Harper v. Public Service Com'n of West Virginia
| Decision Date | 19 November 2003 |
| Docket Number | No. CIV.A. 2:03-0516.,CIV.A. 2:03-0516. |
| Citation | 291 F.Supp.2d 443 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | James Allen HARPER, a resident and citizen of Ohio previously doing business as Southern Ohio Disposal, and Southern Ohio Disposal LLC, an Ohio limited liability company, Plaintiffs, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Edward H. Staats, Chairman,<SMALL><SUP>1</SUP></SMALL> R. Michael Shaw, Commissioner, and Martha Y. Walker, Commissioner, Defendants. WV Association of Solid Waste Haulers and Recyclers, BFI Waste Systems of North America, Inc., Stewart's Sanitation, Sunrise Sanitation Services, Inc., Tygarts Valley Sanitation, Inc., and United Disposal Services, Inc., Intervenors-defendants. |
John Philip Melick, Brian C. Helmick, Jackson Kelly, Charleston, WV, for Plaintiffs.
Richard E. Hitt, Franklin G. Crabtree, Cassius H. Toon, Public Service Commission of West Virginia, Charleston, WV, for PSC Defendants.
Samuel F. Hanna, Hanna & Hanna, Charleston, WV, for SWH.
Richard L. Gottlieb, Webster J. Arceneaux, III, Martin J. Glasser, Lewis, Glasser, Casey & Rollins, PLLC, Charleston, WV, for BFI.
Leonard B. Knee, Eric L. Calvert, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, for Stewart's Sanitation, Sunrise Sanitation Services, Inc., Tygarts Valley Sanitation, Inc. and United Disposal Services, Inc.
Currently pending before the court are (1) a Motion to Dismiss, filed by the Public Service Commission ("PSC") and its Commissioners, named in their official capacities (collectively referred to as "PSC Defendants"), on August 5, 2003 (docket sheet document # 18); (2) a Motion to Dismiss, filed August 6, 2003, by the WV Association of Solid Waste Haulers and Recyclers ("SWH") (# 20); and (3) a Motion to Dismiss, filed August 6, 2003, by BFI Waste Systems of North America ("BFI") (# 22). Plaintiffs responded on August 20, 2003 (# 28), and the PSC Defendants (# 31) and BFI (# 32) replied on September 2, 2003, and September 4, 2003, respectively. The parties consented to proceeding before a magistrate judge, pursuant to 28 U.S.C. § 636(c)(1), and the motions are now ripe for decision.
Plaintiffs James Allen Harper and Southern Ohio Disposal LLC ("SOD") filed this action against the PSC Defendants. By order entered July 30, 2003, the District Court permitted the SWH, BFI, Stewart's Sanitation, Sunrise Sanitation Services, Inc., Tygarts Valley Sanitation, Inc., and United Disposal Services, Inc. to intervene. (# 13.)
SOD, an Ohio limited liability company owned by plaintiff James Allen Harper, also a resident of Ohio, operates a solid waste disposal service. (# 1 (Verified Complaint), ¶ 5.) From a base in Pomeroy, Ohio, SOD employees drive garbage trucks to residences and businesses of customers in Ohio and West Virginia, empty refuse containers into the trucks, and then drive the trucks to a transfer station in Pomeroy, Ohio or a landfill near Nelsonville, Ohio, for disposal of the waste. SOD does not dispose of waste in West Virginia. (# 1, ¶ 5.) Neither Harper nor SOD holds any motor carrier operating authority from the PSC. Plaintiffs represent that Harper's wife contacted the PSC about the need for such authority before serving their first customers in 1999, and was told none was necessary so long as SOD's vehicles had apportioned tags, fuel stickers and other requirements imposed on interstate motor carriers. (# 1, ¶ 6.)
On March 22, 2000, General Refuse Service of Mason County, Inc. ("GRS"), whose successor in interest is BFI, filed a formal complaint against the Town of Mason ("Town") in the PSC, alleging that the Town violated the laws of the State of West Virginia by attempting to contract for the removal of solid waste, trash and rubbish with SOD, an entity that does not possess a certificate of convenience and necessity to operate within the Town. GRS requested the PSC to issue an order commanding the Town to cease and desist from the aforesaid alleged violation of West Virginia law. (# 1, Exhibit 1, p. 1.) On March 22, 2000, the PSC ordered that the Town satisfy the complaint or make answer thereto within ten days. (# 1, Exhibit 1, p. 2.) The Town answered on April 6, 2000, asserting that the complaint against it failed to state a claim upon which relief could be granted.
On April 25, 2000, PSC staff filed a letter and staff recommendation that SOD was an indispensable party in this case and that Commerce Clause issues would be raised insofar as the alleged present or future for hire transportation of solid waste would be from points and places in West Virginia to points and places in Ohio. The matter was referred to an Administrative Law Judge ("ALJ"), and by order entered May 17, 2000, ALJ Keith A. George required GRS to amend its complaint to include SOD. On May 24, 2000, GRS amended its complaint. (# 1, Exhibit 1, p. 2; # 1, ¶ 9.)
On June 21, 2000, the Town and SOD removed the PSC action to the United States District Court for the Southern District of West Virginia. (# 1, Exhibit 1, p. 2); GRS v. Town of Mason, et al., No. 3:00-0512 (S.D.W.Va. Aug. 28, 2000). The Court in GRS determined, pursuant to 28 U.S.C. § 1441(a), that "the PSC's limited quasi-judicial functions are insufficient to view it as a state court for purposes of removal." (# 23 (BFI's Memorandum of Law in Support of its Motion to Dismiss), Exhibit 1, p. 6.) As a result, the District Court in GRS remanded the action to the PSC for further proceedings. (# 23, Exhibit 1, p. 7.)
Following a hearing on April 4, 2001, and briefing by the parties, ALJ Melissa K. Marland issued a Recommended Decision on July 9, 2001, wherein she determined that plaintiff Harper, doing business as SOD, could not be required to obtain a certificate of convenience and necessity from the PSC because that requirement constitutes an unlawful burden on interstate commerce as defined in Medigen of Kentucky, Inc. v. Public Service Comm'n, 985 F.2d 164 (4th Cir.1993). (# 1, Exhibit 1, p. 17.) BFI and the PSC's staff took exception to the Recommended Decision and certain parties, including SWH, Sunrise Sanitation Services, Inc., United Disposal Service, Inc., Tygart's Valley Sanitation, Inc., Stewart's Sanitation and others, were allowed to intervene. (# 1, ¶ 11; # 1, Exhibit 2, pp. 4-7, 13.) Plaintiffs assert that at the outset of oral argument before the PSC on September 24, 2001, "Harper sought and obtained a ruling that the evidentiary case was closed, and that any person taking exception to the Recommended Decision must rely upon the record adduced before Chief Administrative Law Judge Marland on April 4, 2001." (# 1, ¶ 11.)
On October 21, 2002, the PSC issued an order in which it rejected the recommended decision of the ALJ and granted the relief originally sought by GRS. The PSC ordered that plaintiff Harper must cease and desist from collecting solid waste in West Virginia until he obtains a certificate of convenience and necessity, pursuant to West Virginia Code § 24A-2-5. (# 1, ¶ 12; # 1, Exhibit 2, p. 40.) Plaintiffs allege that the PSC erroneously relied on evidence developed after the close of the factual record. (# 1, ¶ 12.)
On October 30, 2002, plaintiff Harper petitioned the PSC to reconsider its decision or to conduct a further hearing to address its findings and conclusions set forth in the October 21, 2002, Commission Order. (# 1, ¶ 13; # 1, Exhibit 3.) On May 30, 2003, the PSC denied plaintiff Harper's request for reconsideration. (# 1, ¶ 15; # 1, Exhibit 4.) On June 2, 2003, plaintiff Harper petitioned the PSC to stay the May 30, 2003, Commission Order. (# 1, ¶ 16; # 1, Exhibit 5.) At the time the Complaint was filed in this Court on June 6, 2003, the PSC had taken no action with respect to the June 2, 2003, petition. (# 1, ¶ 17.) On June 11, 2003, the PSC stayed its earlier cease and desist order until July 26, 2003. (# 3 (PSC Defendants' Answer), Exhibit 2.) The parties have extended this stay by verbal agreement. (# 31 (PSC Defendants' Reply Memorandum in Support of Motion to Dismiss), p. 9 n. 9.)
As grounds for relief, Plaintiffs first allege that the PSC orders of October 21, 2002, and May 30, 2003, are an unlawful direct regulation of interstate commerce, and consequently, violate Plaintiffs' rights under the Commerce Clause. (# 1, ¶ 18.) Plaintiffs next seek relief under State law, alleging that the PSC orders are based on a misapplication of the statutes that define the PSC's jurisdiction and on findings of fact that are not only unsupported, but contrary to the properly adduced evidence. In addition, Plaintiffs assert that the PSC orders are based on an impermissibly stale evidentiary record. (# 1, ¶ 19.)
Third, Plaintiffs allege that the PSC Commissioners, acting under color and pretense of State statute, regulation and customs and usages, engaged in illegal conduct as alleged in the Complaint to injure Plaintiffs and deprive them of their rights, privileges and immunities secured by the Commerce Clause of the United States Constitution and 42 U.S.C. § 1983. (# 1, ¶¶ 20-24.) Finally, Plaintiffs seek a temporary restraining order and, thereafter, preliminary and permanent injunctions against the PSC Defendants, prohibiting them from enforcing PSC orders or otherwise interfering with SOD's interstate transportation of solid waste from West Virginia and other states. Plaintiffs further request that the court declare the rights, duties and obligations of the parties with respect to such transportation and other aspects of SOD's business, resolve, to the extent necessary, Plaintiffs' challenges to the PSC orders, and award Plaintiffs their fees and costs pursuant to 42 U.S.C. § 1988. (# 1, Prayer for Relief.)
BFI avers that the Rooker-Feldman doctrine, enunciated in the cases of District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103...
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Harper v. Public Service Com'n of Wva
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Harper v. Public Service Com'n of West Virginia
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...The administrative hearing procedures are clearly coercive and "judicial in nature" — not legislative. See Harper v. Pub. Serv. Comm'n, 291 F.Supp.2d 443, 455 (S.D.W.Va.2003), aff'd 396 F.3d 348 (4th Cir.2005) (finding that "there can be little doubt that the proceedings before the PSC were......
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Harper v. Public Service Com'n of Wv
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