## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 25 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. TELLURIDE COMPANY, named: The Telluride Company; MOUNTAIN VILLAGE, INC., d/b/a Telluride Mountain Village, Inc.; TELLURIDE SKI AREA, INC., Defendants-Appellees. No. 97-1236

Appeal from the United States District Court

for the District of Colorado (D.C. No. 93-K-2181)
Ellen J. Durkee (Lois J. Schiffer, Assistant Attorn ey General, Peter Coppelman, Acting Assistant Attorney General, Robert H. Foster , and Robert L. Klarquist, Environment & Natural Resources Division, Department of Justice, Washington, D.C.; Cathy Winer, Joseph G. Thies, and Alan Moriss ey, Environmental Protection Agency, Washington, D.C.; Steven B. Moor es, and Wendy I. Silver, Environmental Protection Agency, Denver, Colorado, with her on the briefs), Environment & Natural Resources Division, Department of Justice, Washington, D.C., for Plaintiff-Appellant. David C. Warren (James E. Scarboro, David S. Neslin , and Peter J. Krumholz with him on the brief) of Arnold & Porter, Denver, Colorado, for DefendantsAppellees.

Before BRORBY, BARRETT and LUCERO , Circuit Judges.1 On the same day the Government filed its complain t, it also filed a

proposed consent decree for full settlement of the litigation. The district court rejected the proposed decree because it “was not de veloped in a manner that was -2- BRORBY , Circuit Judge.

The United States appeals the district court’s grant of partial summary judgment to the appellees, Telluride Co., Mountain Village Inc., and Telluride Ski Area, Inc. (collectively “Telco”), dismissing the G overnment’s claims for violations of the Clean Water Act, 33 U.S.C. § 1251 et. seq , that occurred prior to October 15, 1988. See United States v. Telluride Co. , 884 F. Supp. 404 (D. Colo. 1995). The issues on appeal are whether the five-y ear statute of limitations provided in 28 U.S.C. § 2462 applies to the Governm ent’s claims for injunctive relief, where § 2462 by its terms applies only to t he “enforcement of any civil fine, penalty, or forfeiture,” and whether the dist rict court erred in applying the concurrent remedy rule to bar those claims. Our ju risdiction is exercised under 28 U.S.C. § 1291. For the reasons below, we reverse the district court’s judgment.

BACKGROUND On October 15, 1993, the United States filed a civi l action against Telco in the United States District Court for the District o f Colorado under § 309 of the Clean Water Act, 33 U.S.C. § 1319. 1 As authorized by 33 U.S.C. § 1319, theprocedurally or substantively fair” and because of questions regarding whether it

adequately fulfilled the objectives of the Clean Water Act.

-3- Government sought civil monetary penalties and inju nctive relief for Telco’s illegal filling of approximately forty-five acres o f wetlands between 1981 and 1989, in violation of 33 U.S.C. § 1311(a). In its request for injunctive relief, the Government sought to enjoin Telco from discharging additional material, and to require Telco to restore damaged wetlands to their prior condition or create new wetlands to replace those that could not be restore d.

Telco subsequently filed a motion for partial summa ry judgment on all of the Government’s claims for violations that occurre d before October 15, 1988, contending these claims were barred by the five-yea r statute of limitations in 28 U.S.C. § 2462. Section 2462 states in relevant part: “[e]xcept as otherwise provided by Act of Congress, an action, suit or pro ceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary o r otherwise, shall not be entertained unless commenced within five years fromthe date when the claim first accrued.” 28 U.S.C. § 2462. The Government conceded § 2462 applied to its claim for civil penalties, but argued the statu te did not bar its claims for injunctive relief. The district court disagreed, applying the concurrent remedy rule to hold § 2462 barred the Government’s claims for injunctive relief. The2The parties subsequently entered into a consent d ecree, which was

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

-4- court interpreted the concurrent remedy rule as pro viding when legal and equitable relief are available concurrently, and a statute of limitations bars the concurrent legal remedy, the court must withhold th e equitable relief. Consequently, because § 2462 barred the Government’ s claims for legal relief, civil monetary penalties, the court held § 2462 bar red its claim for injunctive relief. On May 2, 1995, the court granted Telco’s motion for partial summary judgment, dismissing all of the Government’s claims for relief for wetlands illegally filled prior to October 15, 1988. 2 The Government appeals the district court’s judgment, claiming § 2462 does not apply to its claims for injunctive relief, and the district court erred in applying th e concurrent remedy rule to bar those claims.

ANALYSIS We review the district court’s grant of summary jud gment de novo , applying the same legal standard used by the distri ct court. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgmentis appropriate “if the-5-

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this sta ndard, we draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). The construction and applicability of a federal statute of limitation is a question of law we review de novo

. Wolfgang v. Mid-America Motorsports, Inc ., 111 F.3d 1515, 1524 (10th Cir. 1997) (stating th is court reviews questions of law de novo ); Foutz v. United States, 72 F.3d 802, 804 (10th Cir. 1995) (stating the construction of federal statues is a question of law); Industrial Constructors Corp. v. United States Bure au of Reclamation , 15 F.3d 963, 967 (10th Cir. 1994).

Congress adopted the Clean Water Act (the “Act”) “t o restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this purpose, the Act prohibits the discharge of any pollutants, including dredged or fill material, into waters of the United States without a permit. See 33 U.S.C. §§ 1311(a), 1344. Certain wetlands enume rated under 33 C.F.R. § 328.3(a) qualify as waters of the United States. Unpermitted dredging and filling of these wetlands, as in Telco ’s case, are subject to the Act’s-6-

enforcement sections. A violator may be subject to a “civil action for appropriate relief, including a permanent or temporary injuncti on,” 33 U.S.C. § 1319(b), and a civil penalty not to exceed $25,000 per day for eac h violation of 33 U.S.C. §§ 1311 and 1319(d). It is under these sections th at the Government sought relief for Telco’s violations of 33 U.S.C. § 1311 that occ urred prior to October 15,
1988.

The parties do not dispute 28 U.S.C. § 2462 is the applicable federal statute of limitations to the Government’s actions for civi l penalties under the Act. See also United States v. Banks, 115 F.3d 916, 918 (11th Cir. 1997) (applying § 2462 as the default limitation provision for actions und er the Act), cert. denied, 118 S. Ct. 852 (1998). However, the Government claims the district court erred in applying § 2462 to bar its claims for equitable rel ief, because the ruling is contrary to the well-settled principles restricting the application of time limitations against the government, and is contraryto the plain language of the
statute.

Section 2462's Applicability We interpret § 2462 narrowly because “an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the3 The Government uses its sovereign power in action s under the Act to

protect the public interest. See, e.g., Deltona Corp. v. Alexander , 682 F.2d 888, 892 (11th Cir. 1982) (stating the rationale behind the Act's permit system “is to insure that the public interest in environmental sa fety and quality is preserved"); see also 33 U.S.C. § 1251 (stating the objective of the Act is to "restore and maintain the chemical, physical, and biological int egrity of the Nation's waters"). -7- absence of congressional enactment clearly imposing it.” E.I. DuPont de
Nemours & Co. v. Davis , 264 U.S. 456, 462 (1924). 3 In addition, “[s]tatutes of limitation sought to be applied to bar rights of th e government, must receive a strict construction in favor of the government.” Id.

Section § 2462 clearly applies to “action[s], suit[ s] or proceeding[s] for the enforcement of any civil fine, penalty, or forfeitu re, pecuniary or otherwise.” 28 U.S.C. § 2462. The express language of a statute i s controlling, absent a clearly expressed legislative intention to the contrary. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102, 108 (1980). The Government claims the statute is inapplicable to non-monetary penalties b ecause the phrase “pecuniary or otherwise” only modifies “forfeiture” not “penalty. ” Although we might agree based on a common-sense reading of the statute as the commas are now located, and in light of the last antecedent rule that appli es modifying words or phrases to the immediately preceding word or phrase, the histo ry of § 2462 does not support such a reading. See Nobelman v. American Sav. Bank, 508 U.S. 324, 330 (1993)-8-

(stating the rule of the last antecedent is not compelled). Prior versions of § 2462 read “penalty or forfeiture, pecuniary or otherwise .” See 3M Co. v. Browner , 17 F.3d 1453, 1458 n.7 (D.C. Cir. 1994). Based on thi s construction, we view “pecuniary or otherwise” as modifying both the term s penalty and forfeiture. See Bingham, Ltd. v. United States , 724 F.2d 921, 926 n.3 (11th Cir. 1984) (applying a supplementary “rule of punctuation,” that provide s when a “modifier is set off from two or more antecedents by a comma, ... the mo difier relate[s] to more than the last antecedent”). In addition, according to t he Reviser’s Notes on revisions made to the statute in 1947, when the phrase “civil fine” was placed before “penalty,” the purpose of the revisions was for a c hange in phraseology. See 28 U.S.C. § 2462 (Historical and Statutory Notes); Johnson v. SEC , 87 F.3d 484, 488 n.5 (D.C. Cir. 1996); 3M , 17 F.3d at 1458. Because a change in phraseologydoes not render the new statute substantively different from its predecessor, unless such intent is clearly expressed, see, e.g., Keene Corp. v. United States , 508 U.S. 200, 208 (1993), we construe § 2462 as applying to non-monetary penalties.

The Government also maintains the plain language of § 2462 does not apply to claims for equitable relief. We agree that acti ons for equitable relief typically are not actions for penalties or fines. See Hartford-Empire Co. v. United States , 323 U.S. 386, 435 (1945) (“relief in equity is reme dial, not penal”). We also do4Telco first contends the injunction is an "action for enforcement,"

required for § 2462 to apply. There is no dispute the Government's action for injunctive relief is imposed under the enforcement provisions of the Act. See 33 U.S.C. § 1319. -9- not ignore that, historically, “statutes of limitat ion are not controlling measures of equitable relief.” Holmberg v. Armbrecht , 327 U.S. 392, 396 (1946).

However, Telco makes several claims why the restorative injunction in this case is “a civil fine, penalty, or forfeiture, pecu niary or otherwise,” barred by § 2462. 4 Telco contends the restorative injunction is a pe nalty under § 2462 since it imposes a sanction for violating a public law wh ich is not determined or predicated on actual damages to the Government. Be cause the term “penalty” is not defined in the statute, we must construe the te rm in accordance with its ordinary meaning. See Sutton v. United Air Lines, Inc. , 130 F.3d 893, 898 (10th Cir. 1997), petition for cert filed (U.S. June 1, 1998) (No. 97-1943). Dictionaries generally define “penalty” as relating to punishmen t. See, e.g., Black’s Law Dictionary 1020 (5th ed. 1979) (defining penalty as “involv[ing] idea of punishment”); Webster’s Third New International Dic tionary 1668 (1981) (defining penalty as “punishment for [a] crime or o ffense”). Telco relies on the United States Supreme Court’s definition of a penal ty in Meeker v. Lehigh Valley
R.R. Co. , 236 U.S. 412, 423 (1915), as “something imposed i n a punitive way for5 In Meeker , the Court held that Mr. Meeker's action to recove r

overcharges paid to the Lehigh Valley Railroad Comp any was not an action for a penalty, for purposes of the predecessor to § 2462, since the action was strictly remedial in restoring the alleged overcharges to Mr . Meeker. Meeker, 236 U.S. at 423.

6In other words, a penalty goes beyond making the plaintiff whole. See Black's Law Dictionary 256 (5th ed.) (defining “compensation” as “making whole.”). -10- an infraction of a public law.” 5 Similarly, in Huntington v. Attrill , 146 U.S. 657, 673-74 (1892), the Court concluded whether a law is penal depended on “whether its purpose is to punish an offense against the pub lic justice of the state, or to afford a private remedy to a person injured by the wrongful act.” In an analogous case to the present one, the D.C. Circuit defined p enalty for purposes of § 2462 as “a form of punishment imposed by the government forunlawful or proscribed conduct, which goes beyond remedying the damage cau sed to the harmed parties by the defendant’s action.” See Johnson , 87 F.3d at 488. Based on these definitions, we interpret a penalty for purposes of § 2462 as a sanction or punishment imposed for violating a public law whichgoes beyond compensation 6 for the injury caused by the defendant.

Telco also claims a penalty is any sanction that is imposed for a violation of a public law and which fails to redress a private injury. Telco relies on the Supreme Court's discussion in Huntington , 146 U.S. at 668, on whether a law was7For the same reason the doctrine of laches does n ot apply to the

government, Nevada v. United States , 463 U.S. 110, 141 (1983), we interpret time limitations against the government narrowly to prot ect the public from the negligence of public officers in failing to timely file claims in favor of the public's interests, unless Congress clearly allows those claims to be barred, see, e.g., Guaranty Trust Co. v. United States , 304 U.S. 126, 132-33 (1938).

-11- “penal” as “whether the wrong sought to be redresse d is a wrong to the public or a wrong to the individual.” However, the Huntington Court defined “penal” for the purpose of determining whether the United State s Constitution’s Full Faith and Credit Clause permitted a specific state judgme nt to be enforced in another state. 146 U.S. at 666-68. Unlike the concerns of state sovereignty and comity prevalent to defining “penal” in Huntington , 146 U.S. at 668-69, our concern in defining “penalty” in § 2462 is to protect the Gove rnment’s sovereign enforcement powers in conformity with traditional p rinciples limiting the application of time limitations against the governm ent when it acts in its sovereign capacity, and to construe statutes of lim itation strictly in the government's favor. 7 See E.I. DuPont de Nemours & Co. , 264 U.S. at 462. Therefore, we see no reason to include all wrongs t o the public as penalties for purposes of applying § 2462, irrespective of the re medy sought.

Our focus in defining a penalty for § 2462 is wheth er the sanction seeks compensation unrelated to, or in excess, of the dam ages caused by the defendant,-12-

rather than restricting the term by the type of inj ury, public or private. The injury to the public’s resources in this case does not alt er the remedial nature of the injunction in restoring the damaged wetlands, or inother words, making the injured party whole. We find the present case indi stinguishable from other situations where courts have ruled a sanction that only remedies damage caused by the defendant is not a penalty for purposes of § 2462 even though it is imposed by the government. See, e.g. , Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 397 (1906) (refusing to apply predecessorto § 2462 to bar Atlanta’s action against defendants for recovery of damages f or injury to property); United States v. Perry, 431 F.2d 1020, 1025 (9th Cir. 1970) (ruling Govern ment’s action to recover sums allegedly paid in violation of the Anti-Kickback Act was not barred by § 2462 because the sanctions were designe d to make the Government whole by recovering extra costs incurred when kickb acks were paid); United
States v. Doman , 255 F.2d 865, 869 (3d. Cir. 1958) (holding Govern ment's action under Surplus Property Act not barred by § 2462 sin ce the recovery was compensatory to the Government, not a penalty), aff’d, 359 U.S. 309 (1959).

Consistent with our definition, the restorative inj unction in this case is not a penalty because it seeks to restore only the wetl ands damaged by Telco’s acts to the status quo or to create new wetlands for those that cannot be restored. The-13-

injunction does not seek compensation unrelated to or in excess of the damages caused by Telco’s acts. Under the Government’s complaint and the parties’ consent decree, the Government seeks mitigation of damaged wetlands caused by Telco’s acts. According to the decree, “mitigation ” is defined as “actual restoration, creation, or enhancement of wetlands t o compensate for wetland losses.” “Restoration” is defined as to “return fro m a disturbed or altered condition to a previously existing natural conditio n.” From this language, we conclude the compensation sought is related to and consistent with the damages caused by Telco’s acts.

Telco also claims the Government’s restorative inju nction is a penalty since it requires Telco to spend a significant amount of money to refill or create fifteen acres of on-site and off-site wetlands without show ing the actual amount of damages suffered. We recognize it is difficult to place a precise dollar amount on damages caused by environmental injuries. See United States v. Sexton Cove
Estates , Inc. , 526 F.2d 1293, 1301 (5th Cir. 1976) (noting “[t]h e full effects of any environmental disturbance are difficult to meas ure”). However, in other contexts, the lack of precise symmetry between actu al damages sustained by the Government and the costs of mitigation or the costs of the sanction, does not change the nature of the remedy. See , e.g. , United States v. Halper , 490 U.S. 435,8Factors listed in 33 U.S.C. § 1319(d) include, inter alia : (1) “the

seriousness of the violation;” (2) “the economic be nefit (if any) resulting from the violation;” and (3) “the economic impact of the pen alty on the violator.” -14- 446 (1989) (stating in the Court’s analysis of whether a section was punishment for double jeopardy purposes “the Government is ent itled to rough remedial justice, ... it may demand compensation according t o somewhat imprecise formulas” without necessarily changing the nature o f the remedy); Rex Trailer Co. v. United States , 350 U.S. 148, 153-54 (1956) (ruling with respect to a liquidated damages “type” provision, that the uncertainty as t o the exact amount of damages did not transform the sanction’s remedial character ). Furthermore, Telco’s belief the sanction is costly or painful does not make it punitive. Johnson , 87 F.3d at 488. If the determination of whether a sanction is a penalty was made from the defendant’s perspective, then virtually every sanct ion would be considered a penalty since “‘even remedial sanctions carry the s ting of punishment.’” Id. (quoting Halper , 490 U.S. at 447 n.7).

Telco contends a restorative injunction is a penalty because some courts have used factors unrelated to actual damages in de termining the scope of the injunction. In particular, Telco claims courts hav e used factors similar to those used by courts in determining the amount of civil m onetary penalties under 33 U.S.C. § 1319(d). 8 However, this argument is inapplicable to this ca se since the-15-

Government’s scope of injunctive relief appears to be limited to restoration or replacement of damaged wetlands. While such factor s, including the “seriousness” of the defendant’s culpability, see, e.g., United States v. Cumberland Farms of Connecticut, Inc. , 826 F.2d 1151, 1165 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988), have been considered in det ermining whether an injunction is equitable, this does not change th e remedial character of the injunction. These factors have only been considere d in ensuring the restoration injunction was equitable in light of the defendant’ s culpability or economic situation, not whether the restoration required in the order was related to the harm caused by the defendant. Id. at 1164; see also United States v. Weisman , 489 F. Supp. 1331, 1349 (M.D. Fla. 1980). If Telco conten ds the injunction is inequitable based on Telco’s financial position or lack of culpability, then it should have opposed the consent decree and made thi s claim later to the district court when it would have to determine whether the i njunction was equitable.

Telco further argues the imposition of the restorat ive injunction for wholly past violations makes the nature of the injunction punitive. We disagree because other equitable remedies, such as disgorgement, whi ch sanction past conduct, are remedial. See, e.g., SEC v. Bilzerian , 29 F.3d 689, 696 (D.C. Cir. 1994). Similar9Telco’s also relies on Gwaltney of Smithfield, Ltd.,v. Chesapeake Bay

Found. , Inc., 484 U.S. 49, 58-59 (1987), for its claim that inju nctive relief cannot ever be properly issued for wholly past violations. We disagree. In Gwaltney, the Supreme Court only addressed whether citizen suits could be brought for wholly past violations of the Clean Water Act under 33 U.S .C. § 1365 in the context of the citizen suit provisions of the Act. Id. Although the language in § 1365 is similar to § 1319(a) and (b), the Court has interpr eted § 1319(b) broadly to allow courts exercise discretion in achieving the goals o f the Act “to maintain the chemical, physical, and biological integrity of the Nation’s waters.” See Weinberger v. Romero-Barcelo , 456 U.S. 305, 316-17 (1982). Contrary to Telco’s suggestion, we see no reason why United States Dep’t of Energy v. Ohio , 503 U.S. 607, 608 (1992), should apply in this ca se to support Telco’s claim the injunction is punitive because itsanctions past violations. The Court in Dep’t of Energyonly addressed whether specific provisions of the Clean Water Act and the Resource Conservation Recovery Ac t waived federal sovereign immunity for fines relating to past violations of t hose Acts. Id. Contrary to Telco’s suggestion, the case did not broadly hold a ll claims for past violations are in substance penalties.

-16- to the purpose of a disgorgement action to restore only “ill-gotten gains” earned by the defendant while in violation of securities l aws, id. , the restorative injunction in this case restores wetlands to their prior condition before Telco’s violations, or replaces damaged wetlands which cann ot be restored. In both instances, the amount “restored” relates to actual harm caused by the defendants’ prior actions. We are convinced the request for in junctive relief based on Telco’s past conduct does not change its remedial nature. 9

Based on the considerations addressed above, and inlight of the traditional10Telco also claims we should not construe the form of a restorative

injunction, serving a remedial purpose, over its su bstance of requiring Telco to spend a significant amount of money analogous to ci vil monetary penalties. However, as discussed earlier, the fact the injunct ion is costly to Telco does not change its remedial nature in restoring the damage caused by Telco’s violations.

11 Telco maintains the district court’s ruling on th e concurrent remedy rule is reviewable only for an abuse of discretion becau se the district court appropriately exercised its equitable discretion in applying the rule. We disagree because the court cannot exercise its equitable dis cretion on this issue since such discretion was withdrawn when the Supreme Court hel d “an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly i mposing it.” E.I. DuPont de Nemours & Co. , 264 U.S. at 462.

12The concurrent remedy rule provides: “when legal and equitable relief are available concurrently ( i.e. , when an action at law or equity could be brought on the same facts), ‘equity will withhold its relie f in such a case where the applicable statute of limitations would bar the con current legal remedy.’" Windward, 821 F. Supp. at 693 (quoting Cope v. Anderson , 331 U.S. 461, 464 (1947)). -17- notions statute of limitations should be strictly c onstrued in favor of the Government, we do not consider the Government’s req uest for injunctive relief an action for a “civil penalty” barred by § 2462. 10

Concurrent Remedy Rule The Government disputes the district court’s applic ation of the concurrent remedy rule to bar its equitable claims. 11 In its order, the district court relied on United States v. Windward Properties, Inc. , 821 F. Supp. 690, 693 (N.D. Ga. 1993), which applied the concurrent remedy rule 12 in a similar context, holding §13 The Banks court also rejected the Ninth Circuit decision, Federal

Election Comm’n v. Williams , 104 F.3d 237 (9th Cir. 1996), cert. denied, 118 S. Ct. 600 (1997), which applied § 2462 to bar the Com mission's action for injunctive relief because that decision, “not unlik e the Windward opinion -- failed to distinguish between the application of the statu te of limitations to the United States in its private versus its sovereign capacity .” Banks , 115 F.3d at 919 n.6.

14We distinguish this case from our decision in Clulow v. Oklahoma , 700 F.2d 1291, 1302-03 (10th Cir. 1983), where this cou rt applied the concurrent -18- 2462 barred the Government’s claims for legal and e quitable relief. However, the Windward decision was expressly abrogated by the Eleventh Ci rcuit in United States v. Banks, 115 F.3d 916, 919 (11th Cir. 1997), cert. denied, 118 S. Ct. 852 (1998). In a case that involved the identical issu e, the Banks Court rejected the concurrent remedy rule’s application to the Governm ent when it seeks equitable relief in its enforcement capacity under the tradit ional principles of construction discussed above. Id. Specifically, the Banks Court refused to apply the concurrent remedy rule based on the principles thata suit by the United States in its governmental capacity is not subject to a time limitation unless Congress explicitly imposes one and “‘any statute of limitat ions sought to be applied against the United States “must receive a strict co nstruction in favor of the
Government.”’” 13 Id. (quoting United States v. Alvarado , 5 F.3d 1425, 1428 (11th Cir. 1993)). For the same reasons applied in Banks , we conclude the concurrent remedy rule does not bar the Government’s claims fo r equitable relief. 14remedy rule to bar Mr. Clulow’s claims for declarat ory relief, because Clulow did

not involve a suit by the Government in its soverei gn capacity.

-19- Based on our conclusions that the Government’s clai ms for injunctive relief are not actions for a penalty within the meaning of § 2462, and the concurrent remedy rule cannot apply, we REVERSE

.