FERC Majority in Case of Barclays Bank Dispute Refuses to Quash the Subpoena, Asserting Its Preeminent Authority to Conduct Investigations; Dissenter Commissioner LaFleur Would Have Granted the Bank's Motion In Light of the Agency's Failure to Honor the Bank's Election and to Promptly Assess a Penalty

摘要

On April 5 FERC denied a Barclays Bank PLC (Investigation Into Allegations of Market Manipulation of the Electric Energy Markets in the West, IN08-8) motion, lodged last December 10, "to quash a subpoena" issued by the Commission’s Office of Enforcement non-decisional staff. FERC denied the motion because none of the authorities cited by Barclays restrict the authority to conduct investigations granted to the Commission in section 307 of the Federal Power Act (FPA). According to FERC's majority, "courts have consistently found that, unless the enabling statute requires otherwise, an agency’s investigative authority survives even the commencement of related action in district court—a circumstance well beyond the discovery dispute at issue in this proceeding." Thus, administrative agencies such as the Commission have authority to conduct investigations pursuant to their statutory mandates, with no inherent limitation proscribing the pursuit of investigations that overlap with civil or criminal proceedings.