Petition for Writ of Certiorari — Affirmed Energy, LLC, Petitioner v. Federal Energy Regulatory Commission, et al.

No. 26IN THE

Supreme Court of the United States

AFFIRMED ENERGY LLC,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Counsel of Record

KELLY P. DUNBAR

PETER A. KALLIS

MEGAN O. GARDNER

JANE RECKER

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

QUESTION PRESENTED

Ratemaking by federal agencies, including of interstate energy markets, is typically governed by the “filed

rate doctrine.” The doctrine constrains regulated entities from charging a rate that is unjust or unreasonable,

or that deviates from the terms officially on file with the

regulating agency, including through a tariff. The doctrine, which extends to rate-related classifications, practices, and regulations, has long been held to prohibit retroactive changes by federal agencies, including, as relevant here, the Federal Energy Regulatory Commission.

That prohibition is of paramount importance to maintaining the stability and predictability of the Nation’s

multi-billion-dollar energy markets, among other things.

In the decision below, the D.C. Circuit held, in conflict with the Third Circuit, that FERC’s approval of a

change to a tariff governing certain wholesale energy capacity auctions was not retroactive, even though the

change divested a participant in those auctions of a

vested right it had acquired under the prior tariff rules.

In doing so, the Circuits divided on the antecedent question of when a change in law is retroactive, a question

with far-reaching implications beyond the filed rate doctrine. The question presented is:

Whether, as the Third Circuit held, a legal change is

retroactive if it eliminates an entitlement acquired under prior law through a completed past act, even if the

entitlement would have been exercised only in the future, or whether, as the D.C. Circuit held, a legal change

is retroactive only if it alters the past legal consequences

of the completed act.

(i)

PARTIES TO THE PROCEEDING

Petitioner (petitioner below) is Affirmed Energy

LLC.

Respondents are the Federal Energy Regulatory

Commission (respondent below), PJM Interconnection,

L.L.C. (intervenor-respondent below), and Monitoring

Analytics, LLC (intervenor-respondent below).

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Affirmed Energy LLC certifies that Petitioner Affirmed Energy LLC is a wholly owned subsidiary of

American Efficient LLC, which is a wholly owned subsidiary of AmEff Holdings Inc., which is a wholly owned

subsidiary of MIH LLC, which is a wholly owned subsidiary of MIH Energy Holdings LLC, which is a wholly

owned subsidiary of Modern Energy Group LLC. No

publicly held corporation or other publicly held entity

owns 10% or more of the stock of Affirmed Energy LLC.

On July 18, 2026, Affirmed Energy LLC filed for bankruptcy. See Voluntary Petition Under Chapter 11, In re

Affirmed Energy LLC, No. 26-bk-30969 (Bankr.

W.D.N.C. July 18, 2026), Dkt. 1.

(ii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............................................i

PARTIES TO THE PROCEEDING ............................. ii

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES .......................................... v

INTRODUCTION .............................................................. 1

OPINIONS BELOW .......................................................... 3

JURISDICTION ................................................................. 3

STATUTORY PROVISIONS INVOLVED .................. 4

STATEMENT ..................................................................... 4

A. The Rule Against Retroactivity ......................... 4

B. Retroactivity Under The Federal

Power Act............................................................... 5

C. PJM’s Operation Of Wholesale

Capacity Auctions ................................................. 7

D. FERC And PJM Allow Energy

Efficiency Resources Into PJM’s

Capacity Auctions ................................................. 9

E. FERC And PJM Issue The

Retroactive Tariff Amendment ........................ 12

F. Proceedings Following FERC’s Order ............ 13

REASONS FOR GRANTING THE PETITION........ 15

I.

THE DECISION BELOW CREATES A

CONFLICT WITH THE THIRD CIRCUIT ..................... 16

II. THE DECISION BELOW CONFLICTS WITH

MULTIPLE PRECEDENTS OF THIS COURT............... 20

(iii)

iv

TABLE OF CONTENTS—Continued

Page

III. THE PROPER LEGAL TEST FOR

RETROACTIVITY IS AN IMPORTANT,

RECURRING ISSUE THAT HAS LONG

CONFUSED LOWER FEDERAL COURTS .................... 25

A. The Decision Below Illustrates

And Deepens Confusion In Federal

Courts On The Proper Legal Test

For Retroactivity ................................................ 26

B. The Proper Legal Test For

Retroactivity Is An Important,

Recurring Question............................................. 28

IV. THIS CASE IS AN APPROPRIATE

VEHICLE TO DECIDE THE LEGAL

TEST FOR RETROACTIVITY ....................................... 30

CONCLUSION ................................................................. 32

v

TABLE OF AUTHORITIES

CASES

Page(s)

Advanced Energy Management Alliance v.

FERC, 860 F.3d 656 (D.C. Cir. 2017) ........................ 9

Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) ............. 27

Arkansas Louisiana Gas Company v. Hall,

453 U.S. 571 (1981) ................................................. 6, 19

Arkema, Inc. v. EPA, 618 F.3d 1 (D.C. Cir.

2010) ............................................................................. 29

BellSouth Telecommunications, Inc. v.

Southeast Telephone Inc., 462 F.3d 650

(6th Cir. 2006).............................................................. 28

Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988) ....................... 3, 4, 5, 22, 23, 26, 28

Chew Heong v. United States, 112 U.S. 536

(1884) ............................................................ 2, 16, 21, 27

City of New York v. Permanent Mission of

India to United Nations, 618 F.3d 172

(2d Cir. 2010) ............................................................... 28

Cox v. Kijakazi, 77 F.4th 983 (D.C. Cir. 2023) .............. 29

Eastern Enterprises v. Apfel, 524 U.S. 498

(1998) ............................................................................ 30

Empresa Cubana Exportadora de Alimentos y

Productos Varios v. United States

Department of Treasury, 638 F.3d 794

(D.C. Cir. 2011) ........................................................... 28

Entergy Arkansas, LLC v. FERC,

134 F.4th 576 (D.C. Cir. 2025) ................................. 7, 8

vi

TABLE OF AUTHORITIES—Continued

Page

FERC v. Electric Power Supply Association,

577 U.S. 260 (2016) ................................................... 5, 7

Fernandez-Vargas v. Gonzales, 548 U.S. 30

(2006) ...................................................................... 24, 25

General Motors Corporation v. Romein,

503 U.S. 181 (1992) ....................................................... 4

Gordon v. Pete’s Auto Service of Denbigh, Inc.,

637 F.3d 454 (4th Cir. 2011) ...................................... 29

Health Insurance Association of America, Inc.

v. Shalala, 23 F.3d 412 (D.C. Cir. 1994) .................. 30

Hughes v. Talen Energy Marketing,

578 U.S. 150 (2016) ....................................................... 8

Hughes v. United States, 770 F.3d 814 (9th Cir.

2014) ............................................................................. 29

Hughes Aircraft Company v. United States

ex rel. Schumer, 520 U.S. 939 (1997) ......................... 5

In re FCC 11-161, 753 F.3d 1015 (10th Cir.

2014) ....................................................................... 26, 29

Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) ............... 27

Jeudy v. Holder, 768 F.3d 595 (7th Cir. 2014) ............... 27

Jones v. O’Malley, 107 F.4th 489 (5th Cir. 2024) .......... 29

Landgraf v. USI Film Products,

511 U.S. 244 (1994) ................... 2, 3, 4, 5, 16, 20, 22, 23

Lindh v. Murphy, 521 U.S. 320 (1997) .............................. 5

Marrie v. SEC, 374 F.3d 1196 (D.C. Cir. 2004) ............. 30

Martin v. Hadix, 527 U.S. 343 (1999) ............................... 5

vii

TABLE OF AUTHORITIES—Continued

Page

Media Services, Inc. v. Peterson,

51 F. App’x 207 (9th Cir. 2002) ................................. 26

Mobile Relay Associates v. FCC, 457 F.3d 1

(D.C. Cir. 2006) ......................................... 22, 23, 26, 29

Morgan Stanley Capital Group Inc. v. Public

Utility District No. 1 of Snohomish

County, 554 U.S. 527 (2008) ........................................ 5

Murphy v. FDIC, 38 F.3d 1490 (9th Cir. 1994) ............. 28

Nantahala Power & Light Company v.

Thornburg, 476 U.S. 953 (1986) .................................. 7

National Medical Enterprises, Inc. v.

Sullivan, 957 F.2d 664 (9th Cir. 1992) ..................... 26

National Mining Association v. Department of

Labor, 292 F.3d 849 (D.C. Cir. 2002)........................ 29

NRG Power Marketing, LLC v. Maine Public

Utilities Commission, 558 U.S. 165 (2010) ............. 19

Oklahoma Gas & Electric Company v. FERC,

11 F.4th 821 (D.C. Cir. 2021) ....................................... 6

Old Dominion Electric Cooperative v. FERC,

892 F.3d 1223 (D.C. Cir. 2018) .................................... 6

Ortega v. Holder, 747 F.3d 1133 (9th Cir. 2014) ............ 27

Pearsall v. Great Northern Railway Company,

161 U.S. 646 (1896) ..................................................... 24

PJM Power Providers Group v. FERC,

96 F.4th 390 (3d Cir. 2024)........... 2, 7, 9, 15, 17, 18, 19, 29

Princess Cruises, Inc. v. United States,

397 F.3d 1358 (Fed. Cir. 2005) .................................. 29

viii

TABLE OF AUTHORITIES—Continued

Page

Rendon v. United States Attorney General,

972 F.3d 1252 (11th Cir. 2020) .................................. 27

Society for Propagation of the Gospel v.

Wheeler, 22 F. Cas. 756 (C.C.N.H. 1814)

(No. 13,156) .................................................................. 23

Solar Energy Industries Association v. FERC,

80 F.4th 956 (9th Cir. 2023) ................................. 26, 29

Southwest Center for Biological Diversity v.

United States Department of Agriculture,

314 F.3d 1060 (9th Cir. 2002) .................................... 29

Sunshine State Regional Center, Inc. v.

Director, United States Citizenship &

Immigration Services, 143 F.4th 1331 (11th

Cir. 2025) ...................................................................... 26

Trostel v. American Life & Casualty

Insurance Company, 133 F.3d 679 (8th Cir.

1998) ............................................................................. 29

Valdez-Sanchez v. Gonzales, 485 F.3d 1084

(10th Cir. 2007)............................................................ 29

Vartelas v. Holder, 566 U.S. 257 (2012)................ 5, 21, 27

XO Energy MA, LP v. FERC, 77 F.4th 710

(D.C. Cir. 2023) ............................................................. 8

DOCKETED CASES

In re Affirmed Energy LLC, No. 26-bk-30969

(Bankr. W.D.N.C.) ...................................................... 11

PJM Power Providers Group v. FERC,

No. 23-1778 (3d Cir.) .................................................. 18

ix

TABLE OF AUTHORITIES—Continued

Page

REGULATORY DECISIONS

PJM Interconnection, L.L.C.,

119 FERC ¶61,318 (2007) .......................................... 10

PJM Interconnection, L.L.C.,

126 FERC ¶61,275 (2009) ............................ 8, 9, 10, 12

STATUTES AND RULES

11 U.S.C. § 541 ................................................................... 31

16 U.S.C.

§ 823b ............................................................................ 11

§ 824 ................................................................................ 5

§ 824d ...................................................................... 5, 6, 7

§ 824e .............................................................................. 6

§ 824q.............................................................................. 8

§ 825l............................................................................... 4

28 U.S.C. § 1254 ................................................................... 4

S. Ct. R. 10 .................................................................... 20, 23

OTHER AUTHORITIES

FERC, An Introductory Guide for

Participation in PJM Processes (updated

Apr. 11, 2025), https://tinyurl.com/2s3e7zxf ............. 7

PJM, Capacity Market (RPM),

https://tinyurl.com/m5wkprrb (visited

Sept. 17, 2026) ............................................................... 8

x

TABLE OF AUTHORITIES—Continued

Page

PJM Inside Lines, PJM Auction Procures

134,479 MW of Generation Resources (Dec.

17, 2025), https://insidelines.pjm.com/pjmauction-procures-134479-mw-ofgeneration-resources ................................................. 19

PJM Learning Center, Capacity Market

(RPM), https://tinyurl.com/ms5batab

(visited Sept. 17, 2026) ................................................. 9

IN THE

Supreme Court of the United States

No. 26AFFIRMED ENERGY LLC,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

In the decision below, a divided panel of the D.C.

Circuit held that the Federal Energy Regulatory Commission’s approval of a tariff change that stripped a

party of a vested tariff-based right to participate in future energy auctions was not retroactive. The majority

held that because FERC’s actions affected only the

party’s “future” exercise of the right they were prospective only and so did not implicate the filed rate doctrine,

which prohibits retroactive application of tariff changes.

The D.C. Circuit’s limited retroactivity standard is profoundly wrong, conflicts with a Third Circuit decision in

an analogous context, clashes with multiple decisions of

2

this Court, and exacerbates decades of confusion in the

federal courts regarding the test for retroactivity, both

in the context of the filed rate doctrine and more

broadly.

This Court’s review is warranted for several reasons. In the first place, the D.C. Circuit’s adoption of a

“future effect” test for retroactivity directly conflicts

with the Third Circuit’s decision in PJM Power Providers Group v. FERC, 96 F.4th 390, 399-401 (3d Cir. 2024).

In that case, the Third Circuit held that FERC’s approval of an analytically analogous tariff amendment

governing the same auction process for the same organization was impermissibly retroactive because FERC altered a future legal consequence that had been guaranteed under the tariff based on the completion of a past

event. In doing so, the Third Circuit rejected the very

“future effect” argument FERC advanced, and the D.C.

Circuit adopted, below. This Court’s review is warranted to ensure uniformity on application of retroactivity under the filed rate doctrine—a legal framework critically important to FERC’s superintendence of multibillion-dollar electricity markets.

Certiorari is also justified because the D.C. Circuit’s

“future effect” test clashes with multiple decisions of

this Court, including Landgraf v. USI Film Products,

511 U.S. 244 (1994), and Chew Heong v. United States,

112 U.S. 536 (1884). Those decisions confirm that a legal

change is retroactive either if it “attaches new legal consequences to events completed before its enactment” or

if it “takes away or impairs [a] vested right[] acquired

under existing laws.” Landgraf, 511 U.S. at 269-270

(quotation marks omitted). The rule against retroactivity thus protects against not only altering past legal consequences, but also depriving parties of future entitlements guaranteed as a result of acts undertaken under

3

prior law. In fact, Landgraf considered and rejected a

version of the narrow “future effect” test the panel applied below, which Justice Scalia advanced in a concurrence in Landgraf and an earlier solo concurrence in

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988).

See Landgraf, 511 U.S. at 291 (Scalia, J., concurring in

the judgment); Bowen, 488 U.S. at 219 (Scalia, J., concurring).

More broadly, the D.C. Circuit’s divided panel decision reflects and deepens confusion among federal courts

as to the proper legal test for identifying retroactive

laws and agency actions—a question of far-reaching consequence across a range of contexts beyond FERC. The

question presented is important, recurring, and ripe for

this Court’s resolution. This Court should grant the petition.

OPINIONS BELOW

The D.C. Circuit’s majority opinion and dissent

(App.1a-51a) are reported at 166 F.4th 1070 (2026). The

D.C. Circuit’s unpublished order denying rehearing en

banc (App.159a-160a) is available at 2026 WL 1353433.

FERC’s initial approval order (App.55a-112a) is reported at 189 FERC ¶61,095 (2024). FERC’s order

denying Affirmed’s rehearing petition (App.113a) is reported at 190 FERC ¶62,005 (2025). FERC’s order addressing the arguments raised in Affirmed’s rehearing

petition (App.115a-158a) is reported at 190 FERC

¶61,081 (2025).

JURISDICTION

The D.C. Circuit entered judgment in this matter on

February 10, 2026. App.53a-54a. Petitioner timely filed

for rehearing en banc, which the D.C. Circuit denied on

May 7, 2026. App.159a-160a. On July 24, 2026, the Chief

4

Justice extended the time to file this petition through

September 18, 2026 (No. 26A109). This Court has jurisdiction under 28 U.S.C. § 1254(1) and 16 U.S.C. § 825l(b).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced in

the appendix. App.161a-169a.

STATEMENT

A. The Rule Against Retroactivity

The presumption against retroactive government

action is “deeply rooted” in the law and “embodies a legal

doctrine centuries older than our Republic.” Landgraf

v. USI Film Prods., 511 U.S. 244, 265 (1994). Retroactive actions “present[] problems of unfairness that are

more serious than those posed by prospective [actions]

because [they] can deprive citizens of legitimate expectations and upset settled transactions.” General Motors

Corp. v. Romein, 503 U.S. 181, 191 (1992). Because

“[r]etroactivity is not favored in the law,” this Court has

held that “congressional enactments and administrative

rules will not be construed to have retroactive effect unless their language requires this result.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). “By

the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive

rules unless that power is conveyed by Congress in express terms.” Id.

By limiting exercises of governmental power that

“attach[] new legal consequences to” completed events

or that “take[] away or impair vested rights acquired under existing laws,” the rule against retroactivity promotes “creativity in both commercial and artistic

5

endeavors” by “giv[ing] people confidence about the legal consequences of their actions.” Landgraf, 511 U.S.

at 265-266, 269-270 (quotation marks omitted).

The presumption against retroactivity applies

across a host of statutory and regulatory contexts. This

Court has applied it to subjects as varied as immigration,

see, e.g., Vartelas v. Holder, 566 U.S. 257 (2012); attorney’s fees, Martin v. Hadix, 527 U.S. 343 (1999); habeas

corpus, Lindh v. Murphy, 521 U.S. 320 (1997); qui tam

suits, Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520

U.S. 939 (1997); civil rights, Landgraf, 511 U.S. 244; and

Medicare regulations, Bowen, 488 U.S. 204, among others.

B. Retroactivity Under The Federal Power Act

One area in which retroactivity analysis plays an important role is federal energy regulation. The Federal

Power Act grants FERC the authority to regulate “the

transmission of electric energy in interstate commerce”

and the “sale of electric energy at wholesale in interstate

commerce.” 16 U.S.C. § 824(b)(1). Consistent with that

delegated responsibility, FERC “oversee[s] all prices

for those interstate transactions and all rules and practices affecting such prices.” FERC v. Electric Power

Supply Ass’n, 577 U.S. 260, 266 (2016). In particular,

Congress has charged FERC with ensuring that “[a]ll

rates and charges … and all rules and regulations affecting or pertaining to such rates or charges shall be just

and reasonable” and not “undu[ly] prejudic[ial].” 16

U.S.C. § 824d(a)-(b).

The rates and other terms and conditions governing

the transmission and sale of electricity are set forth in

“tariffs,” including those filed by certain entities called

“regional transmission organizations.” Morgan Stanley

Cap. Grp. Inc. v. Public Util. Dist. No. 1 of Snohomish

6

Cnty., 554 U.S. 527, 536-537 (2008). The Federal Power

Act requires regional transmission organizations to file

“schedules showing all rates and charges for any transmission or sale … and the classifications, practices, and

regulations affecting such rates and charges.” 16 U.S.C.

§ 824d(c). FERC must publish those proposed rates and

regulations. Id. Once filed, a regulation relating to rates

(here, a tariff) cannot be changed without following notice and comment procedures. Id. § 824d(d)-(e).

When a regional transmission organization wants to

amend its tariff, it must provide 60 days’ notice to FERC

and file a new tariff “stating” the “changes to be made in

the schedule” and “the time when” the “changes will go

into effect.” 16 U.S.C. § 824d(d). FERC may hold a

hearing to determine the lawfulness of the amendments,

and the proponent bears the “burden of proof” to show

that the change “is just and reasonable.” Id. § 824d(e).

FERC may adjust rates and related regulations set

forth in tariffs, but it may only do so prospectively. Id.

§ 824e(a).

Courts have long interpreted these provisions to restrict retroactive tariff changes. As the D.C. Circuit has

explained, FERC “has no authority under the Act to allow retroactive change in the rates” and it may correct

unjust and unreasonable rates only “prospectively.” Old

Dominion Elec. Coop. v. FERC, 892 F.3d 1223, 1226

(D.C. Cir. 2018); see Arkansas La. Gas Co. v. Hall, 453

U.S. 571, 577-578 (1981) (explaining that FERC “has no

power to alter a rate retroactively” under analogous provisions of the Natural Gas Act). These “rules mandating

the open and transparent filing of rates and broadly proscribing their retroactive adjustment are known collectively as the ‘filed rate doctrine.’” Old Dominion Elec.

Coop., 892 F.3d at 1226-1227. As is “clear” from the

“statutory terms,” Oklahoma Gas & Elec. Co. v. FERC,

7

11 F.4th 821, 829 (D.C. Cir. 2021), “the filed rate doctrine

is not limited to ‘rates’ per se,” but extends to matters

“directly affect[ing]” rates, Nantahala Power & Light

Co. v. Thornburg, 476 U.S. 953, 966-967 (1986), such as

“the classifications, practices, and regulations affecting”

rates, and related contracts, 16 U.S.C. § 824d(c).

The anti-retroactivity component of the filed rate

doctrine is a “bright-line rule” that “advances” “predictability.” PJM Power Providers, 96 F.4th at 401-402.

“[P]redictability,” in turn, is paramount both “because

Congress said so” and because “electricity markets depend on it,” as “[s]table markets depend on stable rules.”

Id. at 402. In that way, the doctrine promotes the stability and predictability of rules governing the nation’s

multi-billion-dollar electricity markets.

C. PJM’s Operation Of Wholesale Capacity

Auctions

As noted above, to help FERC oversee electricity

markets, “FERC encouraged the creation of nonprofit

entities to manage wholesale markets on a regional basis.” Electric Power Supply, 577 U.S. at 267. These regional transmission organizations span certain geographic areas and work to maintain a stable supply of

electricity across the power grid.

PJM is one such organization. PJM operates in D.C.

and 13 States. See FERC, An Introductory Guide for

Participation in PJM Processes (updated Apr. 11,

2025).1 Like all regional transmission organizations,

PJM “coordinate[s] the interstate electricity market in a

specific geographic area.” Entergy Ark., LLC v. FERC,

134 F.4th 576, 579 (D.C. Cir. 2025). Its responsibilities

1

Available at https://tinyurl.com/2s3e7zxf.

8

include “operating the electrical grid, balancing energy

supply and demand, establishing markets for the sale

and purchase of electricity, and ensuring the reliable

transmission of electricity.” Id. (cleaned up).

One way in which regional transmission organizations manage energy markets is by operating auctions

that “enable [electricity] suppliers to meet demand from

the utilities and other ‘load-serving entities’ that buy

power at wholesale for retail sale to users.” XO Energy

MA, LP v. FERC, 77 F.4th 710, 714 (D.C. Cir. 2023); 16

U.S.C. § 824q(a)(2) (defining “load-serving entity”). Regional transmission organizations administer a number

of different types of auctions, see Hughes v. Talen Energy Mktg., 578 U.S. 150, 155 (2016), including so-called

wholesale capacity auctions.

The PJM wholesale capacity auction at issue here is

called a “Base Residual Auction.” As PJM explains it,

the auction is designed to “ensure[] long-term grid reliability by securing the appropriate amount of power

supply resources needed to meet predicted energy demand in the future.” PJM, Capacity Market (RPM).2

In broad strokes, the auction operates as follows.

The goal of the auction is to obtain commitments from

energy producers to supply electricity three years in the

future.

PJM Interconnection, L.L.C., 126 FERC

¶61,275, P120 (2009) (“2009 Order”). That future year is

referred to as the “Delivery Year.” During an auction,

electricity producers “bid” the price they are willing to

accept in exchange for a guarantee to provide electricity

in the specified Delivery Year, along with the amount of

electricity they guarantee to provide. The amount of

2

2026).

Available at https://tinyurl.com/m5wkprrb (visited Sept. 17,

9

promised electricity is called “[c]apacity,” which “represents a commitment of resources to deliver when

needed.” PJM Learning Center, Capacity Market

(RPM).3 “Capacity is not actual electricity,” but “a commitment to produce electricity or forgo the consumption

of electricity.” Advanced Energy Mgmt. All. v. FERC,

860 F.3d 656, 659 (D.C. Cir. 2017).

During the auction, PJM accepts, or “clears,” all of

the bid-in capacity for the lowest bidder’s price, then all

of the capacity for the second lowest bidder’s price, and

so on, until PJM has filled all forecasted capacity need

for the Delivery Year. See PJM Power Providers, 96

F.4th at 395. The last bid that clears sets the “clearing

price” for the auction, and all offers that cleared the auction receive the same clearing price regardless of their

initial bid. Id.

Auction participants that have their bids cleared are

obligated to provide the promised capacity at the promised time, regardless of changed circumstances. PJM

Power Providers, 96 F.4th at 395. If a participant fails

to meet its promised capacity commitments, it owes PJM

a “significant payment for non-performance.” PJM

Learning Center, Capacity Market (RPM).4

D. FERC And PJM Allow Energy Efficiency

Resources Into PJM’s Capacity Auctions

In 2009, PJM proposed revisions to its tariff to allow

“energy efficiency resources” to be offered in its wholesale capacity auctions. 2009 Order, 126 FERC ¶61,275,

P120. PJM defined energy efficiency resources to

3

Available at https://tinyurl.com/ms5batab (visited Sept. 17,

2026).

4

Id.

10

include projects to install energy efficient appliances or

other equipment designed to reduce “electric energy

consumption.” Id. P121. Under PJM’s proposal, in addition to accepting bids from traditional electricity generators, PJM would accept bids from energy efficiency resources owners for commitments to reduce energy consumption in the future. Id. P120. The proposal reflected

the logic that ensuring future electricity supply can be

managed by creating financial incentives to produce

more energy or to reduce energy consumption. See id.

PP130-131.

PJM’s proposal responded to a prior determination

by FERC that, although PJM did not currently “treat

investment in energy efficiency as a type of capacity resource eligible to participate in the capacity market,” it

should come up with a plan to do so. PJM Interconnection, L.L.C., 119 FERC ¶61,318, P202 (2007). FERC’s

instruction to PJM was clear that, “to the extent possible, energy efficiency solutions should be able to compete on an equal footing with demand response, generation, and transmission solutions.” Id.

Unsurprisingly given FERC’s directive to PJM,

FERC approved PJM’s tariff revisions and “commend[ed]” PJM on them. 2009 Order, 126 FERC

¶61,275, P130. FERC added “that energy efficiency is a

critical part of efficient energy markets, and should be

treated comparably to other types of resources, by being

allowed to participate in [PJM’s] base residual auctions.”

Id.

In the wake of these tariff changes, Affirmed began

providing energy efficiency resources to PJM’s capacity

market starting in 2014, and it participated in nearly 30

11

PJM capacity auctions. App.233a ¶9.5 In a nutshell, Affirmed’s business worked as follows. Affirmed purchased exclusive contractual rights to the energy savings of energy efficient products sold to consumers by its

program partners, such as manufacturers, retailers, and

distributors (like Home Depot). Affirmed paid program

partners per-unit compensation for each unique energy

efficient product they sold, then calculated and aggregated the expected future energy capacity reductions

from those products, offering those reductions in PJM’s

capacity auctions. App.233a ¶7. Through the financial

payments Affirmed made to program partners, funded

in turn by revenue earned from offering energy efficiency resources in PJM’s capacity auctions, Affirmed’s

program provided strong incentives to its partners to increase their sales of energy efficient products.6

Energy efficiency resources create capacity value in

a different way from traditional generation. A generator

generally creates capacity by standing ready to produce

5

On July 18, 2026, Affirmed Energy LLC filed for bankruptcy.

See Voluntary Petition Under Chapter 11, In re Affirmed Energy

LLC, No. 26-bk-30969 (Bankr. W.D.N.C. July 18, 2026), Dkt. 1. As

a result, the description of Affirmed’s business model is historical

only.

6

On April 15, 2026, FERC issued a $1.1 billion penalty order

against American Efficient, LLC and affiliated entities, including

Affirmed. As FERC has acknowledged, that enforcement action is

a “separate proceeding” from FERC’s approval of PJM’s tariff

amendments. C.A. FERC Br. 12 n.4. Neither FERC’s approval of

PJM’s tariff amendment nor the D.C. Circuit’s analysis of the retroactivity of that amendment turns on the existence of or allegations

in the enforcement proceeding. American Efficient emphatically

disputes the legal and factual bases of the penalty order, which is

itself nonenforceable. 16 U.S.C. § 823b(d)(3)(B). In the event

FERC initiates a suit to enforce the order in federal court, American Efficient will challenge the order in those de novo proceedings.

12

electricity in a future Delivery Year. Energy efficiency,

by contrast, reduces future demand through investments made upfront—by installing equipment or creating incentives to lower electricity use over multiple

years. The value of that investment therefore does not

disappear after the first auction year; it continues as the

same efficiency measure reduces energy demand in later

years.

PJM’s tariff accounted for that unique feature by

giving cleared energy efficiency resources a multi-year

bidding right. The tariff guaranteed that “[a]n energy

efficiency resource that clears an auction for a Delivery

Year may be offered in auctions for up to three additional consecutive Delivery Years, but shall not be assured of clearing in any such auction[.]” App.195a. The

plain meaning of that provision is obvious. As FERC explained in approving it, this guarantee “allow[s] an [energy efficiency] resource to bid into the auction, and if it

is accepted, to bid for an additional three consecutive

years.” 2009 Order, 126 FERC ¶61,275, P131. FERC

made clear that a key purpose of the provision was to

ensure market participants investing in energy efficiency resources “have the ability to obtain the full economic benefits of their investments.” Id. P137.

E. FERC And PJM Issue The Retroactive Tariff

Amendment

For 15 years, PJM’s FERC-approved tariff allowed

energy efficiency resources to participate in PJM’s capacity auctions and permitted cleared resources to be offered in up to three additional consecutive auctions.

During that period, Affirmed did exactly what the tariff

invited. As relevant here, it invested approximately $50

million in payments and fees to program partners to acquire rights to energy savings, aggregated those savings

13

into energy efficiency resources, and successfully offered those resources into PJM’s capacity auctions.

App.234a-235a. For example, Affirmed’s resources

cleared the PJM auction for the 2023/24 Delivery Year,

giving Affirmed the right to offer those resources in auctions through the 2026/27 Delivery Year. App.234a.

Other Affirmed resources cleared the PJM auction for

the 2024/25 Delivery Year, securing Affirmed the right

to offer those resources through the 2027/28 Delivery

Year. Id.

In 2024, however, PJM and FERC changed course

and issued a tariff revision that stripped Affirmed of

those vested rights. The revision barred energy efficiency resources from participating in future capacity

auctions, beginning with the July 2025 auction.

App.192a. As applied to Affirmed, that meant resources

that had already cleared under the old tariff—and thus

had earned the right to be offered in later auctions—

could no longer be bid in the very auctions the prior tariff

guaranteed. Affirmed objected that applying the tariff

amendment in this way was retroactive because it upset

vested rights that had attached before the rule change.

FERC nevertheless approved PJM’s tariff revision

in 2024, effective for the then-upcoming July 2025 auction. It rejected Affirmed’s retroactivity and filed rate

doctrine arguments on the ground that the amendment

operated only “prospectively.” App.108a. FERC reasoned that the prior tariff created only an “expectation,”

not a “legal right,” because, FERC claimed, the prior

tariff did not actually guarantee that Affirmed’s resources would clear future auctions. Id.

F. Proceedings Following FERC’s Order

Affirmed moved for a stay and rehearing of the

FERC order. FERC denied rehearing by operation of

14

law in January 2025, App.113a, and issued a rehearing

order explaining its decision in February 2025,

App.115a-158a.

The rehearing order “modif[ied] the discussion” in

the original approval order but “reach[ed] the same result.” App.116a. In the order, FERC again rejected Affirmed’s argument that the tariff was retroactive in violation of the filed rate doctrine and reaffirmed its view

that the change was “wholly prospective[].” App.146a.

Affirmed petitioned for review of FERC’s orders

before the D.C. Circuit.7 As relevant here, citing this

Court’s decisions in Landgraf and Chew Heong, Affirmed argued that FERC’s orders were impermissibly

retroactive because, with respect to energy efficiency

resources that cleared past PJM auctions, they revoked

a vested tariff-based right Affirmed had acquired before

FERC’s rule change.8

7

Affirmed initially sought a stay of FERC’s orders pending review. Affirmed explained that it would face irreparable injury

should PJM’s July 2025 auction proceed without a stay because Affirmed would “forever lose the ability to attempt to secure revenue

on a $50 million investment in energy efficiency resources.” C.A. Affirmed Mot. to Stay 3 (Mar. 13, 2025), Doc.2105587. In response,

FERC and PJM unambiguously stated that Affirmed faced no irreparable injury because compensatory relief would be later available to Affirmed with respect to cleared resources even if PJM auctions went forward while the FERC orders remained subject to judicial review. C.A. FERC Stay Opp. 23 (Mar. 31, 2025), Doc.2108580;

C.A. PJM Stay Opp. 17-18 (Mar. 31, 2025), Doc.2108610. Based on

those representations, Affirmed withdrew its stay motion and proceeded to merits briefing.

8

Affirmed also argued that the tariff amendment’s prospective

application was arbitrary and capricious for various reasons. Affirmed does not seek certiorari with respect to those issues.

15

A divided panel denied Affirmed’s petition. The majority acknowledged that, under the tariff’s plain meaning, Affirmed had obtained permission to bid the already-cleared resources in future auctions. App.14a.

But the majority nevertheless held that FERC’s orders

were not retroactive because “all they did” was “alter[]

… a ‘future effect.’” App.18a. Notably, although the majority cited Landgraf, it failed to meaningfully apply it.

And the majority failed to cite, much less distinguish,

Chew Heong, despite Affirmed’s reliance on that precedent. In the majority’s view, FERC’s orders were prospective because they did not disturb Affirmed’s past

auction eligibility, require Affirmed to return payments

already received, or render past conduct unlawful.

App.18a-19a.

Judge Pan dissented. Applying Landgraf’s governing standard, Judge Pan reasoned that the PJM tariff

amendment “‘t[ook] away or impair[ed]’ Affirmed’s

‘vested right’ to bid in subsequent auctions” and thus

was “impermissibly retroactive” “to the extent that it

strip[ped] Affirmed of its entitlement to bid” alreadycleared energy efficiency resources in future PJM auctions. App.42a.

Affirmed petitioned for rehearing en banc. After

calling for a response, the court denied the petition.

REASONS FOR GRANTING THE PETITION

This Court’s review is warranted for at least three

reasons. First, the D.C. Circuit’s divided panel decision

creates a split with the Third Circuit in a highly analogous case, also involving PJM. See PJM Power Providers Grp. v. FERC, 96 F.4th 390, 399-401 (3d Cir. 2024).

Only this Court can resolve this conflict on the application of the filed rate doctrine and help reestablish

16

consistent, uniform rules for the Nation’s multi-billiondollar electricity markets. Uniformity is especially important given that PJM spans multiple regional circuits,

including the D.C. Circuit and the Third Circuit. As matters now stand, the outcome of future tariff retroactivity

challenges under the filed rate doctrine is Circuit-dependent.

Second, the decision below decides an important

question of federal law in a way that conflicts with multiple decisions of this Court. The D.C. Circuit’s “future

effect” test enables governmental actions to evade retroactivity restrictions, clashing with Chew Heong v.

United States, 112 U.S. 536 (1884), and Landgraf v. USI

Film Products, 511 U.S. 244 (1994), which implicitly reject that standard.

Third, more broadly, the D.C. Circuit’s “future effect” test is a symptom of widespread confusion in lower

courts regarding the test for retroactivity, a question

that has far-reaching consequences across a range of

contexts beyond FERC. This case is an appropriate vehicle to resolve the disunity and confusion on this recurring, consequential legal question.

I.

THE DECISION BELOW CREATES A CONFLICT WITH

THE THIRD CIRCUIT

This case presents a genuine circuit split over the

application of FERC’s filed rate doctrine as it relates to

analogous changes to a tariff governing the same auction

process for the same regional transmission organization—whose operations span the D.C. Circuit and Third

Circuit. In PJM Power Providers, the Third Circuit applied Landgraf to hold that a PJM tariff amendment was

retroactive when it nullified a legal consequence fixed by

a completed event, even though that amendment altered

future events—namely, the outcome of an ongoing

17

auction. 96 F.4th at 399-401. In the decision below, the

D.C. Circuit took the opposite approach, treating the future timing of Affirmed’s nullified auction rights as dispositive. This split undermines the purpose of the filed

rate doctrine to promote stability and predictability in

energy markets. Rules governing multi-billion-dollar

energy capacity markets cannot and should not turn on

which regional court of appeals is reviewing the case.

Only this Court can reestablish uniformity.

In PJM Power Providers, the Third Circuit vacated

a FERC order approving a PJM tariff amendment on the

ground that it was retroactive as applied to a then-ongoing auction. 96 F.4th at 400. PJM had posted a critical

auction parameter—known as an “LDA Reliability Requirement”—prior to a December 2022 auction, as the

tariff required. Id. at 395.9 After PJM received bids but

before PJM calculated auction results, see id. 401 n.8,

PJM discovered a faulty assumption with the LDA Reliability Requirement in a particular region. Id. at 396.

PJM halted the auction, filed a tariff amendment with

FERC to allow it “to adjust[] the LDA Reliability Requirement downward,” and it then sought to apply the

new amendment to the ongoing December 2022 auction.

Id. FERC approved the tariff amendment, rejecting objections that the amendment was retroactive on the

ground that nothing in the tariff prevented PJM from

“prospectively updating” the requirement for purposes

of the uncompleted auction. Id. at 397.

Before the Third Circuit, FERC defended that order in substantially the same manner as it did here.

9

The LDA Reliability Requirement is “the amount of capacity

that must be produced to meet peak demand, including a reserve

margin,” for a zone within PJM. PJM Power Providers, 96 F.4th at

395.

18

FERC argued, for example, that PJM’s tariff amendment was “prospective because it did not alter the past

legal consequences of past actions.” FERC Br. 27, PJM

Power Providers Grp. v. FERC, No. 23-1778 (3d Cir.

Dec. 18, 2023), Dkt. 101 (“FERC CA3 Br.”); compare

C.A. FERC Br. 48 (agency actions that alter “only the

future legal consequences of past actions” are not retroactive). Additionally, FERC claimed, again echoing its

position here, that a tariff amendment that merely “upsets expectations” based on an existing tariff is not retroactive. FERC CA3 Br. 31; compare C.A. FERC Br.

61 (making a similar argument).

Unlike the D.C. Circuit, the Third Circuit rejected

FERC’s restricted view of retroactivity. Applying

Landgraf, the Third Circuit held that PJM’s posting of

the original LDA Reliability Requirement (a past action)

triggered a tariff-based obligation (a legal consequence)

to use that requirement in the upcoming auction (future

effect). PJM Power Providers, 96 F.4th at 400. Because

the tariff amendment “permitted PJM to use a different

LDA Reliability Requirement” after it had received

bids, it “altered the legal consequence attached to PJM’s

calculation and posting of the LDA Reliability Requirement” and “[f]or that reason, it [was] retroactive.” Id.

The same reasoning would have led to a different

outcome here. Just as PJM’s posting of the LDA Reliability Requirement “carried a legal consequence” under

the then-existing tariff, PJM Power Providers, 96 F.4th

at 400, Affirmed’s clearing of prior auctions triggered a

tariff-based right for cleared resources to participate in

a fixed number of future auctions. It did not matter to

the Third Circuit’s analysis that the tariff amendment

had future effect in the sense that the relevant auction

was not completed; what mattered was that the amendment “nullified a legal consequence attached to a past

19

action.” Id. at 401. Under the Third Circuit’s approach,

and contrary to the D.C. Circuit, the fact that a divested

right concerned ongoing or future capacity auctions does

not mean the change is prospective, rather than retroactive, under Landgraf.

The divergent approaches taken by the D.C. Circuit

and Third Circuit call for this Court’s review. Uniform

rules for retroactivity in FERC tariff cases are essential

to the nation’s electricity markets. “[P]redictability is

important because electricity markets depend on it.”

PJM Power Providers, 96 F.4th at 402. “Stable markets

depend on stable rules.” Id. And “uncertainties regarding rate stability and contract sanctity” can have a

“chilling effect on investments.” NRG Power Mktg.,

LLC v. Maine Pub. Utils. Comm’n, 558 U.S. 165, 174

(2010) (quotation marks omitted). Allowing the filed

rate doctrine’s ban on retroactivity to have a different

meaning depending on the regional circuit in which review is sought “would undermine the congressional

scheme of uniform rate regulation” and inject unpredictability into energy markets. Arkansas La. Gas, 453 U.S.

at 579.

That concern is particularly acute because PJM’s

tariff governs energy rates across multiple regional circuits: the D.C. Circuit, Third Circuit, Fourth Circuit,

Sixth Circuit, and Seventh Circuit. See supra p.7 & n.1.

Inconsistent approaches risk disruption and confusion

within this multi-billion-dollar market.10 Now, express

10

For PJM’s December 2025 wholesale capacity auction, the

value of the clearing price multiplied by the cleared supply equaled

$16.4 billion. See PJM Inside Lines, PJM Auction Procures 134,479

MW of Generation Resources (Dec. 17, 2025), https://insidelines.pjm.com/pjm-auction-procures-134479-mw-of-generationresources.

20

tariff-backed grants of vested future rights to market

participants will be binding only if the market participant can sue in the right venue. And the next time

FERC wishes to promote investment in a particular sector by promising market participants a valuable right,

companies will think twice before they take up the offer.

The uncertainty generated by this division of authority is not limited to wholesale capacity auctions—or

even to FERC cases. As the majority recognized below,

courts “apply the filed rate doctrine ‘across the spectrum

of regulated utilities,’” and retroactivity cases in the

FERC context are readily transferable to other ratemaking contexts. App.18a n.3.

II. THE DECISION BELOW CONFLICTS WITH MULTIPLE

PRECEDENTS OF THIS COURT

Certiorari is independently warranted because the

decision below “decide[s] an important federal question

in a way that conflicts with relevant decisions of this

Court.” S. Ct. R. 10(c). That conflict is stark. At least

twice—in Landgraf and Chew Heong—this Court has

made clear that a legal change is retroactive when it revokes a right to take a future action that vested upon a

completed past event, even if the party has not yet exercised that right.

In Landgraf, this Court held that a legal change is

retroactive if it “attaches new legal consequences to

events completed before its enactment” or if it “takes

away or impairs a vested right acquired under existing

laws.” 511 U.S. at 269-270. Landgraf explained that the

test for retroactivity does not apply just to laws “enacted to take effect from a time anterior to their passage.” Id. It embraces “all” legal changes that “affect

vested rights and past transactions.” Id. at 269 (quotation marks omitted).

21

To illustrate that point, Landgraf invoked Chew

Heong v. United States, 112 U.S. 536 (1884), a “pathmarking decision” on retroactivity, Vartelas v. Holder,

566 U.S. 257, 268 (2012). In Chew Heong, the Court refused to interpret the “Chinese Restriction Act” to bar

the reentry of a noncitizen laborer who had left the country when existing law allowed him to return freely, but

who lacked a certificate that an intervening law made a

condition of reentry. Applying the law to him, the Court

explained, would impermissibly give the statute “retrospective operation” because “rights previously vested”

would be “injuriously affected.” 112 U.S. at 559. Retroactivity thus turned on whether a vested right would be

injuriously affected—not when that right would be exercised.

The governing legal test for retroactivity should

have made this an easy case. For 15 years, PJM’s

FERC-approved tariff rules guaranteed that “[a]n energy [e]fficiency [r]esource that clears [a PJM capacity]

auction” for a single delivery year “may be offered in

auctions for up to three additional consecutive” delivery

years. App.195a ¶4. Affirmed reasonably relied on that

guarantee, investing substantial sums to develop and

then bid energy efficiency resources into past PJM auctions. When those resources cleared, Affirmed secured

valuable and vested rights to offer them in up to three

more auctions. The 2024 tariff amendment that FERC

approved stripped those resources of the very futureparticipation rights the prior tariff promised. Basic intuitions of fairness, as well as common sense, suggest

that when the government pulls the rug out from under

a party in this way it acts retroactively. And under

Landgraf and Chew Heong, FERC’s actions here plainly

were: divesting a party of a future entitlement earned

22

through a completed past act, secured at considerable

expense, is paradigmatic retroactivity.

The D.C. Circuit, however, refused to hold FERC’s

orders retroactive on the ground that “all they did” was

“alter[] … a ‘future effect.’” App.18a. Applying D.C. Circuit precedent, the panel discerned a rule that a legal

change is “purely prospective” if it “‘alters the future effect’ but ‘not the past legal consequences of an action.’”

App.17a-18a (quoting Mobile Relay Assocs. v. FCC, 457

F.3d 1, 11 (D.C. Cir. 2006)). That “future effect” test for

exempting legal changes from retroactivity constraints

clashes with this Court’s precedents.

Start with Landgraf. There, Justice Scalia, concurring in the judgment, advocated a narrow retroactivity

standard that elevated timing to dispositive status. He

disagreed with the majority’s assessment of “the meaning of retroactivity.” 511 U.S. at 290 (Scalia, J., concurring in the judgment). In his view, “[t]he critical issue

… is not whether the rule affects ‘vested rights.’” Id. at

291 (Scalia, J., concurring in the judgment). Instead, a

court should assess what “relevant activity” is regulated

by a legal change. Id. If that activity “occurs after the

effective date” of the changed law, the change is not retroactive. Id. That was effectively the view he had advanced years earlier in a solo concurrence in Bowen v.

Georgetown University Hospital (arguing that primary

retroactivity means “altering the past legal consequences of past actions”). 488 U.S. 204, 219 (1988)

(Scalia, J., concurring).

The Landgraf majority did not adopt that temporally focused test. It instead reaffirmed that a legal

change is retroactive either if it “attaches new legal consequences to events completed before its enactment”

or “impair[s] rights a party possessed when he acted.”

23

511 U.S. at 269-272. As support, the majority pointed to

Justice Story’s “influential definition” of retroactivity in

Society for Propagation of the Gospel v. Wheeler, in

which he explained that the rule against retroactivity

does not simply bar “‘statutes … enacted to take effect

from a time anterior to their passage,’” but instead “embrace[s] ‘all statutes, which, though operating only from

their passage, affect vested rights and past transactions.’” Id. at 268-269 (quoting 22 F. Cas. 756, 767

(C.C.N.H. 1814) (No. 13,156) (Story, J., Circuit Justice)).

In the majority’s view, then, a legal change can be retroactive not only when it undoes a completed past transaction, but also when it strips a party of future entitlements that the law guaranteed on account of a past

event—such as the ability to reenter the country freely

after departing under prior law.

The D.C. Circuit below did not apply that controlling

standard. Instead, it invoked its own formulation—

drawn from Mobile Relay, 457 F.3d at 11—that an

agency “order … [that] alters the future effect, but not

the past legal consequences of an action … is not retroactive.” App.17a-18a (quotation marks omitted). Tellingly, Mobile Relay did not cite Landgraf. It instead invoked Justice Scalia’s formulation that “[r]etroactive

rules ‘alter[] the past legal consequences of past actions.’” 457 F.3d at 11 (quoting Bowen, 488 U.S. at 219

(Scalia, J., concurring)). The panel thus resolved the retroactivity question by passing over this Court’s precedent and applying a standard advanced only in concurrences—one that this Court has never embraced and

that is inconsistent with the framework this Court did

adopt. Elevation of a rejected concurrence into a governing legal rule is the type of conflict with this Court’s

decisions that warrants certiorari under Rule 10(c).

24

Compounding the problem, the majority ignored the

concept of vested rights, a conspicuous omission in light

of the dissent’s emphasis on that concept.11 As Judge

Pan explained, when Affirmed’s resources cleared, it received a “vested entitlement to bid the continued energy

savings” in future auctions, and “FERC’s approval of

PJM’s 2024 tariff amendment … deprives Affirmed of

[that] vested right.” App.50a-51a (dissenting op.).

That assessment is well-grounded in this Court’s

precedents. In Pearsall v. Great Northern Railway Co.,

for example, this Court explained that a “vested right”

is “an immediate, fixed right of present or future enjoyment” or “a present, fixed right of future enjoyment.”

161 U.S. 646, 673 (1896) (quotation marks omitted). The

Court reaffirmed that definition in Fernandez-Vargas v.

Gonzales, and added that a “vested right” is distinguished from a “contingent” right by the fact that a

vested-right holder “t[ook] some action that … elevate[d] [the right] above the level of hope” or “enhanced

[the right’s] significance to him in particular.” 548 U.S.

30, 44 n.10 (2006).

Those definitions describe Affirmed’s right to participate in future auctions to a tee. Affirmed’s right to

participate was “an immediate, fixed right of … future

enjoyment.” When its resources cleared prior PJM auctions, Affirmed “immediate[ly]” acquired a “right” under

the tariff to offer those resources in a “fixed” number of

“future” auctions. That right, moreover, was not “contingent” on uncertain future events but instead had

“vested” because Affirmed “t[ook] action” (bidding the

11

The majority recited Landgraf’s governing tests but did not

engage with or otherwise apply them, relying instead on D.C. Circuit precedent based on Justice Scalia’s Bowen concurrence, not

Landgraf. App.13a-14a.

25

resources at a clearing price) that “elevated” the option

to offer those resources in future auctions “above the

level of hope” and “enhanc[ed]” the tariff language’s

“significance” into a guarantee “to [Affirmed] in particular.” Fernandez-Vargas, 548 U.S. at 44 n.10. By revoking that guarantee, FERC’s orders impaired Affirmed’s

vested right. The majority’s failure to grapple with that

point underscores its departure from the retroactivity

test this Court has embraced.

In sum, the conflict between the panel’s decision and

this Court’s precedents is direct and outcome determinative. The panel applied a retroactivity test that this

Court declined to adopt in Landgraf—and one irreconcilable with the vested-rights analysis the Landgraf majority did embrace. Chew Heong, moreover, confirms

that the governing retroactivity standard reaches the

impairment of future entitlements fixed by a completed

past act. Certiorari is warranted to align the D.C. Circuit’s retroactivity test with this Court’s precedents.

III. THE PROPER LEGAL TEST FOR RETROACTIVITY IS AN

IMPORTANT, RECURRING ISSUE THAT HAS LONG

CONFUSED LOWER FEDERAL COURTS

This Court’s review is also warranted because this

case presents an important recurring question that has

broadly confused federal courts: whether a legal change

that attaches new legal consequences to a completed

event escapes retroactivity limits simply because those

consequences operate only in the future. The answer to

that question affects how courts apply Landgraf across

virtually every field of law, from financial regulation and

taxation to immigration and criminal sentencing, and it

helps determine the stability of the multi-billion-dollar

electricity markets that FERC-approved tariffs govern.

26

But federal courts are increasingly confused by, and

openly divided on, this question.

A. The Decision Below Illustrates And Deepens

Confusion In Federal Courts On The Proper

Legal Test For Retroactivity

This Court’s review is needed to resolve confusion in

the lower courts about whether legal changes that impose disabilities on the exercise of future rights can ever

be retroactive. Despite Landgraf’s broader test, multiple courts of appeals have joined the D.C. Circuit in invoking Justice Scalia’s formulation in his Bowen concurrence—which Landgraf declined to embrace—as relevant to the governing standard. See In re FCC 11-161,

753 F.3d 1015, 1072 (10th Cir. 2014) (quoting Mobile Relay, 457 F.3d at 11); Media Servs., Inc. v. Peterson, 51 F.

App’x 207, 208 (9th Cir. 2002) (“[R]ules that … ‘affect[]

the future legal consequences of past transactions’ are

not retroactive.” (quoting National Med. Enters., Inc. v.

Sullivan, 957 F.2d 664, 671 (9th Cir. 1992))); see also Solar Energy Indus. Ass’n v. FERC, 80 F.4th 956, 981 (9th

Cir. 2023) (quoting Bowen, 488 U.S. at 219 (Scalia, J.,

concurring)); Sunshine State Reg’l Ctr., Inc. v. Director,

U.S. Citizenship & Immigr. Servs., 143 F.4th 1331, 1346

n.7 (11th Cir. 2025) (same).

The past/future effect distinction that decisions of

the Ninth, Tenth, Eleventh, and D.C. Circuits have

drawn is in significant tension, if not outright conflict,

with decisions of several courts of appeals (including

within the Ninth and Eleventh Circuits) that have held

that deprivations of the opportunity to obtain future discretionary relief are retroactive. For example, the Seventh Circuit held in Jeudy v. Holder that a rule removing

a noncitizen’s prior eligibility for discretionary relief

from removal—which the noncitizen had not yet

27

exercised but had acquired before the law’s enactment—

was impermissibly retroactive. 768 F.3d 595, 603-605

(7th Cir. 2014). And the First Circuit held in Arevalo v.

Ashcroft that an illegal reentrant who had applied for,

but not received a decision on, discretionary relief from

removal before a law change removed that form of relief,

nevertheless had “a vested right in [that] form of relief,”

making the revocation of her application “unfairly retroactive.” 344 F.3d 1, 15 (1st Cir. 2003).

Evidencing deep doctrinal confusion, panels in the

Ninth and Eleventh Circuits have at times followed this

approach, despite invoking a “future effect” standard in

other cases, as described above. For example, the Ninth

Circuit has held that the revocation of an application for

discretionary relief was a retroactive “cancellation of

vested rights” where the noncitizen “affirmatively took

pre-enactment action so as to change his legal status”

and thus made his “expectation of relief … a ‘vested’

right that could not be ‘impair[ed].’” Ortega v. Holder,

747 F.3d 1133, 1134 (9th Cir. 2014) (discussing Ixcot v.

Holder, 646 F.3d 1202, 1212-1213 (9th Cir. 2011)). And

the Eleventh Circuit held in Rendon v. United States Attorney General, that a rule denying the “future availability of discretionary relief” had “impermissible retroactive … effect” because it “attache[d] new legal consequences to events completed before its enactment.”

972 F.3d 1252, 1263 (11th Cir. 2020) (quotation marks

omitted).

Many of these latter decisions follow from or apply

this Court’s decision in Vartelas, which in turn relied on

Chew Heong for the proposition that an intervening legal change impairing a future right tied to a completed

past act is retroactive. 566 U.S. at 268 (quoting Chew

Heong, 112 U.S. at 559). Arising in a variety of contexts,

those decisions reflect the same basic doctrinal point

28

that should govern here: a legal change can be retroactive even if the impaired benefit would have been exercised only in the future, so long as that entitlement arose

from past conduct under then-existing law.

The confusion in lower courts on this issue is deep,

longstanding, and consequential. Only this Court can definitively resolve which test governs.

B. The Proper Legal Test For Retroactivity Is An

Important, Recurring Question

It is difficult to overstate the importance of a proper

test for retroactivity, as it implicates nearly every area

of law. As discussed above, it is critical in the FERC

context because the filed rate doctrine limits retroactive

tariff changes. But the test for retroactivity is also vitally important across the full span of the administrative

state because the rulemaking authority of every federal

agency is circumscribed by the principle that “rulemaking authority will not … be understood to encompass the

power to promulgate retroactive rules unless that power

is conveyed by Congress in express terms.” Bowen, 488

U.S. at 208. Courts cannot apply those limits coherently

and consistently without a reliable test for determining

when a legal change is retroactive in the first place.

Courts regularly apply Landgraf in nearly every

context where statutes or regulations affect the conduct

of private individuals and entities, including cases about

financial regulation, Murphy v. FDIC, 38 F.3d 1490, 1501

(9th Cir. 1994); tax law, City of N.Y. v. Permanent Mission of India to United Nations, 618 F.3d 172, 192-200

(2d Cir. 2010); intellectual property law, Empresa

Cubana Exportadora de Alimentos y Productos Varios

v. U.S. Department of Treasury, 638 F.3d 794 (D.C. Cir.

2011); FCC regulations, BellSouth Telecomms., Inc. v.

Southeast Telephone Inc., 462 F.3d 650 (6th Cir. 2006);

29

the Freedom of Information Act, Southwest Ctr. for Biological Diversity v. U.S. Department of Agriculture,

314 F.3d 1060, 1061-1062 (9th Cir. 2002); private rights

of action, Gordon v. Pete’s Auto Serv. of Denbigh, Inc.,

637 F.3d 454, 458-461 (4th Cir. 2011); real estate contracts, Trostel v. American Life & Cas. Ins. Co.,

133 F.3d 679, 681 (8th Cir. 1998); immigration, ValdezSanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007); and

criminal law, Hughes v. United States, 770 F.3d 814 (9th

Cir. 2014).

The D.C. Circuit’s cramped view of retroactivity

thus has consequences well beyond the specific FERC

context presented here. Although this dispute involves

the filed rate doctrine, the Federal Power Act does not

define retroactivity, and the meaning of retroactivity in

the filed rate context is guided by general retroactivity

principles. See PJM Power Providers, 96 F.4th at 398.

As proof of that, the panel majority’s analysis expressly

drew from retroactivity principles embodied in cases

outside the FERC context, see App.17a, and the narrow

“future effect” test it drew from those precedents is by

no means limited to the Federal Power Act.

The likely practical consequences of the decision,

moreover, are especially significant because other courts

of appeals—including the Fifth, Ninth, Tenth and Federal Circuits—regularly look to the D.C. Circuit’s precedent for guidance on retroactivity. See, e.g., Jones v.

O’Malley, 107 F.4th 489, 494-495 (5th Cir. 2024) (applying Cox v. Kijakazi, 77 F.4th 983 (D.C. Cir. 2023)); Solar

Energy Indus. Ass’n, 80 F.4th at 981 (citing National

Mining Ass’n v. Department of Labor, 292 F.3d 849, 859

(D.C. Cir. 2002)); FCC 11-161, 753 F.3d at 1072 (quoting

Arkema, Inc. v. EPA, 618 F.3d 1, 7 (D.C. Cir. 2010); and

Mobile Relay, 457 F.3d at 11); Princess Cruises, Inc. v.

United States, 397 F.3d 1358, 1363 (Fed. Cir. 2005)

30

(citing Marrie v. SEC, 374 F.3d 1196, 1206-1209 (D.C.

Cir. 2004); and quoting Health Ins. Ass’n of Am., Inc. v.

Shalala, 23 F.3d 412, 423-424 (D.C. Cir. 1994)). Unless

corrected by this Court, the D.C. Circuit’s “future effect” standard is sure to influence courts in other settings, affording agencies and legislatures undue license

to accomplish retroactive changes—a “disfavored” outcome that clashes with “fundamental notions of justice

that have been recognized throughout history.” Eastern

Enters. v. Apfel, 524 U.S. 498, 532 (1998) (plurality)

(cleaned up).

IV. THIS CASE IS AN APPROPRIATE VEHICLE TO DECIDE

THE LEGAL TEST FOR RETROACTIVITY

Finally, this case is a good vehicle to clarify the governing retroactivity test. The question is purely legal,

and there are no factual disputes material to its resolution. There are also no waiver or forfeiture concerns, as

Affirmed pressed its retroactivity argument before

FERC on rehearing and before the D.C. Circuit. Affirmed specifically preserved its arguments about the incompatibility of the “future effect” test with Landgraf

and Chew Heong. In addition, although the parties disputed the meaning of the tariff provision below, both the

majority and dissent agreed on a proper interpretation

of PJM’s tariff—that it secured permission for Affirmed

to offer energy efficiency resources that cleared one auction in up to three more auctions. See App.14a, 43a. The

Court can thus take the tariff’s meaning as a given for

purposes of review.

There are no jurisdictional barriers to review. Although the PJM auctions at which Affirmed should have

been entitled to bid cleared resources have come and

gone, both FERC and PJM have confirmed that Affirmed can be made whole by PJM paying Affirmed what

31

it would have been owed had it participated in a completed auction. See C.A. Affirmed Opening Br. 25-26; supra p.14 n.7. The availability of retrospective monetary

relief ensures that a live controversy remains. Moreover, although Affirmed subsequently entered bankruptcy, any resources owed to Affirmed would be paid to

the bankruptcy estate. See 11 U.S.C. § 541(a).

Finally, nothing about a separate pending and nonenforceable penalty order imposed by FERC on Affirmed after the FERC orders challenged here bears on

the question presented. See supra p.11 n.6. Neither

FERC’s nor the D.C. Circuit’s retroactivity analysis had

anything to do with the legal or factual questions presented by that separate enforcement proceeding. The

outcome of that proceeding is irrelevant to the outcome

of this case, and vice versa. It provides no obstacle to

this Court’s resolution of the important question presented here.

32

CONCLUSION

Respectfully, the petition for a writ of certiorari

should be granted.

Respectfully submitted.

SETH P. WAXMAN

Counsel of Record

KELLY P. DUNBAR

PETER A. KALLIS

MEGAN O. GARDNER

JANE RECKER

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

SEPTEMBER 2026