Greenwood Utilities Com'n v. Hodel

• Decision Date: 09 July 1985
• Docket Number: Nos. 84-8069,84-8804,s. 84-8069
• Citation: 764 F.2d 1459
• Parties: GREENWOOD UTILITIES COMMISSION, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees, Municipal Electric Authority of Georgia, et al., Intervenors-Appellees. GREENWOOD UTILITIES COMMISSION, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1459

764 F.2d 1459

GREENWOOD UTILITIES COMMISSION, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees,

Municipal Electric Authority of Georgia, et al.,

Intervenors-Appellees.

GREENWOOD UTILITIES COMMISSION, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees.

Nos. 84-8069, 84-8804.

United States Court of Appeals, Eleventh Circuit.

July 9, 1985.

Charles F. Wheatley, Jr., Don Charles Uthus, William Steven Paleos, Washington, D.C., for plaintiff-appellant.

Frank L. Butler, III, Asst. U.S. Atty., Macon, Ga., for federal defendants.

Robert Langstaff, Albany, Ga., for WG & LC, City of Albany.

Drake Cutini, Civ. Div., Robert S. Greenspan, Washington, D.C., for S.E. Power Admin. & Secy. of Energy.

Robert Forry, Robert P. Edwards, Jr., Atlanta, Ga., for Ga. Power Co.

Clinton A. Vince, Paul E. Nordstrom, Washington, D.C., for Mun. Elec. Authority of Ga.

Robert B. Schwentker, Raleigh, N.C., for Elec. Co-op.

Appeals from the United States District Court for the Middle District of Georgia.

Before RONEY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

This case involves the attempt to purchase power from the Southeastern Power Administration (SEPA), a division of the Department of Energy of the United States, by Greenwood Utilities Commission (Greenwood), an agency of the City of Greenwood, Mississippi, which supplies electricity to customers in that area. The factual background and legal arguments which underlie the action are set forth in a previous order of the district court granting a motion for partial summary judgment, Greenwood Utilities Commission v. Schlesinger, 515 F.Supp. 653 (M.D.Ga.1981). Further background information is reported in a related case in which Greenwood failed in its attack through the antitrust laws on the refusal of SEPA to allocate electrical power to it. Greenwood Utilities Commission v. Mississippi Power Co., 751 F.2d 1484 (5th Cir.1985). Greenwood here claims that under the applicable statutory provisions, it is entitled to an allocation of power from current allocations among preference customers, and an additional allocation of power to compensate it for the power that it should have been allocated in the past but was not. The district court entered summary judgment for the defendant. As to the claim for retroactive or compensatory power, the court held alternatively that first, it was in effect a claim for monetary damages for which sovereign immunity has not been waived, and second, separate and apart from immunity, equitable considerations would prevent relief that would cause a redistribution of previously committed power. As to the claim for an allocation of the preference power to SEPA for distribution, the court held that a present allocation to Greenwood in a new Cumberland System marketing plan rendered the claim moot. Appellants have failed to convince us that the district court should be reversed. As an additional legal ground for affirming the summary judgment, however, we hold, contrary to the decision of the district court, that SEPA's choices of a marketing area for distribution of the energy available to it for sale, and its allocations among preference customers, are judicially unreviewable because there is no law to apply to SEPA's decision in this context.

Even if there is a question as to whether sovereign immunity would bar injunctive relief requiring SEPA to sell power to Greenwood, instead of some other customers, that relief is equitable and the court's alternative decision that it would not grant such relief would not seem to be reversible on appeal under an abuse of discretion standard of review. The court said:

"Separate and apart from sovereign immunity, alternative grounds exist for denying plaintiff's ability to seek a supplemental, retroactive allocation of power. Even if plaintiff's prayer could be categorized as being only injunctive in nature, this court would be required to weigh equitable considerations in assessing the propriety of such relief. The injunctive relief requested could not issue if the hardship thereby imposed upon the defendants would outweigh the benefits to be derived by the plaintiff. See, Weinberger v. Romero-Barcelo, U.S. [311-312, 102 S.Ct. 1798, 1802-03], 72 L.Ed.2d 91, 98-99 (1982). The public and social consequences, as well as the hardship which would be imposed on innocent third parties, must be considered. Id. [456 U.S. at 312, 102 S.Ct. at 1803, 72 L.Ed.2d] at 99; see, J. Moore, 7 Moore's Federal Practice, p 65.18, at 65-136 to 65-140.1 (1980). Where the interests of the public as opposed simply to those of private litigants are at stake, a court may go much further in withholding injunctive relief. See, Standard & Poor's Corp. v. Commodity Exchange, 683 F.2d 704, 711 (2d Cir.1982); D. Dobbs, Remedies, Sec. 2.5 at 65 (1973). Plaintiff's request involves a finite, limited resource for which complex marketing plans and third party expectations have been established. Implementation of plaintiff's requested relief would necessarily involve a re-distribution of previously committed power. Numerous preference entities which have made future plans anticipating receipt of a given amount of SEPA power would lose a substantial portion thereof if plaintiff's request is granted. This in turn would require those preference entities to acquire power from substitute sources, and in all likelihood at higher prices. Rate schedules would then have to be re-evaluated, and the public consumer would bear the cost. Although plaintiff attempts to answer this concern by suggesting that its supplemental allocation could be completely derived from the accounts of the defendant Southern Company, even if this proposition were true Southern would then be required to re-allocate its limited resources and most likely the public served by Southern Company would bear the ultimate cost of plaintiff's increased allocation.

"Assuming plaintiff were to prevail on the merits of its Sec. 5 claim, it could be argued that the Southern Company and the preference entities within its borders received power in the past at plaintiff's 'expense.' Nevertheless, in weighing the relative hardships which a corrective injunction would entail--not only to the defendants but to the public consumer as well--this court must find that equity compels the withholding of plaintiff's requested relief." (footnote omitted).

As to the mootness claim, again we simply quote the district court's reasoning which appears to foreclose reversal on appeal:

"Having determined that plaintiff would in no event be entitled to a retroactive, compensatory allocation of power, the court must decide whether plaintiff's claim for prospective relief has been rendered moot by SEPA's new Cumberland System marketing plan.

It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.

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'The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave "[t]he defendant ... free to return to his old ways." United States v. W.T. Grant Co., 345 U.S. 629, 632, 97 L.Ed. 1303, 73 S.Ct. 894 (1953); see e.g., United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 41 L.Ed. 1007, 17 S.Ct. 540 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.... Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. [345 U.S.] at 633-636, 97 L.Ed. 1303, 73 S.Ct. 894. This is a matter for the trial judge.'

"City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 289 n. 10 [102 S.Ct. 1070, 1074 n. 10, 71 L.Ed.2d 152] (1982). In opposition to the suggestion of mootness, plaintiff first argues that even with its allocation from the new Cumberland plan SEPA would still be in violation of Sec. 5 if it continues to sell 'capacity without energy' to non-preference entities such as the Southern Company in return for the latter's wheeling and firming services. This argument is based on plaintiff's construction of Sec. 5 to the effect that a non-preference entity may receive no SEPA power whatsoever until all preference entities are first served. Thus, plaintiff argues, there is less SEPA power available for preference entities like itself when SEPA violates this rule by selling capacity without energy to the non-preference conduits. Second, the plaintiff argues that an injunction is necessary since SEPA has not yet allocated power to it, and could withdraw its proposal at anytime.

"With regard to plaintiff's first argument, the court must observe that plaintiff has overlooked a critical fact. SEPA has no transmission lines. In order for plaintiff and other preference entities to receive SEPA power the lines of non-preference, large power companies such as the Southern Company must be used for transmission. These private companies cannot be forced to transmit and wheel SEPA power without some form of compensation; to do so would almost certainly amount to an unconstitutional 'taking' without just compensation. These wheeling and banking services must be paid for by either SEPA or the individual preference buyers. SEPA has administratively decided to pay for these services through the sale of 'capacity without energy.' Were it not for this arrangement plaintiff would have to pay for it. Thus, if SEPA were ordered to discontinue this...