May 23, 2023
Recent U.S. Supreme Court decisions letting federal courts hear constitutional challenges to enforcement proceedings at federal agencies opened the door to similar challenges to in-house enforcement proceedings at the Federal Energy Regulatory Commission (FERC), McGuireWoods Washington, D.C., partner Todd Mullins and associate Emily Song wrote in Law360.
The high court’s April 14 opinions in U.S. Securities and Exchange Commission v. Cochran and Axon Enterprise Inc. v. Federal Trade Commission held that subjects of agency enforcement actions can bring certain procedural challenges before those proceedings conclude. In the May 18, 2023, article titled “Courthouse Door Now Open to FERC Enforcement Challenges,” Mullins and Song said that entities subject to FERC enforcement actions “should sit up and take note” of the opinions.
“Though Axon and its companion case involved the FTC and the SEC, respectively, and some aspects of FERC enforcement are different, the analysis and holding in Axon should apply with equal force to challenges to some FERC enforcement processes,” they wrote, explaining that Axon suggests these challenges can be heard sooner and in a court of the subject’s choosing.
Axon’s impact is likely to be significant, the authors noted, as it stands to level the playing field for frustrated respondents who typically had to wait years before reaching a neutral federal court for review or appeal.