Californians for Renewable v. Cpuc ( 2015 )

FILED
NOT FOR PUBLICATION MAR 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOLUTIONS FOR UTILITIES, INC., a No. 13-55206
California Corporation,
D.C. No. 2:11-cv-04975-SJO-
Plaintiff, JCG
and
CALIFORNIANS FOR RENEWABLE MEMORANDUM*
ENERGY, INC., a California Non-Profit
Corporation; MICHAEL E. BOYD;
ROBERT SARVEY,
Plaintiffs - Appellants,
v.
CALIFORNIA PUBLIC UTILITIES
COMMISSION, an Independent California
State Agency; MICHAEL R. PEEVEY;
TIMOTHY ALAN SIMON; MICHAEL R.
FLORIO; CATHERINE J.K.
SANDOVAL; MARK J. FERRON, in
their official and individual capacities as
current Public Utilities Commission of
California Members,
Defendants - Appellees,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and
SOUTHERN CALIFORNIA EDISON
CO., a California Corporation; RACHEL
CHONG; JOHN A. BOHN; DIAN M.
GRUENICH; NANCY E. RYAN, in their
individual capacities as former Public
Utilities Commission of California
Members,
Defendants.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 10, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and MAHAN,** District
Judge.
Plaintiffs Californians for Renewable Energy, Inc., a California-based non-
profit energy company, and its members Michael Boyd and Robert Sarvey
(collectively “CARE”) appeal the dismissal of their claims against defendants
California Public Utilities Commission, the state agency responsible for California
energy policymaking, and its past and present commissioners in both their official
**
The Honorable James C. Mahan, District Judge for the U.S. District Court
for the District of Nevada, sitting by designation.
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and individual capacities (collectively “CPUC”).1 We review de novo a district
court’s grant of a motion to dismiss. Gompper v. VISX, Inc., 298 F.3d 893, 895
(9th Cir. 2002); Vestron, Inc. v. Home Box Office Inc., 839 F.2d 1380, 1381 (9th
Cir. 1988). We review the denial of leave to amend for abuse of discretion.
Gompper, 298 F.3d at 898. We reverse and remand on claim one but affirm the
dismissal of all other claims.
1. We need not decide whether the administrative exhaustion requirement
under the Public Utility Regulatory Policies Act of 1978 (“PURPA”) is
jurisdictional. CARE fulfilled the requirement to exhaust administrative remedies.
It petitioned for enforcement, and the Federal Energy Regulatory Commission did
not initiate an enforcement action within 60 days. The statute does not forbid
“activating” a premature complaint when there is a proper petition and no action
within 60 days. See 16 U.S.C. § 824a-3(h)(2)(B). Therefore, the district court
erred. This claim is remanded for further proceedings.
2. The district court correctly dismissed CARE’s 42 U.S.C. § 1983 claim for
First Amendment violations. CARE did not sufficiently plead that CPUC had a
retaliatory motive that was the but-for cause of seeking to have CARE declared a
1
The underlying complaint also included as parties co-plaintiff Solutions for
Utilities, Inc., and co-defendant Southern California Edison Co. Neither is a party
to this appeal.
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vexatious litigant. See Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1231-32 (9th
Cir. 2006). Though the district court’s rationale for dismissal was arguably
different, "we may affirm based on any ground supported by the record." Johnson
v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
3. The district court correctly dismissed CARE’s claim for intervenor fees.
The Johnson Act applies because the award of intervenor fees has a dollar-for-
dollar effect on utility rates. See Cal. Pub. Util. Code § 1807(a). All four prongs
of the Johnson Act were satisfied. See US West, Inc. v. Nelson, 146 F.3d 718, 722
(9th Cir. 1998). First, jurisdiction over the claim rests on the alleged First
Amendment violation. Second, CARE did not satisfy its burden to explain how
CPUC’s actions were directly burdensome to or discriminatory against interstate
commerce. See id. at 724. Third, there are extensive notice, hearing, and review
procedures in place for CPUC proceedings. See Cal. Pub. Util. Code §§ 1701-
1736, 1756-1758. Finally, procedures in place allow intervenors to have an
administrative law judge address their request for compensation for their
contributions in CPUC proceedings. See Cal. Pub. Util. Code § 1804. Because the
Johnson Act withdraws state utility rate cases from federal jurisdiction when all
four prongs of the Act are satisfied, we affirm the district court’s dismissal of
CARE’s intervenor fees claim for lack of jurisdiction.
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4. The district court correctly dismissed CARE’s § 1983 claim for PURPA
violations. PURPA provides a mechanism for parties to seek an administrative or
judicial remedy. See 16 U.S.C. § 824a-3(h)(2)(B). That PURPA provides fewer
remedies than § 1983 is evidence that Congress did not intend to permit a PURPA
claim to be brought under § 1983. See City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 121 (2005). Because PURPA has a comprehensive remedial
scheme, CARE is precluded from alleging a PURPA violation through § 1983.
5. The district court properly dismissed CARE’s takings claim. Under
California law, CARE has no protected property interest in the profits that it
anticipated earning with a PURPA-compliant contract. See Yee v. Mobilehome
Park Rental Review Bd., 73 Cal. Rptr. 2d 227, 235 (Ct. App. 1998). Though
CARE tries to recharacterize its claim as one for complete loss of the use of its
property, CARE’s claim does not amount to the forfeiture of all economically
beneficial uses. See id. at 1421-22; cf. Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1019 (1992).
AFFIRMED in part, REVERSED in part, and REMANDED. Parties to
bear their own costs.
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