Long Island Lighting Co. v. Cuomo, s. 654
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 888 F.2d 230 |
| Docket Number | Nos. 654,655,661,D,s. 654 |
| Parties | LONG ISLAND LIGHTING COMPANY, Plaintiff-Appellee, Cross-Appellant, v. Mario M. CUOMO, in his official capacity as Governor of the State of New York, Peter A. Bradford, in his official capacity as Chairman of the New York State Public Service Commission, Harold A. Jerry, Jr., Gail Garfield Schwartz, Eli M. Noam, James T. McFarland, Edward M. Kresky and Henry G. Williams, in their official capacities as Commissioners of the New York State Public Service Commission, the Long Island Power Authority, and William L. Mack, Irving Like, Nora Bredes, Leon Campo, Richard Kessel, Stephen Liss, Vincent Tese, John Adam Kanas, and Martin Bernstein, in their official capacities as Trustees of the Long Island Power Authority, Defendants, Shoreham-Wading River Central School District and the Assessor and the Board of Assessment for the Town of Brookhaven, Intervenors-Defendants, New York State Public Service Commission, Mario M. Cuomo, Long Island Power Authority, Defendants-Appellants, Cross-Appellees. ockets 87-7759, 87-7761, 87-7855. |
| Decision Date | 18 October 1989 |
Page 230
v.
Mario M. CUOMO, in his official capacity as Governor of the
State of New York, Peter A. Bradford, in his official
capacity as Chairman of the New York State Public Service
Commission, Harold A. Jerry, Jr., Gail Garfield Schwartz,
Eli M. Noam, James T. McFarland, Edward M. Kresky and Henry
G. Williams, in their official capacities as Commissioners
of the New York State Public Service Commission, the Long
Island Power Authority, and William L. Mack, Irving Like,
Nora Bredes, Leon Campo, Richard Kessel, Stephen Liss,
Vincent Tese, John Adam Kanas, and Martin Bernstein, in
their official capacities as Trustees of the Long Island
Power Authority, Defendants,
Shoreham-Wading River Central School District and the
Assessor and the Board of Assessment for the Town
of Brookhaven, Intervenors-Defendants,
New York State Public Service Commission, Mario M. Cuomo,
Long Island Power Authority,
Defendants-Appellants, Cross-Appellees.
Second Circuit.
Dismissed by order Jan. 18, 1989.
Reinstated July 21, 1989.
Decided Oct. 18, 1989.
Michael Lesch, New York City (John G. Nicolich, Barry V. Sautman, Shea & Gould, New York City, Anthony F. Earley, Jr., General Counsel, Long Island Lighting Co., of counsel), for appellant Long Island Lighting Co.
Lawrence G. Malone, Albany, N.Y. (Robert A. Simpson, Acting Counsel, New York State Dept. of Public Service, Margery F. Baker, Jonathan D. Feinberg, New York State Dept. of Public Service, Albany, N.Y., of counsel), for appellant New York State Public Service Com'n.
Robert Abrams, Atty. Gen. of the State of N.Y., O. Peter Sherwood, Sol. Gen., John W. Corwin, Alfred L. Nardelli, Mary M. Gundrum, Samuel A. Cherniak, Harvey Berman, Asst. Attys. Gen., Fabian Palomino, Sp. Counsel to the Governor, New York City, for appellant Governor Mario M. Cuomo.
Page 231
David A. Brownlee, Pittsburgh, PA (Michael J. Lynch, Kenneth M. Argentieri, Kirkpatrick & Lockhart, Pittsburgh, PA, Herbert H. Brown, Lawrence Coe Lanpher, Kirkpatrick & Lockhart, Washington, D.C., of counsel), for appellees Long Island Power Authority and Its Individual Trustees.
K. Dennis Sisk, New York City (David F. Peters, Edward M. Barrett, George V. Cook, Hunton & Williams, New York City, Anthony F. Earley, Jr., General Counsel, Long Island Lighting Co., of counsel), for appellee Long Island Lighting Co.
Before MESKILL, ALTIMARI * and MAHONEY, Circuit Judges.
MESKILL, Circuit Judge:
Defendants-appellants Mario M. Cuomo, Governor of the State of New York, and the New York State Public Service Commission (PSC) appeal from that part of a judgment entered in the United States District Court for the Northern District of New York, Munson, C.J., that granted plaintiff-appellee Long Island Lighting Company's (LILCO) motion for summary judgment and declared the Used and Useful Act, N.Y.Pub.Serv.Law Sec. 66(24) (McKinney 1989) (UAU Act), violative of the Equal Protection Clause of the United States Constitution. LILCO cross-appeals from the district court's adverse determination of LILCO's other constitutional challenges to the Used and Useful Act, and appeals from both the court's grant of summary judgment for defendants on LILCO's constitutional challenges to the Long Island Power Authority Act, N.Y.Pub.Auth.Law Secs. 1020 to 1020-hh (McKinney Supp.1989) (LIPA Act), and its dismissal of LILCO's conspiracy claim under 42 U.S.C. Sec. 1983 (1982) against Governor Cuomo. Because the parties to this appeal have agreed to terminate their litigation, we dismiss the appeal, vacate the judgment below in part and remand to the district court with instructions to dismiss portions of the complaint as moot. The district court's opinion is reported at 666 F.Supp. 370 (N.D.N.Y.1987).
LILCO commenced this action in January 1987 to challenge New York state legislation enacted as part of an effort by the state of New York to prevent the federal licensing and the operation of the Shoreham Nuclear Power Plant, located on Long Island Sound in Suffolk County, New York. LILCO is a utility company organized under the laws of New York and the sole owner of the Shoreham plant. The PSC regulates many aspects of LILCO's operations, including the rates that LILCO charges its customers.
In 1986, the New York legislature enacted both the UAU Act and the LIPA Act. The UAU Act prohibits the PSC from including any of Shoreham's costs in LILCO's rate base unless, inter alia, the Shoreham plant commences commercial operation by January 3, 1989, 1 an event that did not occur. The LIPA Act created the Long Island Power Authority (LIPA) and authorized it to acquire the securities or assets of LILCO through either a purchase or the power of eminent domain.
A. Proceedings in the District Court
LILCO's complaint named several defendants, including the PSC, LIPA and Governor Cuomo. LILCO attacked both the UAU Act and the LIPA Act as, inter alia, bills of attainder in violation of article I, section 10 of the United States Constitution, abuses of the state's police power violative of the Due Process Clause of the Fourteenth Amendment, and denials of equal protection of the law, also in violation of the Fourteenth Amendment. In addition, LILCO claimed that Governor Cuomo had violated 42 U.S.C. Sec. 1983 by conspiring with various officials to prevent the operation of the Shoreham plant.
Page 232
Upon the motions of various defendants to dismiss or for summary judgment, the district court granted summary judgment for defendants on LILCO's challenges to the LIPA Act and dismissed its section 1983 claim against Governor Cuomo. The district court also granted LILCO's motion for partial summary judgment, and held that the UAU Act denied LILCO equal protection under the Fourteenth Amendment. The court accordingly enjoined the PSC from implementing or enforcing the UAU Act. The court further held, however, that the UAU Act was neither a bill of attainder nor a deprivation of due process.
B. Appellate Proceedings
1. The Appeal and Initial...
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