Pacificorp v. Usdoe ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 28 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFICORP, No. 16-70245
Petitioner,
v.
MEMORANDUM*
U.S. DEPARTMENT OF ENERGY;
BONNEVILLE POWER
ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the
Bonneville Power Administration
Argued and Submitted June 11, 2019
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Petitioner, PacifiCorp, seeks review of the Bonneville Power Authority’s
(“BPA”) decision to retroactively bill customers given improper Short Distance
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Discounts (“SDDs”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We
deny the petition for review.1
BPA argues that PacifiCorp’s petition was untimely and that the panel lacks
jurisdiction. The Northwest Power Act (“NWPA”) provides that suit challenging
BPA’s actions must be filed “within ninety days of the time such action or decision
is deemed final . . . or be barred.” 16 U.S.C. § 839(e)(5). The NWPA does not
define finality, so this court has applied “the more general doctrine of finality in
administrative law.” Puget Sound Energy, Inc. v. United States, 310 F.3d 613, 624
(9th Cir. 2002). The parties disagree as to when BPA’s retroactive billing decision
became final. The procedure BPA used in reaching its decision contributed to the
confusion, as BPA did not go through ordinary agency procedures in reaching its
decision. Nevertheless, we conclude that BPA’s October 28, 2015 letter to
PacifiCorp rejecting PacifiCorp’s objections to the retroactive billing was the final
action. Accordingly, PacifiCorp’s January 26, 2016 petition was timely and the
panel has jurisdiction.
1
BPA filed a motion for consideration of extra-record materials and judicial
notice (Dkt. 87). PacifiCorp filed a motion to file an overlength combined
response and cross-motion (Dkt. 94) and filed a motion to submit extra-record
material in support of its opposition to BPA’s motions (Dkt. 111) We DENY both
parties’ motions.
2
BPA’s decision to recoup SDDs to which PacifiCorp and other customers
were not entitled was not arbitrary or capricious. BPA has authority under the
NWPA to set rates and to retroactively bill its customers. Indus. Customers of Nw.
Utils. v. Bonneville Power Admin., 767 F.3d 912, 929 (9th Cir. 2014). BPA
considered the financial impact its decision might have on its customers, as well as
BPA’s own role in contributing to the billing errors that necessitated the retroactive
billing. BPA also considered whether its decision complied with its own policies
and the NWPA. Finally, BPA justified its decision as to the amount PacifiCorp
owed. In short, BPA’s decision reflects “a rational connection between the facts
found and the conclusions made” and so was “not arbitrary and capricious.” Or.
Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).
PETITION DENIED.
3