21 December 2016

Law Professors File Amicus Brief on De Novo Review, and FERC Files Opposition, in Powhatan/Chen Proceeding

On December 7, a group of ten administrative law professors filed a brief of amici curiae in the Powhatan/Chen proceeding in the U.S. District Court for the Eastern District of Virginia, which criticizes FERC’s position on what constitutes de novo review under Section 31(d) of the Federal Power Act (FPA).  The brief is substantially similar to the brief filed last month on behalf of Barclays in the U.S. District Court for the Eastern District of California, which was denied by Judge Nunley.  According to the brief, “Amici have grave concerns about the legal and policy implications of FERC’s apparent view of what constitutes a district court’s ‘de novo review’ of an agency’s civil penalty assessment.”  The professors argue that FERC’s position runs counter to the traditional understanding of court enforcement actions for civil penalties and cannot be squared with the FPA’s civil penalty assessment mechanism, which gives a defendant the choice of challenging FERC’s penalty assessment in a full trial-type proceeding before either an administrative law judge or a federal district court.

On December 19, FERC filed an opposition requesting that the court deny the motion to file the amicus brief.  FERC argues that the brief is not timely, as the parties already extensively briefed the de novo review issue months ago.  In addition, FERC argues that proposed amicus brief does not provide useful legal analysis materially different from that contained in the respondents’ own briefing.  Finally, FERC argues that the professors have no special interest in the case that would justify their input.  If the court decides to allow the amicus brief, FERC requests that it be permitted to submit a responsive brief of no more than 20 pages.