that will be the government's position if it prevails in this case and so i just don't think that the government can define this remedy of sometimes compensatory sometimes not compensatory and avoid everything and that's the danger of allowing the government to bring implied remedies further back in time precisely because they're implied which is essentially the government's position because it's an implied remedy congress never nec to expressly so there's no statute of limitations therefore it has more power to bring this it in different ways depending on the litigation needs of the government i'd like to make one final comment about the canon of construction the narrow construction cannon because again for two hundred years we haven't found any cases in which the government has applied in a case like this one a non compensatory backwards looking remedy to the government as sovereign it just hasn't applied it and there's lots of it that way and there's lots of cases in which the reverse can of construction has been used so we cite for instance the old male case in the old adams case from the early republic where the court is clearly saying that the there is a construction in favor of the statute of limitations because as chief justice marshall said it would be utterly repugnant not to apply we call them a ard case involving a value customs forfeiture quite similar to this case in which again the judge at the time it was a district court refused to apply that canon because of the court's view that it shouldn't apply in these backwards looking remedies and in fact the gabelli case itself i think is quite strong for us on this because in that case if there was some pro government canon it wouldn't