The transcripts of oral argument in NRG Power Marketing v. Maine Public Utilities is here.
The transcript of oral argument in Schwab v. Reilly is here.
The transcript of oral argument in Hemi Group, LLC v. City of New York is here.
The Court will hear oral arguments in three cases:
10 a.m. – The standard of review for wholesale electric rates is at issue in NRG Power Marketing v. Maine Public Utilities (08-674). Yesterday Akin Gump’s Scott Johnson discussed the case and the Mobile-Sierra doctrine involved.
11 a.m. – In Schwab v. Reilly (08-538), the Court will consider what valuation of property a bankrupt debtor may retain. The argument is previewed here by Stanford law school student Anthony Dick.
1 p.m. – In Hemi Group, LLC v. City of New York (08-969), the issue is whether a city government can use a civil RICO lawsuit to collect cigarette taxes. Brian Goldman, a law student at Stanford, previews the argument here.
No non-capital orders are expected from the Court today.
Below, Akin Gump’s Scott Johnson previews NRG Power Marketing, LLC v. Maine Public Utilities Commission, one of the three cases to be heard by the Supreme Court on Tuesday, November 3. Check the NRG Power Marketing, LLC v. Maine Public Utilities Commission (08-674) SCOTUSwiki page for additional updates.
Background
The Federal Power Act (“FPA”) requires rates for the wholesale sale of electricity to be “just and reasonable.” In United Gas Pipe Line Co. v. Mobile Gas Service Corp. (1956) and FPC v. Sierra Pacific Power Co. (1956), as interpreted in Morgan Stanley Capital Group v. Public Utility District No. 1 of Snohomish County (2008), the Supreme Court held that the Federal Energy Regulatory Commission (“FERC”) must presume that rates established by contract (as opposed to those established by a unilateral rate filing) are just and reasonable. There are two limited exceptions to this general presumption: if FERC concludes that the contract “seriously harms the public interest” or if the parties to the contract agree that the Mobile-Sierra public interest standard will not apply, then FERC may abrogate or modify contract rates. Tomorrow in No. 08-674, NRG Power Marketing, LLC v. Maine Public Utilities Commission, the Court will address whether the Mobile-Sierra public interest standard applies when a contract rate is challenged by an entity that was not a party to the contract.
Eight cases are scheduled for oral argument this week (links direct to our sister site, SCOTUSwiki.com):
Mon., Nov. 2:
Jones v. Harris Associates (08-586) – standard of legality of investment advisors’ fees
Shady Grove Orthopedic Associates v. Allstate Insurance Co. (08-1008) – state courts’ power to limit class action lawsuits in federal courts
Beard v. Kindler (08-992) – enforcement of state procedural rule in federal habeas
Tues., Nov. 3:
NRG Power Marketing v. Maine Public Utilities (08-674) – standard of legality of wholesale electric rates
Schwab v. Reilly (08-538) – valuation of property a bankrupt debtor may retain
Hemi Group v. City of New York (08-969) – city government right to use civil RICO lawsuit to collect cigarette taxes
Wed., Nov. 4:
Pottawattamie County v. McGhee (08-1065) – liability of prosecutors for arranging false testimony
Wood v. Allen (08-9156) – scope of federal court review of facts in state criminal proceeding
On Friday the Justices will hold their private conference, orders from which are expected to be released on Monday, November 9.
The Supreme Court on Monday released the schedule of oral arguments for the session that begins on Monday, Nov. 2. The Court will hear three cases a day on three of the five days in the session. The first case each day will be heard starting at 10 a.m. When a third case is scheduled, it will be at 1 p.m. All cases are set for one hour of argument — 30 minutes a side. There will be no arguments on Wed., Nov. 11, a legal holiday. The November calendar can be downloaded here.
Here is the daily schedule, with a summary of the issues involved:
Mon., Nov. 2:
Jones v. Harris Associates (08-586) — standard of legality of investment advisors’ fees
Shady Grove Orthopedic v. Allstate Insurance (08-1008) — state courts’ power to limit class action lawsuits in federal courts
Beard v. Kindler(08-992) — enforcement of state procedural rule in federal habeas
Tues., Nov. 3:
NRG Power Marketing v. Maine Public Utilities (08-674) –standard of legality of wholesale electric rates
Schwab v. Reilly (08-538) — valuation of property a bankrupt debtor may retain
Hemi Group v. City of New York (08-969) — city government right to use civil RICO lawsuit to collect cigarette taxes
Wed., Nov. 4:
Pottawattamie County v. McGhee (08-1065) — liability of prosecutors for arranging false testimony
Wood v. Allen (08-9156) — scope of federal court review of facts in state criminal proceeding
Mon., Nov. 9:
Graham v. Florida(08-7412) — constitutionality of life prision sentence for juvenile convicted of a non-homicide crime
Sullivan v. Florida (08-7621) — same basic issue as in Graham v. Florida; the Court, however, has not consolidated the cases for hearing or decision
Bilski v. Doll (08-964) — definition of modern inventions eligible for patents
Tues., Nov. 10:
Kucana v. Holder (08-911) — judicial review of reopening of deportation or asylum case
Hertz Corp. v. Friend (08-1107) — standard for determining company’s place of business for diversity jurisdiction
Wed., Nov. 11 — legal holiday; no arguments
The Court has recessed for the summer. It will return on Sept. 9 for a hearing on Citizens United v. FEC (08-205), in advance of the new Term. The 2009 Term opens on Monday, Oct. 5. The Court’s color-coded calendar with dates of its sittings and its Conferences can be downloaded here.
On Monday, the Legal Times will host a Term review panel, “Sizing Up the 2008-2009 Supreme Court Term: A Practitioner’s View.” More information is available here. On Wednesday, Lyle Denniston will lead a panel discussion at the National Constitution Center in Philadelphia. More information is available here.
The petitioner’s merits brief is due Tuesday in NRG Power Marketing, LLC, et al. v. Maine Public Utilities Commission, et al. (08-674) and due Friday in Schwab v. Reilly (08-538). The respondent’s merits brief is due Monday in Mohawk Industries, Inc. v. Carpenter (08-678). [Links direct to case pages on SCOTUSwiki.]
The Supreme Court on Monday added three new cases for decision at its next Term, but refused to order a new argument this Term or next in a significant right-to-counsel case, Montejo v. Louisiana (07-1529) that tests whether the Justices will overrule Michigan v. Jackson.
The new cases are Schwab v. Reilly (08-538), seeking clarification of the valuation of assets in bankruptcy (limited to first two of three questions); NRG Power Marketing v. Maine Public Utilities Commission (08-674), on the standard federal courts are to use in judging the legality of rates for wholesale purchase of electric power for re-sale to using customers; and Kucana v. Holder (08-911), on the scope of Congress’ withdrawal of court review of deportation decisions.
The Montejo case, heard by the Court on Jan. 13 and now awaiting a decision, tests whether a suspect who has a court-appointed lawyer must take specific action to prevent police from further questioning without the attorney present. After the hearing, however, the Court on March 27 told counsel to file new briefs on the question of whether to overrule Michigan v. Jackson, a 1986 decision that was intended to assure that the right to counsel was not lost during police interrogation.
Those briefs have now been filed. Lawyers for Jesse Jay Montejo on April 15 asked the Court to order new argument, saying the extra discussion was needed to explore Jackson more fully. They asked for the new hearing either in April, or during the new Term. The Court turned down that request in a brief order without explanation, and thus will now proceed to decide the case.
The Court asked the U.S. Solicitor General to file the federal government’s views on a bar to filing an unpaid civil case after three previous filings have failed =- a case of interest to individuals too poor to pay filing fees. At issue is how to apply the so-called “three strikes rule” that Congress included in the Prison Litigation Reform Act of 1995, to try to discourage prison inmate court challenges that lack merit.
The case is Patton v. Harris (08-7683) and the petition is available here. This is the question presented:
“28 U.S.C. Section 1915(b)(1) provides that ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.’ The circuits are divided on the question of whether, when a prisoner files a notice of appeal and application to proceed in forma pauperis, and his (or her) application is denied, should the prisoner be treated as having ‘file[d] an appeal in forma pauperis’ so that the fee requirement attaches?”
The Court has granted certiorari in three cases: Schwab v. Reilly (08-538) [limited to questions one and two], NRG Power Marketing, LLC, et al. v. Maine Public Utilities Commission, et al (08-674), and Kucana v. Holder (08-911). The Court has invited the views of the Solicitor General in Patton v. Harris, et al. (08-7683).
The orders list is available here. Filings for these cases are below the jump.
The Supreme Court agreed on Monday to consider a plea that it create a new exception to the First Amendment’s free speech clause, to allow the government to make it a crime to sell videotapes or other depictions of animal cruelty. The Court will do so in U.S. v. Stevens (08-769) – a case involving videotapes of dog fighting. That was one of three cases newly granted review.
The Court also accepted for decision at its next Term starting Oct. 5 a significant new test case on prosecutors’ immunity to damage lawsuits for the way they conduct criminal investigations and then prosecute the cases in court. In addition, the Court agreed to sort out the kind of pre-trial delays that are not to be counted in deciding whether the right to a speedy trial has been violated.
The prosecutors’ immunity plea came in Pottawattamie County, et al., v. Harrington, et al. (08-1065). The Court will hear two questions: whether prosecutors are immune if they gather false testimony during an investigation of a crime, and whether they are also immune if they actually present that testimony as evidence at the trial.
The speedy trial case, Bloate v. U.S. (08-728), tests whether the time given to a defense lawyer to prepare pre-trial motions is a type of delay that is excluded from the time within which a trial must begin under the federal Speedy Trial Act of 1974.
The Court took no action on a new attempt to challenge the constitutionality of the sweeping powers Congress gave to the federal government in 2005 to set aside federal, state and local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S.-Mexico border. The Court turned down the first test, last June. The new case is El Paso County, et al., v. Napolitano (08-751). The dispute could present the Court with an opportunity to make use of the rare power to strike down a federal law on the theory that Congress had given away too much of its legislative power to the Executive Branch. That power has not been used for 74 years.
The Court also did not act on a new test case on the standard that federal courts are to use in judging the legality of rates charged for the wholesale purchase of electric power, for re-sale to using customers. The case is NRG Power Marketing, et al., v. Maine Public Utilities Commission, et al. (08-674).
Among the significant cases the Justices declined to hear was a new challenge to the constitutionality of a jury verdict in a death penalty case, when the jury consulted a Bible during deliberations to help decide on a sentence. One Texas case on that issue was denied review in October; a new case from that state, Oliver v. Quarterman (08-833), was denied Monday.
This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on April 17. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.
Docket: 08-674
Title: NRG Power Marketing, LLC, et al. v. Maine Public Utilities Commission, et al.
Issue: Whether the principles of the Mobile-Sierra doctrine apply to the Federal Energy Regulatory Commission’s review of wholesale electricity rates set by contract when those rates are challenged by a non-contracting party.
Docket: 08-751
Title: El Paso, Texas, et al., v. Janet Napolitano, Secretary of Homeland Security, et al.
Issue: Whether the grant of authority to the Secretary of Homeland Security to “waive all legal requirements” necessary to ensure rapid construction of a border fence is an unconstitutional. delegation of legislative power or sufficient to preempt state and local law
Docket: 08-757
Title: Parr v. United States
Issue: What is the standard of proof, under the “true threat” doctrine of Virginia v. Black, for a conviction for threatening to use a weapon of mass destruction against a federal government building, and what testimonial evidence is admissible to establish an intent to threaten?
Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?
Docket: 08-833
Title: Oliver v. Quarterman
Issue: Does juror consultation of the Bible during sentencing deliberations deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?
Docket: 08-1021
Title: Gilead Sciences, Inc., et al., v. Trent St. Clare, et al.
Issue: Whether a plaintiff in a “fraud on the market” case under Section 10(b) of the Securities Exchange Act must plead facts with sufficient particularity to support a reasonable, non-speculative belief that the plaintiff ultimately can prove loss causation.
Docket: 08-1042
Title: Ernst & Young, et al. v. Bankruptcy Services, Inc.
Issue: Whether when overlapping jury-triable and bench-triable claims are asserted in a bankruptcy proceeding, the jury-triable claims must be tried first, and if by filing a proof of claim in a bankruptcy proceeding, a creditor forfeits its rights to a jury-trial on the estate’s non-bankruptcy counterclaims
Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
Docket: 08-849
Title: Kight v. Turner
Issue: When a federal district court dismisses state law claims under 28 U.S.C. § 1367(c) and the state limitations period has expired, is the time period for refiling such claims in state court limited to 30 days?
[Akin Gump represents the respondent]
Docket: 08-1065
Title: Pottawattamie County et al. v. McGhee et al.
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.
[Akin Gump represents the amici parties]
Tom
Amy
Pattie
Kevin
Lyle
Erin
Anna
Adam
Adam
Jay
David