Full opinion text
MEMORANDUM AND ORDER GLASSER, District Judge: Who will guard the guardians? The complaint that underlies this action alleges a profoundly disturbing abuse of government programs and of government funds by officials and residents of a small municipality. And yet, the undisputed facts material to the disposition of this motion reveal a still more disturbing failure by the federal officials charged with oversight of those programs to ensure the just and lawful administration of these affairs. Now the government, which for so long permitted these alleged misdoings to proceed with impunity, has brought suit after the time in which to present most of its claims has passed. The government urges that its own failure to enforce the public trust in a timely manner should be disregarded. But “even wrongdoers are entitled to assume their sins may be forgotten,” Wilson v. Garcia, 471 U.S. 261, 271, 105 S.Ct. 1938, 1944, 85 L.Ed.2d 254 (1985); and it is unworthy of those charged with the protection of the public interest to decline blame for their own lack of vigilance. This action arose from the administration of a Community Development Block Grant Program (“CDBG Program”) and of a Section 235 Housing Program and from the alleged misuse of Housing and Urban Development (“HUD”) funds in those programs by the Village of Island Park, New York (“Island Park” or the “Village”) between 1979 and 1983. The government filed this action on March 22, 1990; it filed an amended complaint on May 11, 1990. The amended complaint lists eight causes of action: (1) violation of the False Claims Act, 31 U.S.C. §§ 3729 et seq.; (2) fraud; (3) violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; (4) breach of fiduciary duty; (5) aiding and abetting breach of fiduciary duty; (6) unjust enrichment; (7) constructive trust; and (8) erroneous payment of funds. The government has named as defendants: The Incorporated Village of Island Park; Jacqueline Papat-sos (as mayor of Island Park); Charlotte Kikkert, Philip Taglianetti, and James Fal-lon (as trustees of Island Park); and, as individual defendants, Michael A. Párente, James G. Brady, Francis R. McGinty, Michael Masone, Geraldine McGann, Harold Scully, Daniel McGann, Eileen McGann, Anthony Ciccimarro, Janet Ciccimarro, Joseph Ruocco, Debra Ruocco, Mary Ellen Guerin, Dennis Guerin, Joseph DiDomeni-co, Maria DiDomenico, Donna Moore, and Kenneth Moore. All defendants have moved this court for summary judgment as to all causes of action on the ground that the applicable limitations period for each claim expired before the government filed its complaint. The defendants also argue that certain administrative proceedings conducted against the defendant Geraldine McGann have preclusive effect in this action. For the reasons set forth below, the motion of the defendants for summary judgment is granted in part and denied in part. FACTS Section 235 of the National Housing Act, 12 U.S.C. § 1715z, established the Section 235 Program to provide mortgage-assistance subsidies to enable lower income families to acquire homes. Pursuant to the 235 Program, HUD makes monthly payments to a mortgagee to subsidize the payments made by a participating mortgagor. The housing is built by a private developer who obtains mortgage commitments from a HUD-approved lender and who applies to HUD for approval of the development. Island Park administered such a Section 235 Program: It purchased land with CDBG funds obtained from Nassau County and resold the property to participating developers. Under the Island Park Section 235 Program, 44 single-family homes were constructed in the municipality over a four-year period that began in 1979. The homes were built in three phases: Five were built in the first phase; 22 were built in the second; and 17 were built in the third segment of development. The Halandia Group constructed and marketed the five homes in the first phase of the program. An Affirmative Fair Housing Market Program (“AFHMP”) was submitted to HUD with respect to the first phase pursuant to 24 C.F.R. §§ 200.600. On February 14, 1980, HUD approved the AFHMP and stated that: The selecting or giving of preference to prospective purchasers ... is not permitted. Transactions should be entered on a first-come-first-serve basis. The principal standard in determining compliance with the Affirmative Fair Housing Marketing Plan is diligent good faith effort. Defendants’ Exhibit 11. The Nassau Office of Housing reported to HUD that the five homes of the first phase were purchased by four white families and one Hispanic family. Defendants’ Exhibit 12. The developer for the second phase of the Section 235 Program was Ocean Park Properties, Inc. The AFHMP for this segment of the program was approved with similar caution from HUD as to the use of preferences in selecting recipients of the homes. Defendants’ Exhibit 14. No AFHMP was submitted for the third phase of the Program. The government alleges that Island Park preselected non-black residents of the Village to receive the Section 235 houses. At the direction of then mayor Michael Pár-ente (a defendant in this action), Village clerk Harold Scully and his staff gave the preselected persons advance notice of advertisement for the houses and instructed these persons to bring informal applications to the Village Hall on the morning the advertisements were scheduled to appear. In this way, the government alleges, the Village of Island Park was able to award the Section 235 houses — for which there were to be federally subsidized mortgages — to preselected individuals while maintaining the guise of a regular and impartial “first-come, first-served” process. Many of these preselected individuals either served the Village in official capacities or were related to others who held office in Island Park. No black family received a Section 235 home in Island Park. Of particular interest to the government is the conduct of defendant Geraldine McGann. During the time of the administration of the third segment of the Section 235 Program, she was both a Village trustee and the Special Assistant to HUD Regional Administrator Joseph Monticciolo; she is alleged to have voted on HUD-related matters in her capacity as a trustee of Island Park during her tenure as a HUD employee. The government also alleges that, during the third phase of the program, she arranged for her son, defendant Daniel McGann, to receive one of the HUD houses. The government alleges that McGann participated in a “conspiracy” to cover up the misdoings of the officials of Island Park by, inter alia, drafting a letter to HUD for the signature of Mayor Pár-ente that denied any wrongful acts in the administration of the Island Park Program. Plaintiffs Exhibit F. Further, the government alleges that McGann (and possibly Monticciolo) may have attempted to remove documents from HUD in 1990. However, allegations of wrongdoing by McGann were formally considered after the government, on March 22, 1990, served a Notice of Proposed Removal on her as a HUD employee. Defendants’ Rule 3(g) Statement 1177. Several of the charges against McGann were initially sustained by HUD Associate General Deputy Assistant Secretary for Housing James E. Schoenber-ger. Defendants’ Exhibit 58. McGann appealed this determination to the Merit Systems Protection Board (“MSPB”) before which a full evidentiary hearing — including direct and cross-examination of witnesses— was conducted on March 21, 1991. Defendants’ Rule 3(g) Statement 111182-83. After that hearing, Administrative Judge Joseph E. Clancy dismissed all charges against McGann. Defendants’ Exhibit 60. The government did not appeal this decision to the United States Court of Appeals for the Federal Circuit. The government contends that it did not learn of the wide-spread wrongdoing by officials of Island Park until press reports in June of 1989. Government’s Rule 3(g) Statement ¶ 138. However, HUD first began to receive complaints about the administration of the Section 235 Program in Island Park in late 1981. Defendants’ Exhibit 17. And, by letter dated June 10, 1983, the clerk of the Village of Island Park, Harold Scully, notified HUD as to the race and the ethnic background of all the home recipients: He informed HUD that forty white families, three Hispanic, and no black families received houses. Defendants’ Exhibit 23. Moreover, from late 1983 through early 1984, HUD conducted an extensive internal investigation into allegations of misconduct in the administration of the Section 235 Housing Program in Island Park. This investigation revealed to HUD auditors that the Village had preselected recipients of the Section 235 houses. Defendants’ Exhibit 30. Indeed, Abraham Levy, the Regional Inspector General for Audit for HUD Region II, concluded in late November of 1983 that the government had legally actionable claims against the Village of Island Park for its abuse of the Section 235 Program. Defendants’ Exhibit 35. The audit report was issued on March 2, 1984 by the HUD Office of the Inspector General. Defendants’ Rule 3(g) Statement 1166. The findings of that report, Defendants’ Exhibit 50, merit extensive quotation: The review disclosed no evidence of an aggressive and good faith effort to market the Section 235 homes to the general public and particularly to minority and non-minority groups outside the Village, or to provide an equal opportunity for housing. An examination of Village and Nassau County files showed that public advertisements for the second stage of housing were first published on November 19, 1981. On the same morning at 9:00 a.m. purchasers were “selected” by the Village for all 22 homes available. There were no formal applications stating family size, income, employment, etc., on which the Village could have based its selections, and all 22 applications consisted of informal hand-delivered letters, date stamped November 19, 1981, the same date as the public advertisements. Each letter was marked in pen as received at 9:00 a.m., and were numbered one through 22. The review also disclosed that the Village did not publicly advertise for the third stage of 17 homes; however, purchasers were selected who were not included in the batch of unsuccessful applications (about 120 apparently received after the 22 successful applicants) during stage two. One of these 18 purchasers is the son of [Geraldine McGann,] Village Trustee and Special Assistant to the HUD Regional Administrator-Regional Housing Commissioner. No minority families were selected under stage three of the Village’s program and only two minority families were selected in stage two. As discussed above, the Village apparently prescreened prospective purchasers prior to the public advertisements, and selected all 22 applicants on the first morning of the date that the advertisement appeared in the local newspapers. In addition, as discussed below, since the Village apparently gave preference to families of Village residents as well as to families of Village officials and employees, the intent and spirit of equal opportunity for housing was circumvented, and a genuine first come-first serve basis for selection was rendered meaningless. This report, which details misdeeds in the Village of Island Park, was widely disseminated throughout HUD. Defendants’ Rule 3(g) Statement MI 68-69. The government contests neither the existence nor the content of the audit report. Rather, the government argues that the defendants engaged in a “fraudulent concealment” of their wrongdoing and thereby prevented the government from initiating this action until after June of 1989. The government alleges that the preselection process for participation in the Section 235 Program was a “self-concealing scheme.” Memorandum of Government at 70. Also, the government alleges, the defendants falsely represented to HUD as early as 1982 that the administration of the Section 235 Program was fair and impartial. Government’s Rule 3(g) Statement MI 64-71. Then, during the time of the HUD audit, the government charges, McGann drafted a letter for then-Mayor Párente to send to HUD; that letter denied any irregularities or improprieties in the administration of the housing program. Government’s Rule 3(g) Statement 111189-90. According to the government, McGann and Village clerk Scully also fraudulently amended her voting record as a Village trustee to conceal her votes on HUD-related matters; they each then informed HUD that the earlier record of her votes had been in error. Government’s Rule 3(g) Statement MI 100-103. Finally, as a last element of the alleged “cover-up”, the government charges that Joseph Montic-ciolo, who was then the HUD Regional Administrator, had immediate responsibility to act on the conclusions of the HUD audit report; but Monticciolo apparently proceeded no further with the investigation. Government’s Rule 3(g) Statement ¶ 95. From this, the government infers that Monticciolo may have been a member of the “conspiracy” in Island Park — a conspiracy, the government argues, formed for the abuse of government programs and of government funds. DISCUSSION Federal Rule of Civil Procedure 56(c) provides, in relevant part, that “judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” These two requirements are plainly conjunctive. In this case, there is no dispute of any material fact that precludes this court from rendering judgment on the affirmative defenses of the relevant time bars and of claim and issue preclusion. I. STATUTES OF LIMITATIONS A. The Beginning of the Limitations Periods The government does not dispute that, for most of its causes of action, the applicable limitations periods began to run as a matter of law no later than March 2, 1984 — the day that HUD released its audit report concerning the administration of the Section 235 Program in Island Park. See, e.g., Memorandum of Government at 59 n. 14 and at 67. Indeed, the government concedes that, as to the second cause of action and as to parts of the sixth and the eighth causes of action, “the government is not entitled, as a matter of law, to defeat the statute of limitations defense.” Id. at 5. Rather, the government contends that— with respect to the second, the fourth, the fifth, the sixth, and the eighth causes of action — the beginning of the limitations periods were tolled until June of 1989. With respect to the first cause of action, the government contends that the applicable limitation period did not begin until the Department of Justice learned of these matters — also in June of 1989. With respect to the third and the seventh causes of action, the government contends that no statute of limitations is applicable. Nonetheless, it is clear that, as to these latter two causes of action, the claims accrued no later than did the claims of the second, the fourth, the fifth, the sixth, and the eighth causes of action. Thus, the government nowhere contends that — absent the claimed tolling — the applicable limitations periods for every cause of action (other than the first) would not have begun to run, as a matter of law, by March 2, 1984. This concession of the government is well-advised. The general rule concerning the commencement of the running of a limitations period is that the statute of limitations is triggered when the plaintiffs claim first arises. This in turn generally occurs either when the defendant actually commits the acts that give rise to the plaintiffs action or when the plaintiff either knows or reasonably should know of the facts that are material to his right of action. See, e.g., Delaware State College v. Ricks, 449 U.S. 250, 259, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980) (in Title VII action “the limitations period commenced to run when the [employment] decision was made and [the plaintiff] was notified”); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981) (“[F]ederal law ... ‘establishes as the time of accrual that point ... when the plaintiff knows or has reason to know of the injury which is the basis of his action.’ ”) (quoting Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir.1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979)); Rodriguez v. Village of Island Park, Inc., CV-89-2676, at 12, 1991 WL 128568 (E.D.N.Y. July 2, 1991) (discovery standard of when plaintiff knows or has reason to know of defendant’s wrongdoing is “more liberal” accrual rule than moment-of-injury standard); Gerasimou v. Ambach, 636 F.Supp. 1504, 1509 (E.D.N.Y.1986) (“Generally, a cause of action accrues when a plaintiff ‘knows or has reason to know’ of the injury or event that is the basis of his claim.”) (quoting Singleton, 632 F.2d at 191). Compare 28 U.S.C. § 2416(c) (statutes of limitations on actions brought by the United States are tolled as long as “facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances_”). Hence, the government does not contest that, with respect to all but the first cause of action, the applicable limitations periods began to run as a matter of law no later than March 2, 1984. Rather, the government simply argues that these periods were tolled by the “fraudulent concealment” of the defendants until June of 1989 — when attorneys for the Department of Justice read a newspaper account of the Island Park affair. B. The Applicable Statutes of Limitations The parties vigorously dispute the applicable statutes of limitations for the eight claims of the amended complaint. As a general proposition, the third and the seventh claims may be separated from the other six insofar as they seek equitable relief: The government contends that no statute of limitations applies against it in such an action. Also, the government contends that the first cause of action did not accrue until June of 1989. The other five claims are for damages. 1. The First Claim for Relief The defendants argue that the applicable statute of limitations for the first cause of action, violation of the False Claims Act, is six years under 31 U.S.C. § 3731(b). The government agrees that Section 3731(b) sets forth the applicable limitation period, but it contends that subsection (b)(2) renders its claim timely. Section 3731(b) provides in its entirety: A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. The government argues that “the official of the United States charged with responsibility to act in the circumstances” is the appropriate official at the Department of Justice (“DOJ”); thus, the government argues, the six-year limitation period of Section 3731(b)(1) is tolled until the “facts material to the right of action are known or reasonably should have been known by” that official at DOJ. Memorandum of Government at 44. The government argues that “it is undisputed that the Department of Justice did not learn of the facts at issue [regarding the misdeeds in Island Park] until less than a year before suit was brought when an article appeared in The New York Times.” Memorandum of Government at 49. Hence, even though the violations of the False Claims Act occurred more than six years before this lawsuit and even though the highest officials at HUD had documented the relevant facts, the government maintains that the cause of action under the False Claims Act is timely because it was brought within three years of the time when lawyers at DOJ first happened upon an account of the events at Island Park in a newspaper. The position of the government — that “the official of the United States charged with responsibility to act in the circumstances” refers only to an official at DOJ— is, however, somewhat problematic. For instance, that argument rests in part on the proposition that the Attorney General has the exclusive power to enforce the False Claims Act. And, indeed, it is clear under Section 3730 that actions under the False Claims Act may only be initiated either by the Attorney General of the United States or by a private person in the name of the United States. In the case of the second type of action (qui tarn), the Attorney General has the power to proceed with the action on behalf of the United States, and this “private” action may not be dismissed without the consent of the Attorney General. As stated by the Federal Circuit: “Regardless of who initiates the suit, the Attorney General is specifically authorized to administer such claims for the government.” Martin J. Simko Const., Inc. v. United States, 852 F.2d 540, 547 (Fed.Cir.1988). The court there construed this specific authorization of power to prosecute claims under the False Claims Act to be exclusive of other segments of the government. Id. (“No other agency is empowered to act under the statute.”). Nonetheless, actions under the False Claims Act have been brought not by the Attorney General but by government corporations— in their own names. See, e.g., Federal Crop Ins. Corp. v. Hester, 765 F.2d 723 (8th Cir.1985). The government proposes no satisfactory explanation for the apparent conflict between those authorities that hold that only the Attorney General (or a private actor suing in the name of the United States) may bring suit under the False Claims Act and those authorities in which this “rule” clearly does not bar suit by a federal corporation that proceeds in its own name. But to the extent that federal corporations or federal agencies may in fact sue to enforce the False Claims Act, the argument that “the official ... charged with responsibility to act” designates only officials within the DOJ is correspondingly less persuasive. Second, the government correctly points out that the legislative history of the False Claims Amendments Act — which added Section 3731(b)(2) to the statute — construes the phrase “the official of the United States charged with responsibility to act in the circumstances” to require knowledge “by an official within the Department of Justice with the authority to act in the circumstances.” S.Rep. No. 345, 99th Cong., 2d Sess. 30 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5295. That passage of the Senate Report, which purports to construe Section 3731(b)(2), provides in full: Subsection (b) of section 3731 of title 31, as amended by section 3 of the bill, would include an explicit tolling provision on the statute of limitations under the False Claims Act. The statute of limitations does not begin to run until the material facts are known by an official within the Department of Justice with the authority to act in the circumstances. Although this provision appears straightforward, its presence does raise new difficulties. For example, it is not clear why the Congress would have enacted the broader language of the statute — language that appears to leave open the question of who “the official ... charged with responsibility to act” may be — if the Congress “intended” that “the official” be narrowly construed as only someone within DOJ. Even the legislative history itself is not univocal on the specificity found in that one passage of the Senate Report. For instance, the same Senate Report elsewhere reformulates the changes proposed by Section 3731(b)(2): [T]he subcommittee added a modification of the statute of limitations to permit the Government to bring an action within 6 years of when the false claim is submitted (current standard) or within 3 years of when the Government learned of a violation, whichever is later. S.Rep. No. 345 at 15, 1986 U.S.C.C.A.N. at 5280 (emphasis added). Further, the False Claims Act — including the modifications made by the False Claims Amendments Act — refers elsewhere to “the Attorney General” of the United States. See Section 3730. It is again not clear why the False Claims Act should specify that the “Attorney General” has the sole power to perform certain functions under the False Claims Act and yet leave unclear on the face of the statute whether “the official of the United States charged with responsibility to act” is in fact only the Attorney General. The case law since the False Claims Amendments Act has not made this difficulty any easier to explain. Compare United States v. Macomb Contracting Corp., 763 F.Supp. 272, 274 (M.D.Tenn.1990) (“The ‘official of the United States charged with responsibility’ could only have been the appropriate official of the Civil Division of the Department of Justice, which alone has the authority to initiate litigation under the Act.”) with United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 777 F.Supp. 195 (N.D.N.Y.1991) (“the facts material to relator’s cause of action were known, in 1979 by the senior [Army] officials in charge of the Black Hawk project. Thus, those facts were known, or reasonably should have been known, by officials with the responsibility to act.”). In the face of patently inconsistent authority, this court will nonetheless construe the tolling provision of Section 3731(b)(2) with reference to the legislative history; thus, “the official ... charged with responsibility to act” must be “an official within the Department of Justice with the authority to act in the circumstances.” However, it does not necessarily follow, as the government argues, that the limitations period under Section 3731(b) was tolled until lawyers at DOJ read about the Island Park affair in a newspaper article. Rather, the limitations period was tolled until “the facts material to the right of action [were] known or reasonably should have been known” by that DOJ official. That is, under the “reasonably should have been known” standard, the limitation period under Section 3731(b) may run even while officials at DOJ are unaware of the “facts material to the right of action.” Further, this possibility of tolling “of course[] assumes due diligence on the part of the party charged with the responsibility of uncovering the fraud.” United States v. Uzzell, 648 F.Supp. 1362, 1367 (D.D.C.1986). In this case, the officials at DOJ “should have ... known” of the misdeeds at Island Park by March 2, 1984 — the day on which HUD released an audit report that alleged extensive wrongdoing by Island Park officials and residents. That audit report was widely disseminated throughout the United States government; any one of the many offices to which it was sent could have— and should have — referred the matter to the Department of Justice. At the very least, “due diligence” on the part of DOJ personnel should have uncovered “the facts material” in this case: To hold that the common knowledge of the Island Park affair at all levels of the federal government cannot reasonably be attributed to the Department of Justice is to ignore the basic fact that HUD and DOJ are both subdivisions of the same branch of the same government. Indeed, as Section 3730 makes clear, for purposes of prosecuting violations of the False Claims Act, DOJ serves as the “litigator” for the rest of the government; in this case, DOJ was to act as the “advocate” for its “client” — HUD. In that the Attorney General is charged with responsibility to represent the government in any False Claims Act action, and in that powerful officials at HUD knew of the activities in Island Park, it cannot be but that the Department of Justice “should have ... known” through the exercise of “due diligence” about these matters at the time that they were well known throughout the rest of the United States government. It would be absurd indeed to conclude that an official audit report of a cabinet-level department does not foreclose tolling of the limitations period but that a happenstance review of a newspaper article initiates the running of the clock against the government. The audit report of 1984 was detailed in its account and widely dispersed in the government; indeed, it was so widely available that it was cited extensively by the newspaper article from which the government now claims that DOJ personnel first learned of misdeeds in Island Park. See Michael Winerip, “D’Amato, His Village and Favoritism in Housing,” The New York Times, June 8, 1989, section A, page 1. Because, then, the Department of Justice “should have ... known” on March 2, 1984 of the Island Park matter, the right of action under the False Claims Act became untimely on March 2, 1990. 2. The Second Claim for Relief Both parties agree that the second cause of action, common law fraud, is subject to a three-year limitations period under 28 U.S.C. § 2415(b). That section provides, in relevant part: [Ejvery action for money damages brought by the United States ... which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues .... Common law fraud is, of course, a cause of action that sounds in tort. As such, the parties are correct to conclude that Section 2415(b) is applicable to the fraud claim of the government. However, because the “right of action [for fraud] first accrue[dj” on March 2, 1984 — at the latest — the second cause of action is time-barred. Thus, the government must rely on tolling of the time limitation in order to salvage this claim. 3. The Third Claim for Relief The third cause of action brought by the government is for violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3631. In this claim, the government seeks a declaratory judgment, civil penalties, and injunctive relief. Amended Complaint at ¶ 121. The government argues that no statute of limitations applies to an action brought — as is this one — under Section 3614(a). First, “courts have long held that the United States is not bound by any limitations period unless Congress explicitly directs otherwise.” United States v. City of Palm Beach Gardens, 635 F.2d 337, 339 (5th Cir.), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). See also Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S.Ct. 785, 788, 82 L.Ed. 1224 (1938) (“quod nullum tempus occurrit regi”). As stated by the learned commentators, Hart and Wechsler: In some instances, the United States comes into court not simply on par with private litigants, but with a number of advantages, court-made as well as statutory. There is, for example, a doctrine that the United States is not bound by statutes of limitations (or by laches) unless expressly provided by statute. P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 916 (3d ed. 1988). In this case, the government argues that, because the Fair Housing Act provides for no statute of limitations on an action brought by the Attorney General under Section 3614(a) and because no other federal statute of limitations applies to such an action, there is no time bar to which this suit is subject. Section 3614(a) provides: Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this subchapter, or that any group of persons has been denied any of the rights granted by this subchapter and such denial raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. The government contends that Section 3614(a), enacted in its present form in 1988, is a recodification of former Section 3613. The government argues, and the defendants concede, that actions brought by the Attorney General under old Section 3613 were not subject to any statute of limitations. Memorandum of Defendants at 11 (“Under a predecessor statute, 42 U.S.C. § 3613, ‘pattern and practice’ litigation brought by the Attorney General was not generally subject to a statute of limitations.”). See, e.g., United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1094 n. 63 (N.D.Ohio 1980), aff'd, 661 F.2d 562, 573 (6th Cir.1981) (180-day limitation period applicable to Fair Housing Act suits by private persons held inapplicable to action by Attorney General). But the defendants argue that present Section 3614(a) is not a simple recodification of former Section 3613 and that Congress has in fact enacted time limitations on suits brought by the Attorney General. The defendants are correct that Congress did impose time bars on Fair Housing Act suits by the Attorney General, but it is clear that none of the new limits applies to a suit under Section 3614(a). Rather, the time limits apply to entirely new causes of action created by the Fair Housing Amendments Act. These actions, as well as their limitations periods, are found in Section 3614(b): (1)(A) The Attorney General may commence a civil action in any appropriate United States district court for appropriate relief with respect to a discriminatory housing practice referred to the Attorney General by the Secretary [of HUD] under section 3610(g) of this title. (B) A civil action brought under this paragraph may be commenced not later than the expiration of 18 months after the date of the occurrence or the termination of the alleged discriminatory housing practice. (2)(A) The Attorney General may commence a civil action in any appropriate United States district court for appropriate relief with respect to breach of a conciliation agreement referred to the Attorney General by the Secretary [of HUD] under section 3610(c) of this title. (B) A civil action may be commenced under this paragraph not later than the expiration of 90 days after the referral of the alleged breach under section 3610(c) of this title. These new types of Fair Housing Act suits that may be brought by the Attorney General are applicable only in particular circumstances. The action under Section 3614(b)(1) applies only to an action referred to the Attorney General by the Secretary of HUD when “the Secretary determines that the matter involves the legality of any State or local zoning or other land use law or ordinance_” Section 3610(g)(2)(C). The action under Section 3614(b)(2) applies only to an action referred to the Attorney General by the Secretary of HUD “[whenever the Secretary has reasonable cause to believe that a respondent has breached a conciliation agreement....” Section 3610(c). These two new types of actions that may be brought by the Attorney General are simply inapplicable to this case; this action does not involve “the legality of any State or local zoning or other land use law or ordinance” nor does it involve the breach of a “conciliation agreement.” That Congress enacted statutes of limitations for these two specific rights of action by the Attorney General does not, without more, compel the conclusion that Congress also enacted a statute of limitation for the right of action under Section 3614(a). It is not enough for the defendants to suggest that there were statutes of limitations “in the air, so to speak” when Congress recodi-fied former Section 3613 into present Section 3614(a). Furthermore, the legislative history, although terse, appears to confirm that Congress did not intend to alter or to modify the power of the Attorney General to bring suit under Section 3614(a). The House Report to the Fair Housing Amendments Act, which recodified former Section 3613 as present Section 3614(a) and also added Section 3614(b), provides: [Section 3614(a) ] continues the authority of the Attorney General to initiate civil actions in “pattern or practice” cases and in cases where denial of rights to a group raises an issue of general public importance. This section also gives the Attorney General authority to commence zoning or other land use law cases referred under Section [3610(g)(2)(C)], breach of conciliation agreement cases referred under Section [3610(c) ], and to enforce subpoenas. H.R.Rep. No. 100-711, 100th Cong., 2d Sess. 40 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2201. There is simply no intimation that Congress intended to add to Section 3614(a) a limitations period; rather, Congress sought to continue the power of the Attorney General under Section 3613 — a power that, as the defendants concede, was not bounded by any bar of time. The result here — that this action by the United States under the Fair Housing Act is not subject to any statute of limitations — is perhaps a result not often to be desired. As the Supreme Court observed in Wilson v. Garcia, 471 U.S. 261, 271, 105 S.Ct. 1938, 1944, 85 L.Ed.2d 254 (1985): A federal cause of action “brought at any distance of time” would be “utterly repugnant to the genius of our laws.” Adams v. Woods, 2 Cranch 336, 342 [2 L.Ed. 297] (1805). Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost. In compelling circumstances, even wrongdoers are entitled to assume that their sins may be forgotten. Nonetheless, the result in this case is the function — possibly even the unintended function — of the interstitial nature of federal law: Whether it was by accident or design that Congress provided no limitation period on a suit for injunctive relief brought by the Attorney General under the Fair Housing Act, and whether it was by accident or design that Congress has not enacted a general statute of limitations for actions brought by the United States seeking equitable remedies, these failures of Congress to legislate limitations periods cannot be read other than as against the judicial doctrine that the United States is not subject to statutes of limitations unless Congress expressly provides otherwise. And though it may be “ ‘utterly repugnant to the genius of our laws,’ ” it is a result not without precedent. See City of Palm Beach Gardens, 635 F.2d at 339-41 (because Hill-Burton Act provided for no statute of limitations and because general federal limitations periods were inapplicable, United States not subject to time bar in suit under Hill-Burton Act). Hence, insofar as the government seeks injunctive relief under the Fair Housing Act, its claim is timely brought. However, the part of this claim for relief that seeks civil penalties is not without a controlling statute of limitations. Rather, 28 U.S.C. § 2462 provides, in relevant part: Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.... The government argues that the five-year limitations period of Section 2462 is inapplicable to this case because it has been “otherwise provided by Act of Congress.” It reasons that, because the civil penalties are sought under Section 3614(a), the limitations period of that section (which, of course, does not exist) must govern. More precisely, the government seeks civil penalties under Section 3614(d), which provides, in relevant part: (1) In a civil action under subsection (a) or (b) of this section, the court— (A) [may award injunctive relief] (B) [may award damages] (C) may, to vindicate the public interest, assess a civil penalty against the respondent.... According to the government, these civil penalties — like the injunctive relief and the damages of Section 3614(d)(1)(A), (B) — are simply an example of the relief available under a Section 3614(a) action. Thus, the government contends: “[Section] 3614(d) describes the types of relief available in [a Section 3614(a) suit]. It follows inexorably, since § 3614(a) has no statute of limitations, that no statute of limitations applies to all types of relief available, and the Government’s request for civil monetary penalties for violations of the Fair Housing Act in this action are [sic] subject to no time bar.” Memorandum of Government at 34. The argument of the government is flawed in two respects. First, no statute of limitations applies to the action under Section 3614(a) because Congress failed to provide one; this absence of legislative provision is not equal to an affirmative provision otherwise by Congress. Thus, the failure of Congress to provide any statute of limitations to Section 3614(a) cannot be said to override the default limitations period set forth in Section 2462. Indeed, it may well be that Congress enacted present Section 3614 both with an eye toward the rule that the United States is not subject to statutes of limitations unless otherwise provided and with an eye toward Section 2462. The government suggests no principled basis on which this court should heed the mandate of the first of these default rules but disregard the equally clear command of the latter. Second, to characterize Section 3614(d)(1)(C) as simply setting forth the relief available under the substantive right of action of Section 3614(a) is not by any means to demonstrate that the limitations rule of the former applies to the latter. Indeed, civil penalties are always simply one of the “types of relief” available under a substantive cause of action. On the analysis of the government, Section 2462 would never apply to any case brought by the United States because either: (1) the substantive right of action would have an express statute of limitations — in which case that express limitations period would apply to the civil penalties part of the suit; or (2) the substantive right of action would have no express statute of limitations — in which case no limitations period would apply to the civil penalties part of the suit. The absurdity of this proposition is compounded by the recognition that the government is almost always the plaintiff in a suit for “the enforcement of any civil fine, penalty, or forfeiture” — and that, in fact, Section 2462 applies only to actions brought by the United States. Bertha Building Corp. v. National Theatres Corp., 269 F.2d 785, 788-89 (2d Cir.1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960) (“The federal statute of limitations for penal actions [28 U.S.C. § 2462] applies only to actions on behalf of the United States and qui tam actions.”). On the reasoning of the government, then, Section 2462 would have only rare — if any — application. It would, in fact, be all but meaningless. Indeed, the phrase “[ejxcept as otherwise provided by Act of Congress” strongly implies that the Congress intended Section 2462 to apply precisely to actions such as this — in which the substantive right of action under which the United States sues does not contain an express limitations period. There is nothing about Section 2462 or about Section 3614 to suggest that it cuts against the intent of Congress that the government’s action for injunctive relief be subject to no time bar but that the government’s action for civil penalties be barred after five years. Hence, although the Fair Housing Act claim of the government for injunctive relief is timely, the portion of the third claim for relief that seeks civil penalties was barred after March 2, 1989 — five years after the release of the HUD audit report. 4. The Fourth Claim for Relief The defendants contend that the fourth cause of action, breach of fiduciary duty, is subject to the three-year limitation period of 28 U.S.C. 2415(b). The government, however, correctly maintains that the applicable period is six years under 28 U.S.C. § 2415(a). That latter section provides, in relevant part: [E]very action for money damages brought by the United States ... which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues .... The case law is reasonably clear that actions by the United States against its own employees for breaching duties of loyalty are contractual and are thus subject to the limitations period of Section 2415(a). See United States v. Boeing Co., Inc., 845 F.2d 476, 482 (4th Cir.1988), rev’d on other grounds, 494 U.S. 152, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (Acceptance of remuneration by government employee from source other than United States “constitutes a breach of the duty of loyalty, and is contractual in nature.... Therefore, the six year statute of limitations in 28 U.S.C. § 2415(a) applies.”); Jankowitz v. United States, 533 F.2d 538, 548 (Ct.C1.1976) (“We think that the obligation of an agent of the Government to account to his principal for a payment illegally received, since premised upon an obligation created by law, and not upon the apparent mutual consent of the parties, derives from a contract implied in law within the meaning of 28 U.S.C. § 2415(a) (1970)”.). Thus, the fourth claim for relief is subject to a six-year limitation period. However, the right of action for this claim arose on March 2, 1984 (at the latest), and this suit was not filed until six years and twenty days later on March 22, 1990. Thus, the government again argues that the statute of limitations was tolled by reason of the fraudulent concealment of the defendants; the government also argues that this limitations period was tolled pursuant to 28 U.S.C. § 2416(c). Absent such tolling, the fourth cause of action, like the second, is completely time-barred. 5. The Fifth Claim for Relief The fifth cause of action, aiding and abetting a breach of fiduciary duty, is an action in tort. As such, 28 U.S.C. § 2415(b) applies a three-year limitations period. As with the other claims, the fifth cause of action accrued by March 2, 1984; it therefore became untimely by March of 1987. 6. The Sixth Claim for Relief With respect to the sixth cause of action, unjust enrichment, the parties agree that 28 U.S.C. 2415(a) applies a six-year limitation period to suits by the United States that are brought “upon any contract express or implied in law or fact ” (emphasis added). Because unjust enrichment is a species of implied contract, the six-year limitations period of Section 2415(a) is applicable. Once again, however, that period has run — at least with respect to any incidents of unjust enrichment that occurred before March 22, 1984. 7. The Seventh Claim for Relief In the seventh cause of action, the government seeks to impose a constructive trust upon the Section 235 homes of the defendants and to force them to disgorge any “profits” they have realized through their misdeeds. The defendants argue that a cause of action that seeks to impose a constructive trust is a common-law action and that the courts of the State of New York apply a six-year statute of limitations to such a suit: Since a cause of action for a constructive trust is one “for which no limitation is specifically prescribed by law,” it is governed by New York’s six-year statute of limitations, N.Y.Civ.Prac.Law and Rules (CPLR) 213(10 (McKinney 1972) and runs from the occurrence of the wrongful act or event which creates a duty of restitution. See ... Augustine v. Szwed, 77 A.D.2d 298, 301, 432 N.Y.S.2d 962 (4th Dep’t 1980).... Dolmetta v. Uintah National Corp., 712 F.2d 15, 18 (2d Cir.1983). Contrary to the suggestion of the defendants, however, Dolmetta does not control; that case was a diversity action under New York law. But: It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.... The same rule applies whether the United States brings its suit in its own court or in a state court. United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940) (citations omitted). See also Chevron, U.S.A., Inc. v. United States, 705 F.2d 1487, 1491 (9th Cir.1983) (citing Summerlin ); United States v. Podell, 572 F.2d 31, 35 n. 7 (2d Cir.1978) (same). Thus, notwithstanding that the government brings this cause of action pursuant to the law of the State of New York, the New York statute of limitations applicable to actions for a constructive trust does not apply to the United States in this case. Furthermore, any action by the United States “is subject to no time limitation, in the absence of congressional enactment clearly imposing it.” DuPont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 366, 68 L.Ed. 788 (1924). See also United States v. Weintraub, 613 F.2d 612, 619 (6th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2987, 64 L.Ed.2d 854 (1980) (“While the general rule ... is that the sovereign is exempt from the operation of statutes of limitations, an exception to that general rule exists when the sovereign (through the legislature) expressly imposes a limitation period upon itself.”). In this case, there is no statute of limitations applied by Congress to an action for constructive trust. Moreover, both Section 2415(a) and Section 2415(b) apply only to actions “for money damages.” However, an action for constructive trust and for disgorgement is not for “money damages;” rather, it is an action for equitable relief, and Congress has prescribed no statute of limitations for such an action brought by the United States. Because there is in fact no applicable limitation period set out by Congress for such an action, the seventh claim for relief is timely in its entirety. 8. The Eighth Claim for Relief Finally, the parties agree that the eighth cause of action, erroneous payment of funds, is subject to a six-year limitations period; they agree that 28 U.S.C. § 2415(b) governs this as “an action to recover for diversion of money paid under a grant program.” This limitations period began to run, as did the others, no later than March 2, 1984; this cause of action is therefore untimely. By way of brief summary, then: The part of the third cause of action that seeks injunctive relief and the entirety of the seventh cause of action are timely; the first, the sixth, and the eighth causes of action are timely only insofar as they pertain to possible causes of actions that may have accrued after March 22, 1984; the rest of the first, the third, the sixth, and the eighth claims — as well as the second, the fourth, and the fifth causes of action in their entirety — are untimely and can only be saved by a tolling of the statutes of limitations. II. TOLLING AND ESTOPPEL A. Fraudulent Concealment The doctrine of fraudulent concealment provides for a tolling of the statute of limitations if the plaintiff establishes: (1) that the defendant concealed from [the plaintiff] the existence of his cause of action, (2) that [the plaintiff] remained in ignorance of [that] cause of action until some point within [the applicable limitations period] of the commencement of [the] action, and (3) that [the plaintiffs] continuing ignorance was not attributable to lack of diligence on [the plaintiff’s] part. State of New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir.), cert. denied, 488 U.S. 848, 109 S.Ct. 128, 102 L.Ed.2d 101 (1988); see also Rodriguez, CV-89-2676, at 19-20. As the phraseology of the Second Circuit in Hendrickson Bros. suggests, the burden of proving fraudulent concealment “rests squarely on the party pleading [it].” Donahue v. Pendleton Woolen Mills, Inc., 633 F.Supp. 1423, 1443 (S.D.N.Y.1986). Further, it should be noted that the elements of fraudulent concealment are conjunctive; thus, the absence of any one of the three will defeat the operation of that tolling doctrine. To consider only the second element, the government here must establish that it was ignorant of its causes of action until June of 1989. As the court remarked in Hobson v. Wilson, 737 F.2d 1, 35 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985): The doctrine of fraudulent concealment does not come into play, whatever the lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on notice of a potential claim. A key aspect of a plaintiffs case alleging fraudulent concealment is therefore proof that the plaintiff was not previously on notice of the claim he now brings. Furthermore, the statute of limitations is not tolled by fraudulent concealment once the plaintiff knows of the operative facts that form the basis of his claim such that he could discover his cause of action through the exercise of diligence. Dayco v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir.1975) (“Any fact that should excite his suspicion is the same as actual knowledge of his entire claim.”) (citing Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807 (1879)); see also Wolf v. Wagner Spray Tech Corp., 715 F.Supp. 504, 509 (E.D.N.Y.1989) (“Courts have held that ‘facts that should arouse suspicion ... are equated with actual knowledge of the claim.’ ”) (quoting Donahue, 633 F.Supp. at 1443). Compare 28 U.S.C. § 2416 (statutes of limitations in Section 2415 are tolled so long as “facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act ... ”). Thus, the government must show that it did not know of the existence of its causes of action until some time within three, five, or six years (as applicable) of March 22, 1990. However, the government did in fact have actual knowledge of the facts underlying all of its causes of action on March 2,1984 — at the latest. On that date, Abraham Levy of the HUD Office of the Inspector General issued his audit report; the subject of that report was a “Review of Allegations Relating to the CDBG and Section 235 Programs Administered by the Incorporated Village of Island Park, Nassau County, New York.” Defendants’ Exhibit 50. The report outlined the “operative facts” on which the present action is based; indeed, the government has not even endeavored to controvert the defendants’ extensive demonstration of the many parallels between the audit report and the amended complaint. Compare Defendants1 Rule 3(g) Statement ¶ 76 with Government’s Rule 3(g) Statement ¶ 109. As this court characterized the contents of that report in Rodriguez, CV-89-2676, at 9: [The audit report] concluded that the Village did not properly market the homes in a way which would adequately notify and attract all buyers within the housing market regardless of race, color, religion, sex, or national origin, as required by federal regulations. 24 C.F.R. 200.610-640. In addition, the report found that the Village apparently selected purchasers for these highly desirable homes on the basis of preferential considerations such as familial and other relationships with Village officials and residents. The audit report further detailed extensive wrongdoing by defendant McGann: There appears to be a Standards of Conduct violation by Ms. Geraldine McGann and a conflict of interest in the selection of her son, Daniel McGann, as a homeowner under the third stage of the Village’s program. Ms. McGann has been a paid member of the Village Board of Trustees, since August 19, 1982. Ms. McGann apparently did not officialy [sic] notify the Regional Counsel of her Village employment or receive a determination as to the existence of a conflict of interest until ... after she had served on the Board ... for eight months. In addition, during these eight months Ms. McGann, acting in her capacity as Village Trustee, participated in several HUD-related decisions. Defendants’ Exhibit 50, at 10. It is indeed difficult to comprehend how the government can maintain that the filing of this HUD audit report does not defeat its claim that it “remained in ignorance of” the bases for its causes of action beyond March 2, 1984. See, e.g., Boeing Co., Inc., 845 F.2d at 481-82 (existence of government audit memorandum inconsistent with claim of ignorance of facts material to cause of action). The government contends that its argument for fraudulent concealment survives the damning existence of this report because: “(1) [the] defendants’ fraudulent and outrageous acts concealed important proof in support of the allegations and (2) [then HUD Regional Administrator and Regional Housing Commissioner Joseph] Mon-ticciolo, the official with responsibility to take administrative action in response to the Audit Report, may have been part of the conspiracy.” Government’s Memorandum of Law at 68. These contentions, however, do not change the result. First, the government has cited no case, and understandably so, to support the proposition that a plaintiff remains in “ignorance of the existence of his cause of action” until he has proof of the wrongdoing; indeed, the government elsewhere retreats from this novel proposition and confesses that knowledge of facts sufficient to establish a prima facie case will defeat a fraudulent concealment claim. Id. at 65. Second, regardless of whether Monticciolo was or was not a “part of the conspiracy” at Island Park, the audit report was widely-disseminated throughout HUD and throughout other government agencies; this the government does not dispute. See Defendants’ Exhibit 50, at 16; Government’s Rule 3(g) Statement ¶¶ 95-99. Indeed, the defendants aver, and the government does not deny, that “Paul Adams, Inspector General of HUD, was also briefed on the allegations several months before the report was issued.” Defendants’ Memorandum of Law at 18. See Defendants’ Rule 3(g) Statement ¶ 54; Government’s Rule 3(g) Statement 1184. It is clear, then, that the government — the plaintiff in this action — knew of the “existence of [its] cause[s] of action” no later than March 2, 1984 — six years and twenty days before it filed this lawsuit; it is clear that the doctrine of fraudulent concealment does not toll the applicable statutes of limitations in this action. B. Tolling under 28 U.S.C. § 2416(c) The government also contends that the six-year statute of limitations applicable to the fourth claim for relief (breach of fiduciary duty by McGann) was tolled until June of 1989 under 28 U.S.C. § 2416(c). That section provides in relevant part: For the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which— (c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances.... There is a reasonable question whether or not Section 2416(c) simply codifies the doctrine of fraudulent concealment. For example, the legislative history of Section 2416(c) indicates that the Congress intended this section to apply in a manner analogous to the common-law rule of tolling by reason of a defendant’s fraud: The committee understands that the principal application of this exclusion will probably be in connection with fraud situations. An example would be where the affirmative act of a wrongdoer has served to conceal the fraudulent act. This type of exclusion is to be found in the law of many States in both fraud and tort limitations. S.Rep. No. 1328, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2502, 2507. See also United States v. Tilleraas, 538 F.Supp. 1, 4 (N.D.Ohio 1981), aff'd, 709 F.2d 1088 (6th Cir.1983). Nonetheless, the court will proceed on the assumption that Section 2416(c) is not necessarily coextensive with the doctrine of fraudulent c