Securities and Exchange Commissioner v. Barry J. Graham, eta l, 2016 U.S. App. LEXIS 9650

The SEC sued five defendants in 2013, alleging that from ~2004–2008 they sold condominium interests that functioned as unregistered securities and raised >$300 million from ~1,400 investors.
The SEC sought declaratory judgment of securities-law violations, a permanent injunction, disgorgement of ill-gotten gains (with prejudgment interest), repatriation of funds, and civil money penalties.
Several defendants moved for summary judgment, arguing (1) the condominium sales were not investment contracts and (2) 28 U.S.C. § 2462’s five-year limitations period barred the SEC’s claims.
The district court dismissed the entire case with prejudice, holding § 2462 was jurisdictional and applied to all requested remedies (treating injunctive and declaratory relief as penalties and disgorgement as forfeiture).
On appeal the Eleventh Circuit affirmed in part, reversed in part, and remanded: it held § 2462 bars declaratory relief and disgorgement but does not bar equitable injunctive relief; the panel did not decide whether § 2462 is jurisdictional for purposes of dismissal.

Issue	Plaintiff's Argument (SEC)	Defendant's Argument	Held
Whether § 2462 bars injunctive relief	§ 2462’s five-year bar should apply to all enforcement remedies, including injunctions	Injunctions are equitable, forward-looking, and not penalties governed by § 2462	Injunctions are equitable and not "penalties" under § 2462; statute does not bar injunctive relief (remand for further proceedings on injunctive claims)
Whether § 2462 bars declaratory relief	Declaratory relief is a legitimate, non-time-barred prerogative of the SEC and may be used to obtain other remedies	Declaratory relief is retrospective and functions as a penalty labeling past wrongdoing, so § 2462 applies	Declaratory relief is retrospective/punitive in this context and is subject to § 2462’s five-year limitation; barred here
Whether § 2462 bars disgorgement	Disgorgement is distinct from forfeiture (narrower) and shouldn't be treated as a forfeiture for § 2462 purposes	Disgorgement is effectively a forfeiture (turning over ill-gotten gains) and falls within § 2462	Disgorgement is a form of forfeiture for purposes of § 2462 and is time-barred
Whether § 2462 is jurisdictional	SEC challenged district court’s view that § 2462 is jurisdictional	Defendants relied on district court’s jurisdictional dismissal	Court did not decide the jurisdictional question for this appeal; analysis proceeds assuming court may apply § 2462 as a limitations rule

Nat’l Parks & Conservation Ass’n v. Tenn. Valley Auth., 502 F.3d 1316 (11th Cir. 2007) (equitable remedies not subject to § 2462)
United States v. Banks, 115 F.3d 916 (11th Cir. 1997) (injunction is equitable and not barred by § 2462)
Gabelli v. SEC, 568 U.S. 442 (2013) (statute of limitations accrual for SEC fraud claims; discussion of penalties)
Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412 (1915) (definition of “penalty” as punitive and retrospective)
United States v. W. T. Grant Co., 345 U.S. 629 (1953) (injunctions prevent future violations)
United States v. Or. State Med. Soc’y, 343 U.S. 326 (1952) (injunctions distinct from punitive remedies)
Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) (statutory text controls when unambiguous)
United States v. Ursery, 518 U.S. 267 (1996) (forfeitures described as confiscation/disgorgement of illicit proceeds)
John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (distinguishing jurisdictional time bars from affirmative defenses)
SEC v. Calvo, 378 F.3d 1211 (11th Cir. 2004) (standards for SEC injunctive relief)
SEC v. Goble, 682 F.3d 934 (11th Cir. 2012) (obey-the-law injunctions criticized for lack of specificity)
SEC v. Smyth, 420 F.3d 1225 (11th Cir. 2005) (discussion of enforceability of obey-the-law injunctions)