Swecker v. Midland Power Cooperative
2017 U.S. Dist. LEXIS 74872
D.D.C.2017Background
- Gregory and Beverly Swecker operate a PURPA-qualifying wind turbine in Iowa and sell excess power to Midland Power Cooperative (Midland). Midland purchases wholesale power from Central Iowa Power Cooperative (CIPCO), which affects Midland's PURPA "avoided cost."
- The Sweckers have repeatedly contested Midland/CIPCO's avoided-cost calculations and repeatedly petitioned FERC to enforce PURPA rules; FERC declined to initiate enforcement several times.
- After administrative petitions and prior litigation in Iowa, the Sweckers filed this pro se suit in D.C. federal court against Midland, CIPCO, and FERC seeking enforcement or review of FERC’s refusals.
- The Court construed claims against Midland/CIPCO as an action under 16 U.S.C. § 824a-3(h)(2)(B) to compel compliance with FERC regulations, and claims against FERC as APA (5 U.S.C. § 702) review of agency action.
- Midland and CIPCO moved to dismiss for lack of personal jurisdiction; FERC moved to dismiss for lack of subject-matter jurisdiction, arguing its declination to enforce is committed to agency discretion.
- The court granted both motions: dismissed Midland/CIPCO for lack of personal jurisdiction; dismissed claims against FERC as committed to agency discretion and therefore nonreviewable under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether D.C. courts have personal jurisdiction over Midland and CIPCO | Swecker asserted defendants are members of a national federation, implying contacts with D.C. | Midland/CIPCO argued Complaint alleges no D.C. contacts and challenged jurisdiction | No personal jurisdiction; complaint lacks allegations connecting defendants to D.C.; dismissal granted |
| Whether FERC's refusal to commence PURPA enforcement is judicially reviewable | Swecker sought review/compel enforcement under APA, arguing FERC unlawfully refused enforcement | FERC argued enforcement declination is discretionary and presumptively unreviewable under Heckler v. Chaney and related precedent | Dismissed for lack of subject-matter jurisdiction: FERC's decision not to enforce PURPA is committed to agency discretion and unreviewable; plaintiff failed to overcome Heckler presumption |
Key Cases Cited
- FERC v. Mississippi, 456 U.S. 742 (context for PURPA's enactment and objectives)
- Midland Power Co-op. v. FERC, 774 F.3d 1 (context on the term "avoided cost")
- Erickson v. Pardus, 551 U.S. 89 (pro se complaints held to less stringent pleading standards)
- Crane v. N.Y. Zoological Soc'y, 894 F.2d 454 (plaintiff bears burden to establish personal jurisdiction)
- GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343 (conclusory statements insufficient for prima facie jurisdiction)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (minimum contacts standard for due process)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (forum-related conduct and reasonable anticipation)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (presumption that cause lies outside federal courts' limited jurisdiction)
- Heckler v. Chaney, 470 U.S. 821 (agency refusal to enforce presumptively unreviewable)
- Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456 (FERC enforcement decisions committed to agency discretion)
- Industrial Cogenerators v. FERC, 47 F.3d 1231 (procedural context for PURPA petition-to-enforce scheme)