Petition Stage: The linked regulatory cases that are the subject of this four-part look at the Supreme Court’s docket began in the typical way for any request for certiorari review, with final decisions at the top of a chain of lower courts.
On May 23, 2014, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in a cluster of five consolidated cases brought by energy industry groups (with Electric Power Supply Association’s (“EPSA”) case listed first). The appeals court denied rehearing on September 17, 2014, starting the 90-day clock ticking for petitioning the U.S. Supreme Court for a writ of certiorari.
A few days before the deadline, the Federal Energy Regulatory Commission (“FERC”) applied for an extension, and was given an extra month to file. A collection of private petitioners (led by EnerNOC, Inc.) received the same extension under their own application. The agency and the private parties separately filed certiorari petitions on January 15, 2015.
The clerk docketed the two petitions the next day. This started a 30-day clock from the date of docketing (not the actual filing) for the respondents (the various industry groups) to file briefs in opposition. The court extended that time in both cases for about a month “for all respondents.”
Here is where it starts to get complicated in different ways.
One source of complication is the Court’s rule tagging as a “respondent” every party below who did not join in the certiorari petition, no matter which side of the “v.” the party’s name appeared on in the lower court. So the next batch of briefs filed came from “respondents” who supported the petitions but who had not joined as “petitioners.” On the respondents’ original due date (30 days after docketing), two “respondents” filed briefs in support of FERC in one case and in support of EnerNOC in the other. The docket shows these briefs as “vided,” meaning the two cases were being treated as one and a brief filed in one would apply to the other as well.
Then on the extended due date for respondents’ briefs, respondent EPSA and its aligned respondents filed a brief in opposition to the petitions in both cases, with this one brief applying to both.
The brief in opposition set the timing for the clerk to distribute petition-stage briefs to go to a scheduled conference of justices no earlier than 14 days after that brief’s filing. To make that distribution, petitioner FERC and the EnerNOC petitioners filed reply briefs on the day before and the day of the distribution.
The second complication is that this petition-stage distribution to the justices for considering whether to grant certiorari also included four different “amicus curiae” briefs, in which self-styled friends of the court, having no direct stake in the litigation and no financial or other assistance from the parties, submit argument and authorities and sometimes documents to the Court to help with the decision about taking up the case.
The EPSA respondents had anticipated these amicus briefs more than a month before filing their own brief opposing the petition when they filed with the clerk a letter giving their “blanket consent” to anyone who wanted to file an amicus brief in support of either party or of neither party. Amici are required to give 10 days’ notice to all parties and to obtain consent of all to file their amicus brief. The effect of the EPSA blanket consent was to allow anyone planning an amicus brief to skip asking those particular respondents for consent, but the amici still had to give notice to all parties of their intent to file amicus briefs and either obtain consent from all the other parties or else file a motion with the court for leave to file an amicus brief. That motion appears as the first part of the brief the amicus offers to the Court.
The original due date for the respondents to file briefs in opposition was also the due date for any amicus briefs supporting the petitioners, and the amici’s deadline was not extended by the court’s extension of time for the respondents to file briefs in opposition.
So on the amicus deadline, February 17, 2015, one amicus brief was filed with a motion for leave to file and two others were filed without motions (indicating the former had failed to obtain specific consent from the other parties while the latter two had sent consent letters or emails along with their briefs).
The docket shows another amicus filed the next day, after the indicated deadline, but does not explain how the court treated that filing.
The docket does not show whether an amicus brief supports granting the petition or opposes it, but the timing of the amicus briefs indicate they all favored the petitions.
Amici supporting respondents at the petition stage can take advantage of the respondents’ extension, but no other amicus briefs were filed in the petition stage.
So the justices went into their May 1, 2015 conference with several briefs urging the Court to take up the cases and one (by respondent EPSA) opposing that step.
On May 4, the court announced that the motion to file the amicus brief lacking the necessary consents was granted, and also ordered that the petitions in both cases were granted. The Court listed two specific questions to be addressed. It also revealed that one of the Justices took no part in the consideration or decision of the petition, which was the first point at which the parties and amici knew exactly the set of Justices they had to persuade.
Next: The friends come flocking in the merits stage.