Riggs et al v. RI Public Utilities Commission et al
Filing
41
MEMORANDUM AND ORDER granting 14 Motion to Dismiss; granting 21 Motion to Dismiss- So Ordered by Chief Judge William E. Smith on 7/7/2016. (Barletta, Barbara)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
BENJAMIN RIGGS, LAURENCE EHRHARDT, )
and RHODE ISLAND MANUFACTURERS
)
ASSOCIATION,
)
)
Plaintiffs,
)
)
v.
)
)
MARGARET CURRAN, PAUL ROBERTI,
)
and HERBERT DESIMONE, JR., in
)
their official capacities as
)
members of the Rhode Island Public )
Utilities Commission; NARRAGANSETT )
ELECTRIC COMPANY, INC. d/b/a
)
NATIONAL GRID; and DEEPWATER WIND )
BLOCK ISLAND, LLC,
)
)
Defendants.
)
___________________________________)
C.A. No. 15-343 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court are Motions to Dismiss filed by Defendant
Deepwater Wind Block Island, LLC (“Deepwater Wind”) (ECF No. 14) 1
and
Defendants
Margaret
Curran,
Paul
Roberti,
and
Herbert
DeSimone, Jr., in their official capacities as members of the Rhode
Island
Public
Utilities
Defendants”) (ECF No. 21).
Commission
(collectively,
the
“PUC
Plaintiffs filed Oppositions (ECF Nos.
22 and 23), and Deepwater Wind and the PUC Defendants both filed
1
Defendant Narragansett Electric Company, Inc. d/b/a
National Grid joined in Deepwater Wind’s Motion to Dismiss. (ECF
No. 15.)
Replies (ECF Nos. 28 and 29).
post-hearing memoranda.
Additionally, the parties filed
(ECF Nos. 37, 38, 39, and 40.)
For the
reasons that follow, Defendants’ Motions to Dismiss are GRANTED.
I.
Background
Plaintiffs
are
suing
the
PUC
Defendants,
Narragansett
Electric Company, Inc. d/b/a National Grid (“National Grid”), and
Deepwater Wind for injunctive and declaratory relief.
They claim
that the PUC Defendants violated the Federal Power Act (“FPA”),
the Public Utility Regulatory Policies Act (“PURPA”), and the
Supremacy
Clause
and
Commerce
Clause
of
the
United
States
Constitution, when they issued an order on August 16, 2010,
approving a power purchase agreement (“PPA”) between Deepwater
Wind and National Grid related to a new wind farm off the coast of
Block Island (the “PUC’s Order”).
According to Plaintiffs, this
agreement has above-market costs, which are in violation of the
Federal Energy Regulatory Commission’s (“FERC”) policies, and will
result in a significant increase in their electric bills.
Prior
to filing this action, Plaintiffs twice petitioned FERC to initiate
an enforcement action on the grounds that the PUC’s Order violated
the FPA, PURPA, and the Supremacy Clause of the United States
Constitution.
FERC declined to act on either petition, and
Plaintiffs filed their Complaint in this Court one day short of
five years from the date of the PUC’s Order, on August 15, 2015.
Defendants have moved to dismiss, arguing that the statute of
2
limitations has expired and that Plaintiffs do not have standing.
The PUC Defendants further argue that they are shielded by quasijudicial immunity.
II.
Discussion
The
parties
first
applies to this action.
dispute
which
statute
of
limitations
Deepwater Wind asserts that the Court
should apply Rhode Island’s three-year personal injury statute of
limitations,
while
Plaintiffs
contend
that
the
appropriate
limitations period is five years pursuant to 28 U.S.C. § 2462,
which they claim applies to the “enforcement of federal statutes.”
(Pls.’ Opp’n to Deepwater Wind’s Mot. 12, ECF No. 22.)
As an initial matter, Plaintiffs’ § 1983 claims are clearly
governed by the three-year statute of limitations.
See, e.g.,
Rodriguez v. Providence Police Dep’t, C.A. No. 08-03 S, 2011 U.S.
Dist. LEXIS 2657, *10 (D.R.I. Jan. 11, 2011) (stating that claims
brought under 42 U.S.C. § 1983 are “subject to Rhode Island’s
three-year statute of limitations for personal injury actions”).
The
other
causes
of
action
present
a
closer
question,
but,
ultimately, for the reasons outlined below, the Court agrees with
Defendants
that
the
Rhode
Island
personal
injury
statute
of
limitations should apply to those claims as well.
“When Congress has not established a time limitation for a
federal cause of action, the settled practice has been to adopt a
local time limitation as federal law if it is not inconsistent
3
with federal law or policy to do so.”
Barrett ex rel. Estate of
Barrett v. United States, 462 F.3d 28, 38 (1st Cir. 2006) (quoting
Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)).
The question here
is whether Plaintiffs’ claims fall under the federal five-year
statute of limitations set out in 28 U.S.C. § 2462, or whether the
Court must look to the state law analog.
By its own text, 28 U.S.C. § 2462 applies only to “the
enforcement of any civil fine, penalty, or forfeiture,” not all
federal statutes; and Plaintiffs here do not seek to enforce a
“civil fine, penalty, or forfeiture.”
All of the cases that
Plaintiffs cite are either: 1) cases where the parties agreed that
the statute of limitations in § 2462 applied; 2 2) government
enforcement actions; 3 or 3) citizens’ suits brought to enforce
statutes
where
the
citizens
“stood
in
the
shoes”
of
the
2
See Fed. Energy Regulatory Comm’n v. Barclays Bank PLC,
105 F. Supp. 3d 1121, 1131 (E.D. Cal. 2015), as amended (May 22,
2015) (“The parties agree that the applicable statute of
limitations is governed by 28 U.S.C. § 2462 . . . .”); Tri-Dam v.
Schediwy, 2011 U.S. Dist. LEXIS 146789, *15 (E.D. Cal. Dec. 21,
2011) (“The parties have identified 28 U.S.C. § 2462 as a relevant
federal statute of limitations.”).
3
See 3M Co. (Minnesota Min. & Mfg.) v. Browner, 17 F.3d
1453, 1455-60 (D.C. Cir. 1994) (applying § 2462 to an
administrative civil penalty case brought by the Environmental
Protection Agency); Barclays Bank, 105 F. Supp. 3d at 1131-33
(applying § 2462 to FERC Petition); Fed. Election Comm’n v. Nat’l
Right to Work Comm., Inc., 916 F. Supp. 10, 13 (D.D.C. 1996)
(applying § 2462 to claim for civil penalties by the Federal
Election Commission).
4
government. 4
(See Deepwater Wind’s Reply 5-7, ECF No. 29.)
action does not fall into any of these categories.
This
Plaintiffs
cite no case in which the § 2462 statute of limitations has been
used
instead
of
a
state
law
statute
of
limitations
(absent
agreement of the parties) in a case like this.
Simply
put,
citizens’ suit.
this
suit
is
not
an
enforcement
action
or
Plaintiffs’ reliance on a statement in FERC’s
Notice that its decision “means that Mr. Riggs himself may bring
an enforcement action against the Rhode Island Commission in the
appropriate court” is incorrect.
ECF No. 37.)
(See Pls.’ Post-Hearing Mem. 4,
As Defendants correctly note, “[t]his boilerplate
language, which is specific to actions under PURPA, does not and
cannot alter the true nature of Plaintiffs’ complaint: they allege
personal
injury
from
violations
4
of
federal
statutes
and
the
See Trawinski v. United Techs., 313 F.3d 1295, 1298 (11th
Cir. 2002) (“Section 2462 by its text is generally applicable to
‘proceedings for the enforcement of any civil fine,’ and the
Trawinskis’ citizen suit under the EPCA is precisely this sort of
action.”); Nat’l Parks Conservation Ass’n, Inc. v. Tennessee
Valley Auth., 480 F.3d 410, 414-15 (6th Cir. 2007) (applying the
five-year statute of limitations under § 2462 because plaintiff
brought suit pursuant to provision in statute allowing citizens to
enforce statute to assess civil penalties); Sierra Club v. Chevron
U.S.A., Inc., 834 F.2d 1517, 1520-22 (9th Cir. 1987) (explaining
rationale for applying § 2462 to citizens’ enforcement suits is
that “in those suits citizen plaintiffs effectively stand in the
shoes of the” government agency and “the citizen plaintiff does
not personally benefit from bringing the action”); Catskill
Mountains Chapter of Trout Unlimited, Inc. v. City of New York,
451 F.3d 77, 88 n.14 (2d Cir. 2006) (relying on Sierra Club to
apply statute in substantially similar circumstances).
5
Constitution; they do not challenge a FERC order or seek to enforce
a FERC requirement.”
No. 39.)
(Deepwater Wind’s Post-Hearing Mem. 3, ECF
Because Plaintiffs do not seek to enforce a “civil fine,
penalty, or forfeiture,” the Court finds that 28 U.S.C. § 2462
does not apply, and it must look to an appropriate analog under
state law.
Rhode Island law takes an expansive view of “injury”:
[T]he phrase “injuries to the person” . . . is to be
construed comprehensively and as contemplating its
application to actions involving injuries that are other
than physical. Its purpose is to include within that
period of limitation actions brought for injuries
resulting from invasions of rights that inhere in man as
a rational being, that is, rights to which one is
entitled by reason of being a person in the eyes of the
law. Such rights, of course, are to be distinguished
from those which accrue to an individual by reason of
some peculiar status or by virtue of an interest created
by contract or property.
Commerce Oil Ref. Corp. v. Miner, 199 A.2d 606, 610 (R.I. 1964).
The Rhode Island Supreme Court has used this definition of “injury”
to apply the three-year limitations period to an action involving
utility costs.
(R.I. 2000).
See Paul v. City of Woonsocket, 745 A.2d 169, 172
In Paul, the plaintiffs contended that a tapping fee
for water service connection to the city’s water distribution main
constituted an impermissible tax.
The Court found this to be an
economic injury and applied the three-year statute of limitations;
in doing so, it rejected the plaintiffs’ argument that it should
apply the limitations period set out in 9 R.I. Gen. Laws § 9–1–
6
13(a),
which
provides
that
“[e]xcept
as
otherwise
specially
provided, all civil actions shall be commenced within ten (10)
years next after the cause of action shall accrue, and not after.”
Id. at 172.
This Court has likewise used the definition of
“injury” established in Commerce Oil to apply the three-year
personal
injury
statute
of
limitations
–
rather
than
the
limitations period for a breach of contract - to claims alleged
under 42 U.S.C. § 1981, which “prohibits racial discrimination in
the making and enforcement of private contracts.”
Partin v. St.
Johnsbury Co., 447 F. Supp. 1297, 1300 (D.R.I. 1978). Furthermore,
the First Circuit has applied a state tort law three-year statute
of limitations to a PURPA action.
See Greenwood ex rel. Estate of
Greenwood v. New Hampshire Pub. Utilities Comm’n, 527 F.3d 8, 14
(1st Cir. 2008) (“Greenwood’s claim is most analogous to a New
Hampshire law claim of tortious interference with contractual
relations, that is, that the PUC rescission order interfered with
Greenwood’s advantageous contractual relationship with PSNH.
Such
a claim is governed by New Hampshire’s general three-year statute
of limitations.”).
The crux of Plaintiffs’ claim is that Defendants’ actions
will cause them economic injury.
There is no indication in § 2462
or the cases cited by Plaintiffs that it would be “inconsistent
with federal law or policy,” Barrett, 462 F.3d at 38, to impose
the three-year Rhode Island statute of limitations for personal
7
injury.
Accordingly, the Court finds that the three-year personal
injury statute of limitations applies to this action.
The next dispute is when the statute of limitations began to
run.
Plaintiffs argue that, even if the three-year statute of
limitations
applies,
the
period
did
not
begin
to
run
until
September 2014 at the earliest — the date that Deepwater Wind
obtained the permits needed under the PPA; according to Plaintiffs,
this is when the harm became “imminent.”
Plaintiffs claim they
did not have a viable cause of action prior to this date.
Yet
this assertion appears to be belied by the very first paragraph of
Plaintiffs’ Complaint, which states what they seek: “a declaration
that the PUC’s Order dated August 16, 2010 . . . violates the
[FPA],
[PURPA],
Constitution,
the
the
Supremacy
Commerce
Clause
Clause
Constitution, and 42 U.S.C. § 1983.”
(emphasis added).)
of
of
the
the
United
United
States
States
(Compl. ¶ 1, ECF No. 1
By Plaintiffs’ own admission then, the date of
the PUC’s Order is the date the harm occurred, and therefore the
appropriate trigger date for the statute of limitations.
As noted above, Plaintiffs try to get around this by claiming
that the harm did not become “imminent” until September 2014, when
Deepwater obtained the permits needed under the PPA; however, they
cite no authority suggesting this can be a factor for a statute of
limitations (as opposed to standing) analysis, nor do they show
that the harm was not imminent when the PPA was approved.
8
Indeed,
the September 2014 event seems somewhat arbitrarily chosen to fit
them into the statute of limitations.
At oral argument, Plaintiffs pointed the Court’s attention to
the Rhode Island Supreme Court’s decision in Paul, where a tapping
fee was alleged to be an impermissible tax.
See 745 A.2d at 172.
There, the Court found that because “the alleged personal injury
to the plaintiffs was the actual payment of the tapping fee[,]
. . . the three-year statute of limitations began to accrue for
each plaintiff upon individual payment of the tapping fee.”
Id.
However, as Defendants point out, “the plaintiffs in Paul alleged
their injury arose from enforcement of the ordinance requiring
them to pay unconstitutional tapping fees. Here, Plaintiffs allege
that the entry of the [PUC’s Order] alone was the unlawful and
unconstitutional action that caused their injury.”
(Deepwater
Wind’s Post-Hearing Mem. 11, ECF No. 39 (emphasis in original)
(citation omitted)); see Paul, 745 A.2d at 172 (“In the instant
matter, the plaintiffs assert that the adoption, implementation
and enforcement of the city council’s amendment to the ‘Water and
Sewers and Sewage Disposal’ Ordinance caused each of them to suffer
a personal injury.” (emphasis added)).
Moreover, giving such a
broad reading to Paul in a case like this would make little sense
from a policy or economic perspective.
Paul was a fee case that,
unlike the present matter, involved no investment of capital or
construction of infrastructure.
Plaintiffs’ reading of Paul would
9
allow a defendant to expend tens or hundreds of millions of dollars
constructing a new power plant only to file an action once the
first electrical bill is received.
Alternatively,
Plaintiffs
This makes no sense.
argue
that
the
statute
of
limitations began to run after FERC declined to act on their
petition.
There is no dispute that the statute of limitations
does not begin to run “when administrative remedies must first be
exhausted.”
Aldahonda-Rivera v. Parke Davis & Co., 882 F.2d 590,
594 (1st Cir. 1989).
The parties submitted supplemental briefing
on whether exhaustion was required in this case.
Defendants admit that “certain claims must be raised before
FERC,” prior to being brought in federal court.
Post-Hr’g Mem. 7, ECF No. 39.)
administrative
exhaustion
for
(Deepwater Wind’s
For example, “PURPA requires
claims
brought
by
qualified
facilities that are attempting to enforce the requirements of §
824a–3(f).”
Allco Fin. Ltd. v. Klee, 805 F.3d 89, 96 (2d Cir.
2015), as amended (Dec. 1, 2015).
Here, however, “Plaintiffs do
not challenge a FERC order or action – nor do they claim that a
FERC rule has been violated.
They claim that the RIPUC infringed
upon FERC’s exclusive jurisdiction to set wholesale rates when it
approved the PPA.”
(Deepwater Wind’s Post-Hr’g Mem. 8, ECF No. 39
(emphasis added) (citation omitted).)
Court has held that:
10
The United States Supreme
[i]t is beyond dispute that federal courts have
jurisdiction over suits to enjoin state officials from
interfering with federal rights. . . . A plaintiff who
seeks injunctive relief from state regulation, on the
ground that such regulation is pre-empted by a federal
statute which, by virtue of the Supremacy Clause of the
Constitution, must prevail, thus presents a federal
question which the federal courts have jurisdiction
under 28 U.S.C. § 1331 to resolve.
Freehold
Cogeneration
Associates,
L.P.
v.
Bd.
of
Regulatory
Comm’rs of State of N.J., 44 F.3d 1178, 1184 (3d Cir. 1995)
(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14
(1983)); see also New York State Elec. & Gas Corp. v. Saranac Power
Partners L.P., 117 F. Supp. 2d 211, 248 n.72 (N.D.N.Y. 2000),
aff’d, 267 F.3d 128 (2d Cir. 2001) (“If a litigant challenges the
jurisdiction of a public service commission to act in particular
circumstances, the action is not precluded for failure to have
sought prior review of the agency’s underlying administrative
order.”).
Indeed, as Defendants point out,
the chief cases relied on by Plaintiffs undermine their
exhaustion argument.
In both [PPL EnergyPlus, LLC v.
Nazarian, 753 F.3d 467 (4th Cir. 2014)] and [PPL
EnergyPlus, LLC v. Solomon, 766 F.3d 241 (3d Cir. 2014)],
the plaintiffs alleged that the state orders or laws
infringed upon FERC’s exclusive jurisdiction to set
wholesale rates, exactly as Plaintiffs allege here. The
plaintiffs in both Nazarian and Solomon filed suit
directly in federal court without ever filing a FERC
petition.
(Deepwater Wind’s Post-Hr’g Mem. 8-9, ECF No. 39 (emphasis in
original).)
11
The cases Plaintiffs rely on to support their argument that
exhaustion is required fall into two categories – neither of which
applies to this case.
First, they cite cases in which the
plaintiffs sought review of a FERC order, which pursuant to 16
U.S.C. § 825l may only be done after exhausting administrative
remedies.
See Mississippi Power & Light Co. v. Mississippi ex
rel. Moore, 487 U.S. 354, 375 (1988) (“The reasonableness of rates
and agreements regulated by FERC may not be collaterally attacked
in state or federal courts.
The only appropriate forum for such
a challenge is before the Commission or a court reviewing the
Commission’s order.” (emphasis added)); Montana-Dakota Utilities
Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 251-52 (1951) (“We hold
that the right to a reasonable rate is the right to the rate which
the Commission files or fixes, and that, except for review of the
Commission’s orders, the courts can assume no right to a different
one on the ground that, in its opinion, it is the only or the more
reasonable one.” (emphasis added)); DiLaura v. Power Auth. of State
of N.Y., 982 F.2d 73, 79 (2d Cir. 1992) (“In enacting the FPA,
Congress established a system for dealing with complaints to FERC,
see 16 U.S.C. §§ 825e–h, and created a special procedure to review
FERC’s
action
Whooping
Crane
or
inaction.”
Critical
(emphasis
Habitat
Maint.
added));
Trust
v.
Platte
River
Fed.
Energy
Regulatory Comm’n, 876 F.2d 109, 112-13 (D.C. Cir. 1989) (“Parties
seeking review of FERC orders must petition for rehearing of those
12
orders . . . .” (emphasis added)).
Here, Plaintiffs do not seek
review of a FERC order, and therefore these cases are inapposite. 5
The
second
category
is
cases
brought
210(h)(2)(B), 16 U.S.C. § 824a-3(h)(2)(B).
under
PURPA
§
This section provides:
Any electric utility, qualifying cogenerator, or
qualifying small power producer may petition the
Commission to enforce the requirements of subsection (f)
of this section as provided in subparagraph (A) of this
paragraph.
If the Commission does not initiate an
enforcement action under subparagraph (A) against a
State regulatory authority or nonregulated electric
utility within 60 days following the date on which a
petition is filed under this subparagraph with respect
to such authority, the petitioner may bring an action in
the appropriate United States district court to require
such State regulatory authority or nonregulated electric
utility to comply with such requirements . . . .
Id. (emphasis added); see Allco, 805 F.3d at 96 (“PURPA requires
administrative
exhaustion
for
claims
brought
by
qualified
facilities that are attempting to enforce the requirements of §
824a–3(f).” (emphasis added)); Niagara Mohawk Power Corp. v. Fed.
Energy Regulatory Comm’n, 306 F.3d 1264, 1269 (2d Cir. 2002) (“As
5
Moreover, if Plaintiffs were seeking review of a FERC order,
they would have had to bring their case in either the District of
Columbia or the First Circuit within sixty days of the order. See
16 U.S.C. § 825l(b) (“Any party to a proceeding under this chapter
aggrieved by an order issued by the Commission in such proceeding
may obtain a review of such order in the United States Court of
Appeals for any circuit wherein the licensee or public utility to
which the order relates is located or has its principal place of
business, or in the United States Court of Appeals for the District
of Columbia, by filing in such court, within sixty days after the
order of the Commission upon the application for rehearing, a
written petition praying that the order of the Commission be
modified or set aside in whole or in part.”).
13
discussed in section I. A., supra, PURPA § 210(h)(2)(B) permits an
electric utility such as Niagara to maintain a private action
against a state regulatory authority such as the PSC, provided the
utility first satisfies certain administrative prerequisites.”
(emphasis added)); Connecticut Valley Elec. Co. v. Fed. Energy
Regulatory Comm’n, 208 F.3d 1037, 1043 (D.C. Cir. 2000) (“[I]f a
private party petitions the Commission [under § 210(h)(2)(B)] to
initiate an enforcement action against a PUC and the Commission
declines, then that party may itself sue the PUC in federal
district court to force implementation of the regulations.”).
Because
Plaintiffs
are
not
“electric
utilit[ies],
qualifying
cogenerator[s], or qualifying small power producer[s],” their
claims do not fall under § 210(h)(2)(B), and exhaustion is not
required.
Accordingly, the Court finds that the three-year statute of
limitations applies and began to run on August 16, 2010, when the
PUC Defendants issued their Order.
Plaintiffs’ claims are thus
barred by the statute of limitations, and the Court need not reach
Defendants’
arguments
concerning
immunity.
14
standing
and
quasi-judicial
III. Conclusion
For the foregoing reasons, Defendants’ Motions to Dismiss
(ECF Nos. 14 and 21) are hereby GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: July 7, 2016
15
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