SWECKER v. MIDLAND POWER COOPERATIVE
1:16-cv-01434
D.D.C.May 17, 2017Background
- Gregory and Beverly Swecker own a wind turbine in Iowa that qualified under PURPA and have sold excess power to Midland Power Cooperative (Midland).
- Midland purchases wholesale power from Central Iowa Power Cooperative (CIPCO); the Sweckers dispute Midland/CIPCO's calculation of Midland's PURPA "avoided cost."
- The Sweckers repeatedly petitioned FERC to initiate enforcement actions against Midland and CIPCO; FERC declined each time.
- The Sweckers filed this pro se suit in D.D.C., alleging Midland/CIPCO violated FERC regulations on avoided-cost calculation and that FERC unlawfully refused to enforce those rules.
- Midland and CIPCO moved to dismiss for lack of personal jurisdiction; FERC moved to dismiss for lack of subject-matter jurisdiction under the APA.
- The court dismissed the claims against Midland and CIPCO for lack of personal jurisdiction and dismissed the claims against FERC because FERC's refusal to initiate enforcement is committed to agency discretion and thus nonreviewable under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Midland/CIPCO in D.C. | Swecker asserts Midland/CIPCO may be subject to D.C. jurisdiction because they are members of a national federation | Midland/CIPCO argue no contacts with D.C.; D.C. long-arm statute not satisfied | Court: No personal jurisdiction; Sweckers failed to plead facts connecting defendants to D.C. |
| Reviewability of FERC's refusal to enforce PURPA | Swecker contends FERC unlawfully declined to initiate enforcement against Midland/CIPCO and that decision should be reviewable | FERC contends enforcement declinations are presumptively unreviewable agency discretion under Chaney and related precedent | Court: FERC's refusal is committed to agency discretion; Sweckers failed to overcome the presumption of nonreviewability |
| Whether PURPA supplies judicially manageable standards for enforcement decisions | Swecker implies statute/regulations constrain FERC's decisionmaking | FERC and precedents argue PURPA lacks mandatory enforcement directives or standards that compel review | Court: PURPA does not provide the requisite guidelines to permit review; Baltimore Gas precedent controls |
| Plaintiffs' ability to sue utilities in district court after FERC denial | Swecker relies on statutory provision allowing petitioner to sue if FERC declines enforcement | Defendants note that statutory route exists but does not make FERC's decision reviewable under APA | Court: Plaintiffs may bring an action against utilities in appropriate district courts per PURPA, but here suit in D.C. fails for lack of personal jurisdiction; FERC decision remains nonreviewable |
Key Cases Cited
- FERC v. Mississippi, 456 U.S. 742 (Sup. Ct.) (PURPA enacted to encourage alternative energy and directs FERC to promulgate implementing rules)
- Erickson v. Pardus, 551 U.S. 89 (Sup. Ct.) (pro se complaints held to less stringent pleading standards)
- Crane v. New York Zoological Soc'y, 894 F.2d 454 (D.C. Cir.) (plaintiff bears burden to establish personal jurisdiction)
- GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir.) (conclusory allegations insufficient to establish jurisdiction)
- Heckler v. Chaney, 470 U.S. 821 (Sup. Ct.) (agency decisions not to enforce are presumptively unreviewable under §701(a)(2))
- Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456 (D.C. Cir.) (FERC enforcement declinations committed to agency discretion and unreviewable)
- International Shoe Co. v. Washington, 326 U.S. 310 (Sup. Ct.) (minimum contacts Due Process standard)