Greensboro Lumber Co. v. Georgia Power Co.

• Decision Date: 18 May 1988
• Docket Number: No. 86-8797,86-8797
• Citation: 844 F.2d 1538
• Parties: 1988-1 Trade Cases 68,017 GREENSBORO LUMBER COMPANY, Plaintiff-Appellant, v. GEORGIA POWER COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1538

844 F.2d 1538

1988-1 Trade Cases 68,017

GREENSBORO LUMBER COMPANY, Plaintiff-Appellant, v. GEORGIA POWER COMPANY, et al., Defendants-Appellees.

No. 86-8797.

United States Court of Appeals, Eleventh Circuit.

May 18, 1988.

Jack H. Watson, Jr., Atlanta, Ga., for plaintiff-appellant.

Emmet J. Bondurant, Atlanta, Ga., Richard G. Tisinger, Tisinger, Tisinger, Vance & Greer, P.C., Carrollton, Ga., for 39 EMC's.

L. Clifford Adams, Jr., Atlanta, Ga., for Mun. El. Auth. of Ga. & Def's 44-90.

James V. Davis, Landau, Davis and Farkas, P.C., Albany, Ga., for City of Albany, Ga Robert H. Forry, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for Georgia Power Co.

Carlton C. McCamy, McCamy, Phillips, Tuggle, Rollins & Fordham, Dalton, Ga., for City of Dalton.

Robert B. Langstaff, Langstaff & Plowden, Albany, Ga., for City of Albany.

Dorothy Y. Kirkley, Paul, Hastings, Janofsky & Walker, Atlanta, Ga., Mark L. Gerchick, Paul, Hastings, Janofsky & Walker, Washington, D.C., for Oglethorpe Power Corp.

Bernhardt K. Wruble, Verner, Liipfert, Bernhard, McPherson and Hand, Chartered, Washington, D.C., for Mun. Elec. Authority of Georgia.

C. Mac Vassanelli, Civil Div., Dept. of Justice, Washington, D.C., Robert L. Barr, Jr., U.S. Atty., Robert P. Edwards, Jr., Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for Amicus Curiae Rural Electrification Admin.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and VANCE, Circuit Judges, and PROPST ^*, District Judge.

HILL, Circuit Judge:

Plaintiff/appellant Greensboro Lumber Company ("Greensboro") brought this suit in the United States District Court for the Northern District of Georgia, alleging violations of the federal antitrust laws, violations of section 210 of the federal Public Utility Regulatory Policies Act of 1978, 16 U.S.C. Sec. 824a-3 ("PURPA"), and state law breach of contract. The defendants, appellees in this court, are the Georgia Power Company ("Georgia Power"), the Municipal Electric Authority of Georgia ("MEAG"), the Georgia municipalities and county which participate in MEAG ("Participants"), the Oglethorpe Power Corporation ("Oglethorpe"), the 39 rural electric membership cooperatives that are members of Oglethorpe ("EMCs"), and the City of Dalton ("Dalton"). The district court granted the defendants' motion for summary judgment, but denied the motion filed by MEAG and the Participants for sanctions under Rule 11 of the Federal Rules of Civil Procedure. Greensboro Lumber Company v. Georgia Power Company, 643 F.Supp. 1345 (N.D.Ga.1986).

The facts of this case are set out in detail in the very thorough district court opinion. Id. In summary, Greensboro operates an electrical cogeneration facility at one of its two lumber production facilities, and complains that the defendants have acted improperly in response to Greensboro's attempts to sell the power it produces and in response to Greensboro's requests to purchase back-up power.

This opinion generally deals with the issues in the case in the order in which they are addressed in the district court opinion.

ANTITRUST CLAIMS AGAINST OGLETHORPE AND THE EMCS

We agree with the district court's conclusion that Oglethorpe and the EMCs (collectively, the "Oglethorpe Group") are immune from scrutiny under the federal antitrust laws.

Greensboro first argues that there were disputed questions of fact as to whether the Rural Electrification Administration ("REA") mandated the "all-requirements contracts," so that summary judgment was improper. These all-requirements contracts obligate the EMCs to purchase all of their wholesale power exclusively from Oglethorpe until the year 2022, thus preventing the EMCs from purchasing power separately from Greensboro. The district court held that the all-requirements contracts were required by the REA and therefore immune from antitrust scrutiny, relying on (1) arguments by the United States as amicus curiae that the REA has a long-standing policy of requiring such contracts as security for REA loans, 643 F.Supp. at 1362; (2) affidavits by the REA We recognize that in reviewing the grant of appellees' summary judgment motions, this court exercises independent judgment and makes its own assessment of the record as to whether there was a genuine dispute as to any material issue of fact in the case. Mays v. United States, 763 F.2d 1295 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 416, 88 L.Ed.2d 365 (1985); Thrasher v. State Farm Fire and Casualty Company, 734 F.2d 637 (11th Cir.1984). Even under this standard, however, we hold that the district court was correct in concluding that the all-requirements contracts at issue in this case were required by the REA. Greensboro argues that there is a disputed issue of fact, pointing to inconsistencies between the two affidavits of the REA Administrator as to the policy of the REA. Greensboro's assertions are not sufficient to establish a factual dispute as to whether the REA required Oglethorpe and EMC's to enter into the all-requirements contracts which are at issue in this case. At most, Greensboro may have established a factual dispute about certain items of REA policy, but that is not sufficient for us to disagree with the district court's grant of summary judgment, because there is no substantial doubt that the REA required the contracts at issue in this particular case.

Administrator supporting the United States' argument, id. at 1363; (3) the United States Supreme Court's rejection of an antitrust challenge to a utility's 20-year all-requirements contracts in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), 643 F.Supp. at 1362; and (4) the holding of this court (as the former Fifth Circuit) that virtually identical all-requirements contracts were valid and entitled to antitrust immunity in Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir.), cert. denied, 393 U.S. 1000, 89 S.Ct. 488, 21 L.Ed.2d 465 (1968), 643 F.Supp. at 1362.

Greensboro next attacks the holding of antitrust immunity by seeking to distinguish Alabama Power. That case involved a loan from the REA to the Alabama Electric Cooperative ("AEC") for the purpose of financing a generating plant and high-voltage electrical distribution lines. 394 F.2d at 673. The loan was secured by all-requirements contracts between the AEC (similar to Oglethorpe in this case) and fourteen electric distribution cooperatives (similar to the EMCs). Id. at 675-76. The Alabama Power Company brought a complaint alleging that the all-requirements contracts violated the antitrust laws. Id. at 673. The district court addressed Greensboro's arguments on this issue, 643 F.Supp. at 1365-66, and we adopt the reasoning of the district court on this point.

Greensboro next argues that Alabama Power is no longer good law and should be overruled. On that point, we need only note that such a decision is beyond the power of the panel responsible for this decision. Only the en banc court has the power to overrule a prior decision by a panel of the court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). Greensboro's citation to Erkins v. Bryan, 785 F.2d 1538, 1546 (11th Cir.), cert. denied sub nom. United Steelworkers of America v. Erkins, --- U.S. ----, 107 S.Ct. 455, 93 L.Ed.2d 402 (1986), does not persuade us otherwise.

It is argued that Oglethorpe and the EMCs constitute a single entity, and are thus incapable of conspiring with each other in violation of Section One of the Sherman Act. We question whether this "single entity theory" is applicable to Oglethorpe and the EMCs. See Royal Drug Company, Inc. v. Group Life and Health Ins. Co., 556 F.2d 1375, 1380-82 (5th Cir.1977), aff'd sub nom. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). ¹ However, we need not reach that question because of our decision that the all-requirements We also agree with the District Court's conclusion that Greensboro has suffered no cognizable injury from the alleged antitrust violations by Oglethorpe and the EMCs and therefore lacks standing to sue. See 643 F.Supp. at 1367-71.

contracts are immune from antitrust scrutiny under Alabama Power.

As we agree with the district court's conclusion that Greensboro advances no antitrust claim sufficient to survive a motion for summary judgment, we find no merit in its claim for injunctive relief.

PURPA CLAIMS AGAINST OGLETHORPE AND THE EMCS

Oglethorpe and the EMCs have adopted an Interconnection Policy under which only Oglethorpe will purchase electricity from Greensboro, and only the EMCs will sell electricity to Greensboro. Greensboro claims that this Interconnection Policy violates section 210 the federal Public Utility Regulatory Policies Act of 1978, 16 U.S.C. Sec. 824a-3 ("PURPA"), which requires each electric utility both to sell electricity to co-generators such as Greensboro, and to purchase electricity from co-generators. The district court held that it lacked subject matter jurisdiction over Greensboro's "as applied" claim, and we find its reasoning persuasive. See 643 F.Supp. at 1371-75.

Greensboro also argues that the Oglethorpe/EMC Interconnection Policy fails to comply with PURPA on its face. This argument avoids the jurisdictional problem inherent in "as applied" claims under PURPA, see 643 F.Supp. at 1374, but we are not persuaded that we should reverse the district court's grant of summary judgment on this basis, either. Greensboro's "facial" attack on the Interconnection Policy asserts that the FERC granted waivers to Oglethorpe and the EMCs only prospectively, and that Oglethorpe and the EMCs have yet to obtain the FERC's acceptance of an amended Interconnection Policy. Therefore, Greensboro asserts that it is entitled to damages for the historical noncompliance, and an injunction to require future compliance.

Greensboro's "facial" attack on...