Ferc v. Vitol Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FEDERAL ENERGY No. 22-15584
REGULATORY COMMISSION,
D.C. No.
Plaintiff-Appellee, 2:20-cv-00040-
KJM-AC
v.

VITOL INC.; FEDERICO OPINION
CORTEGGIANO,

Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted February 14, 2023
San Francisco, California

Filed August 18, 2023

Before: Eric D. Miller, Gabriel P. Sanchez, and Salvador
Mendoza, Jr., Circuit Judges.

Opinion by Judge Miller
2 FERC V. VITOL INC.

SUMMARY *

Federal Energy Regulatory Commission / Statute of
Limitations

The panel affirmed the district court’s order denying
Vitol, Inc.’s motion to dismiss, as untimely under the
applicable statute of limitations, a complaint filed by the
Federal Energy Regulatory Commission (FERC) that sought
an order affirming the assessment of a civil penalty against
Vitol and one of its traders, Federico Corteggiano, for
making unlawful manipulative trades in the California
energy market.
When FERC believes that it has identified a violation of
the Federal Power Act, 16 U.S.C. §§ 791a–828c, it initiates
an administrative process that may culminate in a decision
to assess a civil penalty, and must bring an action in federal
district court to enforce that decision. Under the applicable
statute of limitations, 28 U.S.C. § 2462, “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.” Thus, FERC must bring an action in
federal district court for an order enforcing the assessment
of a civil penalty within five years of “the date when the
claim first accrued.”
In measuring the limitations period, the critical question
is when FERC’s claim “accrues.” Vitol contended that
FERC’s federal district court action was untimely because

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 FERC V. VITOL INC. 3

FERC’s claim accrued as soon as the allegedly unlawful
trading occurred. The panel rejected Vitol’s contention, and
held that FERC’s claim accrued on the date that FERC
assessed a civil penalty. The panel reasoned that FERC’s
claim arises under 16 U.S.C. § 823b(d)(3)(B), which gives
the agency a cause of action in federal court for “affirming
the assessment of the civil penalty,” and that claim does not
accrue until FERC has assessed a penalty.
The panel also agreed with the district court’s conclusion
that FERC’s administrative process for assessing a civil
penalty is itself a “proceeding” that is subject to the five-year
statute of limitations in 28 U.S.C. § 2462, and therefore
FERC must initiate the proceeding by issuing a notice of
proposed penalty within five years of any alleged
wrongdoing.

COUNSEL

Matthew D. McGill (argued), Helgi C. Walker, Jessica L.
Wagner, and Jeff Liu, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Charles R. Mills, Bracewell LLP,
Washington, D.C.; Paul J. Pantano Jr., and Abigail L. P.
Edwards, Willkie Farr & Gallagher LLP, Washington, D.C.;
for Defendants-Appellants.
Kevin M. Dinan (argued), Nickolas Barber, Catherine C.
Collins, John R. Matson III, Mark Koehn, Jennifer Vein,
Beth G. Pacella, and Robert H. Solomon; Damon W. Taaffe,
Enforcement Counsel; Jeremy Medovoy, Deputy Director,
Office of Enforcement; Geo F. Hobday Jr., Director,
Investigations Division; Federal Energy Regulatory
Commission, Washington, D.C.; for Plaintiff-Appellee.
4 FERC V. VITOL INC.

Todd Mullins and Noel H. Symons, McGuireWoods LLP,
Washington, D.C; Matthew A. Fitzgerald, McGuireWoods
LLP, Richmond, Virginia; for Amici Curiae Edison Electric
Institute, Electric Power Supply Association, and Energy
Trading Institute.
Andrew R. Varcoe and Tyler S. Badgley, U.S. Chamber
Litigation Center, Washington, D.C.; Michael L. Spafford,
Michael F. Murray, and Robert M. Overing, Paul Hastings
LLP, Washington, D.C.; for Amicus Curiae The Chamber of
Commerce of the United States of America.

OPINION

MILLER, Circuit Judge:

When the Federal Energy Regulatory Commission
(FERC) believes that it has identified a violation of the
Federal Power Act, 16 U.S.C. §§ 791a–828c, it initiates an
administrative process that may culminate in a decision to
assess a civil penalty. To enforce that decision, FERC must
bring an action in federal district court “for an order
affirming the assessment of the civil penalty.” Id.
§ 823b(d)(3)(B). Such an action must be brought within five
years of “the date when the claim first accrued.” 28 U.S.C.
§ 2462. This case presents the question whether that five-
year period runs from the date of the alleged wrongdoing or
instead from the date when FERC assesses a penalty. We
conclude that FERC’s claim does not accrue—and thus the
limitations period does not begin to run—until the agency
assesses a penalty.
 FERC V. VITOL INC. 5

I
The Federal Power Act makes it unlawful “for any
entity . . . to use or employ, in connection with the purchase
or sale of electric energy . . . , any manipulative or deceptive
device or contrivance.” 16 U.S.C. § 824v(a); see also 18
C.F.R. § 1c.2(a). If FERC believes that a person has violated
that prohibition, it may initiate administrative proceedings
by issuing an order to show cause and notice of proposed
penalty. See 16 U.S.C. § 823b(d)(1); 18 C.F.R.
§§ 385.209(a)(2), 385.1506. At that point, the respondent
may choose to proceed in one of two ways specified in
paragraphs (d)(2) and (d)(3) of 16 U.S.C. § 823b.
First, under section 823b(d)(2), the respondent may elect
an on-the-record hearing before an administrative law judge.
16 U.S.C. § 823b(d)(2)(A). FERC may then review the
administrative law judge’s decision. 18 C.F.R. §§ 385.711–
.712. And the respondent may seek direct review of an
adverse final determination in the appropriate court of
appeals. 16 U.S.C. § 823b(d)(2)(B).
Second, a respondent may elect to proceed under section
823b(d)(3). That provision simply commands FERC to
“promptly assess [a] penalty, by order.” 16 U.S.C.
§ 823b(d)(3)(A). But by regulation, FERC may assess a
penalty only after an adversarial proceeding. See 18 C.F.R.
§§ 385.1506–.1507; see also id. § 385.2201 (describing the
proceeding as “contested [and] on-the-record”). In that
proceeding, the respondent must file an answer disputing
relevant points of law and fact. Id. § 385.213(c)(1)(i)–(ii).
The respondent may also submit affidavits and other
evidence. Id. § 385.213(c)(4). At the conclusion of the
proceeding, FERC may decide to assess a penalty. If it does
6 FERC V. VITOL INC.

so, and “if the civil penalty has not been paid within 60
calendar days,” then FERC

shall institute an action in the appropriate
district court of the United States for an order
affirming the assessment of the civil penalty.
The 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.

16 U.S.C. § 823b(d)(3)(B).
Whichever procedural path the agency follows—
whether under paragraph (d)(2) or paragraph (d)(3)—once
the penalty becomes “final,” and if the respondent has yet to
pay, FERC is authorized to “institute an action to recover the
amount of such penalty in any appropriate district court of
the United States.” 16 U.S.C. § 823b(d)(5).
In this case, FERC alleges that Vitol Inc., an energy-
trading company, and one of its traders, Federico
Corteggiano, (collectively, Vitol) made unlawful
manipulative trades in the California energy market by
selling power at a loss in order to inflate the value of
derivatives that it held, thereby avoiding a larger loss on its
derivatives position. Corteggiano had previously carried out
a similar scheme while employed at Deutsche Bank; in that
case, Deutsche Bank ultimately agreed to pay a substantial
civil penalty and disgorge its profits from the trade. Deutsche
Bank Energy Trading, LLC, 142 FERC ¶ 61,056 (2013).
This time, FERC says, the scheme helped Vitol avoid more
than $1 million in losses.
 FERC V. VITOL INC. 7

The trades in question took place on October 25 and 28,
2013. FERC spent three years investigating, and in
December 2016 it sent Vitol a letter sharing its preliminary
findings of wrongdoing. In June 2017, FERC and Vitol
agreed to extend the statute of limitations by one year. Then,
on July 10, 2019, FERC issued a formal order to show cause
and notice of proposed penalty.
Vitol elected to proceed under section 823b(d)(3) and
filed an answer to FERC’s notice. On October 25, 2019,
FERC issued an order assessing a penalty against Vitol in
the amount of $1,515,738 and against Corteggiano in the
amount of $1,000,000, and it also ordered disgorgement of
certain profits. The penalty went unpaid, and on January 6,
2020, FERC filed a complaint in federal court for an order
affirming the assessment of the penalty.
Vitol moved to dismiss the complaint, arguing that
FERC’s action was untimely. Because the Federal Power
Act does not contain its own statute of limitations, FERC’s
penalty enforcement proceedings are subject to the general
statute of limitations set out in 28 U.S.C. § 2462, which
provides, with exceptions not relevant here, that “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.”
Vitol contended that FERC’s claim accrued as soon as
the allegedly unlawful trading occurred, so the action in
federal court was untimely. FERC, by contrast, argued that
its claim accrued only once the statutory prerequisites for
filing suit were satisfied. According to FERC, section 2462
creates “two clocks.” First, the agency must issue a notice of
proposed penalty within five years of alleged wrongdoing.
8 FERC V. VITOL INC.

(Here, the notice came just under six years after the alleged
wrongdoing, but as noted, Vitol had agreed to a one-year
extension of the limitations period.) When FERC ultimately
assesses a penalty, the agency says, its claim to affirm that
penalty accrues, thus beginning a second five-year interval
in which to file a complaint in federal court.
The district court agreed with FERC and denied the
motion to dismiss in relevant part. The district court held that
FERC’s administrative proceeding was itself a “proceeding”
under section 2462, such that FERC needed to commence it
within five years of the alleged wrongdoing (six years, under
the parties’ agreement), and that FERC timely did so. The
district court further held that FERC’s claim in federal court
for “an order affirming the assessment of the civil penalty,”
16 U.S.C. § 823b(d)(3)(B), did not accrue until FERC had
concluded the administrative proceeding. As the district
court saw it, FERC “can have no ‘complete and present
cause of action’ seeking review or affirmation of a civil fine
under the [Federal Power Act] until FERC has first assessed
that fine through its administrative process.” (quoting
Gabelli v. SEC, 568 U.S. 442, 448 (2013)).
The district court certified the statute of limitations issue
for interlocutory appeal under 28 U.S.C. § 1292(b), and we
granted permission to appeal. Our review is de novo. Mendez
v. Ishikawajima-Harima Heavy Indus. Co., 52 F.3d 799, 800
(9th Cir. 1995).
II
We begin with the text of section 2462. See Hall v.
United States Dep’t of Agric., 984 F.3d 825, 837 (9th Cir.
2020). To reiterate, that statute provides that “an action, suit
or proceeding for the enforcement of any civil fine, penalty,
or forfeiture, pecuniary or otherwise, shall not be entertained
 FERC V. VITOL INC. 9

unless commenced within five years from the date when the
claim first accrued.” 28 U.S.C. § 2462.
In measuring the limitations period, the critical question
is when FERC’s claim “accrues.” In general, a claim accrues
when it “come[s] into existence as an enforceable claim or
right.” Accrue, Black’s Law Dictionary (11th ed. 2019). As
the Supreme Court has explained, “it is ‘the standard rule
that [accrual occurs] when the plaintiff has a “complete and
present cause of action,”’ that is, when ‘the plaintiff can file
suit and obtain relief.’” Wallace v. Kato, 549 U.S. 384, 388
(2007) (alteration in original) (quoting Bay Area Laundry
and Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal.,
522 U.S. 192, 201 (1997)); see Clark v. Iowa City, 87 U.S.
(20 Wall.) 583, 589 (1874) (“All statutes of limitation begin
to run when the right of action is complete.”).
FERC’s claim arises under 16 U.S.C. § 823b(d)(3)(B),
which gives the agency a cause of action in federal court for
“affirming the assessment of the civil penalty,” id. (emphasis
added). A cause of action for that purpose does not exist until
FERC has assessed a civil penalty. Only then does the cause
of action accrue, so only then does the statute of limitations
begin to run.
Vitol insists that FERC’s claim is not for enforcement of
a penalty but rather “for a substantive violation of the
[Federal Power Act’s] anti-manipulation provision and
FERC’s corresponding anti-manipulation rule,” and
therefore it must accrue as soon as any alleged wrongdoing
occurs. In support of that theory, Vitol observes that the
action in federal court does not involve record review of
FERC’s decision to impose a penalty; instead, the court
considers de novo whether a penalty is warranted.
Additionally, Vitol points out that a different provision, 16
10 FERC V. VITOL INC.

U.S.C. § 823b(d)(5), gives FERC a cause of action to
“recover” civil penalties that have become “final.”
According to Vitol, only an action under that provision
depends on the assessment of an earlier penalty.
But no matter how one conceptualizes the essential
nature of FERC’s claim, there is no getting around the text
of section 823b(d)(3)(B). FERC’s action seeks an “order
affirming the assessment of the civil penalty.” 16 U.S.C.
§ 823b(d)(3)(B). Until there is a civil penalty, a cause of
action for affirming the penalty cannot exist. The claim
becomes complete and present only upon the conclusion of
the administrative proceeding.
That conclusion is reinforced by the next sentence of
section 823b(d)(3)(B). Yes, as Vitol emphasizes, it says that
the court shall “review de novo the law and the facts.” But it
also says that the court “shall have jurisdiction to enter a
judgment enforcing, modifying, and enforcing as so
modified, or setting aside in whole or in part, such
assessment.” All of those actions—“enforcing,”
“modifying,” and “setting aside”—have as their object the
agency’s assessment. Until the assessment has been issued,
there is nothing for the court to do.
As for section 823b(d)(5), that provision gives FERC a
way to collect a final judgment affirming a penalty “[i]f any
person fails to pay” it. The statute supplements the Federal
Debt Collection Procedures Act of 1990, Pub. L. No.
101-647, Tit. XXXVI, 104 Stat. 4933, by imposing upon
FERC a duty to bring a collection action (“the Commission
shall institute an action”) when a penalty becomes final and
making clear that the defendant in such an action may not
collaterally attack the assessment (“the validity and
 FERC V. VITOL INC. 11

appropriateness of such final assessment order or judgment
shall not be subject to review”).
On Vitol’s telling, section 823b(d)(5) does something
more: it creates the Federal Power Act’s sole action for
“penalty recovery.” Because section 823b(d)(5) is an action
for penalty recovery, the argument goes, section
823b(d)(3)(B) cannot also create an action for “penalty
recovery.” But our analysis does not depend on whether
section 823b(d)(3)(B) creates an action for penalty recovery.
The question that matters is whether the cause of action in
section 823b(d)(3)(B)—for an “order affirming the
assessment of the civil penalty”—can exist before FERC has
assessed a penalty, and the statute plainly indicates that it
cannot.
Vitol cites Gabelli v. SEC in support of its view that a
claim always accrues as soon as the alleged wrongdoing
occurs. 568 U.S. 442 (2013). Gabelli involved a civil action
by the SEC against an investment adviser who allegedly
defrauded his clients. Id. at 445–46. The question before the
Supreme Court was whether the statute of limitations begins
to run when the fraud occurs or instead when it is discovered,
possibly years later. The Court declined to apply a discovery
rule. Instead, following the “‘standard rule’ that a claim
accrues ‘when the plaintiff has a complete and present cause
of action,’” the Court held that the five-year clock under
section 2462 “begins to tick . . . when a defendant’s allegedly
fraudulent conduct occurs.” Id. at 448 (quoting Wallace, 549
U.S. at 388).
Crucially, the statute in Gabelli permitted the SEC to
bring suit as soon as the fraud occurred, without undertaking
any prior administrative action. 15 U.S.C. § 80b-9(e)(1).
Congress may, if it chooses, authorize an agency to
12 FERC V. VITOL INC.

prosecute a violation by filing suit in federal court in the first
instance. As Gabelli underscores, when Congress makes that
choice, the agency’s cause of action will generally accrue as
soon as the violation occurs. But in the Federal Power Act,
Congress made a different choice. FERC may go to federal
court for an order “affirming the assessment of the civil
penalty” only after the agency has assessed such a penalty in
an agency proceeding. 16 U.S.C. § 823b(d)(3)(B). That
cause of action does not exist until the agency assesses a
penalty.
To be sure, the accrual of a claim does not always have
to await the satisfaction of every procedural obstacle to filing
suit. In Soto v. Sweetman, for example, we held that a
prisoner’s action under 42 U.S.C. § 1983 accrued when his
injury occurred, even though he could not go to court until
he exhausted his administrative remedies as required under
the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C.
§ 1977e(a). 882 F.3d 865, 870–71 (9th Cir. 2018). But we
did not alter the rule that a cause of action accrues when it is
“complete and present,” Wallace, 549 U.S. at 388, that is,
when “the substantive elements of the cause of action on
which the suit is based” have matured, 3M Co. v. Browner,
17 F.3d 1453, 1460 (D.C. Cir. 1994) (citation omitted).
Before the PLRA was enacted, it was well established that a
cause of action under section 1983 accrues “when a plaintiff
knows or has reason to know of the injury which is the basis
of his action.” Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.
1981); see McDonough v. Smith, 139 S. Ct. 2149, 2155
(2019) (holding that an “accrual analysis” under section
1983 begins with “‘the specific constitutional right’ alleged
to have been infringed” (quoting Manuel v. City of Joliet,
580 U.S. 357, 370 (2017))). The PLRA did not change that
preexisting cause of action but merely added a procedural
 FERC V. VITOL INC. 13

prerequisite to filing suit: “No action shall be brought with
respect to prison conditions . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1977e(a).
Section 823b(d)(3)(B) differs because it does not add a
procedural prerequisite to a cause of action that has been
created elsewhere. Instead, it defines FERC’s cause of action
in the first instance and provides that FERC may seek “an
order affirming the assessment of the civil penalty.” That
cause of action cannot be complete until the agency has
assessed the penalty.
III
Vitol contends that our interpretation of section 2462 is
anomalous because it creates more than one statute-of-
limitations clock for FERC—one for the administrative
proceeding, and another for an action in court. In fact, our
decision is consistent with decisions of other courts
interpreting statutes of limitations in similar contexts.
The Supreme Court has long recognized that a statute of
limitations can create one limitations period for the claim
before the agency and a second for a follow-on federal court
action. In Crown Coat Front Co. v. United States, the Court
considered whether the statute of limitations applicable to a
contract claim against the government begins to run as soon
as the claimant suffers an injury or only after he receives a
decision from the agency to which he must first present the
claim. 386 U.S. 503 (1967); see 28 U.S.C. § 2401(a). The
Court held that the cause of action in court does not accrue
until the agency “finally rule[s],” so the limitations period
applicable to that action does not begin to run until then.
Crown Coat, 386 U.S. at 522. The Court reasoned that “[t]he
focus of the court action is the validity of the administrative
14 FERC V. VITOL INC.

decision. Until that decision is made, the contractor cannot
know what claim he has or on what grounds administrative
action may be vulnerable.” Id. at 513–14.
In United States v. Meyer, the First Circuit applied that
logic in considering the application of section 2462 to
penalty recovery actions by the Department of Commerce
under the Export Administration Act of 1979, Pub. L. No.
96-72, 93 Stat. 503. 808 F.2d 912 (1st Cir. 1987). Under that
statute, just as under the Federal Power Act, the agency first
had to assess a penalty and then bring suit in federal court to
enforce it, at which point the court reviewed the penalty de
novo. See 50 U.S.C. app. § 2410(f) (1982). The court
embraced what it called “the obvious proposition that a
claim for ‘enforcement’ of an administrative penalty cannot
possibly ‘accrue’ until there is a penalty to be enforced.” Id.
at 914. Other courts have reached similar conclusions. See
United States v. Godbout-Bandal, 232 F.3d 637, 640 (8th
Cir. 2000) (applying Meyer to conclude that an FDIC penalty
enforcement action does not accrue, for purposes of section
2462, until the “administrative process has resulted in a final
determination”); accord SEC v. Mohn, 465 F.3d 647, 654
(6th Cir. 2006); cf. United States Dep’t of Lab. v. Old Ben
Coal Co., 676 F.2d 259, 261 (7th Cir. 1982) (expressing a
similar view in dicta).
So far as we are aware, only one court of appeals has
taken a contrary view. In United States v. Core Laboratories,
Inc., the Fifth Circuit relied on the legislative history of the
Export Administration Act to conclude that, under that
statute, “the time is reckoned from the commission of the act
giving rise to the liability, and not from the time of
imposition of the penalty.” 759 F.2d 480, 482 (5th Cir. 1985)
(quoting S. Rep. No. 89-363, at 7 (1965)). We agree with the
First Circuit’s criticism of the reasoning in Core
 FERC V. VITOL INC. 15

Laboratories. See Meyer, 808 F.2d at 915; id. at 916
(“Outside of the Fifth Circuit, no court has ever held that, in
a case where an antecedent administrative judgment is a
statutory prerequisite to the maintenance of a civil
enforcement action, the limitations period on a recovery suit
runs from the date of the underlying violation as opposed to
the date on which the penalty was administratively
imposed.”). In any event, even accepting that decision at face
value, its reasoning was limited to the particular statute at
issue in that case, so it has little bearing on an action under
section 823b(d)(3)(B).
Of particular relevance here, the Fourth Circuit—the
only court of appeals to confront the precise question
presented in this case—has held that that FERC’s cause of
action under section 823b(d)(3)(B) accrues when FERC
concludes its administrative proceeding and assesses a
penalty. FERC v. Powhatan Energy Fund, LLC, 949 F.3d
891, 899 (4th Cir. 2020). The court explained that “Congress
plainly conditioned FERC’s right to bring an action in
federal district court on the occurrence of a number of
statutorily-mandated events,” including giving notice of a
proposed penalty, completing the administrative process,
and issuing a penalty assessment order. Id. at 898–99. Only
upon the “satisfaction of these requirements,” the court
reasoned, “did Congress direct that FERC ‘shall institute an
action’ in federal district court. . . . And only then did
§ 2462’s statutory limitations period for filing suit
commence.” Id. at 899 (quoting 16 U.S.C. § 823b(d)(3)(B)).
We agree.
IV
The district court concluded that FERC’s administrative
process for assessing a penalty is itself a “proceeding” that
16 FERC V. VITOL INC.

is subject to the five-year statute of limitations in section
2462. Vitol devotes much of its brief to attacking that
conclusion, arguing that FERC’s process for assessing a
penalty is an “invented,” “ministerial” exercise on which the
running of a statute of limitations for the subsequent action
in court cannot depend.
No one questions that FERC commenced its
administrative process against Vitol within six years of the
violation (the five-year statutory period, plus the year of
tolling to which the parties agreed). So, as far as Vitol is
concerned, FERC’s administrative penalty assessment was
timely regardless of whether that process needed to comply
with section 2462. But Vitol nonetheless argues that the
penalty assessment process is not a “proceeding.” Vitol
apparently believes that if we recognize the process for the
“ministerial” affair it really is, we will see that FERC’s
reading of section 823b(d)(3)(B)—and FERC’s contention
that its cause of action in district court does not accrue until
the administrative process concludes—produces “absurd
and unfair” consequences.
Vitol highlights two such alleged consequences: first,
that FERC would make the running of the statute of
limitations hinge on nothing more than an earlier
“prosecutorial determination[]” to propose a penalty, Meyer,
808 F.2d at 920, and second, that FERC’s position will allow
the agency to “postpone indefinitely” its action in district
court, McMahon v. United States, 342 U.S. 25, 27 (1951).
But whatever one thinks of the administrative process
leading up to the agency’s assessment of a penalty, the text
of section 823b(d)(3)(B) makes clear that FERC’s cause of
action in court does not accrue until that process culminates
and FERC assesses a penalty. Vitol’s argument is really just
that our interpretation will result in bad policy consequences,
 FERC V. VITOL INC. 17

and that argument cannot overcome the clear meaning of the
statutory text. See Niz-Chavez v. Garland, 141 S. Ct. 1474,
1486 (2021) (“[N]o amount of policy-talk can overcome a
plain statutory command.”). Instead, “[o]ur only job today is
to give the law’s terms their ordinary meaning.” Id.
In any event, even taking Vitol’s concerns on their own
terms, we find them unpersuasive. To start, in evaluating
FERC’s show cause proceeding, we focus on the process as
specified in FERC’s regulations. See 18 C.F.R. § 385.213
(procedures governing evidence and filings); id.
§§ 385.2201–.2202 (conflict-of-interest rules). Vitol asks us
to consider only the statute, emphasizing that section
823b(d)(3) says little about what kind of process the agency
must undertake. But another provision of the Federal Power
Act specifically authorizes FERC to make rules governing
“[a]ll hearings, investigations and proceedings.” 16 U.S.C.
§ 825g(b); see also id. § 825h (authorizing 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). FERC’s regulations about its own proceedings
are not “irrelevant,” as Vitol argues, but rather “a matter of
congressional design.” Powhatan Energy, 949 F.3d at 900.
Under the regulations, the issuance of a notice of
proposed penalty and order to show cause “initiate[s] a
proceeding.” 18 C.F.R. § 385.209(a)(2). Section 823b(d)(2)
allows the respondent to elect a hearing before an
administrative law judge—which even Vitol acknowledges
would be a “proceeding.” If the respondent instead elects to
proceed under section 823b(d)(3), it must provide an
“answer” that notes “[a]ny disputed factual allegations” and
“[a]ny law upon which the answer relies.” 18 C.F.R.
§ 385.213(a)(1), (c)(1)(i)–(ii). The respondent must also
“include documents that support the facts in the answer in
18 FERC V. VITOL INC.

possession of, or otherwise attainable by, the respondent.”
Id. § 385.213(c)(4). Here, for example, Vitol filed a 96-page
answer, accompanied by nearly 100 pages of exhibits. Those
materials are then reviewed by FERC Commissioners who
are subject to rules aimed at guaranteeing their neutrality and
independence. For example, regulations bar off-the-record
communications about a matter between any party and the
personnel at FERC who are charged with assessing a
penalty. 18 C.F.R § 385.2201(b). And regulations also
prohibit any FERC employee involved in the investigation
from “participat[ing] or advis[ing] as to the findings,
conclusion or decision, except as a witness or counsel in
public proceedings.” Id. § 385.2202.
Vitol levels various critiques against the process
specified in FERC’s regulations—including under the Due
Process Clause, although it does not argue either that a due
process violation occurred here or that the Due Process
Clause requires any particular interpretation of the statute of
limitations. But for present purposes, it suffices to observe
that the agency’s process under its regulations fits
comfortably within the ordinary meaning of “proceeding,”
that is, “[a]ny procedural means for seeking redress from a
tribunal or agency.” Proceeding, Black’s Law Dictionary
(11th ed. 2019); see Capozzi v. United States, 980 F.2d 872,
874 (2d Cir. 1992) (holding that section 2462 applies to
“adversarial adjudication, be it administrative or judicial”).
Indeed, it is difficult to describe the particular sequence of
events that takes place before the agency without using the
word “proceeding” or some other closely related word:
FERC’s regulations call it a “proceeding,” 18 C.F.R.
§ 385.209(a)(2); even Vitol calls it a “process”; and
throughout this opinion we have referred to it as a
 FERC V. VITOL INC. 19

“proceeding”—not in an effort to be tendentious, but simply
because that is by far the most natural word to use.
For those reasons, FERC’s administrative proceeding to
assess a penalty is much more than merely a prosecutorial
determination. And because it is indeed a “proceeding”
subject to section 2462, FERC must initiate it by issuing the
notice of proposed penalty within five years of any alleged
wrongdoing.
To be sure, the Federal Power Act does not fix the length
of the administrative proceeding itself; the statute requires
only that after the notice of proposed penalty issues and the
respondent elects to proceed under section 823b(d)(3), “the
Commission shall promptly assess such penalty, by order.”
(emphasis added). But FERC nevertheless has ample
incentive to act promptly. For one thing, delay may impede
FERC’s ability to prove its case when a court conducts de
novo review of the penalty assessment. For another, the
Administrative Procedure Act authorizes a reviewing court
to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). When an agency
“fail[s] to take a discrete agency action that it is required to
take”—such as assessing a penalty promptly—an aggrieved
respondent can seek an order compelling it to act. Norton v.
Southwest Utah Wilderness All., 542 U.S. 55, 64 (2004). In
sum, FERC must commence any enforcement proceedings
within five years, and it must assess a penalty promptly
thereafter. Vitol is therefore without basis in arguing that our
interpretation of the statute will give FERC “the choice to
‘postpone indefinitely’ its federal court action.” (quoting
McMahon, 342 U.S. at 27).
Vitol is correct to point out that FERC retains some
ability to determine when the statute of limitations for an
20 FERC V. VITOL INC.

action in court begins to run. But given the “complexity of
the subject matter and proceedings under FERC’s charge,”
Powhatan Energy, 949 F.3d at 900, it is unsurprising that
Congress designed the statute to give the agency the
necessary time to “investigate and to uncover” violations of
the Federal Power Act. Id. at 905. Depending on the nature
of investigation, FERC’s enforcement staff may need to
await permission from the Commission before issuing
subpoenas. And after the agency issues subpoenas, it may
need to go to district court if a respondent refuses to comply.
See 16 U.S.C. § 825f(b)–(c); 18 C.F.R. §§ 385.409,
385.411(a)(1). Had Congress limited FERC to five years in
which to investigate, assess a penalty, and bring suit,
respondents would have “considerable incentive to employ
the available procedures to work delay.” Powhatan Energy,
949 F.3d at 900 (quoting Meyer, 808 F.3d at 919).
AFFIRMED.