State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co. , 2014 IL 116844 ( 2014 )

Illinois Official Reports
Supreme Court
State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co.,
2014 IL 116844
Caption in Supreme THE STATE OF ILLINOIS ex rel. JOSEPH PUSATERI, Appellee, v.
Court: THE PEOPLES GAS LIGHT AND COKE COMPANY, Appellant.
Docket No. 116844
Filed November 20, 2014
Held A circuit court complaint was properly dismissed as raising
(Note: This syllabus ratemaking issues which are within the exclusive jurisdiction of the
constitutes no part of the Illinois Commerce Commission where it alleged that a gas utility
opinion of the court but company’s failure to make accurate reports to the Commission caused
has been prepared by the rates to be higher and the State, as a customer, to pay
Reporter of Decisions more—Whistleblower Act and False Claims Act.
for the convenience of
the reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Raymond W. Mitchell, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Michael M. Conway, David B. Goroff, Lisa M. Noller, Theodore T.
Appeal Eidukas and John L. Litchfield, of Foley & Lardner LLP, and J.
Timothy Eaton, of Taft Stettinius & Hollister LLP, all of Chicago, for
appellant.
David Novoselsky, Edward J. Stawicki and Jonathan P. Novoselsky,
of Novoselsky Law Offices, of Chicago, for appellee.
John E. Rooney, Anne W. Mitchell and Conor B. Ward, of Rooney
Rippie & Ratnaswamy LLP, of Chicago, for amici curiae Ameren
Illinois and Nicor Gas Company.
John J. Hamill and Ramon Villalpando, of Jenner & Block LLP,
Thomas S. O’Neill and Anastasia O’Brien, all of Chicago, for amicus
curiae Commonwealth Edison Company.
Justices CHIEF JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Joseph Pusateri filed a complaint under the False Claims Act 1 alleging
defendant Peoples Gas Light and Coke Company (PG) used falsified gas leak response
records to justify a fraudulently inflated natural gas rate before the Illinois Commerce
Commission (Commission). As a customer, the State of Illinois would have paid such
fraudulently inflated rates, making PG liable under the False Claims Act. The Cook County
circuit court dismissed Pusateri’s complaint with prejudice, finding that as a matter of law,
there was no causal connection between the allegedly false reports and the
Commission-approved rates. The appellate court reversed, construing the complaint’s
allegations liberally to find PG could have submitted the safety reports in support of a request
for a rate increase, despite not being required to do so under the Administrative Code.
Accordingly, the appellate court found Pusateri had presented enough of a viable claim to
survive dismissal. 2013 IL App (1st) 120972-U.
1
At the time Pusateri filed his suit, the Illinois False Claims Act was known as the Whistleblower
Reward and Protection Act. 740 ILCS 175/1 (West 2008). The textual amendments that accompanied
the 2010 name change do not affect our analysis of this case. Pub. Act 96-1304 (eff. July 27, 2010)
(amending 740 ILCS 175/1 et seq. (West 2008)). The parties have referred to the Whistleblower
Reward and Protection Act as the Whistleblower Act, but that is the proper name of another statute. 740
ILCS 174/1 (West 2008). To avoid confusion, we use the statute’s current name, the Illinois False
Claims Act. 740 ILCS 175/1 (West 2012).
-2-
¶2 This court granted PG’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
We also permitted the Commonwealth Edison Company, the Ameren Illinois Company, and
the Northern Illinois Gas Company to file briefs amici curiae on behalf of defendant PG. Ill.
S. Ct. R. 345 (eff. Sept. 20, 2010). For the reasons that follow, we reverse the judgment of
the appellate court and affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 Pusateri is a former PG employee who filed a sealed complaint against the company
under the False Claims Act on September 2, 2009. 740 ILCS 175/1 et seq. (West 2008). In
his complaint, Pusateri alleged PG must file a report with the Commission any time its
response to a possible gas leak, from receipt of the call to arrival of the maintenance crew,
takes more than one hour. In late 2001, Pusateri rose to the level of service supervisor.
Pusateri alleged that his superiors then instructed him to change computer logs to reflect a
better response time, so that no Commission report would be filed, and that he and other
managers would alter such records. Pusateri further alleged that these falsified reports were
used by PG to help justify rate increases in Commission rate-setting proceedings. Pusateri’s
complaint contained two counts, premised on separate subsections of the False Claims Act.
The first count argued the allegedly false safety records were themselves a “false or
fraudulent claim for payment or approval” under section 3(a)(1) of the False Claims Act; the
second count argued the allegedly false safety records were “false record[s] or statement[s] to
get a false or fraudulent claim paid or approved” under section 3(a)(2). 740 ILCS
175/3(a)(1)-(2) (West 2008). No particular rate increase or order was specified in the
complaint. The State, as a purchaser of natural gas, would have paid any such inflated rate.
¶5 The Attorney General declined to proceed with the action. See 740 ILCS 175/4 (West
2008). On April 27, 2011, the circuit court ordered Pusateri to conduct the action on behalf of
the State as plaintiff. The court ordered the complaint unsealed and served on PG. On
February 29, 2012, the circuit court dismissed Pusateri’s complaint with prejudice, pursuant
to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2008). The circuit
court looked to the definition of a claim for payment under the False Claims Act, which
included “any request or demand, whether under a contract or otherwise, for money or
property” made to the State or someone to be reimbursed by the State. 740 ILCS 175/3(c)
(West 2008). Noting the requirement of a causal nexus between the false claim and payments
by the State, the circuit court examined the Illinois Administrative Code to conclude the
Commission would never look at safety reports in deciding a rate. See 83 Ill. Adm. Code
§§ 285.305, 285.315 (2011). Therefore, there could be no causal connection between a false
safety report and a Commission rate approval.
¶6 The appellate court reversed. It held that although PG was not required to use its natural
gas leak reports in support of a rate increase, it may have done so. 2013 IL App (1st)
120972-U, ¶ 21. Construing the complaint liberally, the appellate court found the alleged
false reports could form the basis of a claim under section 3(a)(2), submitting a false record
in support of a claim for payment. Id. ¶ 22. It also held that Pusateri’s complaint alleged PG
had submitted fraudulent bills to the State, making the basis of a claim under section 3(a)(1)
for a false or fraudulent claim. Id. ¶ 28. One justice dissented, on the basis that the
Commission’s legislative rate making is a regulatory act, whereas the False Claims Act is
-3-
concerned with procurement and the government’s bills. Id. ¶¶ 42-46 (Palmer, J., dissenting).
¶7 ANALYSIS
¶8 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint.
Kanerva v. Weems, 2014 IL 115811, ¶ 33. A court deciding a section 2-615 motion must
accept all well-pleaded facts in the complaint as true, and it should dismiss the complaint
only where it is apparent no set of facts could be proven that would entitle the plaintiff to
recover. Id. We review de novo an order granting a motion to dismiss under section 2-615.
Id. Whether Pusateri’s complaint is a proper one under the False Claims Act is a question of
statutory interpretation. The primary objective of statutory interpretation is to give effect to
the legislature’s intent, which is best indicated by the plain language of the statute itself.
Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. The court
may affirm on any basis appearing in the record. In re Veronica C., 239 Ill. 2d 134, 151
(2010).
¶9 Before this court, PG reiterates its prior arguments that Pusateri has not stated a claim
within the meaning of the False Claims Act, or within the analogous federal False Claims
Act. 31 U.S.C. § 3729 et seq. PG argues first that any false reports to the Commission would
not be a claim for payment, and any falsity therein would be mere false statements
unconnected to any claim for payment. PG argues second that there is no causal nexus
between the allegedly false reports and the State’s gas bills—both because changing the logs
would mean no report was generated at all, and because the Commission would not rely upon
gas leak reports in setting rates anyway. Pusateri responds that a false record in support of a
claim for payment is sufficient, even where the State is only a partial payor of the claim,
relying largely on People ex rel. Levenstein v. Salafsky, 338 Ill. App. 3d 936 (2003). Pusateri
thus argues the gas leak reports were sufficiently causally linked to the State’s payment of
gas bills. Pusateri also argues that the Commission has considered gas leak reports in the
past, relying chiefly on People ex rel. Madigan v. Illinois Commerce Comm’n, 2011 IL App
(1st) 100654. Pusateri argues that the Commission’s consideration of prospective safety
improvements in light of a proposed infrastructure cost recovery rider in Madigan indicates
the Commission will consider gas leak reports in setting rates, irrespective of the reports’
absence in that portion of the Illinois Administrative Code.
¶ 10 PG additionally argues that Pusateri’s complaint is a prohibited collateral attack on a
Commission rate order. See, e.g., Peoples Gas Light & Coke Co. v. Buckles, 24 Ill. 2d 520,
528 (1962). Pusateri counters that PG has forfeited this argument by not raising it in the
circuit or appellate courts. Pusateri additionally argues that his complaint does not seek to
“adjust or countermand any rate making decisions of” the Commission, because he is asking
the court only to review PG’s conduct and order disgorgement. Pusateri also contends that
arguments against applying the False Claims Act to PG’s safety reports to the Commission
are a constitutional attack on the False Claims Act. In reply, PG notes that no party has
argued the False Claims Act is unconstitutional, facially or as applied to the Commission.
¶ 11 Jurisdiction of the Illinois Commerce Commission
¶ 12 The Public Utilities Act creates the Illinois Commerce Commission and charges it with
“general supervision of all public utilities.” 220 ILCS 5/2-101, 4-101 (West 2008). “The
-4-
Commission is the administrative agency responsible for setting the rates utilities charge their
customers.” United Cities Gas Co. v. Illinois Commerce Comm’n, 163 Ill. 2d 1, 11 (1994).
The Commission has “exclusive jurisdiction over rates” under the Public Utilities Act.
Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 41 (citing 220 ILCS 5/9-252 (West
2006)). The Commission establishes rates based on its finding such rates are “just and
reasonable.” 220 ILCS 5/9-201(c) (West 2008). In a rate-setting process before the
Commission, the regulated utility bears the burden of proving the “justness and
reasonableness of the proposed rates.” Id. The Public Utilities Act also prohibits a utility
from charging a rate other than one approved by the Commission, or from offering a refund.
220 ILCS 5/9-240 (West 2008) (providing that, “[e]xcept as in this Act otherwise provided,
no public utility shall charge *** a greater or less or different compensation for any product
*** than the rates or other charges applicable to such product *** as specified in its
schedules on file and in effect at the time, *** nor shall any such public utility refund or
remit, directly or indirectly, in any manner or by any device, any portion of the rates or other
charges so specified”). The Commission may not make rates retroactively or for single issues
(Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 146
Ill. 2d 175, 195 (1991)), but the Commission may order a refund where it concludes a utility
has charged an excessive or unjustly discriminatory rate. 220 ILCS 5/9-252 (West 2008).
¶ 13 The circuit and appellate courts have jurisdiction to review administrative agency actions
only as provided by statute. Ill. Const. 1970, art. VI, §§ 6, 9. The Public Utilities Act
provides for appeal of a Commission order directly to the appellate court, under standards
deferential to the Commission’s expertise. See 220 ILCS 5/10-201(e) (West 2008).
“An order of the Commission will be reversed only if it is outside the jurisdiction
of the Commission or is not supported by substantial evidence, or if the proceedings
or manner in which the order was arrived at violated the State or Federal
Constitutions or relevant laws, to the prejudice of the appellant. *** Apart from
examining whether the Commission acted outside the scope of its constitutional or
statutory authority, a reviewing court is limited to determining whether the findings
of the Commission are against the manifest weight of the evidence.” United Cities
Gas Co., 163 Ill. 2d at 12.
¶ 14 Rate-setting is a legislative function, not a judicial one. Business & Professional People,
146 Ill. 2d at 196. “In the rate-making scheme, the Commission and not the court is the
fact-finding body.” Id. “On appeal from an order of the Commission, its findings of fact are
to be considered prima facie true; its orders are considered prima facie reasonable; and the
burden of proof on all issues raised in an appeal is on the appellant.” United Cities Gas Co.,
163 Ill. 2d at 11.
¶ 15 When the court reverses a Commission rate order, it does not set a new rate. See, e.g.,
Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 136
Ill. 2d 192, 242 (1989). Ordinarily, where a Commission order approving a rate increase is
reversed, and the rate increase has not been stayed pending litigation, ratepayers are not
entitled to any refund for excess charges collected between the rate’s effective date and
reversal. Id. This court has previously ordered a utility to refund excess money collected after
we had reversed the applicable rate order, but only as “a result of a direct, statutorily
authorized, review of the Commission order.” Independent Voters of Illinois v. Illinois
-5-
Commerce Comm’n, 117 Ill. 2d 90, 105 (1987). Such refunds were available for charges
collected only after the court held “that a Commission-approved rate order included
allowance of improper expenses and deductions for the utility company.” Id. In Independent
Voters, the court declined to order disgorgement where the amounts collected under the
Commission-approved rate were not unlawfully obtained. As noted above, the court
considered the question only upon “direct, statutorily authorized” review. Id. The
Commission’s orders within its statutory authority are “not subject to collateral attack.”
Peoples Gas Light & Coke Co. v. Buckles, 24 Ill. 2d 520, 528 (1962).
¶ 16 The legislature enacted the False Claims Act in 1991, long after the establishment of the
Commission’s exclusive rate-setting jurisdiction. See Pub. Act 87-662 (eff. Jan. 1, 1992).
The False Claims Act allows the Attorney General or a private individual to bring a “civil
action” on behalf of the State for false claims. See 740 ILCS 175/4 (West 2008). The False
Claims Act enumerates certain individuals and circumstances to which it does not apply. 740
ILCS 175/4(e)(1)-(2) (West 2008) (stating “No court shall have jurisdiction over an action”
between members of the Guard arising from service in the Guard, or over an action by an
individual against a member of the legislature, judiciary, or other exempt official if based on
information known to the State at the time the action was brought). No part of the False
Claims Act enlarges the subject matter jurisdiction of the circuit courts. Nothing in the False
Claims Act indicates an intent to abridge or disturb the Commission’s exclusive jurisdiction.
¶ 17 Reparations as Distinguished From Civil Damages
¶ 18 This court has recently examined which causes of action against a regulated utility are
subject to the exclusive jurisdiction of the Commission. Claims for reparations are subject to
the exclusive jurisdiction of the Commission. Sheffler, 2011 IL 110166, ¶ 41 (“It has long
been recognized that the ‘evident intent and purpose of the legislature in providing a method
by which reparation may be recovered and in requiring that an application therefor shall be
first made to the commission, precludes an action at law for such reparation until the
commission has heard a claim therefor.’ ” (quoting Terminal R.R. Ass’n of St. Louis v. Public
Utilities Comm’n, 304 Ill. 312, 317 (1922))). In Sheffler, we noted “a claim is for reparations
when the essence of the claim is that a utility has charged too much for a service, while a
claim is for civil damages when the essence of the complaint is that the utility has done
something else to wrong the plaintiff.” Id. ¶ 42 (citing Flournoy v. Ameritech, 351 Ill. App.
3d 583, 585 (2004)).
¶ 19 At its heart, Pusateri’s complaint alleges PG used fraudulent means to get the State (and
others) to pay too much for natural gas. While the False Claims Act could subject PG to civil
penalties of $5,500 to $11,000, PG would also be subject to paying treble damages for its
actions. 740 ILCS 175/3(a) (West 2008). Pusateri, as plaintiff, could share in 25% to 30% of
the civil penalty and damages awarded. 740 ILCS 175/4(d)(2) (West 2008). Though the
remedy Pusateri seeks is a mix of penalty and damages, the sole reason the alleged
falsehoods might be actionable under the False Claims Act is that they would have induced
the State to pay too much for PG’s natural gas. See 740 ILCS 175/3(a)(1)-(7) (West 2008)
(establishing liability for false claims, actions in support of false claims, and other actions
used to deprive the State of property to which it is entitled). Pusateri’s complaint is one for
reparations, and it is subject to the exclusive, original jurisdiction of the Commission.
-6-
¶ 20 Pusateri’s complaint in the circuit court also constitutes a prohibited collateral attack on a
Commission rate order. It is not possible to determine how much PG’s alleged safety-related
fraud increased its rate without determining what its rate should have been without any false
reports. At oral argument, Pusateri suggested this difficulty could be resolved through the
testimony of expert witnesses, who could opine on how much PG’s rate might have been
inflated by fraudulent reports. The use of expert witnesses would not resolve the defect in
this procedure—the circuit court would simply be asking experts to exercise the judgment
statutorily reserved to the Commission. The court would then exercise the rate-setting
authority reserved to the Commission, then order a refund outside of “direct,
statutorily-authorized, review of the Commission order.” Independent Voters, 117 Ill. 2d at
105. The circuit court is without jurisdiction to offer such remedies.
¶ 21 Forfeiture
¶ 22 Pusateri has argued that PG forfeited the issue of a collateral attack on a Commission rate
order, by not raising it below. Issues not raised below may be forfeited, meaning they are not
properly before the court exercising appellate review. See, e.g., City of Champaign v. Torres,
214 Ill. 2d 234, 240 n.1 (2005). Forfeiture does not apply to questions of subject matter
jurisdiction, however. People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370,
387 (2008) (describing forfeiture argument as “ultimately irrelevant, as the issue in this case
is one of jurisdiction, which any reviewing court has an obligation to consider” (citing
Franson v. Micelli, 172 Ill. 2d 352, 355 (1996))). The prohibition against collateral attacks on
Commission rate orders concerns the court’s ability to adjudicate the controversy and to offer
relief. People v. Hughes, 2012 IL 112817, ¶ 20 (“A court’s subject matter jurisdiction relates
to ‘the power of a court to hear and determine cases of the general class to which the
proceeding in question belongs.’ ” (quoting Belleville Toyota, Inc. v. Toyota Motor Sales,
U.S.A., Inc., 199 Ill. 2d 325, 334 (2002))). Outside the administrative review prescribed by
section 10-201, the circuit court lacked subject matter jurisdiction to adjudicate the central
question of Pusateri’s complaint: whether the rate set by the Commission was too high by
virtue of the allegedly false gas leak reports. The circuit court was further unable to offer the
relief sought: reparations, as augmented by the civil penalty provisions of the False Claims
Act.
¶ 23 The legislature enacted the False Claims Act well after this court’s rulings on the
exclusive jurisdiction of the Commission. No part of the False Claims Act indicates the
legislature intended to abridge that exclusive jurisdiction. This conclusion should not be
mistaken for a conclusion that the legislature constitutionally cannot craft a remedy or
whistleblower reward within the context of utility rates, as Pusateri suggested at oral
argument. The legislature simply has not done so. This result emanates from analysis of the
statutes, not our Constitution.
¶ 24 Whistleblower Protections and the Commission’s Enforcement Role
¶ 25 At oral argument, Pusateri contended his complaint should proceed in the circuit court,
lest he be subject to retaliation if not proceeding under “the Whistleblower Act.” The False
Claims Act provides relief for employees who suffer retaliation for bringing a False Claims
Act action, including reinstatement with double back pay. 740 ILCS 175/4 (West 2008).
-7-
However, the argument that Pusateri would be unprotected without the False Claims Act is
unpersuasive for a number of reasons. First, we note that Pusateri was already a former
employee at the time he filed his complaint. Second, the absence of False Claims Act
protections would have no impact on the application of the Whistleblower Act (740 ILCS
174/1 et seq. (West 2008)). The plain language of the Whistleblower Act would prohibit
retaliation for making a good faith complaint to the Commission that a utility is violating the
law. 740 ILCS 174/15 (West 2008) (prohibiting retaliation “against an employee for
disclosing information to a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation of a State or federal
law, rule, or regulation”). An employee who is the victim of retaliation for such a disclosure
would be entitled to “all relief necessary to make the employee whole,” including
reinstatement with back pay and compensation for litigation expenses. 740 ILCS 174/30
(West 2008). This relief for retaliation under the Whistleblower Act is less plentiful than that
offered under the False Claims Act, and the Whistleblower Act does not offer a
whistleblower the opportunity to share in any recovery by the State, but the Whistleblower
Act nonetheless prohibits retaliation. Compare 740 ILCS 175/4 (West 2008), and 740 ILCS
174/30 (West 2008); see 740 ILCS 175/4(d)(2) (West 2008).
¶ 26 Finding that the legislature did not intend the False Claims Act to apply to a
Commission-set rate likewise does not create an enforcement gap. The legislature has
granted the Commission an array of enforcement duties and powers. The Commission has the
authority to pursue penalties, ranging from $1,000 to $500,000, for each misrepresentation to
the Commission. 220 ILCS 5/5-202.1 (West 2008). The Commission has the duty to ensure
regulated utilities obey the Public Utilities Act and other statutes, except where enforcement
duties are “specifically vested in some other officer or tribunal.” 220 ILCS 5/4-201 (West
2008). The Public Utilities Act directs the Commission to seek an injunction in the circuit
court to prevent continued violation of the law. 220 ILCS 5/4-202 (West 2008). The
Commission also has a procedure for receiving complaints from an individual or a wide
range of entities; it may also initiate a complaint sua sponte. 220 ILCS 5/10-108 (West
2008). The Commission is to hear and enter orders on complaints within one year, in the
absence of an agreed upon extension of time. Id. Where the Commission has failed to do so,
a complainant may seek an order of mandamus only to compel the Commission to issue an
order, further demonstrating the legislature’s deference to Commission expertise. Id. Finally,
the Commission may order a refund where it concludes a utility has charged an excessive or
unjustly discriminatory rate. 220 ILCS 5/9-252 (West 2008).
¶ 27 As noted above, the legislature enacted the False Claims Act long after this court’s
relevant findings about the exclusive jurisdiction of the Commission, and we find no
indication the legislature intended to abridge that jurisdiction. This conclusion is bolstered by
the existence of a robust regulatory scheme already existing within the Public Utilities Act.
Pusateri’s interpretation of the False Claims Act would invite the circuit court to review a
Commission rate order collaterally, in the absence of any specific grant of jurisdiction and
less deferentially than the manner prescribed under the Public Utilities Act. The complaint
cannot proceed in the circuit court, and dismissal was proper. Accordingly, we need not
address the parties’ arguments on whether the gas leak reports properly resemble a claim or a
false record in support of a claim under the False Claims Act.
-8-
¶ 28 CONCLUSION
¶ 29 Because the circuit court was without jurisdiction to offer the relief sought by Pusateri’s
complaint, dismissal was appropriate. The judgment of the appellate court is reversed. The
judgment of the circuit court is affirmed.
¶ 30 Appellate court judgment reversed.
¶ 31 Circuit court judgment affirmed.
-9-