Whether a federal agency's deadlocked vote constitutes final agency action subject to judicial review and, if so, how courts should evaluate and resolve such split decisions under administrative law

No question identified. : To THE HONORABLE SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE THIRD CIRCUIT: Pursuant to Supreme Court Rules 13.5, 22, and 30, the Public Utilities Commission of Ohio respectfully requests a 29-day extension of time, to and including March 29, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. The opinion of the court of appeals (App. 1a-50a) is reported at 88 F.4th 250, and is styled PJM Power Providers Group v. Federal Energy Regulatory Commission. The court of appeals entered its judgment on Dec. 1, 2023. Unless extended, the time for filing a petition for a writ of certiorari will expire on February 29, 2024. The jurisdiction of this Court would be invoked under 28 U.S.C. 1254(1). The Federal Energy Regulatory Commission does not oppose this request. 1. The requested extension relates to a question about review of deadlocked agency action. When an agency deadlocks over a decision, basic agency law suggests a few things. First, the deadlock is not agency action at all, given the background rule that agencies only act through majority vote. F.T.C. v. Flotill Prod., Inc., 389 U.S. 179, 183 (1967); see 42 U.S.C. §7171(e) (majority vote provision for FERC). That in turn means the courts would have no role to review the result of the agency deadlock. See, e.g., Sprint Nextel Corp. v. F.C.C., 508 F.3d 1129, 1132 (D.C. Cir. 2007); cf. 5 U.S.C. §702. Second, a deadlocked vote produces no agency rationale. And the bedrock rule that courts cannot uphold agency action on any ground other than that of the agency itself, Calcutt v. Fed. Deposit Ins. Corp., 598 U.S. 623, 629 (2023); Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88 (1943), would mean automatic reversal of the deadlocked decision. But what if Congress tells courts that a deadlock is agency action that is reviewable in court? Should a court faced with that command pick one side of the deadlock and credit the views of those agency members? Or should it equally weigh the views that gained an equal share of the vote? The Petition the Public Utilities Commission of Ohio intends to file asks the Court to resolve that question, as the Federal Power Act makes deadlocked FERC decisions the law of the land and tells courts to review those decisions. 16 U.S.C. §824d(g), §8241. 2. The background to this dispute about deadlocked agency action arose as follows. The Federal Power Act gives a federal agency—the Federal Energy Regulatory authority to regulate ‘the sale of electric energy at wholesale in interstate commerce.” Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150, 154 (2016) (quoting 16 U.S.C. §824(b)(1)). The Act also charges FERC with “responsibility for ensuring that ‘[a]ll rates and charges ... subject to the jurisdiction of the Commission ... [are] just and reasonable.” Jd. (quoting 16 U.S.C. §824d(a)). In today’s power industry, one aspect of FERC efforts to ensure “just and reasonable” rates is its oversight of capacity auctions. Capacity auctions are a market-driven mechanism to set the price of power supplied to a network of systems in the future (capacity auctions are not the mechanism for setting the price for power delivery in the short term, such as that day.) More specifically, this case is about the rules that will govern capacity auctions for PJM Interconnection, an entity that “oversees the electricity grid in all or parts of 13 mid-Atlantic and Midwestern States and the District of Columbia.” Jd. at 155. One rule for these capacity auctions involves the question of how to modify—“mitigate” in the lingo—the auction prices of state-subsidized power producers. The rule at issue here (formally a tariff) represents one view of how to resolve “a years-long battle over whether, and to what extent, state-subsidized energy resources should be subject to price mitigation in i