Newton v. Duke Energy Fla., LLC

• Decision Date: 11 July 2018
• Docket Number: No. 17-10080,17-10080
• Citation: 895 F.3d 1270
• Parties: William B. NEWTON, Noreen Allison, individually and on behalf of all others similarly situated, Plaintiffs–Appellants, v. DUKE ENERGY FLORIDA, LLC, a Florida limited liability company, Florida Power & Light Company, a Florida profit corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

895 F.3d 1270

William B. NEWTON, Noreen Allison, individually and on behalf of all others similarly situated, Plaintiffs–Appellants,

v.DUKE ENERGY FLORIDA, LLC, a Florida limited liability company, Florida Power & Light Company, a Florida profit corporation, Defendants–Appellees.

No. 17-10080

United States Court of Appeals, Eleventh Circuit.

July 11, 2018

Marcia Joan Cleveland, Marcia J. Cleveland, LLC, Portland, Robert S. Peck, Center for Constitutional Litigation, PC, New York, Barbara Mahoney, Jerrod C. Patterson, Hagens Berman Sobol Shapiro, LLP, Seattle, for Plaintiff–Appellant.

Arnold Bradley Fagg, Robert M. Brochin, Stephanie Schuster, Morgan Lewis & Bockius, LLP, Washington, for Defendant–Appellee Duke Energy Florida, LLC.

Gary K. Harris, Boies Schiller & Flexner, LLP, Orlando, Stuart H. Singer, Boies Schiller & Flexner, LLP, William Russell Snyder, Jr., White & Case, LLP, Miami, for Defendant–Appellee Florida Power & Light Company.

Before TJOFLAT and JORDAN, Circuit Judges, and STEELE,^* District Judge.

TJOFLAT, Circuit Judge:

In 2006, the Florida Legislature enacted the Florida Renewable Energy Technologies and Energy Efficiency Act¹ (the "Act"). The Act authorized the Florida Public Service Commission ("PSC") to create a plan to incentivize energy utilities to invest in nuclear power plant construction. Fla. Stat. § 366.93(2). Acting on this authority, the PSC promulgated a regulation creating the Nuclear Cost Recovery System ("NCRS").² If a utility chooses to participate in the NCRS and receives PSC approval of its plant construction project, it may preemptively charge its customers through an electricity rate increase for "costs incurred in the siting, design, licensing, and construction" of the project through its completion. Id. Under the NCRS, the utility retains the funds generated by the rate increase even if the project is never completed.

This is a putative class action. The plaintiffs' class representatives, William Newton and Noreen Allison ("Plaintiffs"), claim that two provisions of the Act which authorize the NCRS, Florida Statutes §§ 366.93 and 403.519(4), are invalid under the Dormant Commerce Clause ("DCC"), which precludes a state from "regulat[ing] Commerce ... among the several States," U.S. Const. art. I, § 8, cl. 3, and "directly limits the power of the States to discriminate against interstate commerce." New Energy Co. of Ind. v. Limbach , 486 U.S. 269, 273, 108 S.Ct. 1803, 1807, 100 L.Ed.2d 302 (1988). Plaintiffs also claim that the two provisions of the Act are preempted by the Atomic Energy Act of 1954,³ 42 U.S.C. § 2011 et seq. , and the Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.⁴

Plaintiffs did not bring these claims against the State of Florida, the PSC (which is charged with implementing and administering the Act), or its members. Instead, they seek the Act’s invalidation solely by suing two electric utilities, Duke Energy Florida and Florida Power & Light ("Utilities"), who have been collecting rate increases from them and their class members for nuclear plant construction that has been discontinued.

Utilities separately moved the District Court to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on numerous grounds. As to the DCC claim, Utilities argued that if a cause of action lies under the DCC, it belongs to the States that may have been injured due to Florida’s regulation of interstate commerce and not to Plaintiffs, who are Florida utility customers. Utilities also argued that they are private parties, not state actors, and, as such, could not have violated the DCC. As to the preemption claims, Utilities argued that they failed for numerous reasons, including that preemption is a defense , not a claim for relief.⁵ Utilities also argued that the preemption claims failed on the merits.

The District Court dismissed Plaintiffs' DCC claim for lack of "prudential standing" because Plaintiffs were not in the "zone of interests" protected by the Clause.⁶ See Harris v. Evans , 20 F.3d 1118, 1121 (11th Cir. 1994). It dismissed Plaintiffs' preemption claims based on the Atomic Energy Act and the Energy Policy Act on the ground that neither act created a cause of action, express or implied.⁷ The Court dismissed Plaintiffs' claims without granting leave to amend.

Plaintiffs moved the District Court for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). The motion focused on the Court’s dismissal of their claims without leave to amend. Citing Federal Rule of Civil Procedure 15(a)(2), which states that "[t]he court should freely give leave [to amend] when justice so requires," Plaintiffs argued that they could cure the deficiencies in their complaint if given leave to join the State of Florida as a defendant and to prosecute their claims against Utilities under 42 U.S.C. § 1983 on the ground that, in increasing their rates under the NCRS, Utilities acted under color of state law.

The District Court denied the Rule 60(b) motion. Its reading of the motion was that Plaintiffs were seeking to bolster their claims against Utilities by joining the State as a defendant. This would be futile. "Simply joining the State as a party," the Court explained, "would not suddenly empower Plaintiffs to bring constitutional claims against private entities, such as [Utilities]." Dist. Ct. Ord. Denying Mot. for Reconsideration at 4. The Court did not expressly respond to Plaintiffs' request to bring their DCC claim against Utilities under § 1983, but it implicitly rejected the request in stating that Utilities were not acting under color of state law in participating in the NCRS.

Plaintiffs appeal the District Court’s judgment, arguing that the allegations of their complaint were sufficient to make out their DCC claim and their preemption claim under the Atomic Energy Act.⁸ They also appeal the Court’s denial of their Rule 60(b) motion, arguing that the Court abused its discretion in denying the request for leave to amend asserted in the motion.

I.

We review de novo the dismissal of a claim under Federal Rule of Civil Procedure 12(b)(6). Caver v. Cent. Ala. Elec. Coop. , 845 F.3d 1135, 1147 n.9 (11th Cir. 2017). In this posture, we accept the factual allegations supporting a claim as true and draw all reasonable inferences in favor of the nonmovant. West v. Warden, Comm’r, Ala. Doc , 869 F.3d 1289, 1296 (11th Cir. 2017). We review a district court’s denial of leave to amend under the abuse of discretion standard. Smith v. Duff & Phelps, Inc. , 5 F.3d 488, 493 (11th Cir. 1993). With these principles in hand, we turn to the dismissal of Plaintiffs' DCC claim, then to their preemption claim under the Atomic Energy Act. After that, we consider the denial of leave to amend.

II.

A.

The "modern law" of the DCC is "driven by concern about ‘economic protectionism,’ " or, in other words, "regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." Dep’t of Revenue of Ky. v. Davis , 553 U.S. 328, 337–38, 128 S.Ct. 1801, 1808, 170 L.Ed.2d 685 (2008) (quoting New Energy , 486 U.S. at 273, 108 S.Ct. at 1807 ). If a state law unduly burdens competition in another state, the law may be unconstitutional under the DCC. The injury contemplated by the DCC, then, is that of an out-of-state person or entity harmed by some other state’s action.

This is far from the case here. Plaintiffs are Florida electric utility customers. Utilities are Florida companies. Utilities are not "states" such that their actions could give rise to DCC claims from an out-of-state person or entity. Plaintiffs' interests are well beyond the zone the DCC is meant to protect.⁹ See Harris , 20 F.3d at 1121. For these reasons, we affirm the dismissal of Plaintiffs' DCC claim under Rule 12(b)(6).

B.

Next, we turn to Plaintiffs' preemption claim. It is well-settled that there are three types of preemption:

First, Congress has the authority to expressly preempt state law by statute. Second, even in the absence of an express preemption provision, the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Third, federal and state law may impermissibly conflict, for example, where it is impossible for a private party to comply with both state and federal law, or when the state law at issue stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Graham v. R.J. Reynolds Tobacco Co. , 857 F.3d 1169, 1293 (11th Cir. 2017) (en banc) (Tjoflat, J., dissenting) (citations and quotations omitted) (alterations accepted). Plaintiffs rely on the second of these, commonly referred to as "field preemption," and argue that the Atomic Energy Act established the federal government as the exclusive authority to regulate the construction of nuclear power plants such that they may sue to establish preemption.

A claim that a plaintiff asserts under state law, in a field that is completely preempted, necessarily arises under federal law. See, e.g. , Borrero v. United Healthcare of N.Y., Inc. , 610 F.3d 1296, 1301 (11th Cir. 2010) (addressing complete preemption under ERISA). Despite preemption’s usual character as a defense, we have jurisdiction to consider Plaintiffs' claim for injunctive relief here. Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 2899 n.14, 77 L.Ed.2d 490 (1983) ("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."); Ga. Latino All. for Human Rights v. Governor of Ga. , 691 F.3d 1250, 1262 (11th Cir. 2012) (holding that there exists "an implied right of action to assert a preemption claim seeking injunctive relief") (citations and...