American Tradition Institute et al v. State of Colorado, The et al

Filing 64

ORDER RESOLVING MOTIONS TO DISMISS. Defendants' 28 Motion to Dismiss is granted in part and denied in part. Intervenor-Defendants' 37 Motion to Dismiss is denied. All of Plaintiffs' claims brought against the State of Colorado a re dismissed with prejudice. The State of Colorado is no longer a defendant in this action. All of Plaintiffs' claims against Defendants John Hickenlooper and Barbara J. Kelley, in both their official and individual capacities, are dismissed wit hout prejudice. To the extent that Plaintiffs, in their First Amended Complaint, sought to bring a 42 U.S.C. § 1983 claim for damages against Defendants Joshua Epel, James Tarpey, Matt Baker, and Doug Dean in their official capacities, such claims are dismissed with prejudice. Plaintiffs' 42 U.S.C. § 1983 claim for damages against Defendant Joshua Epel in his individual capacity is hereby dismissed with prejudice. By Judge William J. Martinez on 7/17/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-00859-WJM-BNB
AMERICAN TRADITION INSTITUTE,
AMERICAN TRADITION PARTNERSHIP, and
ROD LUECK,
Plaintiffs,
v.
STATE OF COLORADO,
JOHN HICKENLOOPER, individually and in his official capacity as the Governor of
Colorado,
BARBARA J. KELLEY, individually and in her official capacity as the Executive Director
of the Colorado Department of Regulatory Agencies,
JOSHUA EPEL, individually and in his official capacity as Chairman of the Colorado
Public Utilities Commission,
JAMES TARPEY, individually and in his official capacity as a Commissioner of the
Colorado Public Utilities Commission,
MATT BAKER, individually and in his official capacity as a Commissioner of the Colorado
Public Utilities Commission, and
DOUG DEAN, individually and in his officical capacity as Director of the Colorado Public
Utilities Commission,
Defendants,
and
ENVIRONMENT COLORADO,
COLORADO ENVIRONMENTAL COALITION,
SIERRA CLUB, and
THE WILDERNESS SOCIETY,
Intervenor-Defendants.
______________________________________________________________________
ORDER RESOLVING MOTIONS TO DISMISS
______________________________________________________________________
This action challenges the constitutionality of Colorado’s Renewable Energy
Standard statute (the “RES”), Colorado Revised Statute § 40-2-124. Specifically,
Plaintiffs seek a declaration that particular provisions of the RES and their implementing

regulations violate the Commerce Clause of the United States Constitution, injunctive
relief preventing enforcement of those provisions, and damages under 42 U.S.C. § 1983.
This matter is before the Court on Defendants’ Motion to Dismiss (ECF No. 28)
and Intervenor-Defendants’ Motion to Dismiss (ECF No. 37). In Defendants’ Motion to
Dismiss, they argue that Plaintiffs lack constitutional and prudential standing to bring this
action, that some of Plaintiffs’ claims are barred by the Eleventh Amendment, and that
some claims should be dismissed for failure to state a claim. (ECF No. 28.) IntervenorDefendants’ Motion to Dismiss focuses entirely on the issue of prudential standing. (ECF
No. 37.) The Motions are fully briefed (see also ECF No. 39, 49, 53, 60, 63), and ripe for
adjudication.
For the following reasons, Defendants’ Motion to Dismiss is GRANTED IN PART
and DENIED IN PART, and Intervenor-Defendants’ Motion to Dismiss is DENIED.
I. BACKGROUND
For purposes of the Motions to Dismiss, the Court properly accepts as true the
allegations in Plaintiffs’ Amended Complaint for Injunctive and Declaratory Relief (the
“operative Complaint”). (See “Legal Standards” section below.)
A.

The Operative Complaint and the RES
Plaintiffs are the American Tradition Institute (“ATI”), the American Tradition

Partnership (“ATP”), and Rod Lueck. (ECF No. ¶¶ 3-5.) ATI and ATP are organizations
whose members are allegedly harmed by the RES. (Id. ¶¶ 3, 4, 126.) Mr. Lueck is a
member of both ATI and ATP. (Id. ¶ 5.)
The named Defendants are: (1) the State of Colorado; (2) John Hickenlooper, the
Governor of Colorado; (3) Barbara J. Kelley, the Executive Director of the Colorado
2

Department of Regulatory Agencies; and (4) Joshua Epel (Chair), James Tarpey
(Commissioner), Matt Baker (Commissioner), and Doug Dean (Director) of the Colorado
Public Utilities Commission (“PUC”). (Id. ¶¶ 7-12; see also ECF No. 15, 17.)
Plaintiffs bring six claims for declaratory relief and six claims for injunctive relief,
alleging that particular provisions of the RES violate the dormant Commerce Clause of
the United States Constitution.1 (ECF No. 12, ¶¶ 156-188.) Plaintiffs also bring a claim
for damages under 42 U.S.C. § 1983. (Id. ¶¶ 189-190.) Plaintiffs challenge the following
provisions of the RES2:
•

The Electric Resource Standards Program, Colo. Rev. Stat. § 40-2-124(1)(c), and
the Municipally Owned Electric Utility Program, Colo. Rev. Stat. § 40-2-124(3) &
(4). (See also ECF No. 12, ¶¶ 128-146, 156-168.) These Programs, inter alia,
require qualifying retail electric utilities to generate, or cause to be generated,
electricity from recycled energy and/or renewable energy resources in certain
minimum amounts by certain years. See Colo. Rev. Stat. § 40-2-124(1)(c)(I),
(1)(c)(V), (3) & (4). Plaintiffs allege that these Programs violate the dormant
Commerce Clause by limiting the sales of electricity generated from sources that
participate in the interstate retail electricity market and by discriminating in favor of
Colorado energy generators. (ECF No. 12, ¶¶ 128-146, 156-168.)

1

The Commerce Clause empowers the U.S. Congress “[t]o regulate Commerce . . .
among the several States . . . .” U.S. Const. art. I, § 8, cl. 3. The U.S. Supreme Court interprets
the Commerce Clause as authorizing Congress to regulate “the channels of interstate commerce,”
“persons or things in interstate commerce,” and “those activities that substantially affect
interstate commerce.” United States v. Morrison, 529 U.S. 598, 609 (2000). Although the text
of the Commerce Clause does not expressly limit the power of states, the Supreme Court has
read into the Commerce Clause a “negative implication” – the dormant Commerce Clause – that
prohibits states from passing laws that improperly burden or discriminate against interstate
commerce. See, e.g., Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337-39 (2008).
2

The Court properly takes judicial notice of the RES’s provisions. See Fed. R. Evid.
201(b) (providing that judicial notice may be taken of a fact that is “not subject to reasonable
dispute in that it is . . . capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned”); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d
1276, 1278 n.1 (10th Cir. 2004) (stating that, in evaluating a motion to dismiss, a court may take
judicial notice of facts that are a matter of public record).
3

•

The Tradable Renewable Energy Credits Limitation Program, Colo. Rev. Stat. §
40-2-124(1)(d). (See also ECF No. 12, ¶¶ 147-148, 169-173.) This Program
creates a system of tradable renewable energy credits that may be used by a
qualifying retail electric utility to comply with the renewable energy standards.
See Colo. Rev. Stat. § 40-2-124(1)(d). Plaintiffs allege that this Program violates
the dormant Commerce Clause by effectively prohibiting out-of-state regional
trading systems from participating in the interstate credit trading market. (ECF
No. 12, ¶¶ 147-148, 169-173.)

•

The Standard Rebate Offer Program, Colo. Rev. Stat. § 40-2-124(1)(e). (See also
ECF No. 12, ¶¶ 149-150, 174-178.) Under this Program qualifying retail electric
utilities provide rebates to customers who install solar electric generation on their
premises. See Colo. Rev. Stat. § 40-2-124(1)(e). Plaintiffs allege that this
Program violates the dormant Commerce Clause by imposing a cost on qualifying
retail electric utilities that is not imposed on other domestic and foreign utilities,
thereby burdening the affected utilities’ participation in the interstate electricity
market. (ECF No. 12, ¶¶ 149-150, 174-178.)

•

The Recovery of Costs Incentives Program, Colo. Rev. Stat. § 40-2-124(1)(f)(I).
(See also ECF No. 12, ¶¶ 151-152, 179-183.) This Program, inter alia, exempts
certain eligible retail electric utilities from having to comply with the PUC’s
competitive bidding requirements. See Colo. Rev. Stat. § 40-2-124(1)(f)(I).
Plaintiffs allege that this Program violates the dormant Commerce Clause by
imposing costs on non-eligible utilities that are not imposed on the eligible utilities,
thereby burdening the non-eligible utilities’ participation in the interstate electricity
market. (ECF No. 12, ¶¶ 151-152, 179-183.)

•

The Retail Rate Impact Rule, Colo. Rev. Stat. § 40-2-124(1)(g). (See also ECF
No. 12, ¶¶ 153-154, 184-188.) This Rule, inter alia, allows eligible utilities to
acquire more than the minimum amount of eligible energy resources and
renewable energy credits. See Colo. Rev. Stat. § 40-2-124(1)(g). Plaintiffs
allege, inter alia, that the Program violates the dormant Commerce Clause by
limiting the amount of renewable resources and renewable energy credits that can
be acquired by foreign companies. (ECF No. 12, ¶¶ 153-154, 184-188.)

B.

Procedural History
Plaintiffs filed this action on April 4, 2011. (ECF No. 1.) On April 22, 2011, they

filed the operative Complaint. (ECF No. 12.) On May 16, 2011, Joshua Epel was
substituted in for Ron Binz as a Defendant, given Epel’s replacement of Binz as Chair of
the PUC. (ECF No. 15, 17.)
4

On July 12, 2011, Defendants filed their Motion to Dismiss. (ECF No. 28.)
Plaintiffs have filed a Response to the Motion to Dismiss (ECF No. 39), and Defendants
filed a Reply (ECF No. 49, 50). On July 14, 2011, Defendants filed a Motion to Stay
(ECF No. 31), to which Plaintiffs filed a Response (ECF No. 40). On August 23, 2011,
U.S. Magistrate Judge Kristen L. Mix granted the Motion to Stay, staying the proceedings
pending resolution of Defendants’ Motion to Dismiss. (ECF No. 46.)
On June 13, 2011, Environment Colorado, Colorado Environmental Coalition,
Sierra Club, and the Wilderness Society (the “Intervenor-Defendants”) filed a Motion to
Intervene and for Leave to File Rule 12(b) Motion to Dismiss. (ECF No. 21.) Plaintiffs
filed a Response to the Motion to Intervene (ECF No. 33), and the Intervenor-Defendants
filed a Reply (ECF No. 38). On July 29, 2011, Intervenor-Defendants filed a Proposed
Motion to Dismiss. (ECF No. 37.)3
On February 21, 2012, this Court granted Intervenor-Defendants’ Motion to
Intervene and accepted their Proposed Motion to Dismiss as filed. (ECF No. 51.)
Subsequently, Plaintiffs filed a Response to Intervenor-Defendants’ Motion to Dismiss
(ECF No. 53), Intervenor-Defendants filed a Reply (ECF No. 60), and Plaintiffs filed a
Sur-Reply (ECF No. 63).
The Motions to Dismiss filed by Defendants and Intervenor-Defendants are now
ripe for adjudication.

3

On August 19, 2011, Plaintiffs moved to strike Intervenor-Defendants’ Proposed
Motion to Dismiss. (ECF No. 41). Magistrate Judge Mix denied the Motion to Strike,
concluding that the Court would resolve whether to accept the Proposed Motion to Dismiss in its
ruling on the Motion to Intervene. (ECF No. 45.)
5

II. LEGAL STANDARDS
Defendants’ Motion to Dismiss is brought pursuant to Federal Rules of Civil
Procedure 12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) (failure to state a
claim), while Intervenor-Defendants’ Motion to Dismiss is brought under Rule 12(b)(6).
There is some dispute between the parties, and a lack of clarity in the law, regarding
which of these two rules applies to the issues of prudential standing and Eleventh
Amendment immunity.4 However, the parties agree that no matter which rule applies,
the Court should accept the operative Complaint’s allegations as true and construe them
in a light most favorable to Plaintiffs as to every purported basis for dismissal in the
Motions to Dismiss. (ECF No. 28, at 4-5; ECF No. 37, at 3; ECF No. 39, at 2; ECF No.
53, at 3.) See also Warth v. Seldin, 422 U.S. 490, 501 (1975) (“For purposes of ruling on
a motion to dismiss for want of standing, . . . courts must accept as true all material
allegations of the complaint, and must construe the complaint in favor of the complaining
party.”); Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(stating that, in evaluating a Rule 12(b)(6) motion, a court must “assume the truth of the
plaintiff’s well-pleaded factual allegations and view them in the light most favorable to the
plaintiff”).

4

(See ECF No. 28, at 4-5, 19; ECF No. 37, at 3.) As to the issue of Eleventh Amendment
immunity, see also Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 391 (1998) (explicitly stating
that the Supreme Court has not decided whether Eleventh Amendment immunity is a matter of
subject-matter jurisdiction). As to prudential standing, compare Parker v. District of Columbia,
478 F.3d 370, 377 (D.C. Cir. 2007) (stating that prudential standing is jurisdictional), and
Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994) (same), with Harold H. Huggins
Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011) (stating that a dismissal for lack
of prudential standing should be under Rule 12(b)(6)).
6

III. DISCUSSION
Defendants move to dismiss the operative Complaint on the grounds that Plaintiffs
lack constitutional and prudential standing to bring this action, that certain claims in the
operative Complaint are barred by the Eleventh Amendment, and that certain claims fail
to state a claim upon which relief can be granted. (ECF No. 28.) Intervenor-Defendants’
Motion to Dismiss focuses entirely on the argument that Plaintiffs lack prudential
standing. (ECF No. 37.)
A.

Standing
1.

Applicable Law

Article III of the United States Constitution limits the jurisdiction of federal courts to
“[c]ases” and “[c]ontrover[ies].” U.S. Const. art. III, § 2. “No principle is more
fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies.”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976).
“[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). “The gist of the question of standing” is whether the plaintiffs have
“alleged such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.” Baker v. Carr,
369 U.S. 186, 204 (1962). Standing “is perhaps the most important of the[] doctrines”
limiting the federal judicial power. Allen v. Wright, 468 U.S. 737, 750 (1984).

7

“[T]he irreducible constitutional minimum of standing contains three elements”:
the plaintiff must have suffered a “concrete and particularized” injury that is “actual or
imminent” (i.e., an “injury in fact”), there must be “a causal connection between the injury
and the conduct complained of,” and it must be “likely . . . that the injury will be redressed
by a favorable decision.” Lujan, 504 U.S. at 560-61 (quotation marks omitted); see also
Allen, 468 U.S. at 751 (“A plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested
relief.”).
In terms of associational standing, an association has standing to bring suit on
behalf of its members “when its members would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization’s purpose, and neither
the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000).
“The party invoking federal jurisdiction bears the burden of establishing these
elements.” Lujan, 504 U.S. at 561.
At the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we presume
that general allegations embrace those specific facts that are necessary to
support the claim. In response to a summary judgment motion, however,
the plaintiff can no longer rest on such mere allegations, but must set forth
by affidavit or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true. And at the final stage,
those facts (if controverted) must be supported adequately by the evidence
adduced at trial.
Id. (citations, quotations, and brackets omitted).
“Beyond the constitutional requirements [for standing], the federal judiciary has
8

also adhered to a set of prudential principles that bear on the question of standing.”
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 474 (1982); see also Allen, 468 U.S. at 751 (describing prudential standing
principles as “judicially self-imposed limits on the exercise of federal jurisdiction”). First,
“even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’
requirement, . . . the plaintiff generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422
U.S. at 499. Second, “when the asserted harm is a ‘generalized grievance’ shared in
substantially equal measure by all or a large class of citizens, that harm alone normally
does not warrant exercise of jurisdiction.” Id. And third, “the interest sought to be
protected [must be] arguably within the zone of interests to be protected or regulated by
the statute or constitutional guarantee in question.” See Ass’n of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). See also Allen, 468 U.S. at 751
(summarizing all three prudential standing principles).
2.

Analysis
a.

Allegations Regarding Standing in Complaint and Tanton
Declaration

As to the question of standing, Defendants’ Motion to Dismiss focuses almost
entirely on the argument that Plaintiff Lueck, as an end-user consumer of electricity,
lacks standing to bring this action. (See ECF No. 28, at 6-17.) In less than one page of
argument, Defendants also argue that ATI and ATP do not have standing on the grounds
that Plaintiff Lueck does not have standing, and that ATI and ATP may not rely on their
general mission in order to bolster their claim of standing. (Id. at 17-18). In briefing
9

these issues, Defendants obviously could only rely on their interpretation of Plaintiffs’
allegations of standing in the operative Complaint, which is less than a model of clarity.
(See ECF No. 12, ¶¶ 3-5, 126-127.)
However, in response to Intervenor-Defendants’ Motion to Dismiss, Plaintiffs ATI
and ATP for the first time clarify that they are also pursuing this action on behalf of their
members who are electric generator and transmission utilities (“electric utility members”),
and a member who is a coal-producing company (“coal-producing member”). (ECF No.
53, at 5-8.) With its Response, Plaintiffs filed the Declaration of Thomas Tanton, ATI’s
Executive Director. (ECF No. 53-1.) In his Declaration, Mr. Tanton declares that:
Among [the membership of ATI and ATP] are electric power generating
and transmission companies that generate energy from coal, natural gas
and oil-fired and combustion turbine generation facilities. One (Company
A) is located in multiple states and services customers within those states,
including Colorado. Another electric power generation company (Company
B) operates exclusively within Colorado. Both companies generate energy
that flows through an interstate transmission system and both engage in
interstate commerce. Both are members of ATI and ATP. . . . Both
companies are forced to acquire renewable energy due to the Colorado
renewable energy mandate at a cost higher than if they were not required
to obtain renewable energy and instead rely exclusively on coal and natural
gas for generation.
(Id. ¶¶ 4-5.) Mr. Tanton further declares:
The family of Alpha Natural Resources of companies (Alpha) are members
of ATI. These include Alpha Natural Resources Services, LLC and its
affiliates Alpha Coal West and Alpha Coal Sales. Coal used to generate
electricity for the Western Interconnect, including the Western Area Power
Administration, is produced by Alpha Coal West and sold by Alpha Coal
Sales. . . . Alpha is shut out of that part of the interstate market for coal
that would have existed but for the Colorado RES and thereby suffers
injury from losses in sales.
(Id. ¶¶ 9-10.)
In evaluating a plaintiff’s standing at the motion to dismiss stage, a court may
10

consider not only the allegations in the complaint, but also factual averments made by
declaration or affidavit. In Warth v. Seldin, the U.S. Supreme Court stated,
[In] ruling on a motion to dismiss for want of standing, [courts] must accept
as true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party. At the same time, it is within
the trial court’s power to allow or to require the plaintiff to supply, by
amendment to the complaint or by affidavits, further particularized
allegations of fact deemed supportive of plaintiff’s standing. If, after this
opportunity, the plaintiff’s standing does not adequately appear from all
materials of record, the complaint must be dismissed.
422 U.S. at 501-02 (emphasis added). Subsequent decisions by the Supreme Court and
lower courts have reinforced this rule. See Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay, 484 U.S. 49, 65 (1987) (“[A] suit will not be dismissed for lack of standing if there
are sufficient allegations of fact – not proof – in the complaint or supporting affidavits.”)
(emphasis added) (internal quotations omitted); Sac & Fox Nation of Mo. v. Pierce, 213
F.3d 566, 573 (10th Cir. 2000) (“The Tribes’ uncontroverted affidavits, albeit conclusory,
support their allegations of injury. . . . [A] plaintiff may submit affidavits to particularize
allegations of fact in support of its standing.”); Figueroa v. Am. Bankers Ins. Co. of Fla.,
517 F. Supp. 2d 1266, 1268 (D. Colo. 2006) (“[I]f the complaint itself does not establish
the plaintiff’s standing, and the plaintiff does not produce sufficient evidence by affidavit
or otherwise to do so, dismissal of the complaint is appropriate.”).5
5

Intervenor-Defendants argue that this Court may not consider the Tanton Declaration,
and that it may only consider the contents of the operative Complaint, because a declaration
cannot be considered on a 12(b)(6) motion to dismiss. (ECF No. 60, at 1-2 (citing Prager v.
LaFaver, 180 F.3d 1185 (10th Cir. 1999), and David v. City & Cnty. of Denver, 101 F.3d 1344
(10th Cir. 1996)).) As previously stated, the law is not clear whether Intervenor-Defendants
properly brought their motion under Rule 12(b)(6) rather than Rule 12(b)(1). However, the law
is clear that, on a motion to dismiss based on lack of standing, a court may consider allegations
of standing made in a declaration or affidavit submitted during briefing on a motion to dismiss.
Prager and David did not involve the issue of standing, and are therefore inapposite.
11

The Court does not approve of the fact that Plaintiffs waited until the filing of their
Response to Intervenor-Defendants’ Motion to Dismiss to clarify that ATI and ATP bring
this action based on injuries allegedly suffered by electric utility members and a coal
producing member. However, neither Defendants nor Intervenor-Defendants have
argued or otherwise shown how they have been prejudiced by this delay. Indeed,
discovery in this action has been stayed since August 23, 2011 (a date approximately
four months after the operative Complaint was filed and less than five months after this
action began), and, notably, this was a stay requested by Defendants. (ECF No. 46, 31.)
The Court finds it appropriate, at this early stage of the proceedings, to consider and
accept Mr. Tanton’s declaration as clarification of the general allegations of injury and
standing made in the operative Complaint.6
b.

Constitutional Standing of ATI

In considering both the operative Complaint and Mr. Tanton’s declaration, the
Court concludes that Plaintiffs have made sufficient allegations to establish Plaintiff ATI’s

6

Intervenor-Defendants also argue that the Court should not consider the Tanton
Declaration because it is not based on personal knowledge. (ECF No. 60, at 8-10.) The Court
agrees with Intervenor-Defendants as to ATP’s standing: Mr. Tanton only identifies himself as
the Executive Director of ATI, and does not allege that he has any direct involvement with ATP.
Therefore, Mr. Tanton does not appear to have personal knowledge regarding the details of
ATP’s membership. However, as to ATI’s standing, the Court cannot presume at this early of
the proceedings that Mr. Tanton – ATI’s Executive Director – does not have personal knowledge
regarding the injuries allegedly suffered by ATI’s electric utility members and coal-producing
member. Indeed, Intervenor-Defendants have come forward with no evidence or facts
controverting Mr. Tanton’s contention that the averments in his affidavit are based on personal
knowledge. During discovery of this action, Intervenor-Defendants will presumably be able to
conduct the necessary inquiry to determine whether Mr. Tanton has personal knowledge of the
matters to which he attests. See Lujan, 504 U.S. at 561. However, at this early stage of the
proceedings, the Court will accept Mr. Tanton’s averments as to ATI as properly based on
personal knowledge.
12

standing at this early stage of the proceedings. See Lujan, 504 U.S. at 561 (“At the
pleading stage, general factual allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support the claim.”). First, Plaintiffs
have sufficiently alleged that ATI’s electric utility members and coal-producing member
“would otherwise have standing to sue in their own right . . . .” Friends of the Earth, 528
U.S. at 181 (stating the first requirement for associational standing). Specifically, the
operative Complaint alleges that “members of [ATI] . . . are being harmed and will
continue to be harmed by the discriminatory effects of [the RES].” (ECF No. 12, ¶ 126.)
This allegation is clarified in Mr. Tanton’s declaration, in which he avers that ATI’s electric
utility members “are forced to acquire renewable energy due to the Colorado renewable
energy mandate at a cost higher than if they were not required to obtain renewable
energy and instead rely exclusively on coat and natural gas for generation.” (ECF No.
53-1, ¶ 5.)7 Mr. Tanton also avers that ATI’s coal-producing member “is shut out of that
7

Intervenor-Defendants argue that ATI cannot rely on anonymous electric utilities to
show standing, and that ATI should be forced to disclose the identity of those utilities. (ECF No.
60, at 3-5.) The Court disagrees for purposes of Intervenor-Defendants’ Motion to Dismiss. The
majority of case law cited by Intervenor-Defendants in support of this argument are cases
involving the anonymity of named Plaintiffs, not the anonymity of members of Plaintiff
associations. The only other case relied on by Intervenor-Defendants – American Chemistry
Counsel v. Department of Transportation, 468 F.3d 810 (D.C. Cir. 2006) – is unhelpful to their
argument. American Chemistry Counsel does not explicitly state that a member of an association
cannot remain anonymous even if there are sufficiently detailed attestations of injury made on
behalf of that anonymous member. More importantly, however, American Chemistry Council
involved a petition for review brought pursuant to 49 U.S.C. § 5127(a) and 20114(c), and 28
U.S.C.§ 2342(7). Therefore, there was only one stage of the federal action, in which the federal
court was sitting in an appellate capacity, to decide the issue of standing. Here, however, this
Court is faced with Motions to Dismiss at the pleading stage of a civil action originating in this
Court. See Lujan, 504 U.S. at 561.
13

part of the interstate market for coal that would have existed but for the Colorado RES
and thereby suffers injury from losses in sales.” (Id. ¶ 10.)
These allegations establish all of the required elements for constitutional standing
of these members of ATI: injury-in-fact, causation, and redressability. Lujan, 504 U.S. at
560-61. The economic injuries alleged are actual, concrete, and particularized. See
Mountain States Legal Found. v. Costle, 630 F.2d 754, 764 (10th Cir. 1980) (“‘Injury in
fact’ means concrete and certain harm. It may be the out-of-pocket costs to a business
resulting from obedience to a new governmental rule . . . .”). Further, the injuries are
allegedly directly caused by the enactment and implementation of the RES, and a ruling
that the RES is unconstitutional would invalidate the RES and redress the alleged
ongoing injuries. See Colo. Manufactured Hous. Ass’n v. Bd. of Cnty. Comm’rs of the
Cnty. of Pueblo, Colo, 946 F. Supp. 1539, 1545 (D. Colo. 1996).
Second, paragraph 3 of the operative Complaint includes sufficient allegations
that “the interests at stake [in this action] are germane to [ATI’s] purpose . . . .” Friends
of the Earth, 528 U.S. at 181 (stating the second requirement for associational standing).
(See ECF No. 12, ¶ 3.) And third, neither the claims asserted in this action nor the relief

The Court agrees, however, that if Plaintiffs continue to base their standing on the
injuries suffered by the electric utility members of ATI, Plaintiffs will need to disclose the
identities of those members during discovery, so that Defendants and Intervenor-Defendants can
take discovery to test the allegations of injury allegedly suffered by those electric utility
members. Intervenor-Defendants also raise questions regarding, among other things, whether
the electric utility members and coal-producing member of ATI are actually engaged in interstate
commerce. These are issues that are more properly addressed in a motion for summary
judgment, after Intervenor-Defendants have had a chance to explore those issues during
discovery.
14

requested8 requires the participation of individual members in the lawsuit. Friends of the
Earth, 528 U.S. at 181 (stating the third requirement for associational standing).
c.

Prudential Standing of ATI

In terms of prudential standing, the parties’ briefing again focuses
disproportionately on Plaintiff Lueck, and not on whether Plaintiffs ATI and ATP have
prudential standing. The Court concludes, at this early stage of the proceedings, that
ATI has prudential standing based on the alleged injuries suffered by its electric utility
members and coal-producing member. See Lujan, 504 U.S. at 561. First, in terms of the
prudential standing limitation that prevents a Plaintiff from raising another person’s legal
rights, the electric utility members and coal-producing member on whose behalf ATI
brings suit have themselves suffered the injuries alleged.9 The fact that ATI brings the
suit on their behalf does not violate this prudential standing limitation. See United Food
& Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 557 (1996).10

8

The operative Complaint is vague as to whether the 42 U.S.C. § 1983 claim for damages
is being pursued by Plaintiffs ATI and ATP on behalf of their members. It appears from the case
law that a claim for such damages in this context would not be viable. See, e.g., Warth, 422 U.S.
at 515-16. However, given the ambiguity in the Complaint and, more importantly, the fact that
neither Defendants nor Intervenor-Defendants have moved to dismiss the 42 U.S.C. § 1983
claim for damages on this basis, the Court will defer resolution of this issue until the summary
judgment stage.
9

Notably, Defendants’ Motion to Dismiss argues that Plaintiff Lueck cannot raise the
legal rights of those entities actually impacted by the RES, specifically identifying producers of
non-renewable energy and electric utilities as those entities directly impacted by the RES. (See
ECF No. 28, at 15-17.)
10

In United Food and Commercial Workers, the Supreme Court clarified that
associational standing is an exception to the general prudential standing rule that a person cannot
sue to enforce another person’s legal rights:

15

Second, the prudential standing limitation that prevents consideration of abstract,
generalized grievances is inapplicable here. The economic harms alleged by ATI on
behalf of the electric utility members and coal-producing member are concrete and
particularized, not abstract and generalized. See Warth, 422 U.S. at 499 (“[W]hen the
asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all
or a large class of citizens, that harm alone normally does not warrant exercise of
jurisdiction.”) (emphasis added).
And finally, the interests of electric utilities who are required to obtain a portion of
their electricity from renewable sources through an interstate electric grid,11 and of a
coal-producing company who lost business due to the RES’s requirements on electric
utilities, are both arguably within the “zone of interests” intended to be protected by the
dormant Commerce Clause. See Dennis v. Higgins, 498 U.S. 439, 449 (1991) (stating
that the dormant Commerce Clause “confer[s] a ‘right’ to engage in interstate trade free

[A]lthough we noted in Flast that “a litigant will ordinarily not be permitted to
assert the rights of absent third parties,” 392 U.S. at 99 n. 20, 88 S.Ct., at 1952, n.
20; see also Valley Forge, supra, at 474, 102 S.Ct., at 759-760, we recognized in
Allen v. Wright, 468 U.S., at 751, 104 S.Ct., at 3324, that “the general prohibition
on a litigant’s raising another person’s legal rights” is a “judicially self-imposed
limi[t] on the exercise of federal jurisdiction,” not a constitutional mandate.
Indeed, the entire doctrine of “representational standing,” of which the notion of
“associational standing” is only one strand, rests on the premise that in certain
circumstances, particular relationships . . . are sufficient to rebut the background
presumption . . . that litigants may not assert the rights of absent third parties.
517 U.S. at 557. See also Kan. Health Care Ass'n, Inc. v. Kan. Dep’t of Soc. & Rehab. Servs.,
958 F.2d 1018, 1021 (10th Cir. 1992).
11

At this early stage of the proceedings, the Court accepts as true the claim that the
electric utility members “generate energy that flows through an interstate transmission system”
and that they therefore both “engage in interstate commerce.” (ECF No. 53-1, ¶ 4; see also ECF
No. 12, ¶¶ 23-59.) See Lujan, 504 U.S. at 561.
16

from restrictive state legislation,” because it “was intended to benefit those who . . . are
engaged in interstate commerce”); Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (stating that the “zone of interests”
prudential standing test “is not meant to be especially demanding” and that “we have
always conspicuously included the word ‘arguably’ in the test to indicate that the benefit
of the doubt goes to the plaintiff”) (internal quotations omitted).
In accordance with the foregoing, the Court concludes that Plaintiffs have
asserted sufficiently detailed allegations to establish Plaintiff ATI’s constitutional and
prudential standing at this early stage of the proceedings.
3.

Standing of Plaintiffs Other than ATI

Because the Court holds that Plaintiff ATI has standing to pursue this action, the
Court need not, and declines to, address whether Plaintiffs ATP and Rod Lueck have
standing. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 &
n.9 (1977) (“[Because] we have at least one individual plaintiff who has demonstrated
standing . . ., we need not consider whether the other individual and corporate plaintiffs
have standing to maintain the suit.”); Sec’y of the Interior v. California, 464 U.S. 312, 319
n.3 (1984) (“Since the State of California clearly does have standing, we need not
address the standing of the other respondents, whose position here is identical to the
State’s.”); cf. Horne v. Flores, 129 S. Ct. 2579, 2592 (2009) (“Because the
superintendent clearly has standing to challenge the lower courts’ decisions, we need not
consider whether the Legislators also have standing to do so.”).12
12

See also U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 729 (1990); Bowsher v. Synar,
478 U.S. 714, 721 (1986); Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981).
17

B.

Eleventh Amendment and 42 U.S.C. § 1983
Defendants also move to dismiss certain claims in this action based on Eleventh

Amendment immunity, and also move to dismiss the 42 U.S.C. § 1983 claim as to certain
Defendants for failure to state a claim. (ECF No. 28, at 18-24.) As previously stated,
Plaintiffs’ operative Complaint brings 12 claims for injunctive or declaratory relief based
on alleged violations of the Commerce Clause, and also brings a generally-worded claim
for damages under 42 U.S.C. § 1983. (ECF No. 12, ¶¶ 156-190.) The operative
Complaint names as Defendants the State of Colorado and six individual state officials,
with the individual Defendants named “in [their] official capacit[ies] and in [their] individual
capacit[ies] with respect to the claim for damages under 42 U.S.C. § 1983.” (Id. ¶¶ 612.)
In their Motion to Dismiss, Defendants point out that it is not entirely clear which
claims are brought against which Defendants in what capacities, so “[i]n an abundance of
caution” have moved to dismiss certain claims that are either barred by the Eleventh
Amendment or are not viable under 42 U.S.C. § 1983. (ECF No. 28, at 4, 18-24.)
1.

State of Colorado

Defendants argue that the Eleventh Amendment of the United States Constitution
bars all of Plaintiffs’ claims against the State of Colorado. (ECF No. 28, at 19-20.) They
are correct. See U.S. Const. amend. XI (“The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States . . . .”). Plaintiffs concede that the State of Colorado is
properly dismissed from this action on that ground. (ECF No. 39, at 15 (“The Plaintiffs
concede that the State of Colorado is immune from suit under the Eleventh Amendment,
18

and are therefore prepared to relinquish the State of Colorado as a named Defendant.”).
Accordingly, all claims against the State of Colorado are hereby dismissed with
prejudice.
2.

42 U.S.C. § 1983 Claim for Damages Against the Individual
Defendants in Their Official Capacities

Plaintiffs’ Operative Complaint is at least somewhat ambiguous regarding whether
they bring their 42 U.S.C. § 1983 claim for damages against the individual Defendants
only in their individual capacities, or in both their individual and official capacities. (See
ECF No. 12, ¶¶ 7-12.) Given this ambiguity, Defendants argue that the section 1983
claim should be dismissed to the extent it is being pursued against Defendants in their
official capacities. (ECF No. 28, at 23-24.) Defendants are correct on this point as well.
See Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983
plaintiffs may sue individual-capacity defendants only for money damages and
official-capacity defendants only for injunctive relief.”). In their Response, Plaintiffs
impliedly concede the point by only arguing (1) that they may pursue their section 1983
damages claim against Defendants in their individual capacities, and (2) that they may
pursue their claims for injunctive and declaratory relief against Defendants in their official
capacities. (ECF No. 39, at 12-15.) Accordingly, Plaintiffs will only be allowed to pursue
their 42 U.S.C. § 1983 claim for damages against the individual Defendants in their
individual capacities. Plaintiffs’ section 1983 claim is dismissed to the extent it is being
pursued against the individual Defendants in their official capacities.
3.

42 U.S.C. § 1983 Claim for Damages Against Defendant Epel

Defendants also argue that the section 1983 claim for damages against
19

Defendant Epel should be dismissed. (ECF No. 28, at 21-22.) Defendant Epel was
substituted as a Defendant in this action after he replaced former defendant Ron Binz as
the Chair of the PUC. (See ECF No. 15, 17.) Plaintiffs state in their Response that they
“are prepared to relinquish Defendant Epel in his individual capacity for damages as he
was substituted into this case after commencement of suit.” (ECF No. 39, at 15.)
Therefore, the Court will dismiss the section 1983 claim for damages against Defendant
Epel.
4.

Claims Against Defendants Hickenlooper and Kelley
a.

Official Capacity Claims Seeking Prospective Relief

Defendants also move to dismiss Plaintiffs’ claims for injunctive and declaratory
relief against Defendant John Hickenlooper in his official capacity as the Governor of
Colorado, and against Defendant Barbara J. Kelley in her official capacity as the
Executive Director of the Colorado Department of Regulatory Agencies. (ECF No. 28, at
20-21.) Defendants argue that these claims are barred by the Eleventh Amendment (see
id.), while Plaintiffs argue that they are not (ECF No. 39, at 13-15). As explained directly
below, the resolution of this dispute turns on whether Defendants Hickenlooper and
Kelley have sufficient involvement in enforcing the RES.13
The Eleventh Amendment generally bars actions brought in federal court against
state officers sued in their official capacities. See Harris v. Owens, 264 F.3d 1282, 1289
(10th Cir. 2001). One exception to this rule – the Ex parte Young exception – provides
13

Defendants’ briefing makes clear their concession that the individual Defendants who
are Commissioners on the PUC have direct responsibility for enforcing the RES, and therefore
the claims for prospective relief brought against them are not barred by the Eleventh
Amendment.
20

that “[t]he Eleventh Amendment does not bar a suit against state officials in their official
capacities if it seeks prospective relief for the officials’ ongoing violation of federal law.”
Id.; see also Ex parte Young, 209 U.S. 123 (1908). However, Ex parte Young itself
indicates that this exception only applies if the officer has “some connection with the
enforcement of the act, or else [the suit] is merely making him a party as a representative
of the state, and thereby attempting to make the state a party.” 209 U.S. at 157. The
Tenth Circuit has repeatedly stated that the governing test in this Circuit is whether the
official has a “particular duty to enforce the statute in question and a demonstrated
willingness to exercise that duty.” Chamber of Commerce of the U.S. v. Edmondson,
594 F.3d 742, 760 (10th Cir. 2010); Prairie Band Potawatomi Nation v. Wagnon, 476
F.3d 818, 828 (10th Cir. 2007) (same).
Defendants argue that the PUC has sole responsibility for enforcing the RES, that
Defendants Hickenlooper and Kelley have no such authority, and therefore that the
claims for injunctive and declaratory relief against Hickenlooper and Kelley are barred by
the Eleventh Amendment. In response, Plaintiffs argue that Governor Hickenlooper has
a general duty to enforce the laws of Colorado (which includes the RES), that he has
involvement with other renewable energy laws, and that he publicly supports the RES.
(ECF No. 39, at 14.) As to Defendant Kelley, Plaintiffs similarly argue that she has a
sufficient connection with enforcement of the RES because she heads the agency that
oversees the PUC. (Id.)14
14

Plaintiffs’ Operative Complaint contains similar allegations. As to Defendant
Hickenlooper, Plaintiffs’ Operative Complaint alleges that “[t]he agencies that report to him
include the Department of Regulatory Agencies, which includes the [PUC] which implements
the RES. He has publicly supported the RES and expansion of its scope and discriminatory
21

After a careful review of the operative pleadings, the Court concludes that
Plaintiffs have advanced insufficient allegations that Defendants Hickenlooper and Kelley
have a particular duty to enforce the RES. As a consequence, the claims against those
Defendants for injunctive and declaratory relief are properly dismissed. The RES and
other governing laws indicate that it is the PUC (i.e., the PUC Commissioners), and no
one else, who is responsible for enforcing the RES. In enacting the RES, the Colorado
General Assembly specifically authorized the PUC (only) to enforce the RES. Indeed,
the statute starts with the following language:
Each provider of retail electric service in the state of Colorado . . . shall be
considered a qualifying retail utility. Each qualifying retail utility . . . shall be
subject to the rules established under this article by the [PUC]. . . . [T]he
[PUC] shall revise or clarify existing rules to establish the following . . . .
Colo. Rev. Stat. § 40-2-124(1); see also id. §§ 40-2-124(1)(c)(II)(C); 40-2-124(1)(e)(I.5);
40-2-124(1)(g)(I)(A)-(C).15 The corresponding regulations regarding the RES also
specifically discuss only the PUC’s regulatory authority under the Act. See, e.g., 4 Code
Colo. Regs. 723-3, § 3650(a) (“Rules 3650 through 3668 shall apply to all investor
owned jurisdictional electric utilities in the state of Colorado that are subject to the
[PUC’s] regulatory authority.”); see also id. §§ 3653(a), 3653(b), 3655(c), 3655(f),
3656(a), 3657(a).16

effect.” (ECF No. 12, ¶ 7.) As for Defendant Kelley’s involvement, the operative Complaint
similarly alleges: “The agencies that report to her include the [PUC] which implements the RES.
She has publicly supported the RES and expansion of its scope and discriminatory effect.” (Id. ¶
8.)
15

See Fed. R. Evid. 201(b); Grynberg, 390 F.3d at 1278 n.1.

16

Furthermore, Article XXV of the Colorado Constitution, entitled “Public Utilities,”
specifically provides that
22

Plaintiffs’ arguments for why Defendants Hickenlooper and Kelley are sufficiently
involved in enforcing the RES are unpersuasive. First, the allegation that Hickenlooper
and Kelley have “publicly supported” the RES does not establish the necessary actual
involvement in enforcing the RES. See Edmondson, 594 F.3d at 760 (identifying the
controlling test as whether the official has a “particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty”) (emphasis added).
Second, as to Defendant Hickenlooper, the fact that, as Governor of the State, he has a
general duty to enforce the laws of Colorado also does not show sufficient actual
involvement in enforcing the RES, particularly because those with direct responsibility for
enforcing the RES are named as Defendants here. See Bishop v. Oklahoma, 333 F.
App’x 361, 365 (10th Cir. 2009) (“[T]he Oklahoma officials’ generalized duty to enforce
state law, alone, is insufficient to subject them to a suit challenging a constitutional
amendment they have no specific duty to enforce.”). Similarly, as for Defendant Kelley,
the mere fact that she heads the Colorado Department of Regulatory Agencies does not
show that she has a particular duty to enforce the RES.17 Finally, the fact that Governor

all power to regulate the facilities, service and rates and charges therefor . . . of
every corporation, individual, or association of individuals . . . operating within
the State of Colorado . . . as a public utility . . . is hereby vested in such agency of
the State of Colorado as the General Assembly shall by law designate. Until such
time as the General Assembly may otherwise designate, said authority shall be
vested in the [PUC] . . . .
(emphasis added).
17

Notably, the Department of Regulatory Agencies’ website indicates that it has eleven
different divisions (one of which is the PUC) and 40 different boards, commissions, and advisory
committees. See http://www.dora.state.co.us/dora_pages/AboutUs/ CollectiveResource.html
(last visited July 9, 2012); http://www.dora.state.co.us/dora_pages/ AgenciesBoards/Boards.htm
(last visited July 9, 2012); see also Fed. R. Evid. 201(b); Grynberg, 390 F.3d at 1278 n.1. This
23

Hickenlooper has been actively involved in promoting renewable energy initiatives
generally does not establish that he has had any actual involvement in enforcing the
RES specifically, and Plaintiffs have failed to properly allege as much.
As a consequence, Plaintiffs’ claims for injunctive and declaratory relief against
Defendants Hickenlooper and Kelley are dismissed.
b.

Individual Capacity Claims Seeking Damages Under 42 U.S.C. §
1983

Defendants similarly argue that the section 1983 damages claim against
Hickenlooper and Kelley should be dismissed because they have no personal
involvement in the alleged constitutional deprivations, and there is no supervisory liability
under section 1983. Once again, Defendants are correct. For the reasons discussed
above, Plaintiffs have not plead or otherwise shown how Defendants Hickenlooper and
Kelley have had any personal involvement in the enforcement of the RES. See Foote v.
Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (“Individual liability under § 1983 must be
based on personal involvement in the alleged constitutional violation.”). Plaintiffs also
have not plead or otherwise shown how Defendants Hickenlooper and Kelley could
properly be found liable based on respondeat superior. See Dodds v. Richardson, 614
F.3d 1185, 1199 (10th Cir. 2010) (Ҥ 1983 allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, implements, or in some other way
possesses responsibility for the continued operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which subjects, or causes to be subjected

further calls into question that Defendant Kelley has active involvement in the PUC’s decisionmaking process.
24

that plaintiff to the deprivation of any rights secured by the Constitution.”) (internal
quotations and ellipses omitted). For the same reasons that the Court has held that the
claims against Hickenlooper and Kelley seeking injunctive and declaratory relief are
properly dismissed, Plaintiffs’ 42 U.S.C. § 1983 claim seeking damages against
Hickenlooper and Kelley also fails.
IV. CONCLUSION
In accordance with the foregoing, the Court hereby ORDERS as follows:
(1)

Defendants’ Motion to Dismiss (ECF No. 28) is GRANTED IN PART and DENIED
IN PART;

(2)

Intervenor-Defendants’ Motion to Dismiss (ECF No. 37) is DENIED;

(3)

Plaintiffs have made sufficient allegations regarding Plaintiff ATI’s standing such
that the action is not properly dismissed at this early stage of the proceedings on
the ground of lack of standing;

(4)

All of Plaintiffs’ claims brought against the State of Colorado are DISMISSED
WITH PREJUDICE. The State of Colorado is no longer a defendant in this action.

(5)

All of Plaintiffs’ claims against Defendants John Hickenlooper and Barbara J.
Kelley, in both their official and individual capacities, are DISMISSED WITHOUT
PREJUDICE;

(6)

To the extent that Plaintiffs, in their First Amended Complaint, sought to bring a 42
U.S.C. § 1983 claim for damages against Defendants Joshua Epel, James
Tarpey, Matt Baker, and Doug Dean in their official capacities, such claims are
DISMISSED WITH PREJUDICE;

25

(7)

Plaintiffs’ 42 U.S.C. § 1983 claim for damages against Defendant Joshua Epel in
his individual capacity is hereby DISMISSED WITH PREJUDICE;

(8)

The following claims from Plaintiffs’ First Amended Complaint (ECF No. 12) will
proceed past the pleading stage in this action:
(a)

Plaintiffs’ First through Twelfth Claims for Relief (seeking injunctive and
declaratory relief based on alleged violations of the Commerce Clause)
against Defendants Joshua Epel, James Tarpey, Matt Baker, and Doug
Dean in their official capacities, and

(b)

Plaintiffs’ Thirteenth Claim for Relief (seeking damages under 42 U.S.C. §
1983) against Defendants James Tarpey, Matt Baker, and Doug Dean in
their individual capacities.

Dated this 17th day of July, 2012.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

26