Ninth Circuit Upholds FERC's Interpretation Of Statute Of Limitations To Enforce Civil Penalties

• Published date: 23 August 2023
• Law Firm: Pierce Atwood LLP
• Author: Mr Jared Des Rosiers, Valerie L. Green and Randall Rich

On August 18, 2023, the United States Court of Appeals for the Ninth Circuit upheld a district court order adopting the Federal Energy Regulatory Commission's (FERC) interpretation of the statute of limitations applicable to enforcement proceedings resulting in a civil penalty under the Federal Power Act. In FERC v. Vitol, No. 22-15584 (9th Cir. Aug. 18, 2023), the circuit court ruled that the five-year limitations period applicable to affirming FERC's penalty assessment under the Federal Power Act (FPA) begins to run when FERC assesses the penalty, not when the unlawful trading at issue occurs.

In 2019, FERC assessed a civil penalty against Vitol for $1,515,738 and against one of Vitol's traders for
$1 million, plus disgorgement of certain profits, based on trades that occurred in 2013. When neither Vitol nor the trader paid the penalties, FERC filed a complaint in federal district court to enforce its assessment of civil penalties under 16 U.S.C. ' 823b(d)(5).

Vitol moved to dismiss, claiming that the general statute of...