FERC v. Powhatan Energy Fund, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-2326

FEDERAL ENERGY REGULATORY COMMISSION,

Petitioner – Appellee,

v.

POWHATAN ENERGY FUND, LLC; HOULIAN “ALAN” CHEN; HEEP FUND,
INC.; CU FUND, INC.,

Respondents – Appellants.

-----------------------------

EDISON ELECTRIC INSTITUTE; ELECTRIC POWER SUPPLY
ASSOCIATION; ENERGY TRADING INSTITUTE,

Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:15-cv-00452-MHL)

Argued: December 11, 2019 Decided: February 11, 2020

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Affirmed and remanded by published opinion. Judge Wilkinson wrote the opinion, in
which Judge Keenan and Judge Diaz joined.
ARGUED: John N. Estes III, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP,
Washington, D.C., for Appellants. Anand Ram Viswanathan, FEDERAL ENERGY
REGULATORY COMMISSION, Washington, D.C., for Appellee. ON BRIEF: Patrick
R. Hanes, Jonathan T. Lucier, WILLIAMS MULLEN, Richmond, Virginia, for Appellant
Powhatan Energy Fund, LLC. Donna M. Byrne, SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP, Washington, D.C.; Abbe David Howell, WINSTON & STRAWN LLP,
Washington, D.C., for Appellants Houlian Chen, HEEP Fund Inc., and CU Fund Inc. Larry
R. Parkinson, Director, Office of Enforcement, Geo. F. Hobday, Jr., Director, Courtney
Spivey Urschel, Deputy Director, Division of Investigations, David Morenoff, Deputy
General Counsel, Robert H. Solomon, Solicitor, Samuel G. Backfield, Lisa L. Owings,
Mark E. Nagle, Daniel T. Lloyd, Elizabeth K. Canizares, FEDERAL ENERGY
REGULATORY COMMISSION, Washington, D.C., for Appellee. Emily Fisher,
EDISON ELECTRIC INSTITUTE, Washington, D.C., for Amicus Edison Electric
Institute. Christopher McEachran, Raleigh, North Carolina, Matthew A. Fitzgerald,
Richmond, Virginia, Todd Mullins, Noel Symons, MCGUIREWOODS LLP, Washington,
D.C., for Amici Edison Electric Institute, Electric Power Supply Association, and Energy
Trading Institute.

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WILKINSON, Circuit Judge:

The Federal Power Act (FPA) prohibits manipulation of the nation’s interstate

energy markets and authorizes the Federal Energy Regulatory Commission (FERC) to

enforce this prohibition through civil penalties. Appellants in this case are financial trading

entities and an individual trader alleged to have unlawfully manipulated a wholesale

electricity market. FERC notified appellants of its intent to seek civil penalties against

them; appellants denied the allegations and elected to have the case proceed via the FPA’s

“Alternate Option,” which provides for the assessment of liability in federal district court

rather than by an administrative law judge. After FERC filed the district court action,

appellants moved to dismiss in part, asserting that most of the conduct underlying FERC’s

claim fell outside the five-year statute of limitations on civil penalty actions in 28 U.S.C.

§ 2462.

The question here is when FERC’s claim “first accrued” with respect to this district

court action, thereby starting § 2462’s five-year clock. Appellants maintain that the

limitations period commenced at the time of their alleged illicit trading activity. FERC

asserts that its claim did not accrue until it fulfilled each of the FPA’s prerequisites to filing

suit in federal district court. The district court adopted the latter view and held that FERC’s

action was timely. We agree. Because FERC had no complete and present cause of action

until each statutory prerequisite to suit was met, the statute of limitations did not run until

that date. Accordingly, we hold that this action was timely filed and affirm the district

court’s judgment.

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 I.

A.

FERC is an independent regulatory commission comprised of five members

appointed by the President and confirmed by the Senate. 42 U.S.C. § 7171(a)-(b).

Pursuant to the FPA, FERC is charged with safeguarding the integrity of our nation’s

interstate energy markets. Specifically, Congress has “delegate[d] responsibility to FERC

to regulate the interstate wholesale market for electricity—both wholesale rates and the

panoply of rules and practices affecting them.” FERC v. Elec. Power Supply Ass’n, 136 S.

Ct. 760, 773 (2016). At bottom, this regulatory landscape is designed to ensure that

consumers pay “just and reasonable” rates for electric power. See id. at 773 (quoting 16

U.S.C. § 824d(a)).

As amended by the Energy Policy Act of 2005, the FPA prohibits the use of

manipulative schemes in connection with the purchase or sale of electric energy. In

particular, § 824v(a) of the Act, known as the Anti-Manipulation Provision, makes it

unlawful for any entity “directly or indirectly, to use or employ,” in connection with the

purchase or sale of electric energy or transmission services subject to FERC’s jurisdiction,

“any manipulative or deceptive device or contrivance . . . in contravention of such rules

and regulations as [FERC] may prescribe as necessary or appropriate in the public interest

or for the protection of electric ratepayers.” 16 U.S.C. § 824v(a). FERC has promulgated

rules and regulations implementing this Provision. See 18 C.F.R. § 1c.2(a). And Congress

has vested FERC with the authority to enforce these rules by imposing civil penalties to

the tune of up to $1 million per day per violation. 16 U.S.C. § 825o-1(b).

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 The FPA creates two procedural pathways by which such civil penalties may be

assessed and imposed. 16 U.S.C. § 823b. We refer to them as the Default Option and the

Alternate Option. In the main, the Default Option provides for administrative adjudication

before an administrative law judge (ALJ), id. § 823b(d)(2), whereas the Alternate Option

provides for adjudication in federal district court, id. § 823b(d)(3). It is up to the alleged

violator to choose the track.

Both options begin with the same, statutorily prescribed first step: “Before issuing

an order assessing a civil penalty against any person under this section, [FERC] shall

provide to such person notice of the proposed penalty.” 16 U.S.C. § 823b(d)(1). In this

notice, FERC is required to inform the alleged violator of the two procedural pathways,

and the subject party must then elect between them within thirty days of receiving the

notice. Id.; id. § 825o-1(b) (directing FERC to provide “notice and opportunity for public

hearing” before assessing penalties). FERC, by regulation, satisfies the notice requirement

by issuing an Order to Show Cause (OSC) to the suspected wrongdoer. See 18 C.F.R.

§ 385.209(a)(2). The OSC describes the alleged violations and directs the recipient to

demonstrate why FERC should not assess the proposed penalty. See Enforcement of

Statutes, Regulations & Orders, 123 FERC ¶ 61156, 62014 (May 15, 2008). In addition,

the OSC commences a “contested on-the-record proceeding” before FERC, id.

§ 385.2201(c)(1)(i), the purpose of which is to determine whether the OSC’s proposed civil

penalties should in fact be assessed.

The exact form that this proceeding takes is determined by the alleged violator’s

choice of procedural pathway. If the subject of an OSC elects the Default Option, then the

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case proceeds to a formal adjudication before an ALJ. 16 U.S.C. § 823b(d)(2). No penalty

is assessed against the regulated party until a “determination of violation has been made on

the record after an opportunity for an agency hearing . . . before an administrative law

judge.” Id. § 823b(d)(2)(A). Limited judicial review of the ALJ’s determination is

available in the applicable court of appeals. Id. §§ 823b(d)(2)(B); 825l.

On the other hand, if, after receiving an OSC, a party elects the Alternate Option,

no formal administrative hearing is statutorily required before FERC assesses a penalty.

Instead, the case is channeled into an abbreviated agency proceeding, which we will call

the Show Cause Process. In this context, the FPA mandates that FERC “shall promptly

assess” a penalty “by order.” 16 U.S.C. § 823b(d)(3)(A). Then, if the violator does not

pay the amount set forth in this penalty assessment order (PAO) in full within 60 calendar

days, FERC must “institute an action in the appropriate district court of the United States

for an order affirming the assessment of the civil penalty.” Id. § 823b(d)(3)(B). In such

an action, the district “court shall have authority to review de novo the law and the facts

involved, and shall have jurisdiction to enter a judgment enforcing, modifying, and

enforcing as so modified, or setting aside in whole or in part, such assessment.” Id.

Finally, upon the district court’s final judgment, or after a final administrative order

under the Default Option, FERC must file an action in federal district court “to recover”

any civil penalty that remains unpaid. 16 U.S.C. § 823b(d)(5).

Because the FPA does not contain a statute of limitations, the general statute of

limitations applicable to many penalty provisions throughout the U.S. Code applies to

actions brought under both the Default and Alternate Options. It provides:

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 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 if, within the same period, the offender or the property is
found within the United States in order that proper service may be made thereon.

28 U.S.C. § 2462.

B.

Appellants are Dr. Houlian Chen and various financial entities either owned by Dr.

Chen or on whose behalf he has executed trades in the wholesale electricity market. In

September 2007, Dr. Chen began trading on a wholesale electricity market administered

by PJM Interconnection, LLC (the PJM Market). In August 2010, FERC began

investigating after receiving two independent complaints that appellants were engaging in

fraudulent and unlawful trading on the PJM Market.

After an extensive investigation and the failure of settlement efforts, FERC issued

an OSC to appellants on December 7, 2014, alleging that they had violated the Anti-

Manipulation Provision and its implementing regulations. J.A. 184-275. Appellants

denied the charges and elected to proceed via the Alternate Option. On May 29, 2015,

FERC duly issued a PAO, which sought over $29 million in civil penalties and $4 million

in disgorgement, on the grounds that appellants had violated § 824v(a) “through a scheme

to engage in fraudulent Up-To Congestion (UTC) transactions in [PJM’s] energy markets

to garner excessive amounts of certain credit payments to transmission customers.” J.A.

92. Appellants failed to pay the assessed penalties within sixty days, so on July 31, 2015,

FERC filed a complaint in the United States District Court for the Eastern District of

Virginia seeking an order affirming the assessment of civil penalties.

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 On February 28, 2018, appellants filed a motion to partially dismiss the complaint.

As is relevant here, they argued that the bulk of the allegedly fraudulent conduct giving

rise to FERC’s claim was no longer actionable under § 2462’s five-year statute of

limitations. This because, according to appellants, FERC’s claim “accrued” for purposes

of the statute of limitations at the time of the conduct at issue, and only FERC’s filing of

the district court action qualified as an “action, suit[,] or proceeding” within the meaning

of § 2462. Appellants conducted their last purportedly manipulative trades on August 3,

2010, but FERC did not file its complaint until July 31, 2015, precluding enforcement of

civil penalties against all but four days of appellants’ trading activities.

FERC opposed the motion to dismiss. It principally argued that, where the subject

of an enforcement proceeding elects the Alternate Option, FERC’s claim does not

“accrue,” for purposes of filing suit in federal district court, until the subject fails to pay

the assessed penalties within sixty days of the PAO. Since FERC filed suit within five

years of that date in the instant case, it maintained that the entirety of its case was timely.

The district court denied appellants’ motion to dismiss on September 24, 2018.

Agreeing with FERC, it held that FERC’s claim “accrued” under § 2462 only after

appellants received the PAO and sixty days elapsed without their making payment. This

was so, according to the district judge, because FERC had “no right to commence any

action in a district court” until that time. FERC v. Powhatan Energy Fund, LLC, 345 F.

Supp. 3d 682, 695 (E.D. Va. 2018).

Simultaneous with its denial of appellants’ motion to dismiss, the district court

certified its ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Appellants

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filed a petition for permission to appeal, which this court granted on November 5, 2018.

II.

A.

At the heart of this case is the meaning of 28 U.S.C. § 2462—specifically, when a

claim has “first accrued”—as applied to the enforcement scheme Congress set out in the

FPA’s Alternate Option. Appellants argue that a claim for violation of the Anti-

Manipulation Provision accrues at the time of the predicate violation of law, such that,

under the Alternate Option, FERC must commence the district court action within five

years of that unlawful conduct. Application of this view here would exclude all but the

final four days of appellants’ trading activities from the five-year limitations period. For

its part, FERC contends that, under the Alternate Option, such a claim does not accrue until

FERC satisfies each of the FPA’s statutory prerequisites to filing suit in federal district

court. Under FERC’s interpretation, all the disputed conduct would fall within the

limitations period.

The proper construction and application of a statute of limitations is a question of

law we review de novo. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002). Because we

confront a case in which a private party raises a statute of limitations to bar a government

action, we are obliged to apply a “strict construction in favor of the government.” E.I. Du

Pont De Nemours & Co. v. Davis, 264 U.S. 456, 462 (1924). In keeping with this

injunction, we are mindful of “the hazards inherent in attempting to define for all purposes

when a ‘cause of action’ first ‘accrues.’” Crown Coat Front Co. v. United States, 386 U.S.

503, 517 (1967). Rather, “[s]uch words are to be interpreted in the light of the general

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purposes of the statute and of its other provisions, and with due regard to those practical

ends which are to be served by any limitation of the time within which an action must be

brought.” Id. (internal quotation marks and citation omitted).

B.

With these background principles in mind, we turn to the merits of appellants’

challenge. In applying the statute of limitations in § 2462 to the FPA’s Alternate Option,

we must (1) identify what constitutes an “action, suit[,] or proceeding for the enforcement

of any civil fine, penalty, or forfeiture,” and (2) decide when FERC’s “claim first accrued”

for purposes of filing that “action, suit[,] or proceeding.” 28 U.S.C. § 2462.

On the first matter, appellants agree that FERC commenced “an action, suit[,] or

proceeding” within the meaning of § 2462 by filing its complaint in the district court.

Because the aim of that proceeding was to impose and ultimately enable collection of a

civil penalty, FERC plainly was seeking “the enforcement of any civil fine, penalty, or

forfeiture” against appellants. See Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 669 (4th

Cir. 1997) (holding that, within the context of § 2462, “‘enforcement’ could be read to

mean ‘imposition’” (quoting 3M Co. v. Browner, 17 F.3d 1453, 1458 (D.C. Cir. 1994))).

As to when FERC’s claim “first accrued” for purposes of filing the district court

action, appellants argue that the statute of limitations in § 2462 ran from the dates of their

alleged violations of the Anti-Manipulation Provision. On their telling, this conclusion

follows from the “well-established principle that limitations periods begin at the time of

the conduct in dispute.” Appellants’ Op. Br. 16. In support of this proposition, they note

that limitations periods in many statutes have been interpreted to run from the time of the

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disputed conduct, and, more specifically, that the Supreme Court has held that a civil

penalty claim for fraud under the Investment Advisers Act “accrues—and the five-year

clock [of § 2462] begins to tick—when a defendant’s allegedly fraudulent conduct occurs.”

Id. at 15 (quoting Gabelli v. SEC, 568 U.S. 442, 448 (2013)).

Although appellants are correct that there are many instances in which a claim

accrues instantly upon a statutory violation, no natural law principle dictates that result.

Statutes of limitation are, as the name implies, statutory. And as creatures of congressional

intent, their application to a given cause of action must take account of any substantive

prerequisites that Congress has placed on the right to file the underlying lawsuit. Put

plainly, until a prospective plaintiff satisfies any such prerequisites and has a legal right to

initiate an action to enforce a claim, that claim has not “accrued.”

Time and again, the Supreme Court has reiterated this basic principle: “[A] claim

accrues when the plaintiff has a complete and present cause of action.” Gabelli, 568 U.S.

at 448 (internal quotation marks and citation omitted). This occurs “when ‘the plaintiff can

file suit and obtain relief.’” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area

Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201

(1997)); accord Clark v. Iowa City, 87 U.S. 583, 589 (1874) (“All statutes of limitation

begin to run when the right of action is complete . . . ”); Evans v. Gee, 36 U.S. 80, 84 (1837)

(concluding that an action was not time barred because limitations period did not run until

legal liability had attached); Montgomery v. Hernandez, 25 U.S. 129, 134 (1827) (holding

that the statute of limitations did not run until plaintiff had “right to demand of the marshal

the proceeds of the sales, or to sue for the recovery thereof”).

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 As the Supreme Court recognized in Gabelli, this rule—that statutes of limitation

do not run until a plaintiff has a complete and present cause of action—“has governed since

the 1830s when the predecessor to § 2462 was enacted.” 568 U.S. at 448. This is wholly

unsurprising, as it is consistent with the most straightforward reading of “accrual.” That

is, “[i]n common parlance a right accrues when it comes into existence,” United States v.

Lindsay, 346 U.S. 568, 569 (1954), which is as true today as it was in the 19th century.

See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when

the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009)

(defining “accrue” as “[t]o come into existence as an enforceable claim or right”). In line

with these settled principles, the district court properly concluded that, “based on the plain

meaning” of the term, “accrual occurs ‘when the factual and legal prerequisites for filing

suit are in place.’” FERC v. Powhatan Energy Fund, LLC, 345 F. Supp. 3d 682, 711 (E.D.

Va. 2018) (quoting 3M Co., 17 F.3d at 1460).

That these circumstances often occur at the moment of the violation does not imply

that they invariably will or that every claim must accrue at that time. Crown Coat is

instructive on this point. There, the Supreme Court held that a contractual variance claim

against the government “first accrued,” under the applicable statute of limitations, upon the

conclusion of administrative proceedings rather than at the time of the contract’s

completion. Crown Coat, 386 U.S. at 510, 514. This because the language of the contract

and the governing statutory landscape made clear that the plaintiff had no “right to demand

payment” in federal court until final administrative action. Id. at 511-14 (citation omitted).

To be sure, unlike in the instant appeal, the plaintiff in Crown Coat was a private party

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suing the government, but that in no way diminishes the Supreme Court’s basic holding

that “congressional purpose” governs the determination of when a right to sue comes into

existence. See id. at 513-14.

In this case, Congress plainly conditioned FERC’s right to bring an action in federal

district court on the occurrence of a number of statutorily-mandated events. As the district

court recognized, under the Alternate Option, FERC had no authority to file suit until it (1)

provided appellants with “notice of the proposed penalty,” including the opportunity to

select between the Default and Alternate Options, 16 U.S.C. § 823b(d)(1); see also id.

§ 825o-1(b); (2) “promptly” issued a PAO after appellants selected the Alternate Option,

id. § 823b(d)(3)(A); and (3) stood by for 60 calendar days of appellants’ nonpayment of

the penalty, id. § 823b(d)(3)(B). Only upon satisfaction of these requirements did

Congress direct that FERC “shall institute an action” in federal district court. Id. And only

then did § 2462’s statutory limitations period for filing suit commence.

The FPA’s statutory prerequisites to filing suit set this case apart from Gabelli. The

statute at issue there permitted the Securities and Exchange Commission to proceed

directly to district court for a penalty assessment. 15 U.S.C. § 80b-9(e)(1) (“Whenever it

shall appear to the [SEC] that any person has violated any provision of this subchapter . . .

the [SEC] may bring an action in a United States district court to seek, and the court shall

have jurisdiction to impose, upon a proper showing, a civil penalty to be paid by the person

who committed such violation.”). But here, FERC could not proceed to district court until

it had issued a PAO and 60 days had passed. 16 U.S.C. § 823b(d)(3).

As a result, Gabelli did not, as appellants contend, adopt an “unconditional ruling

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that government claims for civil penalties must face a fixed expiration date, five years from

when the disputed conduct occurred.” Appellants’ Op. Br. 19. The Court merely asked

whether, in the context of SEC actions for civil penalties, “the five-year clock [of § 2462]

begins to tick when the fraud is complete or when the fraud is discovered” and decided

against applying the fraud discovery rule. Gabelli, 568 U.S. at 444-45, 454. Put otherwise,

the SEC had a complete and present cause of action at the time of the disputed conduct.

FERC did not; under the Alternate Option, Congress prohibited FERC from filing suit in

district court until it satisfied each statutory prerequisite. See FERC v. Silkman (Silkman

I), 177 F. Supp. 3d 683, 699 (D. Mass. 2016) (noting that Gabelli was “a case about

discovery rules” with little bearing on the need to comply with statutory prerequisites in

order for a claim to “accrue” under § 2462).

Appellants try to downplay the significance of the constraints set by Congress in the

FPA. They first assert that the “minimal statutory procedural prerequisites that existed

could have been met easily and promptly,” and second, that Congress could not have

intended the statute of limitations to run only after the completion of procedures subject to

FERC’s exclusive control. Appellants’ Op. Br. 18. This argument errs twice over.

To start, the procedures mandated under the Alternate Option are extensive, not

“minimal.” In order to apprise the regulated party of the nature of its transgressions, FERC

conducts thorough investigations of complex, potentially fraudulent financial transactions.

FERC is then obligated to provide a suspected violator “notice of the proposed penalty,”

along with a description of and opportunity to elect between the Default and Alternate

Options. 16 U.S.C. § 823b(d)(1); see also id. § 825o-1(b). Upon the recipient’s selection

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of the Alternate Option, FERC is required to commence the Show Cause Process and

“promptly” issue a PAO. Id. § 823b(d)(3)(A). And in so doing FERC must “take into

consideration the seriousness of the violation and the efforts of such person to remedy the

violation in a timely manner.” Id. § 825o-1(b).

Put otherwise, the agency action mandated by the Alternate Option contemplates

extensive factfinding and the application of law to fact. The process afforded appellants in

this case is on all fours with that general observation. By way of the OSC, appellants

received notice of the charges against them, including the detailed factual allegations

giving rise to FERC’s claim that they had engaged in sophisticated manipulation of the

PJM Market. After providing numerous opportunities to respond to these allegations,

FERC issued a 90-page PAO concluding that appellants’ “serious[]” violations warranted

the assessment of substantial penalties. See J.A. 90-179. FERC then, as statutorily

mandated, waited at least 60 days before filing the instant district court action. In short,

the procedures set out by Congress, and as applied by FERC, are far from de minimis or

“easily” satisfied.

As for appellants’ objection to FERC’s control over the timing of this process, it

also misses the mark. The compendium of statutory requirements that FERC must comply

with is firmly rooted in the text of the FPA. Further, the authority to implement these

requirements is congressionally delegated. In addition to Congress’s general conferral of

authority on FERC to make “such orders, rules, and regulations as it may find necessary or

appropriate to carry out the provisions of [the Federal Power Act],” 16 U.S.C. § 825h, the

FPA expressly authorizes FERC to promulgate rules of practice and procedure governing

15
“all hearings, investigations, and proceedings” under the Act, id. § 825g(b).

For good reason: Congress structured the FPA so as to afford FERC latitude in

determining whether the statute’s highly technical rules have been violated and, in the

event of a violation, in assessing a penalty reflective of the harms that market manipulation

visits on consumers. See PPL EnergyPlus, LLC v. Nazarian, 735 F.3d 467, 473 (4th Cir.

2014) (“The federal [wholesale electricity] markets are the product of a finely-wrought

scheme that attempts to achieve a variety of different aims”). In essence, the degree to

which FERC controls the pace of proceedings—and therefore when a complete and present

cause of action accrues—is a matter of congressional design. And because, to reiterate, the

general statute of limitations in § 2462 must be evaluated and applied in the context of the

statutory scheme at issue, see Crown Coat, 386 U.S. at 517, we must give effect to the

congressional purposes undergirding the FPA.

To adopt appellants’ position that FERC has only five years from the date of the

underlying violation both to complete the entire Show Cause Process and to institute the

district court action would materially disrupt this carefully reticulated enforcement scheme.

Appellants’ view would, in effect, put a suspected violator in control of the enforcement

timeline and give it “considerable incentive to employ the available procedures to work

delay.” United States v. Meyer, 808 F.2d 912, 919 (1st Cir. 1987). The procedures here

lend themselves to that perverse result, owing to the complexity of the subject matter and

proceedings under FERC’s charge. Yet, as the First Circuit noted with respect to complex

administrative litigation, “it strikes us as implausible that Congress intended to endow

private litigants with so powerful an incentive for procrastination.” Id. at 920.

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 At any rate, forcing FERC to proceed on such an expedited basis would inhere to

the detriment of market participants like appellants. For it would risk the imposition of

civil penalties based on potentially slipshod investigations, hastily undertaken to protect

against the effect of a premature limitations period. In this sense, ensuring that FERC has

enough time to thoroughly vet each alleged instance of market manipulation before filing

suit can be, in actuality, of benefit to the regulated party.

In light of the above, it is plain that FERC’s claim did not accrue under § 2462, for

purposes of filing the district court action, until it had issued the PAO and appellants

refused to pay the assessed penalties for 60 days.

III.

Appellants complain that applying the well-established meaning of “accrued” in this

context would “allow[] civil penalties under the FPA to be brought at any distance of time,

leaving people and companies forever liable to a pecuniary forfeiture.” Appellants’ Op.

Br. 2-3 (internal quotation marks and citations omitted). This, however, is incorrect. Far

from creating an “infinite” statute of limitations, the FPA affirmatively obligates FERC to

commence and prosecute actions for violations of the Anti-Manipulation Provision within

a circumscribed timeframe.

A.

To begin with, it is clear that FERC must issue the statutorily required notice of

proposed penalty, which it does by issuing an Order to Show Cause (OSC), within five

years of the allegedly unlawful conduct giving rise to the claim. It bears reiterating here

that FERC’s issuing the OSC is not the same as its filing a lawsuit to enforce civil penalties

17
in federal district court. See supra Part I.A. Rather, what the OSC does, in addition to

fulfilling the statutory notice requirement, is commence administrative proceedings that

may culminate in the assessment of civil penalties. Id. The text of the FPA, the relevant

regulations, and the structure of the overall enforcement scheme all compel the conclusion

that FERC must issue the OSC and commence its administrative process within five years

of the alleged misconduct. And while this is equally true regardless of whether the

suspected wrongdoer elects the Default or Alternate Option, we focus our analysis on the

Alternate Option as selected by appellants.

All parties agree that if FERC’s Show Cause Process is a “proceeding” within the

meaning of § 2462, then FERC is required to commence that Process within five years of

the underlying conduct. See Appellants’ Reply Br. 15-16; Appellee’s Br. 38-39; see also

3M Co. v. Browner, 17 F.3d 1453, 1455-58 (D.C. Cir. 1994) (holding that civil penalty

cases brought before agencies can qualify as “proceedings” under § 2462). As we have

noted, the Show Cause Process consists of the agency penalty assessment procedures that

are invoked when the subject of an OSC elects the Alternate Option. Appellants insist that

the Show Cause Process amounts to nothing more than a prosecutorial decision to bring

suit, which typically does not qualify as a “proceeding” for the purposes of § 2462. See

3M Co., 17 F.3d at 1459 n.11 (noting that the term “proceeding” in § 2462 “implicate[s]

some adversarial adjudication” (quotation omitted)); United States v. Meyer, 808 F.2d 912,

920-21 (1st Cir. 1987). The courts to have considered this question uniformly agree that

FERC undertakes some determination of liability during the Show Cause Process. FERC

v. City Power Mktg., LLC, 199 F. Supp. 3d 218, 232 (D.D.C. 2016) (“There is no escaping

18
the fact that under [the Alternate Option] FERC must first determine at the agency level

whether to assess the penalty.”). They have split, however, over whether that determination

is the result of a § 2462 “proceeding,” see, e.g., FERC v. Silkman (Silkman I), 177 F. Supp.

3d 683, 700 (D. Mass. 2016), or is a mere prosecutorial decision, see, e.g., FERC v.

Barclays Bank PLC, No. 2:13-cv-02093, 2017 WL 4340258, at *12-14 (E.D. Cal. Sept. 29,

2017).

To begin, § 2462 does not define the term “proceeding,” and proceedings

themselves vary in their procedures. On balance, the procedures mandated by FERC’s

Show Cause Process more closely resemble an adjudicative “proceeding” than a

prosecutor’s charging decision. See FERC v. Silkman (Silkman II), 359 F. Supp. 3d 66,

121 (D. Me. 2019) (concluding that the Show Cause Process is “closer to [an ALJ hearing]

than to a prosecutorial determination or charging letter”); see also 3M Co., 17 F.3d at 1459

(“Because [administrative] assessment proceedings . . . seek to impose civil penalties, they

are proceedings for the ‘enforcement’ of penalties and § 2462 thus applies.”); Arch Mineral

Corp. v. Babbitt, 104 F.3d 660, 670-71 (4th Cir. 1997) (approving 3M Co.).

While the Show Cause Process does not contain all the hallmarks of a formal judicial

or administrative adjudication, see Barclays Bank PLC, 2017 WL 4340258, at *12-14, it

does share many crucial similarities. For one, the Show Cause Process is a “contested on-

the-record proceeding” before FERC, not simply a unilateral prosecutorial decision. 18

C.F.R. § 385.2201(c)(1)(i). In this proceeding, which is governed by FERC’s Rules of

Practice and Procedure, the FERC Commissioners act as neutral decisionmakers, while

FERC Enforcement staff present the factual and legal bases supporting imposition of a civil

19
penalty. Id. §§ 385.2201, 2202. Upon commencement of the Show Cause Process,

FERC’s ex-parte communications rule applies, prohibiting “any off-the-record

communications between (i) Commissioners and the staff that may advise them (decisional

staff) and (ii) Enforcement prosecutorial staff involved in the investigation or show cause

proceeding.” Silkman II, 359 F. Supp. 3d at 99 (citing 18 C.F.R. § 385.2201(c)(1)(i)). The

two sides submit formal briefing and relevant documentary evidence to FERC, id. at 100,

106, which then determines whether to impose civil penalties. Simply put, it is difficult to

characterize this adjudicatory process as merely a discretionary decision to prosecute. 1

But even if the Show Cause Process were somehow not deemed a “proceeding,”

FERC must nonetheless issue the OSC within five years of the unlawful conduct. That

conclusion is compelled by the structure of the statutory scheme itself. It is undisputed that

with respect to the Default Option FERC must commence the requisite ALJ adjudication

within five years of the alleged violation for that action to be timely under § 2462. See

Oral Argument at 27:59, FERC v. Powhatan Energy Fund, LLC (No. 18-2326). This

makes perfect sense. There is no question that, after issuance of the OSC, if the party elects

the Default Option, then a § 2462 “proceeding” before an ALJ must take place. See 3M

Co., 17 F.3d at 1455-59, 1462 (holding that ALJ hearings to assess civil penalties are in

1
Appellants maintain that the Show Cause Process cannot be considered a
proceeding for § 2462 purposes because it is “an agency invention that has no statutory
basis” as it is wholly self-imposed by FERC via regulation. Appellants’ Op. Br. 36. We
disagree. For starters, this statement is inaccurate. The Show Cause Process effectuates
the FPA’s command that FERC provide notice and a prompt penalty assessment to
offending parties. See 16 U.S.C. §823b(d). In any event, that an agency proceeding is
largely a creature of regulation rather than statute does not preclude it from qualifying as a
“proceeding” for the purposes of § 2462. See 3M Co., 17 F.3d at 1456.

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general “proceedings” under § 2462 that must be commenced within five years of the

wrongful conduct). That being the case, the OSC must necessarily be issued within five

years of the unlawful conduct to satisfy § 2462.

Because FERC cannot know in advance which option—Default or Alternate—the

party receiving the OSC will select, it must issue the OSC within five years of the unlawful

conduct across the board. This is because, if FERC were to issue an OSC more than five

years after the fraudulent conduct, an alleged violator could simply elect the Default Option

and cause FERC’s claim to be barred by the statute of limitations, as FERC would be

unable to commence an ALJ “proceeding” within the requisite time period. As such, in

order to head off such a limitations bar, the FPA’s enforcement scheme affirmatively

requires FERC to issue an OSC within five years of a suspected violation, regardless of

which procedural option the defendant eventually elects. Indeed, FERC acknowledged as

much at oral argument. See Oral Argument at 32:10 (“From the time of misconduct, the

agency has five years to start the process by issuing an Order to Show Cause to assess a

penalty.”). This is unsurprising, as it would add an unnecessary layer of confusion for

different timelines to apply to the Default and Alternate Options.

B.

Likewise, after FERC has issued an OSC, the FPA makes clear that FERC is on the

clock again—specifically, it must proceed with dispatch in conducting the Show Cause

Process, assessing any penalty, and issuing the PAO. Section 823b of the FPA provides

that, once an alleged violator has elected the Alternate Option, FERC “shall promptly

assess [a] penalty, by order.” 16 U.S.C. § 823b(d)(3)(A). While it is true that the FPA

21
does not define the crucial term “promptly,” the plain meaning of that word precludes the

possibility of endless delay. See Oxford English Dictionary (3d ed. 2007) (defining

“promptly” as “[i]n a prompt manner; readily, quickly; at once, without delay; directly,

forthwith, there and then”).

Furthermore, the statutory requirement that FERC promptly assess a penalty is not

merely precatory. On the contrary, the Administrative Procedure Act “imposes a general

but nondiscretionary duty upon an administrative agency to pass upon a matter presented

to it ‘within a reasonable time,’ 5 U.S.C. § 555(b), and authorizes a reviewing court to

‘compel agency action unlawfully withheld or unreasonably delayed,’ id. § 706(1).”

Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir.

2003). Where an agency “fails[s] to take a discrete agency action that it is required to

take,” the APA creates a private cause of action for a party aggrieved by that agency’s

unreasonable delay to compel such action. Norton v. SUWA, 542 U.S. 55, 64 (2004); see

also TRAC v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (listing factors relevant to determining

whether agency action has been unreasonably delayed).

There is no doubt that the FPA’s mandate that FERC “shall promptly assess” a

penalty is an action that FERC is required to take. See Kingdomware Techs., Inc., v. United

States, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion,

the word ‘shall’ usually connotes a requirement.”). Thus, at a minimum, if FERC were to

disregard this statutory command, a party facing a potential penalty assessment could bring

suit under the APA to force FERC to issue a PAO in a timely manner. See In re Am. Rivers

& Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (noting that a reasonable time

22
for agency action is usually “counted in weeks or months, not years”). Requiring an APA

suit to force agency action is no small imposition, but at least the option is there. 2

The process of investigation and subsequent enforcement is a complex and technical

one, which cannot be completed in an afternoon. The FPA envisions a process which is

responsive to the complicated nature of the activities the statute regulates, namely “the

actions of sophisticated traders in complex markets,” Appellee’s Br. 20, that necessarily

require time to assess. At the same time, the FPA creates a clear and temporally bound

three-step process for enforcing violations of the Anti-Manipulation Provision via the

Alternate Option. First, as prescribed by § 2462, FERC has five years from the date of the

commission of the unlawful conduct to investigate an alleged violation and issue a notice

of proposed penalty, which it does through an OSC. Once such notice has been issued and

the purported wrongdoer has elected the Alternate Option, FERC must “promptly assess”

a penalty, 16 U.S.C. § 823b(d)(3)(A), a statutory mandate that can be enforced in court via

the APA. And once FERC has issued a PAO and the defendant has failed to pay the

assessed penalty within 60 days, FERC’s claim has accrued and the time begins in which

it must commence an action in federal district court. See supra Part II. We simply cannot

2
What’s more, compelling FERC to issue a PAO may not be the only avenue of
relief for defendants faced with inordinate delay in the Show Cause Process. One of our
sister circuits has held that the APA authorizes federal courts to “dismiss agency action
unreasonably delayed” if such delay “results in serious prejudice to one of the parties.”
Houseton v. Nimmo, 670 F.2d 1375, 1377-78 (9th Cir. 1982). But we need not pass on
whether this defense is available other than to note that unreasonable delay can put the
agency’s case at risk.

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endorse the view that this carefully wrought scheme “transform[s] § 2462 into a statute of

no limitations.” Appellants’ Op. Br. 11.

C.

That is not all. We are not prepared to assume that FERC is determined to delay the

expeditious prosecution of energy market manipulation that is essential to fulfilling its

statutory mandate. As previously discussed, the “FPA delegates responsibility to FERC to

regulate the interstate wholesale market for electricity,” FERC v. Elec. Power Supply

Ass’n, 136 S. Ct. 760, 773 (2016), and to ensure that all rates charged in that market are

“just and reasonable,” id. (quoting 16 U.S.C. § 824d(a)). Given the tangible harms visited

on consumers by fraudulent conduct in the energy markets, Congress realized that tasking

FERC with monitoring those markets “is not enough—FERC must have the tools to act

when markets fail, and it must use those tools to ensure that customers pay only just and

reasonable rates.” Mont. Consumer Counsel v. FERC, 659 F.3d 910, 920 n.5 (9th Cir.

2011). We are mindful that bureaucratic lassitude and lack of resources too often slow

agency actions, but we are not so jaded as to believe that FERC is incentivized to be dilatory

in pursuing violations that so closely bear on its primary statutory duty to protect the public.

See Elec. Power Supply Ass’n, 136 S. Ct. at 773 (“[I]f FERC sees a violation of [the just

and reasonable rates] standard, it must take remedial action.”) (emphasis added).

This is especially true in cases where, as here, “footdragging would tend to reduce

the [agency’s] chances of proving its case and collecting monetary sanctions.” Meyer, 808

F.2d at 922. In particular, the FPA requires FERC to “take into consideration the

seriousness of the violation and the efforts of such person to remedy the violation in a

24
timely manner” when determining the amount of civil penalties. 16 U.S.C. § 825o-1(b).

Undertaking such a fact intensive and temporally contingent analysis grows more difficult

with each day that passes from the occurrence of the underlying violations, giving FERC

added incentive to avoid deleterious delay.

The statutory scheme we have outlined here is cognizant of two realities: (1) the

violations at issue take time to investigate and to uncover and (2) the case must unfold in a

manner that is respectful of the rights of the alleged violators. The legal process herein

gives FERC time to develop the case but also affords the assurance that the alleged violator

will be apprised through the OSC and the PAO as to what FERC is doing.

We doubt that the law as written has interminability as a drawback. Indeed, it would

make no sense for FERC to go to the considerable trouble of working up a complex case,

assessing a penalty for fraudulent market activities, observing the period for payment of

the penalty pass, and then delaying filing suit in district court to affirm the penalty

assessment. So much is apparent from the instant case. FERC issued a PAO to appellants

on May 29, 2015. Then, on July 31, 2015—just three days after the expiration of the 60-

day waiting period—FERC filed its complaint in the district court. Such prompt action in

enforcing civil penalties is to be expected, as it represents the natural culmination of

significant investigative efforts on the part of the agency.

IV.

For the foregoing reasons, we hold that FERC did not have a complete and present

cause of action to file suit in federal district court until 60 days elapsed after it had issued

the PAO and appellants refused to pay the assessed penalty. See 16 U.S.C § 823b(d)(3)(B).

25
As such, FERC’s claim had not “accrued” until that point, so this action was timely filed.

See 28 U.S.C. § 2462. Accordingly, we shall affirm the holding of the district court and

remand for further proceedings.

AFFIRMED AND REMANDED

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