United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN, United States District Judge
forfeiture action is before the Court on Motion of Patrick
Brian Hines to Dismiss the Complaint Under FRCP 12(b)(1) for
Lack of Subject Matter Jurisdiction Due to the Expiration of
the Applicable Statute of Limitations. (Doc. 11). The
Government responded in opposition (Doc. 21), to which Hines,
replied (Doc. 22). The United States filed a surreply, (Doc.
31), and Hines filed a sur-surreply (Doc. 36).
November 29, 2016, the Government filed a Complaint for
Recovery of Civil Monetary Forfeiture Penalty to enforce a
Forfeiture Order issued by the Federal Communications
Commission (“FCC”) against Hines and his
businesses. (Doc. 1). Hines's businesses offered an
“Enhanced Number Assistance and Directory
Assistance” service where they controlled toll-free
numbers that were likely to be dialed by mistake by
consumers. (Doc. 1 ¶¶ 16- 17). When consumers
called one of these numbers, they were told that a directory
service was available to assist the caller in finding the
correct number. (Doc. 1 ¶ 19). When consumers called the
number for the directory service, they were greeted with a
menu of options and were charged approximately seven dollars
if they hung up or selected all but one of the menu options.
(Doc. 1 ¶¶ 18- 20).
response to consumer complaints regarding this billing
practice, the FCC investigated the matter, and on November
30, 2012 issued a Notice of Apparent Liability
(“NAL”) in the amount of $1, 680, 000. (Doc. 1
¶¶ 21-23, 31). The NAL found Hines jointly and
severally liable with his businesses for fourteen counts of
violating 47 U.S.C. § 201(b), which makes it unlawful to
engage in unjust or unreasonable charging practices. (Doc. 1
¶¶ 10, 31). On January 23, 2013, Hines responded to
the NAL and raised concerns about whether holding him
personally liable was appropriate. (Doc. 1 ¶ 33).
Finding Hines's response unpersuasive, the FCC issued a
Forfeiture Order on February 18, 2016 for the full $1, 680,
000. (Doc. 1 ¶ 35). The Forfeiture Order required
payment within thirty days, but to date is still outstanding.
(Doc. 1 ¶ 37). The Government then filed this
enforcement action to collect the money owed pursuant to the
Forfeiture Order. (Doc. 1). Hines has filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).
issue before the Court is whether it has subject matter
jurisdiction. Hines asserts that the expiration of the
statute of limitations is a jurisdictional bar. (Doc. 11 at
4). The parties agree that this forfeiture action is subject
to the five year limitations period contained in 28 U.S.C.
§ 2462. The Government says that the statute of
limitations issue is improperly raised in a Rule 12(b)(1)
motion, contending that “the expiration of a statute of
limitation is an affirmative defense rather than a bar to
jurisdiction.” (Doc. 21 at 6). In response, Hines's
cites a “line of cases finding that [a] limitations
period raises jurisdictional issues for the Court.”
(Doc. 22 at 4). The importance of the distinction, as both
parties have pointed out, is that a Rule 12(b)(1) motion
allows the Court to review extrinsic material, whereas a Rule
12(b)(6) motion does not. (Doc. 11 at 4; Doc. 21 at 6-7).
not cited by the parties, there are several recent Supreme
Court cases explaining the analysis for determining whether a
statute of limitations is jurisdictional. See, e.g.,
Musacchio v. United States, 136 S.Ct. 709, 717
(2016); United States v. Kwai Fun Wong, 135 S.Ct.
1625, 1632 (2015); Sebelius v. Auburn Reg'l
Med. Ctr., 568 U.S. 145, 153-54 (2013); Henderson v.
Shinseki, 562 U.S. 428, 438 (2011).
most commonly an affirmative defense, the expiration of a
statute of limitations can be jurisdictional in certain
situations. John R. Sand & Gravel Co. v. U.S.,
552 U.S. 130, 133-34 (2008); see, e.g., Bowles
v. Russell, 551 U.S. 205, 210 (2007) (holding that
statutory time limit for taking an appeal is jurisdictional).
The Supreme Court “adopted a ‘readily
administrable bright line' for determining whether to
classify a statutory limitation as jurisdictional.”
Auburn, 568 U.S. at 153-54. To make such a
determination, a court should “inquire whether Congress
has ‘clearly stated' that the rule is
jurisdictional; absent such a clear statement, . . .
‘courts should treat the restriction as
nonjurisdictional in character.'” Id.
Although classified as a “bright line, ” a court
should look to context because there are no “incant
magic words” indicating such intent. Id. at
153. “[I]n applying that clear statement rule, [the
Supreme Court has] made plain that most time bars are
nonjurisdictional.” Wong, 135 S.Ct. at
1632 (emphasis added). In discussing this recent line of
Supreme Court cases, the Eleventh Circuit recently stated:
“the [Supreme] Court has emphasized-repeatedly-that
statutory limitation periods and other filing deadlines
‘ordinarily are not jurisdictional' and that a
particular time bar should be treated as jurisdictional
‘only if Congress has clearly stated that it
is.'” (quotations omitted) (quoting
Musacchio, 136 S.Ct. at 716-17).
demonstrate that a statute of limitations is jurisdictional,
“Congress must do something special, beyond setting an
exception-free deadline . . . .” Id. Proving
the specific intent to make a statute of limitations
jurisdictional is a high burden to meet. Id.
(“Given those harsh consequences, the Government must
clear a high bar to establish that a statute of limitations
is jurisdictional.”); SEC v. Amerindo Inv.
Advisors, 639 F. App'x 752, 754 (2d Cir.), cert.
denied, 136 S.Ct. 2429 (2016) (stating that appellants
failed to meet the high burden of establishing that the time
limitation in 28 U.S.C. § 2462 is jurisdictional). A
court should first look to the plain language of the statute,
next to the provision's placement within the overall
statute, and lastly to the statute's history. See
Wong, 135 S.Ct. at 1632; Avila-Santoya v. U.S.
Att'y Gen., 713 F.3d 1357, 1360 (11th Cir. 2013).
Undertaking this analysis, the Court concludes that the
statute of limitations in 28 U.S.C. § 2462 is not a
jurisdictional bar to this action. Moreover, factual disputes
prevent the Court from determining the statute of limitations
from the face of the complaint.
it is hereby
Motion of Patrick Brian Hines to Dismiss the Complaint Under
FRCP 12(b)(1) for Lack of Subject Matter Jurisdiction Due to
the Expiration of the Applicable Statute of Limitations (Doc.
11) is DENIED. Hines may assert the