*68An energy consulting company and its employee and managing member challenge FERC's assessment of civil penalties against them for violating FERC's anti-manipulation rule, alleging that the action brought in this Court by FERC is time-barred under the general statute of limitations, 28 U.S.C. § 2462. FERC maintains in a countervailing motion for summary judgment that its civil action was timely filed.

First, the Court concludes that the Respondents did not waive their statute of limitations argument. Next, the Court concludes that FERC's disgorgement order is not subject to a separate accrual date for purposes of the statute of limitations. Finally, the Court rejects the Respondents' argument that Gabelli v. SEC , 568 U.S. 442, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013) and Kokesh v. SEC , --- U.S. ----, 137 S.Ct. 1635, 198 L.Ed.2d 86 (2017) eclipsed United States v. Meyer , 808 F.2d 912 (1st Cir. 1987). Based on Meyer , which the Court views as binding, the Court concludes that the FERC enforcement action is not time-barred.

I. BACKGROUND

A. Procedural History

1. Proceedings in the District of Massachusetts

On December 2, 2013, the Federal Energy Regulatory Commission (FERC, the Commission) filed a petition in the District of Massachusetts for an order affirming its assessment orders. Pet. for Order Affirming FERC's Aug. 29, 2013 Orders Assessing Civil Penalties Against Richard Silkman and Competitive Energy Services, LLC (ECF No. 1) (FERC Pet. ). On December 19, 2013, the Respondents filed a motion to dismiss, Resp'ts' Mot. to Dismiss (ECF No. 8), and a motion to transfer to the District of Maine. Resp'ts' Mot. to Transfer (ECF No. 9). On January 9, 2014, FERC filed oppositions to the motion to dismiss, FERC's Opp'n to Resp'ts' Mot. to Dismiss (ECF No. 18), and the motion to transfer. FERC's Opp'n to Resp'ts' Mot. to Transfer (ECF No. 19). On July 18, 2014, Judge Woodlock heard arguments on the motion to dismiss and supplemental briefs on procedure, as well as additional arguments regarding transfer to the District of Maine. Elec. Clerk's Notes (ECF No. 43); Tr. of Mot. Hr'g (ECF No. 44).

The case was effectively stayed pending resolution of related issues in the United States Supreme Court1 and the United States Bankruptcy Court for the District of Maine.2 By April 5, 2016, both matters *69were resolved, and the proceedings continued. On April 11, 2016, Judge Woodlock denied the Respondents' motion to dismiss, FERC v. Silkman , No. 13-13054-DPW, 2016 WL 1444604, 2016 U.S. Dist. LEXIS 48409 (D. Mass. April 11, 2016) (ECF No. 65) ( Order on Mot. to Dismiss ), and transferred the cases to the District of Maine. FERC v. Silkman , 177 F.Supp.3d 683 (D. Mass. 2016) (ECF No. 66) ( Silkman I ).

2. Proceedings in the District of Maine

On April 21, 2016, following transfer to the District of Maine, the Respondents answered FERC's petition. Resp'ts' Answer (ECF No. 72). That same day, the Respondents filed a motion requesting a scheduling conference and an order assigning the case to the complex track. Defs.' Mot. for Scheduling Order and Conf. (ECF No. 73).

On June 3, 2016, the Court held a scheduling conference. Minute Entry (ECF No. 84); Tr. of Proceedings (ECF No. 85). At the scheduling conference, the parties presented arguments concerning the procedures that should govern the Court's de novo review of the Commission's assessment orders. Tr. of Proceedings at 2:24-49:18. The Court ordered additional briefing from both parties. Id. at 46:6-48:7. On January 26, 2017, the Court issued an order regarding the procedures applicable to FERC's petition and assigned the case to the complex track. Order Regarding Procedures Applicable to Pet. for Order Affirming Assessment of Civil Penalties (ECF No. 95).

On February 15, 2017, the parties appeared telephonically for a conference of counsel before this Judge, and the Court issued an order staying the case pending a settlement conference. A settlement conference was held before Magistrate Judge Rich on March 31, 2017, but settlement was not achieved. Min. Entry (ECF No. 104).

On February 28, 2018, the Respondents filed a Motion for Summary Judgment (ECF No. 133) (Resp'ts' Mot. ) along with an accompanying Statement of Fact (ECF No. 136) (DSMF). FERC responded in opposition on March 30, 2018, FERC's Resp. in Opp. to Mot. for Summ. J. (ECF No. 140) (Pl.'s Opp'n ), and filed a response to the Respondents' statement of fact with a statement of additional facts that same day. FERC's Resp. to Statement of Fact with Statement of Additional Facts (ECF No. 141) (PRDSMF; PSAMF). On April 20, 2018, the Respondents replied to FERC's additional statement of fact and responded to FERC's requests to strike made in response to the Respondents' statement of fact. Defs.' Reply to Resp. to Mot. for Summ. J. (ECF No. 143) (Resp'ts' Reply ); Defs.' Reply Statement of Material Fact (ECF No. 144) (DRPSAMF).

Meanwhile, on February 28, 2018, FERC filed a cross-motion for partial summary judgment on the issue of the statute of limitations. Mot. for Partial Summ. J. regarding Statute of Limitations (ECF No. 134) (Pl.'s Mot. ). The Respondents responded in opposition on March 30, 2018. Defs.' Resp. in Opp'n to Mot. for Partial Summ. J. (ECF No. 138) (Resp'ts' Opp'n ). FERC replied on April 20, 2018. Reply to Resp. to Mot. for Partial Summ. J. (ECF No. 145) (Pl.'s Reply ).

*70On September 25, 2018, FERC filed an unopposed motion for leave to file supplemental authority. Mot. for Leave to File Notice of Supple. Information (ECF No. 152). The Court granted the motion on November 7, 2018. Order Granting Mot. for Leave to File Notice of Supple. Information (ECF No. 153). On November 8, 2018, FERC filed as supplemental authority a copy of the Fourth Circuit Court of Appeals' order granting interlocutory appeal in Federal Energy Regulatory Commission v. Powhatan Energy Fund., LLC , 286 F.Supp.3d 751, 754 (E.D. Va. 2017).

B. The Parties and Relevant Entities

FERC is an administrative agency of the United States, organized and existing pursuant to the Federal Power Act (FPA), 16 U.S.C. §§ 791a et seq. FERC Pet. ¶ 13. FERC's Office of Enforcement (Enforcement) "initiates and executes investigations of possible violations of the Commission's rules, orders, and regulations relating to energy market structures, activities, and participants. Office of Enforcement (OE) , FERC, https://www.ferc.gov/about/offices/oe.asp (last visited December 18, 2017). Based on its investigations, Enforcement may submit reports to the Commission recommending that the Commission institute administrative proceedings. FERC's Opp'n to Resp'ts' Br. Concerning Disc. (ECF No. 88) (FERC's Disc. Resp. ) at 4. Once the Commission authorizes an administrative proceeding, Enforcement's role shifts from investigator to litigator, and a "wall" goes up between the Commission and its Enforcement arm to prevent ex parte communication. Id.

ISO-New England (ISO-NE) is an independent, non-profit organization that works to ensure the day-to-day reliable operation of New England's bulk electric energy generation and transmission system by overseeing the fair administration of the region's wholesale energy markets. FERC Pet. ¶ 2. FERC regulates the markets that ISO-NE administers. Id.

Respondent Competitive Energy Services (CES) is a limited liability company organized under the laws of Maine with its principal place of business in Portland, Maine. Id. ¶ 15. It provides energy consulting and other services to clients throughout North America. Id. ¶ 35. Respondent Richard Silkman resides in Maine and is an employee and managing member of CES. Id. ¶ 14.

II. STATEMENT OF FACTS3

A. Statement of Facts: Respondents' Motion for Summary Judgment

FERC alleges that the Respondents' wrongdoing occurred "from July 2007 until February 2008." DSMF ¶ 1; PRDSMF ¶ 1.

*71On December 2, 2013, FERC filed a Petition for an Order Affirming the Federal Energy Regulatory Commission's August 29, 2013 Orders Assessing Civil Penalties Against Richard Silkman and Competitive Energy Services, LLC.4 DSMF ¶ 2; PRDSMF ¶ 2. The petition was filed at least five years, ten months, and two days after the wrongdoing ceased.5 DSMF ¶ 3; PRDSMF ¶ 3.

Enforcement began an inquiry in February 2008 following a telephone call from the ISO-NE market monitoring unit regarding certain market participants' conduct relating to their participation in the ISO-NE Day Ahead Load Response Program (DALRP). In March 2008, after receiving a written referral from ISO-NE, Enforcement commenced a non-public investigation pursuant to Part 1b of the Commission's regulations (18 C.F.R. Part 1b) to determine whether certain market participants had engaged in fraudulent conduct in their participation in the DALRP. In November 2009, Enforcement commenced an investigation of Dr. Silkman individually, pursuant to Part 1b of the Commission's regulations for Dr. Silkman's conduct related to the DALRP, as memorialized in a November 4, 2009 letter sent to Dr. Silkman's counsel.6 DSMF ¶ 4; PRDSMF ¶ 4.

*721. Roles of FERC Enforcement and the Commission

Enforcement staff, in their role as the Commission staff tasked with investigating potential violations of the FPA and the Commission's regulations, communicated with the Commission and certain members of its advisory staff during the investigation of the Respondents. The Commission initiated adversarial adjudicatory proceedings on July 17, 2012 when it issued Orders to Show Cause and Notice of Proposed Penalty ("Proposed Penalty Orders") to each Respondent. Under FERC's Separation of Functions Rule ( 18 C.F.R. § 385.2202 ), a "wall" went up between agency decisional staff - the Commissioners and the staff that may advise them - and the Enforcement staff serving a prosecutorial role in the proceedings. In accordance with the Commission's rule regarding ex parte communications ( 18 C.F.R. § 385.2202 ), a prohibition on ex parte communications between decisional staff and Enforcement prosecutorial staff also went into effect at that time. Pursuant to the Commission's Separation of Functions Rule and ex parte rule, following issuance of the Proposed Penalty Orders, the Commission issued a notice in each proceeding on July 26, 2012 identifying decisional and non-decisional staff.7 DSMF ¶ 5; PRDSMF ¶ 5.

Over the course of the investigation of the Respondents, Enforcement communicated in writing and orally with the FERC Commissioners and their staff concerning the investigation outside the presence of the Respondents and their counsel.8 DSMF ¶ 6; PRDSMF ¶ 6. During the investigation, Enforcement considered FERC and the FERC Commissioners to be their client. DSMF ¶ 7; PRDSMF ¶ 7. Enforcement's communications with the FERC Commissioners and their staff concerning the investigation of the Respondents have not been disclosed to the Respondents.9 DSMF ¶ 8; PRDSMF ¶ 8.

*732. Notice and Disclosure to the Respondents

In this litigation, FERC disclosed the identities of people with "relevant knowledge" who had been interviewed as part of the investigation, and who had not been disclosed to the Respondents prior to the time FERC issued the Orders Assessing Penalties.10 DSMF ¶ 87; PRDSMF ¶ 87. FERC also disclosed documents that it claims were part of the administrative record which had not been disclosed to the Respondents prior to the time FERC issued the Orders Assessing Penalties.11

*74DSMF ¶ 88; PRDSMF ¶ 88. FERC disclosed additional documents that appear to have been obtained as part of the investigation which had not been disclosed to the Respondents prior to the time FERC issued the Orders Assessing Penalties and which were not included in what FERC claims were part of the administrative record.12 DSMF ¶ 89; PRDSMF ¶ 89.

a. Depositions

Under FERC's regulations, the Respondents were not notified in advance of depositions conducted by Enforcement during its investigation, other than the deposition of Dr. Silkman.13 DSMF ¶ 9; PRDSMF ¶ 9. Other than the deposition of Dr. Silkman, the Respondents and their counsel were also not allowed to attend the depositions conducted by Enforcement during its investigation, pursuant to FERC's regulations. The Commission's regulations require the sequestration of witnesses during testimony taken in an investigation, and all information and documents received during an investigation, as well as the existence of an investigation, is treated as confidential, non-public information. Disclosure of information during an investigation is permitted only at the Commission's direction or authorization, or as is otherwise required to be disclosed.14 DSMF ¶ 10; PRDSMF ¶ 10.

The Respondents and their counsel were not given copies of the depositions conducted by Enforcement (other than the deposition of Dr. Silkman) until after their depositions had been taken-sometimes over a year later-and then only after Respondents' counsel pressed Enforcement to provide such copies.15 DSMF ¶ 11; PRDSMF ¶ 11. Under FERC's regulations, deponents and their counsel in the investigation were instructed by Enforcement not to give copies of their deposition transcripts to the Respondents or their counsel; deponents and their counsel were instructed regarding the testimony of witnesses in accordance with the requirements of section 1b.16 of the Commission's regulations, requiring sequestration of witnesses.16 DSMF ¶ 12; PRDSMF ¶ 12.

*75In this litigation concerning events that occurred in 2007 and 2008, fact witnesses repeatedly testified in their 2017 depositions that they did not remember or did not recall in response to over forty questions asked during their depositions, and for several witnesses, for over eighty questions asked during their depositions, although some witnesses' lack of memory was resolved by follow-up questions or the use of exhibits to refresh their recollections.17 DSMF ¶ 90; PRDSMF ¶ 90.

Enforcement requested Dr. Silkman to come to Washington, D.C. for his two-day deposition in February 2009.18 DSMF ¶ 13; PRDSMF ¶ 13. At the conclusion of Dr. Silkman's deposition on February 27, 2009, Enforcement instructed Dr. Silkman not to share a copy of his deposition transcript with anyone else, including Mark Isaacson, who was a member and managing partner of CES during the relevant period; Enforcement also instructed Dr. Silkman that if he felt the need to share the transcript with anyone else, to contact Enforcement and they would discuss it.19 DSMF ¶ 14; PRDSMF ¶ 14. Dr. Silkman was instructed by Enforcement not to share the questions or answers that were given during the deposition with anyone else; Enforcement issued these instructions to Dr. Silkman in accordance with applicable regulations, 18 C.F.R. § 1b.12, 1b.16.20 DSMF ¶ 15; PRDSMF

*76¶ 15. In accordance with applicable regulations, Enforcement also instructed him not to disclose questions or answers that were given in the course of the deposition to anyone from Rumford Paper Company (Rumford).21 DSMF ¶ 16; PRDSMF ¶ 16.

b. Document Requests

Enforcement does not have to obtain approval from a FERC administrative law judge or any other independent entity or decisionmaker concerning the scope of data requests or its investigation. DSMF ¶ 21; PRDSMF ¶ 21. Despite numerous requests, in accordance with the confidentiality provisions in the Commission's regulations, Enforcement did not provide the Respondents all the information it obtained during its investigation from Rumford, Constellation NewEnergy, Inc. (Constellation), and ISO-NE. DSMF ¶ 22; PRDSMF ¶ 22. However, during the investigation, Enforcement staff provided the Respondents with copies of all materials Enforcement staff cited in the preliminary findings letters to CES and Dr. Silkman except publicly-available information already in the Respondents' possession. Id. During the investigation, Enforcement staff provided the Respondents with all potentially exculpatory information regarding the Respondents in its investigative files. Id. On July 17, 2012, the date of issuance of the Commission's Proposed Penalty Orders, Enforcement provided CES and Dr. Silkman copies of all documents cited in the Enforcement Staff Reports attached to the Proposed Penalty Orders except those documents already in Respondents' possession or publicly available.22 Id.

Pursuant to FERC regulations, Enforcement did not give the Respondents advance or contemporaneous notice of any document requests or interrogatories ("data requests") that Enforcement served upon third parties during the investigation.23 DSMF ¶ 17; PRDSMF ¶ 17. However, Dr. Silkman and CES entered into a *77joint defense agreement with Rumford Paper Company (Rumford) and drafted responses for Rumford to Enforcement data requests. Id. The Respondents were not entitled to object to data requests served by Enforcement upon third parties during the investigation. DSMF ¶ 18; PRDSMF ¶ 18. According to FERC regulations, Enforcement did not give the Respondents contemporaneous notice of third party responses to any data requests served by Enforcement upon third parties during the investigation.24 DSMF ¶ 19; PRDSMF ¶ 19. However, Dr. Silkman and CES entered into a joint defense agreement with Rumford Paper Company (Rumford) and drafted responses for Rumford to Enforcement data requests. Id. Enforcement determined what data requests to submit as part of its investigation, determined when the responses were due in the first instance, which could be in as little as one week, determined whether to grant enlargements of time, and determined whether the responses were adequate.25 DSMF ¶ 20; PRDSMF ¶ 20.

c. Preliminary Findings

On November 23, 2009, Enforcement provided CES with a 32-page letter, which included 179 footnotes, titled "Preliminary Findings Letter," and initially gave CES three weeks to respond, which Enforcement later extended to January 8, 2010.26 DSMF ¶ 23; PRDSMF ¶ 23. Prior to the time that CES was directed to respond to Enforcement's preliminary findings and analysis, Enforcement did not provide all the materials obtained in its investigation but claimed it had provided the materials that it had relied upon in making its preliminary findings and analysis.27 DSMF ¶ 24; PRDSMF ¶ 24. Enforcement staff *78agreed to provide all documents referenced in Enforcement staff's November 23, 2009 Preliminary Findings Letter to CES that were not either (a) publicly available or (b) already within Respondents' possession."28 DMSF ¶ 25; PRDSMF ¶ 25.

On January 8, 2010, CES provided its response to the preliminary findings and conclusions in a thirty page, single-spaced letter, asserting that Enforcement had not provided exculpatory evidence in its possession, including copies of depositions that Enforcement had taken outside the presence of the Respondents and counsel, and that Enforcement had seriously misstated the factual record in order to reach its preliminary findings and conclusions.29 DSMF ¶ 26; PRDSMF ¶ 26.

On April 19, 2010, Enforcement provided its preliminary findings and analyses concerning Dr. Silkman in a twenty-nine-page letter with 176 footnotes, and initially gave Mr. Silkman two weeks to respond. DSMF ¶ 27; PRDSMF ¶ 27. Enforcement staff later extended the response date an additional seventeen days, until May 20, 2010.30 Id. Enforcement's preliminary findings and analyses concerning Dr. Silkman were virtually identical to Enforcement's preliminary findings and analyses concerning CES and did not directly respond to any factual or legal argument in the thirty-page *79response CES previously submitted.31 DSMF ¶ 28; PRDSMF ¶ 28. FERC's corporate designee was not aware of any substantive fact or substantive conclusion that was changed in light of the thirty-page response CES previously submitted.32 DSMF ¶ 29; PRDSMF ¶ 29. FERC's corporate designee was not aware of any substantive conclusion of Enforcement's preliminary findings and analyses concerning Dr. Silkman that was changed in light of the thirty-page response CES previously submitted.33 DSMF ¶ 30; PRDSMF ¶ 30.

On April 26, 2010, Enforcement informed Respondents for the first time that Rumford's "enrolling participant," Constellation, had changed its response to a data request concerning a meeting between Constellation and Respondents. DSMF ¶ 31; PRDSMF ¶ 31. Constellation had changed its answer from an answer that had originally been exculpatory for the Respondents to an answer now inculpatory, which attempted to deflect responsibility from Constellation to the Respondents.34 DSMF ¶ 32; PRDSMF ¶ 32.

On April 29, 2010, Enforcement proposed to disclose what it deemed to be additional relevant depositions, affidavits, *80and data responses of Constellation to Dr. Silkman and Mark Isaacson of CES, and to Respondents' counsel, provided that they agreed not to disclose the information to anyone else.35 DSMF ¶ 33; PRDSMF ¶ 33. On May 20, 2010, Dr. Silkman responded to Enforcement's preliminary findings and analyses concerning Dr. Silkman in a thirty-four-page, single-spaced letter. DSMF ¶ 34; PRDSMF ¶ 34.

d. Settlement Negotiations

In May 2010, pursuant to Commission regulations, Enforcement had a closed meeting with a quorum of the FERC Commissioners outside the presence of the Respondents and their counsel in which Enforcement's investigation of the Respondents was discussed.36 DSMF ¶ 35; PRDSMF ¶ 35. On November 15, 2010, Enforcement served additional data requests on CES, initially giving CES two weeks to respond.37 DSMF ¶ 36; PRDSMF ¶ 36. Other than considering Dr. Silkman's response to the data requests and sending a new data request, FERC's corporate designee was either not aware of or unable to reveal anything else that Enforcement did as part of its investigation between May and November 2010 without violating attorney-client privilege.38 DSMF ¶ 37; PRDSMF ¶ 37. Whether to do anything during that period, as well as during the entire investigation, was up to Enforcement. DSMF ¶ 38; PRDSMF ¶ 38.

Between November 2010 and March 2013, i.e. , both before and after FERC issued its Orders to Show Cause in July 2012, Enforcement communicated with FERC Commissioners and their staff outside the presence of the Respondents or their counsel concerning a possible settlement *81with Rumford regarding Rumford's participation in the DALRP.39 DSMF ¶ 39; PRDSMF ¶ 39. In this action, FERC withheld the communications between Enforcement and FERC Commissioners and their staff outside the presence of the Respondents or their counsel concerning a possible settlement with Rumford between November 2010 and March 2013 on the grounds of attorney-client privilege, among other reasons. DSMF ¶ 40; PRDSMF ¶ 40. FERC produced to the Respondents a privilege log describing those communications pursuant to Magistrate Judge Nivison's September 8, 2017 Order on Discovery Issues (ECF No. 117).40 Id. The same lawyers from Enforcement who communicated between November 2010 and March 2013 with the FERC Commissioners and their staff outside the presence of the Respondents or their counsel concerning a possible settlement with Rumford were conducting the investigation of the Respondents. DSMF ¶ 41; PRDSMF ¶ 41.

In February 2011, Enforcement made a settlement proposal orally to Respondents' counsel at a meeting in Washington, D.C. DSMF ¶ 42; PRDSMF ¶ 42. On March 11, 2011, the Respondents requested seven categories of material not previously disclosed in order to respond to Enforcement's settlement proposal, including a deposition of Rumford's expert; all communications with and data provided by Constellation; all communications with and data provided by ISO-NE; all other information considered, evaluated, or relied upon by FERC to assess the claims against the Respondents; and the methodology behind its settlement proposal. DSMF ¶ 43; PRDSMF ¶ 43. On March 31, 2011, Enforcement responded to the Respondents' request, declining to produce such additional information because it "does not believe that further disclosures of non-public investigative information are warranted," DSMF, Attach 1., FERC Dep.

*82Ex. 18 , (ECF No. 136-16), given the Commission's disclosure policies, the fact that the Commission already provided CES and Dr. Silkman copies of all documents the Commission relied upon for their preliminary conclusions, and that the Commission had already provided CES and Dr. Silkman all potentially exculpatory material consistent with longstanding Commission practice. DSMF ¶ 44; PRDSMF ¶ 44. Additionally, in a letter sent to Respondents' counsel on May 9, 2011, Enforcement staff provided a detailed explanation of its calculation of the proposed penalties against CES and Dr. Silkman that formed the basis of its settlement proposal.41 Id. Enforcement determines whether to provide information in the possession of Enforcement staff to the subject of an investigation based on the law, the Commission's regulations, policy statements, and statutes governing the confidentiality of information gathered during investigations.42 DSMF ¶ 45; PRDSMF ¶ 45.

On April 26, 2011, the Respondents submitted an eight-page response to FERC's oral settlement proposal. DSMF ¶ 46; PRDSMF ¶ 46. On May 9, 2011, Enforcement rejected the Respondents' settlement proposal, did not make a counter-proposal, and initially gave the Respondents two days to submit a revised settlement proposal. DSMF ¶ 47; PRDSMF ¶ 47. On May 9, 2011, Enforcement staff sent an email and attached letter to Respondents' counsel, which stated "[w]e carefully considered your response, but disagree with your analysis," and provided an explanation of the Commission's Penalty Guidelines and Enforcement's calculations of the proposed penalties articulated during the February 2011 settlement conference.43 Id. The Respondents' counsel stated in an email to Enforcement staff on May 9, 2011 that he would be meeting with his clients on May 11, and that he anticipated getting back to Enforcement staff on May 12. Id. Enforcement staff responded by email and agreed to delay any further action until after the close of business on May 12, 2011. Id. On May 12, 2011, the Respondents responded to Enforcement's settlement letter but did not make a revised settlement proposal or accept Enforcement's prior unchanged settlement demand. DSMF ¶ 48; PRDSMF ¶ 48. On May 13, 2011, Enforcement responded to the Respondents' settlement letter, stating: "[i]t appears at this time that we will be unable to reach a settlement *83regarding this matter."44 DSMF ¶ 49; PRDSMF ¶ 49. In the same letter, Enforcement informed the Respondents that their "preliminary conclusions have not materially changed" and it intended to recommend that FERC issue Orders to Show Cause but allowed the Respondents to submit a response to Enforcement. DSMF ¶ 51; PRDSMF ¶ 51.

On June 27, 2011, CES and Dr. Silkman submitted a joint seventy-nine-page response to Enforcement's 1b.19 Letters. DSMF ¶ 52; PRDSMF ¶ 52. As required by 18 C.F.R. § 1b.19, Enforcement submitted the Respondents' response to the Commission together with Enforcement staff's report and recommendation that the Commission initiate adversarial on-the-record order-to-show-cause proceedings against the Respondents. In their 1b.19 response, which Enforcement staff provided to the Commission, the Respondents restated the settlement positions they asserted in the April 26, 2011 letter.45 DSMF ¶ 50; PRDSMF ¶ 50.

e. Orders to Show Cause

On February 16, 2012, Enforcement submitted drafts of FERC's Orders to Show Cause and Enforcement's Reports concerning the Respondents to FERC Chairman Wellinghoff's Chief of Staff, which have been withheld in this litigation on the grounds of attorney-client privilege, among other reasons.46 DSMF ¶ 53; PRDSMF ¶ 53. Enforcement did not provide its reports to the Respondents when Enforcement submitted them to the FERC Commissioners and did not disclose what specific evidence it provided the FERC Commissioners. DSMF ¶ 54; PRDSMF ¶ 54. There is no entry on FERC's privilege log that indicates that when Enforcement submitted the draft Orders to Show Cause and Enforcement's Reports concerning the Respondents to the FERC Commissioners and their staff, but Enforcement conveyed to the FERC Commissioners or their staff the Respondents' seventy-nine-page response concerning Enforcement's intention to recommend that FERC issue Orders to Show Cause.47 DSMF ¶ 55; PRDSMF ¶ 55.

*84Between February 16, 2012, when Enforcement submitted drafts of FERC's Orders to Show Cause and Enforcement's Reports concerning the Respondents to the Chairman Wellinghoff's Chief of Staff, and July 17, 2012, when FERC issued the Orders to Show Cause and Reports, there were written communications between Enforcement and the Commission and the FERC Office of the Secretary outside the presence of the Respondents and their counsel that have been withheld in this litigation on the grounds of attorney-client privilege, among other reasons.48 DSMF ¶ 56; PRDSMF ¶ 56. The FERC corporate designee was instructed not to answer whether he knew if the FERC Commissioners made any changes to the draft Orders or Reports submitted by Enforcement to them.49 DSMF ¶ 57; PRDSMF ¶ 57.

On July 17, 2012, FERC issued a four-page Order to Show Cause against Dr. Silkman, which attached Enforcement's thirty-one-page report that "describes the background of [Enforcement's] investigation, findings and analysis, and proposed sanctions." DSMF ¶ 58; PRDSMF ¶ 58. FERC initially gave the Respondents thirty days to respond to the Order to Show Cause, and to "elect (a) administrative hearing before an ALJ at the Commission ['Option 1'] or (b) if the Commission finds a violation, an immediate penalty assessment by the Commission which a United States district court is authorized to review de novo ['Option 2']." Id. On the same day, FERC issued a four-page Order to Show Cause against CES, which attached Enforcement's thirty-one-page Report that "describes the background of [Enforcement's] investigation, findings and analysis, and proposed sanctions." DSMF ¶ 59; PRDSMF ¶ 59.

FERC initially gave the Respondents thirty days to respond to the Orders to Show Cause, and to "elect (a) administrative hearing before an ALJ at the Commission ['Option 1'] or (b) if the Commission finds a violation, an immediate penalty assessment by the Commission which a United States district court is authorized to review de novo ['Option 2']. DSMF ¶ 59; PRDSMF ¶ 59. Neither FERC nor Enforcement ever made statements to the *85Respondents concerning the two options other than what was contained in the Orders to Show Cause. DSMF ¶ 60; PRDSMF ¶ 60. In other words, neither FERC nor Enforcement ever stated to the Respondents that they could only get discovery or a hearing if they selected Option 1, or that Option 2 was an "informal adjudication," an "administrative penalty assessment process," or a "show cause proceeding" being conducted by FERC. Id.

At the same time, the statutes and regulations applying to contested on-the-record show cause proceedings are publicly available and were available to the Respondents. Id. The Proposed Penalty Orders expressly stated that Respondents could "elect (a) an administrative hearing before an ALJ at the Commission or (b) if the Commission finds a violation, an immediate penalty assessment by the Commission which a United States district court is authorized to review de novo. " Id. That a proceeding before the Commission would be different than a proceeding before an ALJ is apparent both from the language of the Proposed Penalty Orders issued to Respondents on July 17, 2012 ("if the Commission finds a violation, an immediate penalty assessment" by a Commission "order assessing a penalty") and the governing statute, which provides for a "prompt assessment" by Commission "order" if a violation is found without mention of discovery or a live hearing.50 Id.

On July 27, 2012, Enforcement provided the Respondents with additional information "specifically referenced" in Enforcement's Report and Recommendation to FERC that had not been previously provided to the Respondents. DSMF ¶ 61; PRDSMF ¶ 61. That same day, the Respondents filed a written election of option two-to have an immediate penalty assessment by FERC if it found a violation-which a district court could then review de novo. DSMF ¶ 62; PRDSMF ¶ 62.

On September 14, 2012, the Respondents submitted their written response to the Orders to Show Cause.51 DSMF ¶ 63; PRDSMF ¶ 63. On November 13, 2012, Enforcement filed a reply with FERC to the Respondents' response to the Orders to Show Cause, the last filing before FERC issued the Orders Assessing Penalties.52 DSMF ¶ 64; PRDSMF ¶ 64. On November 14, 2012, Enforcement provided the Respondents with additional information "specifically referenced" in Enforcement's Reply that had not been previously provided to the Respondents. DSMF ¶ 65; PRDSMF ¶ 65.

*86Other than these written submissions, there were no communications to or from FERC and the Respondents after FERC issued the Orders to Show Cause until FERC issued its Orders Assessing Penalties. DSMF ¶ 66; PRDSMF ¶ 66. Other than making its written declaration of Option 2 and submitting a written response to the Orders to Show Cause, the Respondents did not participate in any proceeding after FERC issued the Orders to Show Cause.53 DSMF ¶ 67; PRDSMF ¶ 67. After FERC issued Orders to Show Cause, the Respondents were not automatically entitled to obtain or conduct discovery; however, the Respondents could have made a request for discovery to the Commission via motion, pursuant to the Commission's Rules of Practice and Procedure, 18. C.F.R. Part 385.54 DSMF ¶ 68; PRDSMF ¶ 68. During the investigation and the Order to Show Cause Proceedings, the Respondents did not take any depositions, although defense counsel was permitted to ask questions of Dr. Silkman when Enforcement took his deposition.55 DSMF ¶ 84; PRDSMF ¶ 84. FERC and Enforcement did not conduct additional fact-finding after FERC issued the Orders to Show Cause.56 DSMF ¶ 69; PRDSMF ¶ 69. Subsequently, the Commission conducted additional fact-finding after FERC issued Orders to Show Cause cited by FERC in the Orders Assessing Penalties.57 Id.

*87There was no live hearing, as opposed to a paper hearing, conducted before the FERC Commissioners or a decisionmaker who in the Respondents' view was neutral and impartial either before or after FERC issued Orders to Show Cause concerning the merits of the allegations against the Respondents.58 DSMF ¶ 70; PRDSMF ¶ 70. The Respondents were not permitted to meet ex parte with the FERC Commissioners and their staff concerning the merits of the claims asserted against Respondents after the commencement of the order-to-show-cause proceedings as the Commission's regulations prohibit any party to a contested on-the-record proceeding, including an order-to-show-cause proceeding, from engaging in ex parte contacts with the Commission.59 DSMF ¶ 71; PRDSMF ¶ 71.

In their written submissions, the Respondents could only cite evidence from the investigation that had been developed by Enforcement to prosecute the case against the Respondents and that had been disclosed by Enforcement, and could only cite answers to deposition questions asked by Enforcement outside the presence of the Respondents or their counsel or witnesses who had incentive to deflect responsibility from themselves to the Respondents.60 DSMF ¶ 72; PRDSMF ¶ 72.61

*88f. Orders Assessing Penalties

On August 29, 2013, FERC issued Orders Assessing Penalties against the Respondents. DSMF ¶ 74; PRDSMF ¶ 74. FERC had control over its docket and could decide how long to take to issue a decision, and thus it was within its control whether to take over a year from July 17, 2012, when FERC issued the Orders to Show Cause, until August 29, 2013, when FERC issued the Orders Assessing Penalties. DSMF ¶ 75; PRDSMF ¶ 75. During that period, the Respondents and Enforcement each moved for an enlargement of time of approximately thirty days, and each extension was granted by the Commission.62 Id. Other than requesting and receiving additional time to respond to Enforcement's Preliminary Findings and Proposed Penalty Orders, the Respondents did not have any control or input over when FERC issued its Orders Assessing Penalties, or when FERC issued its earlier Orders to Show Cause, or when Enforcement issued its earlier preliminary findings and conclusions, or when Enforcement recommended to FERC that it issue its Orders to Show Cause.63 DSMF ¶ 76; PRDSMF ¶ 76.

Enforcement did not provide the Respondents with all the information it obtained as part of its investigation of the Respondents before FERC issued the Orders Assessing Penalties.64 DSMF ¶ 77; PRDSMF ¶ 77. Although the Respondents could have requested discovery, the Respondents did not have the right to conduct discovery at any point prior to the time FERC issued the Orders Assessing Penalties.65 DSMF ¶ 78; PRDSMF ¶ 78.

*89Although the Respondents could have requested discovery, the Respondents also did not have the right to serve document requests on FERC or to compel Enforcement to disclose what it had obtained as part of its investigation at any time before FERC issued the Orders Assessing Penalties.66 DSMF ¶ 79; PRDSMF ¶ 79. Both before and after FERC issued its Orders to Show Cause, the Respondents did not serve any interrogatories on FERC.67 DSMF ¶ 80; PRDSMF ¶ 80. Although the Respondents could have requested discovery, the Respondents did not have the right to serve interrogatories on FERC at any time before FERC issued the Orders Assessing Penalties.68 DSMF ¶ 81; PRDSMF ¶ 81. Although the Respondents could have requested discovery, they did not have the right to serve third party subpoenas at any time before FERC issued the Orders Assessing Penalties.69 DSMF ¶ 82; PRDSMF ¶ 82. Although the Respondents could have requested discovery, the Respondents did not have the right to compel the production or preservation of any documents from any third parties at any time before FERC issued the Orders Assessing Penalties.70 DSMF ¶ 83; PRDSMF ¶ 83. The Respondents did not have the right to notice testimony of any third-party witness at any time before FERC issued the Orders Assessing Penalties.71 DSMF ¶ 85; PRDSMF ¶ 85. Although *90the Respondents could have requested discovery, the Respondents did not have the right to compel testimony or an interview with any third-party witness before FERC issued the Orders Assessing Penalties.72 DSMF ¶ 86; PRDSMF ¶ 86.

In or around February 2009, Enforcement staff requested the testimony of Dr. Richard Silkman in its investigations of certain DALRP participants. PSAMF ¶ 2; DRPSAMF ¶ 2. Enforcement staff could have compelled Dr. Silkman's testimony only after (a) receiving the Commission's authorization to convert its investigation to formal status under 18 C.F.R. § 1b.5, (b) issuing a subpoena for Dr. Silkman's testimony, and (c) if Dr. Silkman refused to comply with the subpoena, successfully seeking to have the subpoena enforced by a federal judge, 18 C.F.R. § 1b.15, none of which FERC Enforcement staff did in this instance. Id. The Commission was neither asked to pay, nor paid, Dr. Silkman's travel expenses in appearing to testify. Id. FERC Enforcement set the location for the deposition in Washington, D.C., rather than Maine, and then informed Dr. Silkman's counsel on several occasions that the Defendants' "cooperation" would be taken into account in determining how to proceed.73 Id.

The Respondents produced in discovery in this litigation a joint defense agreement entered into between CES and Rumford effective March 19, 2009, concerning FERC's investigation of Rumford's participation in the ISO-NE DALRP. PSAMF ¶ 3; DRPSAMF ¶ 3.

Dr. Silkman provided draft answers to Rumford or its counsel to data requests served on Rumford by Enforcement staff during Enforcement's investigation of Rumford's participation in the DALRP.74 PSAMF ¶ 4; DRPSAMF ¶ 4.

Although the Respondents question whether the so-called preliminary findings were in fact preliminary, Enforcement staff sent a Preliminary Findings Letter to CES on November 23, 2009, explaining Enforcement's preliminary conclusion that CES had committed fraud in violation of the Commission's Anti-Manipulation Rule, as well as the factual and legal bases for this conclusion.75 PSAMF ¶ 5; DRPSAMF ¶ 5. In the letter, Enforcement staff initially asked for a response within three weeks from the date of the letter. Id. Enforcement staff subsequently provided CES additional time, until January 8, 2012, to respond to the November 23, 2009 Preliminary Findings Letter to CES. Id.

*91Again, although the Respondents question whether the so-called preliminary findings were in fact preliminary, Enforcement staff sent a Preliminary Findings Letter to Dr. Silkman on April 19, 2010, explaining Enforcement's preliminary conclusion that Dr. Silkman had committed fraud in violation of the Commission's Anti-Manipulation Rule, as well as the factual and legal bases for this conclusion. PSAMF ¶ 6; DRPSAMF ¶ 6. In the letter, Enforcement staff initially asked for a response by May 3, 2010. Enforcement staff subsequently provided Dr. Silkman with additional time, until May 20, 2010, to respond to the April 19, 2010 Preliminary Findings Letter to Dr. Silkman. Id.

As stated in the May 2008 Policy Statement on Enforcement, the purpose of preliminary findings issued by Enforcement staff is to allow the subject of an investigation to understand Enforcement staff's position and to provide an opportunity for the subject to respond with argument or evidence if it believes Enforcement staff's position is incorrect, thereby allowing Enforcement staff to change its position before reaching its final conclusions should they be persuaded by the subject's response.76 PSAMF ¶ 7; DRPSAMF ¶ 7.

On April 29, 2010, Enforcement staff sent Respondents' counsel a letter that was later countersigned by the Respondents and their counsel, which, in part, stated: (a) "Staff believes that disclosure of certain documents will facilitate CES's understating of the investigation and Constellation NewEnergy, Inc.'s (CNE) purported knowledge of Rumford's baseline period generation curtailment," (b) "However, all of the information was obtained as part of a non-public investigation and the information is confidential in nature under section 1b.9 of the Commission's regulations. 18 C.F.R. § 1b.9 (2009)," (c), "CNE also believes that the information includes non-public and confidential commercial information," (d) "Nevertheless, Enforcement has obtained permission from CNE and counsel to Ms. Amy Richard, Mr. Peter Kelly-Detwiler, and Mr. Bruce McLeish to release relevant portions of all deposition transcripts and affidavits of CNE employees as well as other narrative data request responses from CNE involving CNE's knowledge of Rumford's operations, subject to the restrictions in this letter," and (e),

In order to maintain the non-public nature of this investigation and the materials obtained as part of the investigation, we will require CES to agree that these documents, and this letter, will be used only by the CES attorneys working on this matter, and, for purposes of review, shown only to fellow signatories to the attachment.

PSAMF ¶ 8; DRPSAMF ¶ 8. The letter contained signature lines for Dr. Silkman, Mark Isaacson, Attorney Brann, and any Brann & Isaacson attorneys or employees working on the matter. Id. Respondents' counsel could have asked that other signatories be added to the letter. Id. The letter stated that both the documents and the letter "will be used only by the CES attorneys working on this matter," and that "[a]t no time shall CES or the other signatories to the attachment permit further dissemination of these documents, including to any other subject of the investigation.

*92Id. The letter only came after the Respondents specifically requested that principals of CES and co-counsel be permitted to see the materials FERC had initially forbidden them to see.77 Id.

On November 15, 2010, Enforcement staff served a second set of data requests on CES via counsel for CES. The second set of data requests consisted of five request items and asked for a response by November 29, 2010. PSAMF ¶ 9; DRPSAMF ¶ 9. CES, through counsel, provided a four-page written response to the second set of data request on November 29, 2010. Id. In addition, certain attachments to the response were sent on disk and received by Enforcement staff on December 1, 2010. Id.

The Commission issued an Order to Show Cause and Notice of Proposed Penalty to Rumford on July 17, 2012 and commenced a proceeding against Rumford.78 PSAMF ¶ 10; DRPSAMF ¶ 10. In accordance with the Commission's Separation of Function Rule, 18 C.F.R. § 385.2202, and the Commission's ex parte rule, 18 C.F.R. § 385.2201, following issuance of the Order to Show Cause and Notice of Proposed Penalty to Rumford, the Commission issued a notice in the docketed proceeding on July 26, 2012 identifying decisional and non-decisional staff. PSAMF ¶ 11; DRPSAMF ¶ 11.

On September 6, 2012, Enforcement staff who participated in the investigation of Rumford and received a settlement offer from Rumford obtained a written waiver from Rumford of the provisions of 18 C.F.R. § 385.2202 and 18 C.F.R. § 385.2201 to consult with the Commission and Commission decisional staff for purposes of exploring potential settlement with Rumford.79 PSAMF ¶ 12; DRPSAMF ¶ 12. Enforcement staff neither asked for or received waivers from Respondents to engage in what Respondents view as ex parte discussions with the FERC Commissioners regarding Rumford's DALRP participation, an issue that the Respondents view as being at the heart of the pending claims against them. Id.

Although Respondents believe otherwise, consistent with the Commission's Policy Statement on Disclosure of Exculpatory Materials, 129 FERC ¶ 61,248 (2009), Enforcement staff provides subjects of Enforcement investigations under Part 1b of the Commission's regulations with all potentially exculpatory materials obtained during Enforcement's investigation.80 PSAMF ¶ 13; DRPSAMF ¶ 13.

*93Enforcement staff submitted to the Commission in paper form Enforcement's Staff Report and Recommendations together with Respondents' joint seventy-nine-page written response provided by Respondents to Enforcement staff pursuant to 18 C.F.R. § 1b.19.81 PSAMF ¶ 14; DRPSAMF ¶ 14.

B. Statement of Facts: FERC's Partial Motion for Summary Judgment

1. Organization, Powers, and Rulemaking Authority

The Commission is an administrative agency of the United States, organized and existing as an independent, bipartisan Commission. PSMF ¶ 1; DRPSMF ¶ 1. A majority of the Commission determines its actions, with three members of the Commission constituting a quorum for the transaction of business.82 PSMF ¶ 2; DRPSMF ¶ 2. The Federal Power Act (FPA) §§ 307 et seq. authorizes the Commission to conduct investigations. PSMF ¶ 3; DRPSMF ¶ 3. Section 307(a) provides that "[t]he Commission may permit any person, electric utility, transmitting utility, or other entity to file with it a statement in writing under oath or otherwise, as it shall determine, as to any or all facts and circumstances concerning a matter which may be the subject of investigation." PSMF ¶ 4; DRPSMF ¶ 4. FPA § 307(b) provides that:

For the purpose of any investigation or any other proceeding under this Act, any member of the Commission, or any officer designated by it, is empowered to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, contracts, agreements, or other records which the Commission finds relevant or material to the inquiry.

PSMF ¶ 5; DRPSMF ¶ 5. Section 308 authorizes the Commission to conduct hearings but does not require the Commission to do so, and no hearing was conducted in this case.83 PSMF ¶ 6; DRPSMF ¶ 6.

Congress described the Commission's authority:

In carrying out any of its functions, the Commission shall have the powers authorized by the law under which such function is exercised to hold hearings, sign and issue subpoenas, and receive evidence at any place in the United States it may designate The Commission *94may, by one or more of its members or by such agents as it may designate, conduct any hearing or other injury necessary or appropriate to its functions, except that nothing in this subsection shall be deemed to supersede the provisions of section 556 of title 5 relating to hearing examiners.

42 U.S.C. § 7171(g) (2012). PSMF ¶ 7; DRPSMF ¶ 7.

FPA § 308(b) requires that:

All hearings, investigations, and proceedings under this Act shall be governed by rules of practice and procedure to be adopted by the Commission, and in the conduct thereof the technical rules of evidence need not be applied. No informality in any hearing, investigation, or proceeding or in any manner of taking testimony shall invalidate any order, decision, rule, or regulation issued under the authority of this chapter.84

16 U.S.C. § 825g(b) (2012). PSMF ¶ 8; DRPSMF ¶ 8.

FPA § 309 further grants the Commission:

The power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter. Among other things, such rules and regulations may define accounting, technical, and trade terms used in this Act; and may prescribe the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, the information they contain, and the time within which they shall be filed. Unless a different date is specified therein, rules and regulations of the Commission shall be effective thirty days after publication in the manner which the Commission shall prescribe. Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe.85

16 U.S.C. § 825h (2012). PSMF ¶ 9; DRPSMF ¶ 9.

Congress provided the Commission with the authority to establish rules and procedures:

The Commission is authorized to establish such procedural and administrative rules as are necessary to the exercise of its functions. Until changed by the Commission, any procedural and administrative rules applicable to particular functions over which the Commission has jurisdiction shall continue in effect with respect to such particular functions.

42 U.S.C. § 7171. PSMF ¶ 10; DRPSMF ¶ 10. The Commission codified Rules Relating to Investigations at 18 C.F.R. Part 1b and Rules of Practice and Procedure at 18 C.F.R. Part 385. PSMF ¶ 11; DRPSMF ¶ 11.

2. Civil Penalty Authority

FPA § 316A authorizes the Commission to levy civil penalties for violations of Part II of the Act-which includes the prohibition of energy market manipulation, § 222, 16 U.S.C. § 824v(a) -or "of any rule or *95order thereunder." 16 U.S.C. § 825o -1 (2012).86 PSMF ¶ 12; DRPSMF ¶ 12. The FPA requires that the Commission assess such penalties, after "notice and opportunity for public hearing, in accordance with the same provisions as are applicable under section 823b(d) in the case of civil penalties assessed under section 823b."87 PSMF ¶ 13; DRPSMF ¶ 13. FPA § 31(d) sets out two applicable provisions, or paths that the proceeding can take at the election of the respondent: (1) the "default" procedure enunciated in § 31(d)(2), under which the Commission shall provide a hearing before an ALJ, or (2) an alternative process under § 31(d)(3), whereby the Commission shall assess a penalty, and then institute an action in the appropriate U.S. district court for an order of affirmance, during which resulting proceeding the district court is able to review de novo the law and facts involved.88 16 U.S.C. § 823b(d)(1) (2012). PSMF ¶ 14; DRPSMF ¶ 14. Regardless of whether a respondent elects the procedures under § 31(d)(2) or under § 31(d)(3), the Commission is required by statute to assess a penalty "by order." 16 U.S.C. §§ 823b(d)(2)(A) & 823b(d)(3)(A). PSMF ¶ 15; DRPSMF ¶ 15.

When assessing and imposing penalties, the Commission must consider and apply statutorily-prescribed criteria, namely, "the seriousness of the violation and the efforts of such person to remedy the violation in a timely manner."89 PSMF ¶ 16 (quoting 16 U.S.C. § 825o -1(b)(2012) ); DRPSMF ¶ 16. If a civil penalty has not been paid within 60 calendar days after an order assessing the civil penalty has been made under § 31(d)(3)(A), "the Commission 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 [p]art such assessment."90 PSMF ¶ 17 (quoting 16 U.S.C. § 823b(d)(3)(B) ); DRPSMF ¶ 17. Pursuant to the FPA, this Court has authority to "review de novo the law and the facts involved and ... jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in [p]art, such assessment." Id. PSMF ¶ 18 (quoting 16 U.S.C. § 823b(d)(3)(B)(2012) ); DRPSMF ¶ 18.

*963. Commission Regulations Regarding Investigations

The Commission's rules relating to investigations are set forth in Part 1b of the Commission's regulations. PSMF ¶ 19; DRPSMF ¶ 19. Enforcement is authorized to initiate and conduct investigations relating to any matter subject to the Commission's jurisdiction. PSMF ¶ 20 (citing 18 C.F.R. § 1b.3 (2008) & 18 C.F.R. § 375.311 (2008) ); DRPSMF ¶ 20. Section 1b.7 of the Commission's regulations provides:

Where it appears that there has been or may be a violation of any of the provisions of the acts administered by the Commission or the rules, opinions or orders thereunder, the Commission may institute administrative proceedings, initiate injunctive proceedings in the courts, refer matters, where appropriate, to the other governmental authorities, or take other appropriate action.

PSMF ¶ 21 (quoting 18 C.F.R. § 1b.7 (2012) ); DRPSMF ¶ 21. All information and documents received during an investigation, as well as the existence of an investigation, are treated by regulation as non-public and confidential, "except to the extent that (a) the Commission directs or authorizes the public disclosure of the investigation; (b) the information or documents are made a matter of public record during the course of an adjudicatory proceeding; or (c) disclosure is required by the Freedom of Information Act, 5 U.S.C. 552." PSMF ¶ 22 (quoting 18 C.F.R. § 1b.9 (2008) ); DRPSMF ¶ 22.

The Commission's regulations provide: "There are no parties, as that term is used in adjudicative proceedings, in an investigation under this part and no person may intervene or participate as a matter of right in any investigation under this part." PSMF ¶ 23 (quoting 18 C.F.R. § 1b.11 (2008) ); DRPSMF ¶ 23. Section 1b.16 of the Commission's regulations addresses the rights of witnesses during an investigation. Id. This section provides that a witness or subject of an investigation may be accompanied, represented, and advised by counsel. Id. However, 18 C.F.R. § 1b.16(c)(4) states:

The Investigating Officer shall take all necessary action to regulate the course of the proceeding to avoid delay and prevent or restrain obstructionist or contumacious conduct or contemptuous language. Such officer may report to the Commission any instances where an attorney or representative has refused to comply with his directions, or has engaged in obstructionist or contumacious conduct or has used contemptuous language in the course of the proceeding. The Commission may thereupon take such further action as the circumstances may warrant, including suspension or disbarment of counsel from further appearance or practice before it, in accordance with § 385.2101 of this chapter, or exclusion from further participation in the particular investigation.

18 C.F.R. § 1b.16 also requires the sequestration of witnesses during an investigation. It further states that "[n]o witness or the counsel accompanying any such witness shall be permitted to be present during the examination of any other witness called in such proceeding."91 PSMF ¶ 24; DRPSMF ¶ 24.

*97The Commission's regulations provide that "[a]ny person may, at any time during the course of an investigation, submit documents, statements of facts or memoranda of law for the purpose of explaining said person's position or furnishing evidence which said person considers relevant regarding the matters under investigation." PSMF ¶ 25; DRPSMF ¶ 25. The Commission noted in a May 2008 Policy Statement on Enforcement that the Commission's regulations allow the subject of an investigation to submit, in writing, any information or evidence directly to the Commissioners themselves at any time during the investigation. PSMF ¶ 26; DRPSMF ¶ 26. Neither the policy statement nor the rule regarding investigations places a page limit on such submissions nor requires any rules of evidence to apply. Id.

If Enforcement preliminarily concludes that a subject committed a violation, Enforcement's practice pursuant to official Commission policy is to inform the subject of its preliminary conclusions, including both the relevant facts and legal theories, explain the evidence on which it relied, and invite the subject to respond.92 PSMF ¶ 27; DRPSMF ¶ 27. If Enforcement determines to recommend to the Commission that an entity be made the subject of a proceedings governed by part 385 of this chapter, or that an entity be made a defendant in a civil action to be brought by the Commission, Enforcement shall, unless extraordinary circumstances make prompt Commission review necessary in order to prevent detriment to the public interest or irreparable harm, notify the entity that Enforcement intends to make such a recommendation.93 PSMF ¶ 28; DRPSMF ¶ 28. As provided by § 1b.19, an enforcement subject may submit its own statement to Enforcement, in the form of a non-public response to the 1b.19 Letter, which "may consist of a statement of fact, argument, and/or memorandum of law, with such supporting documentation as the entity chooses." PSAMF ¶ 29 (quoting 18 C.F.R. § 1b.19 (2011) ); DRPSAMF ¶ 29. Enforcement is required to submit the subject's statement, if timely made, to the Commission together with Enforcement's recommendation. Id. Such statements from Enforcement subjects have no page limits and are subject to no rules of evidence.

*9894 Id.

4. Commission Regulations Regarding Proceedings

Sections 201 through 218 of Part 385 apply, inter alia, to any "pleading" or "order to show cause." 18 C.F.R. § 385.201. PSMF ¶ 30; DRPSMF ¶ 30. Under the Commission's regulations, issuance of an Order to Show Cause commences a contested on-the-record proceeding, known as a "show cause proceeding," which is subject to the Commission's Rules of Practice and Procedure.95 PSMF ¶ 31; DRPSMF ¶ 31. The Commission's regulations provide that the statement of matters set forth in an order to show cause "is tentative and sets forth issues to be considered by the Commission." PSMF ¶ 32 (citing 18 C.F.R. § 385.209(b)(2012) ); DRPSMF ¶ 32.

Upon the initiation of a show cause proceeding, the Commission's Separation of *99Functions Rule requires that "no officer, employee, or agent assigned to work upon the proceeding or to assist in the trial thereof, in that or any factually related proceeding, shall participate or advise as to the findings, conclusion or decision, except as a witness or counsel in public proceedings."96 PSMF ¶ 33 (18 C.F.R. § 3985.2202 (2012) ); DRPSMF ¶ 33. Upon the initiation of a show cause proceeding, the Commission's ex parte rule prohibits any off-the-record communications between (i) Commissioners and the staff that may advise them (decisional staff) and (ii) Enforcement prosecutorial staff involved in the investigation or show cause proceeding. PSMF ¶ 34 (citing 18 C.F.R. § 385.2201(c)(1)(i) (2012) ); DRPSMF ¶ 34. However, the rule does not on its face preclude Enforcement from communicating with the Commission regarding related matters, which, in this case, included the settlement negotiations with Rumford concerning its participation in the DALRP, which is the subject of this action.97 Id. Nor does the rule prohibit ex parte communications, so long as they are put "on the record," or prohibit FERC from making the record "non-public." Id.

A person who is ordered to show cause is required under the Commission's regulations to submit a formal answer.98 PSMF

*100¶ 35; DRPSMF ¶ 35. The Commission's regulations require that an answer "[a]dmit or deny, specifically and in detail, each material allegation" and "[s]et forth every defense relied on" "to the extent practicable."99 PSMF ¶ 36; DRPSMF ¶ 36. The failure to submit an answer can give rise to a default judgment or summary disposition. PSMF ¶ 37; DRPSMF ¶ 37. An answer must also include "documents that support the facts in the answer in possession of, or otherwise attainable by, the respondent, including, but not limited to, contracts and affidavits." PSMF ¶ 38; DRPSMF ¶ 38. Under the Commission's Rules of Practice and Procedure, a party to a contested on-the-record proceeding may file a motion for relief to the Commission at any time during the proceeding.100 PSMF ¶ 39; DRPSMF ¶ 39.

5. Enforcement's Investigation of Respondents

Following a referral from ISO-NE's market monitoring unit, in March 2008, Enforcement commenced a non-public investigation pursuant to Part 1b of the Commission's regulations to determine whether certain market participants had engaged in fraudulent conduct in their participation in ISO-NE's DALRP.101 PSMF ¶ 40; DRPSMF ¶ 40. Enforcement notified CES by letter dated August 1, 2009 that it commenced a non-public investigation of CES pursuant to Part 1b of the Commission's regulations concerning CES's conduct related to the DALRP. PSMF ¶ 41; DRPSMF ¶ 41. On February 26 and 27, 2009, Enforcement took investigative testimony of Dr. Richard Silkman as a witness in the investigation. PSMF ¶ 42; DRPSMF ¶ 42.

In November 2009, Enforcement commenced an investigation of Dr. Silkman, individually, pursuant to Part 1b of the Commission's regulations of Dr. Silkman's conduct related to the DALRP, as memorialized in a November 4, 2009 letter sent to Dr. Silkman's counsel.102 PSMF ¶ 43; DRPSMF ¶ 43. After CES and Dr. Silkman were identified as subjects of the *101investigation, Enforcement served data requests (the equivalent of interrogatories, requests for admission, and requests for production of documents) on CES and Dr. Silkman. PSMF ¶ 44; DRPSMF ¶ 44.

On November 23, 2009, Enforcement staff sent CES a Preliminary Findings Letter explaining Enforcement's preliminary conclusion that CES had committed fraud in violation of the Commission's Anti-Manipulation Rule, 16 U.S.C. § 824v and 18 C.F.R. § 1c.2 (Anti-Manipulation Rule), as well as the factual and legal bases for this conclusion.103 PSMF ¶ 45; DRPSMF ¶ 45. On December 1, 2009, Enforcement staff sent CES copies of the documents cited in the Preliminary Findings Letter to CES except publicly-available information and information already in the possession of CES.104 PSMF ¶ 46; DRPSMF ¶ 46.

On January 8, 2010, CES submitted a response to the Preliminary Findings Letter to CES. PSMF ¶ 47; DPRSMF ¶ 47. CES was not required to comply with any page limit nor any rules of evidence in drafting this response. Id. The response was thirty pages, single-spaced. Id.

On April 19, 2012, Enforcement staff sent Dr. Silkman a Preliminary Findings Letter explaining Enforcement's preliminary conclusion that Dr. Silkman had committed fraud in violation of the Anti-Manipulation Rule, as well as the factual and legal bases for this conclusion.105 PSMF ¶ 48; DRPSMF ¶ 48. At the time Enforcement staff sent Dr. Silkman the Preliminary Findings Letter, Dr. Silkman's counsel possessed all non-public materials cited in the Preliminary Findings Letter, the same materials as those cited in the Preliminary Findings Letter to CES and provided to Dr. Silkman's counsel on December 1, 2009, with the exception of the testimony transcript of witness Amy Richard; the Richard transcript was provided eleven days later along with other investigatory documentation. PSMF ¶ 49; DRPSMF ¶ 49.

On April 30, 2010, Enforcement staff provided counsel for the Respondents, Peter Brann, with the testimony transcript of Amy Richard and additional, non-public information related to Enforcement's investigation of the activities of CES and Dr. Silkman in the DALRP.106 PSMF ¶ 50;

*102DRPSMF ¶ 50. On May 20, 2010, Dr. Silkman submitted a response to the Preliminary Findings Letter to Silkman. PSMF ¶ 51; DRPSMF ¶ 51. Dr. Silkman was not required to comply with any page limit nor any rules of evidence in drafting this response. Id. The response was thirty-four pages, single-spaced. Id.

After Enforcement obtained authority to initiate settlement discussions, the Commission issued Notices of Alleged Violation to the Respondents on January 25, 2011. PSMF ¶ 52; DRPSMF ¶ 52. The Notices of Alleged Violation were issued pursuant to Commission practice memorialized in an Order Authorizing Secretary to Issue Staff's Preliminary Notice of Violation.107 Id.

As provided by the Commission's procedures, Enforcement Staff engaged in settlement discussions with CES and Dr. Silkman in 2011. PSMF ¶ 53; DRPSMF ¶ 53. In February, Enforcement made an oral settlement proposal to CES and Dr. Silkman at a meeting in Washington D.C. Id. CES and Dr. Silkman requested additional, previously undisclosed information to evaluate the proposal, but the request was denied, and they provided a response in April. Id. In May, FERC rejected the Respondents' responsive proposal, and asked the Respondents to submit a revised proposal. Id. The Defendants responded but declined to submit a revised proposal.108 Id.

On May 13, 2011, Enforcement staff sent 1b.19 Letters to CES and Dr. Silkman. PSMF ¶ 54; DRPSMF ¶ 54. Enforcement explained in the 1b.19 Letters that its final conclusions after considering the Respondents' responses to the Preliminary Findings Letters were not materially different than its preliminary conclusions, that it intended to recommend that the Commission issue an Order to Show Cause why Dr. Silkman "should not be made the subject of a public proceeding for enforcement of 18 C.F.R. § 1c.2 (2011) and pay a civil penalty," and that it invited each Respondent to "submit a non-public response to this notice" by a date specified therein.109

*103Id. On June 27, 2011, CES and Dr. Silkman submitted a joint seventy-nine-page response to Enforcement's 1b.19 Letters. CES and Dr. Silkman were not required to comply with any page limit nor any rules of evidence in drafting this response. PSMF ¶ 55; DRPSMF ¶ 55.

Having concluded that CES and Dr. Silkman engaged in fraudulent behavior in violation of the Anti-Manipulation Rule, Enforcement prepared reports and recommendations (OE Staff Reports) to the Commission recommending that the Commission initiate proceedings under 18 C.F.R. § 385.209 by issuing Proposed Penalty Orders to each Respondent. As required by 18 C.F.R § 1b.19, Enforcement submitted the OE Staff Reports to the Commission along with the Respondents' joint seventy-nine-page response to the 1b.19 Letters.110 PSMF ¶ 56; DRPSMF ¶ 56.

6. Show Cause Proceedings Before the Commission

On July 17, 2012, the Commission initiated adversarial on-the-record proceedings under 18 C.F.R § 385.209 by issuing Proposed Penalty Orders under Docket Nos. IN12-12-000 (CES) and IN12-13-000 (Dr. Silkman).111 PSMF ¶ 57; DRPSMF ¶ 57. On July 17, 2012, CES and Dr. Silkman were provided copies of information specifically referenced in the OE Staff Reports attached to the Proposed Penalty Orders. PSMF ¶ 58; DRPSMF ¶ 58. CES and Dr. Silkman were not provided with documents already in their possession or publicly available.112 Id.

*104In accordance with the Commission's Separation of Function Rule, 18 C.F.R. § 385.2202, and the Commission's ex parte rule, 18 C.F.R. § 385.2201, following issuance of the Proposed Penalty Orders, the Commission issued a notice in each proceeding on July 26, 2012 identifying decisional and non-decisional staff.113 114 PSMF ¶ 59; DRPSMF ¶ 59. The Proposed Penalty Orders provided a summary of Enforcement's allegations against CES and Dr. Silkman and attached the OE Staff Reports. PSMF ¶ 61; DRPSMF ¶ 61. The OE Staff Reports attached to the Proposed Penalty Orders alleged that the fraudulent conduct by CES and Dr. Silkman occurred from July 2007 through early February 2008.115 PSMF ¶ 62; DRPSMF ¶ 62.

Pursuant to the Commission's Rules of Practice and Procedure, the Proposed Penalty Orders directed CES/Dr. Silkman each to file an answer with the Commission showing cause (i) why it/he should not be found to have violated the Anti-Manipulation Rule and (ii) why it/he should not be assessed the proposed penalties. PSMF ¶ 63; DRPSMF ¶ 63. In accordance with the Commission's Rules of Practice and Procedure, the Proposed Penalty Orders directed that the answers provide "a clear and concise statement regarding any disputed factual issues and any law upon which [it/he] relies. PSMF ¶ 64; DRPSMF ¶ 64. The Commission further ordered that, "[i]n any answer, Respondent should address any matter, legal, factual or procedural, that [it/he] would urge in the Commission's consideration of this matter." PSMF ¶ 65; DRPSMF ¶ 65. As required by the Commission's Rules of Practice and Procedure, the Proposed Penalty Orders directed that each answer, "to the extent practicable, admit or deny, specifically and in detail, each material allegation contained in the OE Staff Report and "set forth every defense relied upon."116 PSMF ¶ 66; DRPSMF ¶ 66.

The Proposed Penalty Orders provided notice to the Respondents, as required by FPA § 31(d)(1), 16 U.S.C. § 823b(d)(1), that they had the option under the FPA to choose between either (a) an administrative *105hearing before an ALJ at the Commission prior to the assessment of a penalty under § 31(d)(2), § 823b(d)(2) or (b), an assessment by the Commission under § 31(d)(3), § 823b(d)(3)"if the Commission finds a violation."117 PSMF ¶ 67; DRPSMF ¶ 67.

On July 27, 2012, CES and Dr. Silkman filed an unopposed motion for an enlargement of time seeking an extension under September 14, 2012, to respond to the Orders to Show Cause, in which each Respondent also elected the procedures of § 31(d)(3)."118 PSMF ¶ 68; DRPSMF ¶ 68. On August 13, 2012, the Commission issued a Notice of Extension of Time in each proceeding, allowing CES and Dr. Silkman until September 14, 2012, to respond to the allegations in the OE Staff Reports. PSMF ¶ 69; DRPSMF ¶ 69. On September 14, 2012, CES and Dr. Silkman filed a joint ninety-eight-page answer, including attachments, in opposition to Enforcement's allegations and the proposed penalties, arguing that the evidence gathered during Enforcement's investigation did not support a finding that they committed fraud. PSMF ¶ 70; DRPSMF ¶ 70. This filing was not subject to any page limit or any rules of evidence.119 Id.

The CES/Dr. Silkman Answer did not assert a defense based on the statute of limitations.120 PSMF ¶ 71; DRPSMF ¶ 71. Neither during the investigation nor during either show cause proceeding, did CES or Dr. Silkman assert a statute of limitations defense in a filing submitted to the Commission. PSMF ¶ 72; DRPSMF ¶ 72. CES and Dr. Silkman did not file any amended pleading or motion pursuant to *10618 C.F.R. § 385.212 at any time during the pendency of the show cause proceedings seeking relief based on the statute of limitations. PSMF ¶ 73; DRPSMF ¶ 73.

On September 21, 2012, pursuant to the Commission's Rules of Practice and Procedure, Enforcement litigation staff filed an unopposed motion for extension of time requesting that it be granted an additional thirty days, until November 13, 2012, to file its reply to the CES/Dr. Silkman Answer in each proceeding. PSMF ¶ 74; DRPSMF ¶ 74. On September 26, 2012, the Commission issued a Notice of Extension of Time in each proceeding allowing Enforcement litigation staff until November 13, 2012 to file its reply in each proceeding. PSMF ¶ 75; DRPSMF ¶ 75. On November 13, 2012, Enforcement litigation staff filed a reply in each proceeding explaining why Respondents' evidence and arguments did not rebut Enforcement's evidence. PSMF ¶ 76; DRPSMF ¶ 76.

On August 29, 2013, the Commission issued separate Orders Assessing Civil Penalties (Assessment Orders) Against CES and Silkman. PSMF ¶ 77; DRPSMF ¶ 77. The Assessment Orders are each more than forty pages in length, and contain sections setting forth the Commission's "Findings of Fact," "Determination of Violation," and "Civil Penalty Determination." PSMF ¶ 78; DRPSMF ¶ 78. The Assessment Orders set forth the Commission's evaluation of the legal and factual defenses raised by CES and Dr. Silkman in the Answer, the allegations in the OE Staff Reports, and other evidence in the record, such as Dr. Silkman's investigative testimony and Dr. Silkman's data responses.121 PSMF ¶ 79; DRPSMF ¶ 79.

Among other things, the Assessment Orders show that the Commission found that Dr. Silkman, as a representative of CES, devised and implemented a scheme to inflate Rumford paper mill's baseline during initial baseline measurement for participation in the DALRP and thereby obtain payment for electricity load reductions that were not actually provided and were never intended to be provided. PSMF ¶ 80; DRPSMF ¶ 80.122 The Assessment Orders reflect the Commission's further finding that CES and Dr. Silkman's scheme constituted a fraudulent scheme or artifice in violation of the Anti-Manipulation Rule. Id. The Assessment Orders reflect the Commission's further finding that CES and Dr. Silkman's scheme constituted a fraudulent scheme or artifice in violation of the Anti-Manipulation Rule. PSMF ¶ 81; DRPSMF ¶ 81. The Assessment Orders also reflect the Commission's finding that CES and Dr. Silkman acted with scienter. PSMF ¶ 82; DRPSMF ¶ 82. The Assessment Orders imposed a $ 7,500,000 civil penalty against CES and a $ 1,250,000 civil penalty against Dr. Silkman. Id. The Assessment against CES also ordered CES to pay disgorgement of $ 166,841.13, plus interest. PSMF ¶ 83; DRPSMF ¶ 83.

In assessing and imposing civil penalties for the violations, the FPA required the Commission to consider and apply the following statutory criteria: "the seriousness of the violation and the efforts of such person to remedy the violation in a timely manner." PSMF ¶ 84 (quoting 16 U.S.C. § 825o -1(b) ); DRPSMF ¶ 84. With respect to CES, the Assessment Order states that the Commission considered and applied *107these statutory criteria and Penalty Guidelines applicable to organizations that it has adopted to shape its application of the statutorily-prescribed criteria. PSMF ¶ 85; DRPSMF ¶ 85. With respect to Dr. Silkman, who, as a natural person, is not subject to the Commission's Penalty Guidelines, the Assessment Order states that the Commission considered and applied the statutory criteria, and evaluated five factors it had previously articulated and applied in assessing penalties against individuals to shape the statutorily-required criteria: (1) the seriousness of the offense; (2) commitment to compliance; (3) self-reporting; (4) cooperation; and (5) reliance on Enforcement staff guidance. PSMF ¶ 86; DRPSMF ¶ 86.

The Commission's Assessment Orders reflect that the Commission found the civil penalties to be statutorily authorized under the FPA and appropriate in these cases. PSMF ¶ 87; DRPSMF ¶ 87. With respect to CES, the Commission concluded, "[b]ased on the foregoing factors, the pleadings in this case and the OE Staff Report, the Commission finds that a civil penalty of $ 7,500,000 and disgorgement of $ 166,841, plus interest, is fair and reasonable under the circumstances." PSMF ¶ 88; DRPSMF ¶ 88. With respect to Dr. Silkman, the Commission concluded, "[b]ased on the foregoing factors, the pleadings in this case and the OE Staff Report, the Commission finds that there is a need to deter the fraudulent conduct at issue and that a civil penalty of $ 1,250,000 is fair and reasonable under the circumstances." PSMF ¶ 89; DRPSMF ¶ 89.

On March 22, 2013, the Commission entered an Order Approving Stipulation and Consent Agreement, which approved a stipulation and consent agreement between Enforcement and Rumford that resolved Enforcement's investigation into whether Rumford engaged in fraudulent conduct in violation of the Anti-Manipulation Rule in its participation in the DALRP. PSMF ¶ 90; DRPSMF ¶ 90. The Order reflects that Rumford agreed to a disgorgement of $ 2,836,419.08 and a $ 10,000,000 civil penalty. PSMF ¶ 91; DRPSMF ¶ 91. The Order reflects that Rumford agreed to satisfy the disgorgement and civil penalty obligations by a payment of $ 3,036,419.08, and, given the fact that Rumford was in bankruptcy, Enforcement agreed that this payment was acceptable satisfaction of Rumford's disgorgement and civil penalty obligations. PSMF ¶ 92; DRPSMF ¶ 92. The Commission's Order directed Rumford to pay an amount of $ 2,836,419.08 (the amount of the disgorgement) from the settlement payment to ISO-NE within ten business days of the effective date of the agreement, and further directed ISO-NE "to allocate the $ 2,836,419.08 pro rata to network load [rate payers] during the applicable period."123 PSMF ¶ 93; DRPSMF ¶ 93.

Section 307(n) does not provide any reciprocal right or ability for the subjects of a Commission investigation to "subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, contracts, agreements, or other records." DSAMF ¶ 1 (quoting 16 U.S.C. § 825(b) ); PRDSAMF ¶ 1. However, under the Commission's Rules of Practice and Procedure, a party to a show cause proceeding may file a motion for relief with the Commission at any time during *108the proceeding."124 DSAMF ¶ 1; PRDSAMF ¶ 1. Section 1b.16, concerning the rights of witnesses, does not prohibit witnesses or counsel from speaking with other persons or counsel outside the examination, but requires the sequestration of witnesses during testimony taken in an investigation. DSAMF ¶ 2; PRDSAMF ¶ 2. Other Commission regulations provide that all information and documents received during an investigation and the existence of the investigation are treated as confidential, non-public information. Id. Disclosure of information during an investigation is permitted only at the Commission's direction or authorization, or as is otherwise required to be disclosed.125 Id.

Following his deposition, Dr. Silkman was instructed by FERC Enforcement not to communicate with his business partner, Mark Isaacson, with Rumford personnel, or anyone else regarding the questions or answers from his deposition nor to share a copy of his deposition transcript. DSAMF ¶ 3; PRDSAMF ¶ 3. Enforcement staff informed Dr. Silkman that if he felt the need to share information regarding the contents of the deposition to anyone else, he should contact Enforcement staff and they would discuss it.126 Id.

FERC Enforcement also instructed other deponents in the investigation not to share copies of their deposition transcripts with the Respondents or their counsel.127 DSAMF ¶ 4; PRDSAMF ¶ 4. Under the Commission's regulations, Respondents were not entitled to attend the taking of testimony from third party witnesses when Enforcement was engaged in investigative fact-finding or to receive copies of their testimony. Id. The Commission's regulations require the sequestration of witnesses during testimony taken in an investigation, and all information and documents received during an investigation, as well as the existence of an investigation, is *109treated as confidential, non-public information. Id. Disclosure of information during an investigation is permitted only at the Commission's direction or authorization, or as is otherwise required to be disclosed. Id. Deponents and their counsel in the investigation were instructed regarding the testimony of witnesses in accordance with the requirements of §§ 1b.12 and 1b.16 of the Commission's regulations, requiring sequestration of witnesses during testimony, and in accordance with the Commission's regulations regarding confidentiality of investigations. Id.

Although the Commission's Revised Policy Statement on Enforcement allows written submissions, the Commission's Revised Policy Statement on Enforcement prohibits any oral communications to the Commissioners or their assistants from any person concerning an ongoing staff investigation as to which such person is the subject.128 DSAMF ¶ 5; PRDSAMF ¶ 5. The Commission's Revised Policy Statement on Enforcement does not prohibit oral communications to the Commissioners or their assistants from a staff member concerning an ongoing staff investigation. DSAMF ¶ 6; PRDSAMF ¶ 6. The Commission's Statement of Administrative Policy Regarding the Process for Assessing Civil Penalties does not require a hearing or discovery for entities that choose Option 2 under 16 U.S.C. § 823b(d)(3)(A), but rather only the "immediate assessment" of the civil penalty." DSMAF ¶ 7; PRDSAMF ¶ 7. Although the 2006 Policy Statement does not require discovery, respondents to a show cause proceeding have the ability to request discovery via motion under the procedural rules promulgated by the Commission pursuant to its express delegation of authority by Congress under the FPA.129 Id.

*110III. POSITIONS OF THE PARTIES

A. The Respondents' Motion for Summary Judgment

1. The Respondents' Motion

The Respondents contend that the statute of limitations that governs this suit, 28 U.S.C. § 2462, prohibits government action concerning alleged wrongdoing that occurred more than five years before the government filed suit. Resp'ts' Mot. at 1-2. According to the Respondents, "[b]ecause FERC filed suit in federal court more than five years after the alleged wrongdoing ended," the instant action is time-barred. Id. In support, the Respondents rely on Gabelli v. SEC , 568 U.S. 442, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013) and Kokesh v. SEC , --- U.S. ----, 137 S.Ct. 1635, 198 L.Ed.2d 86 (2017). They further argue that FERC is incorrect in its argument that the First Circuit Court of Appeals decision in United States v. Meyer , 808 F.2d 912 (1st Cir. 1987), controls here, because the Respondents did not receive an "adjudicatory administrative proceeding" in light of the lack of due process that FERC afforded them, which the Respondents describe in detail. Resp'ts' Mot. at 2-7. To the extent this argument relies on facts, the Respondents submitted those facts in their accompanying Statement of Material Facts. (ECF No. 136).

According to the Respondents, because Congress did not delegate administrative *111authority to a specific agent to administer the general federal statute of limitations, 28 U.S.C. § 2462, the Court owes no Chevron130 deference to FERC, and the Supreme Court's interpretation of the statute controls. Id. at 8. As such, in the Respondents' view, the Supreme Court's decision that the statute of limitations in § 2462 began to run when the alleged fraud was committed, not when it was discovered by the SEC, controls here. Similarly, the Respondents contend that the Supreme Court ruled in Kokesh that the SEC "could only seek disgorgement under Section 2462 for alleged fraud that occurred within five years of the date the claim accrued." Id. (citing Kokesh , 137 S.Ct. at 1635 ). The Respondents note that the Supreme Court's rulings in Gabelli and Kokesh are particularly applicable to the case at bar because "FERC's market manipulation statute and ... anti-manipulation rule were specifically patterned on Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), and SEC's Rule 10b-5, 17 C.F.R. § 240.10b-5." Id. at 9.

The Respondents argue that Gabelli and Kokesh overruled Meyer , which the Respondents' characterize as holding that "the government had five years under Section 2462 to commence an 'adjudicative administrative proceeding' ... and then after that proceeding ended, the government had another five years under Section 2462 to file suit in federal court to enforce the judgment awarded in the proceeding." Id. at 9-10. The Respondents ask that the Court "agree with the Barclays court and conclude that Meyer is no longer good law in light of Gabelli. " Id. (citing FERC v. Barclays Bank PLC , 105 F.Supp.3d 1121, 1131 (E.D. Cal. 2015) ( Barclays I ) ).

The Respondents further contend that even if Meyer has not been overruled, Meyer does not apply to this case because the "Defendants did not receive any of the hallmarks of an adjudicatory administrative proceeding, and FERC's long wind-up should be considered as nothing more than a decision to bring suit against Defendants." Id. at 10-11. The Respondents distinguish Meyer , noting that unlike in the instant case, the defendant in Meyer was afforded the protections of the Administrative Procedure Act, and the charges were heard by an administrative law judge, who issued a decision subject to appeal. Id. (citing Meyer , 808 F.2d at 913, 919 ). The Respondents argue that "courts have repeatedly held" that defendants who select Option 2 under 16 U.S.C. 823b(d)(3)"do not receive any meaningful process from FERC." Id. at 12-13 (citing Powhatan , 286 F.Supp.3d at 766-67 ; FERC v. Barclays Bank PLC , 247 F.Supp.3d 1118, 1121 n. 7, 1129 (E.D. Cal. 2017) ) ( Barclays II ).

According to the Respondents, several facts demonstrate the inadequate due process provided by FERC. First, what is characterized by FERC as the "administrative record" did not contain the entire investigative file, but it did contain documents that had not been disclosed previously to the Respondents. Id. at 14. Second, the Respondents contend that FERC Enforcement engaged in ex parte communications concerning the Respondents with FERC Commissioners and their staff. Id. Third, the Respondents claim that "it does not appear that FERC Enforcement even read Defendants' response to its allegations." Id. at 15.

The Respondents also allege that no additional factfinding must occur once a party *112elects to proceed under FERC's Option 2, and that the decision to charge a party with a proposed penalty is conducted without a neutral arbiter. Id. at 16. The Respondents claim that they "did not receive any additional process after FERC issued the Orders to Show Cause." Id. at 17. According to the Respondents, "... once a party elects Option 2, there is no requirement for FERC to conduct any proceeding, only for FERC to "promptly assess such penalty." Id. (citing § 823b(3)(A) ). The Respondents contend that they were not afforded "an adversarial adjudication before a neutral decision-maker", which they state is "the very hallmark of our system of prosecution of criminal and civil offenses." Id. at 17-18 (citing FERC v. Barclays Bank PLC , No. 2:13-CV-02093-TLN-DB, 2017 WL 4340258 at *11, 2017 U.S. Dist. LEXIS 161414, at *33 (E.D. Cal. Sept. 29, 2017) ( Barclays III ) ). The Respondents conclude that the process provided by FERC amounted to a prosecutorial determination, not a proceeding. Id. at 19.

2. FERC's Opposition

FERC responds and asks the Court to deny the Respondents' motion, arguing that under the First Circuit's decision in Meyer , which controls, "the dispositive factor for determining whether an administrative assessment proceeding meets the requirements of 18 U.S.C. § 2462 is whether 'assessment of administrative penalty is a statutory prerequisite to the bringing of an action judicially to enforce such penalty.' " Pl.'s Opp'n at 1 (citing Meyer , 808 F.2d at 922 ). According to FERC, it could only bring an action in district court seeking an order affirming the assessment of the civil penalty against the Respondents when they failed to pay; therefore, the case "falls squarely within Meyer and the requirements of § 2462." Id. Finally, FERC argues that the Commission's adjudication constituted a proceeding that met the first statute of limitations under Meyer . Id.

FERC avers that Meyer "was not silently overruled" as the Respondents state, by Gabelli and Kokesh , and that Meyer remains "longstanding precedent in the First Circuit that represents the view of a majority of courts; only the Fifth Circuit has adopted a different approach." Id. at 3-4 (citing SEC v. Mohn , 465 F.3d 647 (6th Cir. 2006) ; United States v. Godbout-Bandal , 232 F.3d 637 (8th Cir. 2000) ; 3M Co. v. Browner , 17 F.3d 1453 (D.C. Cir. 1994) ; U.S. Dep't of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir. 1982) ; United States v. Worldwide Indus. Enters., Inc. , 220 F.Supp.3d 335, 340 (E.D.N.Y. 2016) ); United States v. Sacks , Case No. C10-534RAJ, 2011 WL 6883740 (W.D. Wash. Dec. 28, 2011) ; United States v. Great Am. Veal, Inc. , 998 F.Supp. 416 (D.N.J. 1998) ; Atl. States Legal Found. v. Al Tech Specialty Steel Corp. , 635 F.Supp. 284 (N.D.N.Y. 1986) ; In re Donohoo , 243 B.R. 139 (Bankr. M.D. Fla. 1999). FERC agrees that in Gabelli , the Supreme Court held that "the statute of limitations in Section 2462 began to run when the alleged fraud was committed, not when the Securities and Exchange Commission (SEC) discovered the fraud." Id. at 4 (citing Resp't's Mot. at 8-9). But FERC distinguishes Gabelli from Meyer because Gabelli "does not consider a statute requiring an agency to assess a penalty through an administrative process as a prerequisite to filing in district court ... and fails to address Meyer at all." Id. at 4. FERC also notes that "Judge Woodlock considered and squarely rejected their reliance on Gabelli ... [because] the fraud discovery rule does not extend to SEC actions for civil penalties." Id. (citing Silkman I , 177 F.Supp.3d at 699 (citing Gabelli , 568 U.S. 442 at 1219, 133 S.Ct. 1216, 185 L.Ed.2d 297 ) ). FERC similarly rejects the contention that Kokesh *113supports the Respondents' position, arguing that "[b]ecause there were no prior administrative proceedings at issue in Kokesh , the Court had no occasion to address the issue presented here and in Meyer regarding the applicability of the statute of limitations where an administrative proceeding is a condition precedent to filing suit in district court." Id. (citing Kokesh , 137 S.Ct. at 1635 ).

FERC disputes the Respondents' argument that "the details of a particular adversarial agency proceeding" is "the key factor under Meyer and its progeny ..." Id. at 7-8, instead contending that "it is beyond dispute under the plain language of § 2462, FPA § 31(d), and the weight of case law, that the process leading to the assessment of such an order is a 'proceeding' under Meyer. " Id. at 8. FERC cites Worldwide Industrial Enterprises, Incorporated , 220 F.Supp.3d 335, 344 (E.D.N.Y. 2016) as "rejecting [the] claim that the nature of the administrative proceeding determines if § 2462 has been met" under Meyer . Id. at 9.

FERC maintains that, under the Administrative Procedure Act - which defines " 'adjudication' as 'agency process for the formulation of an order" - the show cause proceeding "was an agency adjudication and not a mere decision to prosecute," and does not violate due process principles, as the Respondents contend. Id. at 11-12 (citing 5 U.S.C. §§ 551(12) ; 551(7) ). According to FERC, "[u]nder enduring administrative law principles, agency processes ending in an 'order' are both 'adjudications' and 'proceedings.' " Id. Moreover, FERC contends that the "Respondents do not cite any case law in support of the proposition that these arguments are relevant to the statute of limitations issue." Id. at 12 (citing Resp'ts' Mot. at 13-15).

With respect to the contention that FERC did not provide due process, FERC states that the Respondents were provided notice and an opportunity to be heard, as required by the FPA and its regulations. Id. at 12-14. FERC further avers that "due process does not require that Respondents receive a live hearing" and notes that the "Respondents would have received a live hearing before an ALJ had they allowed the show cause proceeding to proceed on the default path; they, however, affirmatively chose to waive that hearing in favor of a penalty assessment by the Commission." Id. at 14.

Finally, FERC argues that the Court should not follow FERC v. Barclays Bank PLC because:

Barclays was not governed by Meyer , is inconsistent with the weight of case law, misstates the nature of the Commission's penalty assessment proceedings, does not mention respondents' right to challenge Enforcement staff's allegations during such proceedings, misconstrues the cases on which it relies, denies the Commissioner's role as neutral decision-makers, and was based on an incomplete record."

Id. at 15-16 (citing Barclays III ).

3. Respondents' Reply

In reply, the Respondents argue that FERC's reliance on Meyer is "misplaced", reiterating its position that Meyer was founded in the fact that the defendant in that case received an adjudicatory administrative proceeding. Resp'ts' Reply at 1. The Respondents also highlight that "the Meyer court distinguished the prosecutorial determinations made by the FTC and CPSC, which were subject to the five-year limitation of 28 U.S.C. § 2462." Id. at 2. The Respondents also dispute FERC's contention that the SEC proceedings in Gabelli differ from the procedures in this case. Id.

*114B. FERC's Motion for Partial Summary Judgment

1. FERC's Motion

FERC filed a separate motion for partial summary judgment on the statute of limitations issue. Although in different form, FERC advances several of the same arguments it did in response to the Respondents' motion for summary judgment. See Pl.'s Mot at 1-3; Resp'ts' Mot. In addition, FERC asks that its summary judgment be granted on two bases. FERC first contends that because the portion of the penalty assessed against the Respondents is based on disgorgement under its remedial authority, it is not subject to the statute of limitations under § 2462. Pl.'s Mot. at 17-18, n.90. Second, it argues that if the Court accepts the Respondents' position on the statute of limitations, "then Respondents waived this defense by not raising it during the Commission's adjudication." Id. at 2-3. According to FERC, "Respondents' statute of limitations defense ... ripened ... during the Commission's show cause proceeding, but Respondents failed to raise it at that time as they were required to by (a) the Commission's regulations, (b) the Proposed Penalty Orders, and (c) case law."Id. at 19-20. FERC further contends that "statutes of limitations, when sought to be applied against the government, are to be strictly construed in favor of the government." Id. at 10 (citing Badaracco v. Comm'r of Internal Revenue , 464 U.S. 386, 391, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) ; U.S. v. Commonwealth Energy Sys. and Subsidiary Cos. , 235 F.3d 11, 13-14 (1st Cir. 2000) ).

2. Respondents' Opposition

The Respondents oppose FERC's motion. Resp'ts' Opp'n at 1. First, the Respondents disagree with the Petitioner's contention that the statute of limitations does not apply in disgorgement actions. Id. They reiterate the arguments set forth in their motion for summary judgment, as well as the supporting case law. See Resp'ts' Mot. The Respondents contend that "none of the cited regulations purported to provide Defendants with adjudicatory, show cause, administrative, contested, on-the-record, or adversarial proceedings.... Calling something an adjudicatory, show cause administrative, contested, on-the-record, or adversarial proceeding does not make it so." Id. at 13-14. Finally, the Respondents argue that the Court does not have jurisdiction to order disgorgement, because FERC cites only dicta in support of their position. Id. at 16. Additionally, according to the Respondents, "FERC does not cite any authority that this Court has subject matter jurisdiction to order disgorgement. In its petition, FERC does not cite 16 U.S.C. § 823h at all, and only claims subject matter jurisdiction under 16 U.S.C. § 823b(d)(3)(B)," which does not reference disgorgement. Id. (citing FERC Pet. ¶ 16).

3. FERC's Reply

FERC filed a reply to the Respondents' opposition, reiterating its previous argument that Meyer controls, and refuting the Respondents' claim that its administrative action violated due process. See generally Pl'.s Reply at 1-7.

IV. LEGAL STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London , 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern , 605 F.3d 1, 5 (1st Cir. 2010) ). A dispute is "genuine" if "a reasonable jury could resolve the point *115in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc. , 56 F.3d 313, 315 (1st Cir. 1995) ).

Once this evidence is supplied by the moving party, the nonmovant must "produce 'specific facts, in suitable evidentiary form, to ... establish the presence of a trialworthy issue.' " Triangle Trading Co., Inc. v. Robroy Indus., Inc. , 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of P.R. , 27 F.3d 746, 748 (1st Cir. 1994) ). In other words, the nonmoving party must "present 'enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp. , 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Bos. , 985 F.2d 1113, 1116 (1st Cir. 1993) ). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc. , 632 F.3d 31, 35 (1st Cir. 2011). However, the Court "afford[s] no evidentiary weight to 'conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.' " Tropigas , 637 F.3d at 56 (quoting Rogan v. City of Boston , 267 F.3d 24, 27 (1st Cir. 2001) ); accord Sutliffe v. Epping Sch. Dist. , 584 F.3d 314, 325 (1st Cir. 2009).

Where, as here, the parties have filed cross-motions for summary judgment, the court must evaluate each motion independently and "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Matusevich v. Middlesex Mut. Assurance Co. , 782 F.3d 56, 59 (1st Cir. 2015) (citing Barnes v. Fleet Nat'l Bank, N.A. , 370 F.3d 164, 170 (1st Cir. 2004) ). As such, for cross-motions for summary judgment, the standard of review is applied to each motion separately. Gardner , 759 F.Supp.2d at 221. The presence of cross-motions for summary judgment "neither dilutes nor distorts" the summary judgment standard. Mandel v. Bos. Phoenix, Inc. , 456 F.3d 198, 205 (1st Cir. 2006).

V. DISCUSSION

There are two threshold issues. First, FERC asserts that the Respondents waived their statute of limitations defense, contending that the Respondents should have raised this defense by February 2013, six months before the Commission issued its August 29, 2013 Assessment Orders. Pl.'s Mot. at 19-20; Pl.'s Reply at 6. Judge Woodlock squarely addressed this issue in his April 11, 2016 order on the motion to dismiss. Silkman I , 177 F.Supp.3d at 697. Judge Woodlock wrote:

FERC's theory produces an absurd result; it would require that a statute of limitations defense be raised before it had ripened. Fortunately, FERC's procedural rules avoid such an absurdity by requiring only that a Respondent set forth the defenses relied upon "to the extent practicable." 18 C.F.R. § 385.213(c)(2). Requiring a Respondent to anticipate and raise defenses that might only have merit at some future date and which are dependent upon various contingencies - some of which are controlled by the agency itself - is not "practicable." Respondents were not required to raise their statute of limitations defense during the administrative proceeding, in advance of the expiration of the statute of limitations, in order to now raise the issue.

Id. The Court agrees with Judge Woodlock and concludes that the Respondents did not waive their statute of limitations defense by failing to raise it during the FERC proceeding.

Second, in response to FERC's contention that the portion of the penalty *116assessed against the Respondents based on disgorgement falls under its remedial authority, and therefore is not subject to the statute of limitations under § 2462, Pl.'s Mot. at 17-18, n.90, the Respondents contend that "FERC does not cite any authority that this Court has subject matter jurisdiction to order disgorgement." Resp'ts' Mot. at 16. The Supreme Court in Kokesh held that "SEC disgorgement constitutes a penalty within the meaning of § 2462," based on the fact that "SEC disgorgement is imposed by the courts as a consequence for violating public laws" and "for punitive purposes" and is "often not compensatory." 137 S.Ct. 1635, 1643 (2017). The Court concludes that the Kokesh holding with regard to SEC penalties applies with equal force to FERC penalties. As such, the entire penalties assessed by FERC, including disgorgement, are subject to the statute of limitations under § 2462.

The myriad factual and legal disputes among the parties boil down to one issue: whether the five-year statute of limitations for the enforcement of civil penalties, 28 U.S.C. § 2462, as applied to the civil penalties FERC assessed against the Respondents, accrued at the time the Respondents committed the alleged violation or at the time FERC assessed the penalty. This issue hinges upon whether the First Circuit's decision in Meyer is superseded or, in the alternative, distinguishable, as the Respondents contend.

A. Preliminary Discussion

1. Statutory Language of 16 U.S.C. § 823b(d)

FERC is authorized to assess civil penalties for violations of the FPA "after notice and an opportunity for public hearing." 16 U.S.C. § 823b(c). Before FERC may issue "an order assessing a civil penalty against any person," the FPA requires the Commission to "inform such person of his opportunity to elect" one of two procedural paths. Id. § 823b(d)(1). The default option (Option 1) is set forth in § 823b(d)(2). Under Option 1, an adjudication is required before FERC assesses a penalty:

[The Commission] shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing ... before an administrative law judge.... Such assessment order shall include the administrative law judge's findings and the basis for such assessment. Any person against whom a penalty is assessed under this paragraph may ... institute an action in the United States court of appeals for the appropriate judicial circuit for judicial review of such order.... The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in [p]art, the order of [the Commission], or the court may remand the proceeding to [the Commission] for such further action as the court may direct.

Id. § 823b(d)(2)(A)-(B).

Here, the Respondents chose to proceed under § 823b(d)(3) (Option 2). Under Option 2:

[The Commission] shall promptly assess such penalty, by order[.] ... If the civil penalty has not been paid within 60 calendar days ... [the Commission] 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 [p]art such assessment.

*117Id. § 823b(d)(3)(A)-(B). As noted by the Court in its Order Regarding Procedures Applicable to Petition for Order Affirming Assessment of Civil Penalties (ECF No. 95), § 823b(d)(3)"does not dictate the procedures the Commission should use to assess the civil penalties." FERC v. Silkman , 233 F.Supp.3d 201, 219 (D. Me. 2017). "The only statutory directive is promptness." Id. "There is nothing in the language of the statute that requires the Commission to provide the targeted parties any procedural protections, such as access to discovery, a hearing, or the ability to confront evidence." Id.

2. The Statutory Period under 28 U.S.C. § 2462

The parties agree that as FERC has not prescribed a time limit within which an administrative claim to impose a civil penalty or an action to enforce such a penalty; therefore, the general statute of limitations under § 2462 applies. Section 2462 states 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." The correct interpretation of the phrase "when the claim first accrued" is disputed by the parties. The Court turns to relevant caselaw.

3. United States v. Meyer

In Meyer , the First Circuit addressed when the statute of limitations under § 2462 accrues. Meyer arose under circumstances similar to the instant case: the United States Department of Commerce charged Robert Meyer with "furnishing boycott information to Saudi Arabia on three separate occasions ... and failing to report receipt of a request for boycott-related information to the United States Department of Commerce ...." in violation of regulations under the Export Administration Act (EAA). 808 F.2d at 913. On July 21, 1981, the Department of Commerce "initiated administrative enforcement proceedings against Meyer by issuing a 'charging letter' pursuant to 15 C.F.R. § 388.4(a)." Id. On July 22, the administrative law judge assigned to the matter issued an initial decision, finding that Mr. Meyer violated the regulations and imposing a civil penalty of $ 5,000. Id. When Mr. Meyer refused to pay the sanctions, "on December 31, 1985-more than five years after the infractions themselves occurred, but within five years of the assessment of the penalty-the Department brought an enforcement suit in the United States District Court for the District of Massachusetts. Id. The district court relied on the Fifth Circuit's opinion in United States v. Core Laboratories, Inc. , 759 F.2d 480 (5th Cir. 1985), in dismissing the action as time-barred under 28 U.S.C. § 2462. Id. The First Circuit reversed, holding that " § 2462 affords an additional five-year period following final administrative assessment of a civil penalty during which the government may sue to enforce the action." Id. at 914.

In reaching its decision, the First Circuit first analyzed the plain language of the statute. It stated that "the standard definition of the concept of accrual is to the effect that '[a] cause of action "accrues" when a suit may be maintained thereon.' " Id. According the Meyer Court, the language of the statute requires that the government "refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the respondent has thereafter refused to satisfy." Id. In other words, the claim for the enforcement of a civil penalty cannot accrue until the civil penalty has assessed. Id. ("In the case at bar, it is abundantly clear that no suit to recover a civil penalty *118can be mounted under the EAA unless and until the penalty has first been assessed administratively"). The First Circuit disagreed with the Fifth Circuit's approach, which relied heavily on interpretation of the Legislature's intent behind the statute. Id. at 915 ("Where, as here, the language of a statute seems clear and unambiguous, courts should be extremely hesitant to search for ways to interpose their own notions of Congress's intent") (citing Yates v. United States , 354 U.S. 298, 305, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), Browder v. United States , 312 U.S. 335, 338, 61 S.Ct. 599, 85 L.Ed. 862 (1941) ).

The Meyer Court also reviewed caselaw "which produces abundant support for such a commonsense construction of 28 U.S.C. § 2462," noting:

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.

Id. at 916. The First Circuit quoted Lins v. United States , 688 F.2d 784, 786 (Ct. Cl. 1982) as stating that "if disputes are subject to mandatory administrative proceedings [before judicial action may be taken], then the claim does not accrue until their conclusion." Id. The First Circuit also examined Crown Coat Front Company v. United States , 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967), in which the Supreme Court held that the right to resort to the courts in a similar statutory scheme occurred "only upon the making of that administrative determination." Id. at 916-17 (discussing Crown Coat Front , 386 U.S. at 511-12, 87 S.Ct. 1177 ). Under this rationale, the First Circuit observed that the Supreme Court held that the plaintiff's action in the courts was not time-barred under the relevant statute of limitations despite that the action was brought "more than six years after the occurrence of the events underlying his contract claim, but less than six years from the issuance of a final administrative decision on that claim." Id. at 917.

The Meyer Court also considered the "golden rule of statutory interpretation that 'legislation should be interpreted to avoid ... unreasonable results whenever possible' " to support its holding. Id. at 919 (citing Am. Tobacco Co. v. Patterson , 456 U.S. 63, 71, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) ). "The concern that 28 U.S.C § 2462 could pluck an enforcement suit from the vine before it had even ripened enough to be brought is by no means theoretical." Id. The First Circuit observed that following the Department's issuance of a charging letter, "the timing of the case is largely beyond the Department's control" due to the requirements of the Administrative Procedure Act and its regulations "designed to ensure procedural fairness," as well as the respondents' right to appeal. Id.

The First Circuit distinguished other cases relied on by the Fifth Circuit in light of fundamental procedural differences. Most of the cases the Fifth Circuit cited did not involve "the necessity for allowing an administrative proceeding to run its course as a precondition to the commencement of the suit." Id. at 920. Another group of cases the Fifth Circuit cited in Core "involved situations where prosecutorial determinations, rather than adjudicatory administrative proceedings, constituted the precondition to the suit." Id. (citing United States v. Athlone Induss., Inc. , 746 F.2d 977 (3d Cir. 1984) ; United States v. Advance Mach. Co. , 547 F.Supp. 1085 (D. Minn. 1982) ;

*119F.T.C. v. Lukens Steel Co. , 454 F.Supp. 1182 (D. D. C. 1978) ). The Meyer Court distinguished these cases that concerned decisions to bring suit, reasoning that because they fall entirely within the control of the government, if the statute of limitations were to run, the government agency "would only have its own indecision to blame." Id.

4. Gabelli v. SEC and Kokesh v. SEC

The Respondents contend that the United States Supreme Court's decisions in Gabelli and Kokesh overruled Meyer. In Respondents' view, under the Gabelli interpretation of § 2462, the claims accrued at the time of the violation. Resp't's Mot. at 8. The statute of limitations governing the action in Gabelli , as in this case, is the general statute of limitations that governs many penalty provisions throughout the U.S. Code, 28 U.S.C. § 2462. 568 U.S. at 444, 133 S.Ct. 1216. The SEC sought civil penalties against the petitioners in an action in district court, and the petitioners moved to dismiss, arguing that the action was time-barred under § 2462. Id. at 446, 133 S.Ct. 1216. The district court dismissed the claim. Id. at 446-47, 133 S.Ct. 1216. The Second Circuit reversed under the SEC's argument that "because the underlying violations sounded in fraud, the 'discovery rule' applied, meaning that the statute of limitations did not begin to run until the SEC discovered or reasonably could have discovered the fraud." Id. at 447, 133 S.Ct. 1216. The Supreme Court granted certiorari and reversed the Second Circuit, holding that "the fraud discovery rule has not been extended to Government enforcement actions for civil penalties." Id. In Kokesh , the Supreme Court cited Gabelli as support for the proposition that "the 5-year statute of limitations set forth in 28 U.S.C. § 2462 applies when the [S.E.C.] seeks monetary penalties." 137 S.Ct. at 1640. The Kokesh Court held that § 2462 applies to claims for disgorgement in an SEC enforcement action, and "any claim for disgorgement ... must be commenced within five years of the date the claim accrued." Id. at 1645.

B. Analysis

The Respondents first contend that Meyer is no longer good law following the Supreme Court's decisions in Gabelli and Kokesh. The Court disagrees.

"As a general proposition, an argument that the Supreme Court has implicitly overruled one of its earlier decisions is suspect." United States v. Symonevich , 688 F.3d 12, 20 (1st Cir. 2012) (citing Agostini v. Felton , 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent....") ). Furthermore, "[u]ntil a court of appeals revokes a binding precedent, a district court within the circuit is hard put to ignore that precedent unless it has unmistakably been cast into disrepute by supervening authority." Eulitt ex rel. Eulitt v. Maine, Dep't of Educ. , 386 F.3d 344, 349 (1st Cir. 2004) (citing Sarzen v. Gaughan , 489 F.2d 1076, 1082 (1st Cir. 1973) ("When a ... federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered") ).

The issue in Meyer - whether the claim accrues at the time of the violation, or at the time a claim is brought to enforce a penalty order - was not at issue in Gabelli or Kokesh. As stated by Judge Woodlock in his order on the Respondents' motion to dismiss, " Gabelli did not concern a case in which administrative proceedings preceded an action in federal court; there, the SEC sued directly in court." Silkman I , 177 F.Supp.3d at 699. The issue in Gabelli -whether the discovery rule in fraud actions *120extends to government enforcement proceedings-is also unrelated to the issue decided in Meyer. Furthermore, " Meyer sits on one side of a circuit split, yet the Gabelli court did not purport to address or resolve that split. Nothing in Gabelli suggests that it is inconsistent or incompatible with Meyer. " Id. at 700 n.9 (internal citation omitted).

For a district court faced with prior circuit authority to change course, the law requires that circuit court precedent be "formally altered", Eulitt , 386 F.3d at 349, or "unmistakably ... cast into disrepute by supervening authority." Sarzen , 489 F.2d at 1082. As the Supreme Court's decisions in Gabelli and Kokesh address different issues regarding the application of § 2462 and the First Circuit has not formally altered Meyer , the Court disagrees with the Respondents' contention that either Gabelli and Kokesh superseded Meyer. Libertarian Party of N.H. v. Gardner , 843 F.3d 20, 32-33 (1st Cir. 2016) ("When a ... federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered") (quoting Sarzen , 489 F.2d at 1082 ).

The second argument the Respondents have championed is that even if Meyer is still good law, it is distinguishable because the process FERC afforded amounted to a decision to prosecute, in contrast to the adjudicatory administrative proceeding the FEC afforded the defendants in Meyer , and therefore the FERC process fell outside the scope of Meyer 's holding regarding § 2462. Meyer states that "where prosecutorial determinations, rather than adjudicatory administrative proceedings, constituted the precondition to suit ... the limitations period ... runs from the time of the underlying violation rather than from the government's decision to prosecute the charge." 808 F.2d at 920. The First Circuit notes that for the EAA administrative proceedings at issue in Meyer , a prosecutorial determination would be more akin to "the Department's initial issuance of a charging letter" than to "the imposition of a statutory penalty by an ALJ after notice, discovery, and hearing." Id.

In support of their contention that FERC provided only a prosecutorial determination, the Respondents rely on Barclays III from the District Court for the Eastern District of California, which commented in an order for judgment on the pleadings that the same FERC process constituted a prosecutorial determination rather than an adjudicatory administrative proceeding. Barclays III , 2017 WL 4340258, at *15. On this basis, the Barclays III Court concluded that FERC's action to enforce six years after the violation occurred was time-barred. Id. at *13. The Barclays III Court, in determining whether § 2462 applied to an administrative proceeding, looked to caselaw to assess whether FERC held a proceeding, within the meaning of § 2462. Id. at *10-12. Relying on 3M Co. (Minnesota Min. & Mfg.) v. Browner , 17 F.3d 1453 (D.C. Cir. 1994) and Marshall v. Jerrico, Inc. , 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980), the district court considered factors such as whether a neutral adjudicator was provided and whether the proceeding was adversarial in nature in its determination that FERC's Administrative Penalty Assessment Process did not constitute a proceeding, but rather a decision to prosecute. Barclays III , 2017 WL 4340258, at *11-14.

As a district court within the Ninth Circuit, the Barclays III Court was not bound, as this Court is, by First Circuit precedent. Nor did the Barclays III Court rely upon caselaw binding in this circuit in *121making its determination.131 By contrast, this Court must rely on the First Circuit's teaching in Meyer to decide this issue. Although Meyer concerned the enforcement of the Department of Commerce's administrative action aimed at imposing a civil penalty under the EAA, as opposed to FERC's enforcement action for an administrative penalty at issue here, its analysis of the applicability of § 2462 governs.

The Meyer Court's holding that " § 2462 affords an additional five year period following final administrative assessment of a civil penalty during which the government may sue to enforce the action", 808 F.2d at 914, is based on four key factors: (1) the clear and unambiguous language of the statute, (2) the balance of the caselaw, (3) the goal of avoiding a "self-abnegating result," and (4), the primary legislative purpose of enacting statutes of limitations: to ensure fairness to defendants. See generally Meyer , 808 F.2d at 912. The First Circuit's comparison of the "mandatory administrative adjudication" at issue in Meyer with the "prosecutorial decisionmaking" in Athlone Industries , 746 F.2d 977, Advance Machine , 547 F.Supp. 1085, United States v. Ancorp Nat'l Services, Inc. , 516 F.2d 198 (2d Cir. 1975), and Lukens Steel , 454 F.Supp. 1182, was not meant to carve out an exclusion to its holding, but to distinguish Meyer from several of the cases the Fifth Circuit had relied upon in Core , based on the differences in the types of proceeding they govern. Meyer , 808 F.2d at 920. As noted in Worldwide , "[b]ecause such administrative decisions 'are not in any sense adjudicative ... [but] comprise nothing more or less than decisions to bring suit,' they differ[ ] markedly from the EAA's process for imposing a sanction and thus [are] of little value on the statute of limitations question." 220 F.Supp.3d at 342 (quoting Meyer , 808 F.2d at 920 ). Under this interpretation of Meyer , the Court finds unpersuasive the Respondents' effort to distinguish Meyer from this case based on the alleged procedural inadequacies they suffered.

However, even taking as true the Respondents' view that the dispositive issue in Meyer was the nature of the proceeding afforded to the defendants and viewing the facts in the light most favorable to the Respondents, the Court finds FERC's proceeding closer to the adjudication in Meyer than to a prosecutorial determination or charging letter.132 The *122Respondents stress that the procedural safeguards the FERC proceeding offered them did not include full discovery or a live hearing before an administrative law judge.133 But this does not transform the FERC proceeding into a discretionary decision to prosecute. In Silkman I , Judge Woodlock addressed this same issue and observed that "[e]ven if the FERC proceeding contained "less formal and ... fewer of the procedural protections than some adjudications under the APA - or even the adjudication in Meyer - ... it was significantly more than a prosecutorial determination." Silkman I , 177 F.Supp.3d at 700. Judge Woodlock concluded the following in an earlier order in this case, and the Respondents presented no facts to the contrary on summary judgment:

The Commission made extensive findings of facts and applied the law to those facts. It did not merely suggest penalties to be sought later; it ordered Respondents to pay those penalties to the United States Treasury ... FERC did more than decide to bring suit. It conducted an adjudication.

Id. In sum, the Court concludes that pursuant to the First Circuit's holding in Meyer , the claim in this case accrued when FERC brought an action in court to enforce the penalties it assessed against the Respondents; therefore, FERC's enforcement action is not time-barred.

VI. CONCLUSION

The Court DENIES Respondents' Motion for Summary Judgment (ECF No. 133) and GRANTS the Defendants' Partial Motion for Summary Judgment (ECF No. 134).

SO ORDERED.