ACSBlog: The Blog of the American Constitution Society

The U.S. Supreme Court will hear argument in three cases this week starting on Tuesday. The two employment retaliation cases were previewed at an ACS briefing. More information on the Term, including briefings, analysis, and videos, may be found here.

Tuesday, February 19

• Gomez-Perez v. Potter (06-1321) (federal employee protection against retaliation for complaint about age bias in the workplace)
• Morgan-Stanley Capital Group v. Public Utility District 1 (06-1457) and American Electric Power Service Corporation  v. Public Utility District 1 (consolidated) (06-1462) (federal regulators’ power to undo wholesale electric power sales contracts)

Wednesday, February 20

• CBOCS West v. Humphries (06-1431) (whether Section 1981 of the Civil Right Act covers claims of racially-motivated retaliation in the workplace )

Questions presented are below the fold.

Gomez-Perez v. Potter

Whether the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, prohibits retaliation against employees who complain of age discrimination.

Morgan Stanley Capital Group v. Public Utility District No. 1 (consolidated)

Morgan Stanley -- Whether the Ninth Circuit erred by failing to abide by this Court’s decisions in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956), which preclude the Federal Energy Regulatory Commission from retroactively undoing valid, bilaterally negotiated, arms-length wholesale energy contracts that have, at most, minimal impact on retail rates.

American Electric -- The Federal Power Act (“FPA”), 16 U.S.C. §§ 791a et seq., sets forth the standards by which the Federal Energy Regulatory Commission (“FERC”) regulates wholesale energy rates. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956), and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956), this Court determined that, under the FPA, FERC may undo a valid wholesale energy contract only in the extraordinary circumstance when the contract is contrary to the public interest. In conflict with Mobile and Sierra, and with decisions of the D.C. and First Circuits, the Ninth Circuit in the decision below held that FERC may nullify voluntary wholesale energy contracts—absent the requisite showing of public necessity—if FERC determines in hindsight that the negotiated rate is unreasonable or that, absent the challenged contracts, retail rates for energy would be slightly lower.

Thus, this petition presents the following questions:

1. Whether the Ninth Circuit misapplied this Court’s holdings in Mobile and Sierra and created conflicts with the D.C. and First Circuits when it reversed FERC’s decision to uphold valid wholesale energy contracts absent any showing that the public interest required their abrogation.

2. Whether the Ninth Circuit misapplied the Mobile-Sierra doctrine by determining that the Mobile-Sierra public interest criteria apply only to sellers, but not to buyers, under wholesale power contracts, in direct conflict with Mobile, Sierra, and the decisions of other circuits.

CBOCS West v. Humphries

Is a race retaliation claim cognizable under 42 U.S.C. § 1981?