Appellate File for Clifton Power Corporation v. FERC, 88 F.3d 1258 (D.C. Cir. 1996)

Case Summary of Clifton Power v. FERC: This case involved review of a $122,000 civil penalty imposed by FERC against Clifton Power Corporation, a small, solely owned hydro development company for alleged violations of the Federal Power Act and Clifton's license. The specific violations involved failure to install gages to monitor run-of-river operation which was not required by the terms of Clifton's license. Notwithstanding the deference typically accorded to agencies in enforcement proceedings, court vacated the penalty and remanded it to FERC. The court found among other things that the penalty was disproportionate to the gravity of the offense, the penalty was imposed for a period during which Clifton was in compliance, the FERC ignored evidence in the record showing that Clifton, a small business with a meager profit stream lacked the ability to pay a penalty of the size imposed, and FERC unlawfully considered the "deterrent" effect of the penalty on potential violators as a factor in assessing the amount of the penalty.

1. Clifton's D.C. Circuit Appeal

• Petition for Review
  • Practice Tips: Petition for Review
  • Practice Tips: Docketing the Appeal
• Clifton's Final Brief (large file under cover)
  • Practice Tips: Brief
• Clifton's Final Reply Brief (large under cover)
  • Practice Tips: Reply Brief
• Clifton Power Corporation v. FERC, 88 F.3d 1258 (D.C. Cir. 1996)(court's decision).

2. Clifton's Petition for Attorney's Fees Under the Equal Access to Justice (EAJA) Act

• Clifton's Motion for Attorney's Fees Under the Equal Access to Justice Act
  • [Limited] Practice Tips/Links on fee recovery under the Equal Access to Justice Act
• Clifton's Reply to FERC's Response on Attorney's Fees Petition
• Clifton's Supplemental Filing for Attorney's Fees
• Order Awarding Attorney's Fees

3. Documents Not Included

The following documents are also part of this Appellate File but due to unavailability or size constraints, have not been published at this site:

• FERC's Reply Brief
• Joint Appendix (in this case, the Joint Appendix included roughly 500 pages of the 3000 page record)
  • Practice Tips on Appendix
• FERC's Response to the EAJA Petition

4.Related Materials

• Bluestone v. FERC, 74 F.3d 1288 (D.C. Cir. 1996) (vacating $206,000 FERC civil penalty against small developer for unlawful consideration of staff resources as factor in assessing penalty).
• Emerging Trends in FERC Hydro Enforcement After Ten Years Under ECPA (article discussing FERC civil penalty program)
• Small Business Administration's Ombudsman's Office established to protect small business from onerous governmental regulatory and enforcement programs.