Mark B. ARONSON, on behalf of himself and all others similarly situated, Appellant, v. THE PEOPLES NATURAL GAS COMPANY.
No. 99-3000
United States Court of Appeals, Third Circuit
Submitted Under Third Circuit LAR 34.1(a) June 8, 1999. Filed June 25, 1999.
180 F.3d 558
Applying these standards,3 we can discern no abuse of discretion in the District Court‘s determination that Glancy is unlikely to succeed on the merits. The GAO first noted that, under applicable law, only a compelling reason will justify reopening a closed bidding process. (Comptroller General‘s Op. at 3). The reason for this is to discourage “auction type” bidding at which a disappointed bidder, armed with knowledge of the prior bids, artificially lowers its bid in order to win the contract. Chemung County v. Dole, 781 F.2d 963, 972 (2d Cir.1986). While an ambiguity in a bid solicitation can be a sufficiently compelling reason to reopen the bidding process, the Comptroller General concluded in this case that the IFB was not “susceptible to more than one reasonable interpretation when read in the context of the solicitation as a whole.” (Comptroller General‘s Op. at 3) (emphasis added). This decision is rational for the reasons identified by the Comptroller General—the IFB contained two separate items upon which bidders were to submit bids, separate lines were provided for the bids on these items, and the clarifying amendment‘s admonition that one prime contract would be awarded was not a reasonable basis upon which to base a conclusion that Item II was a break-out of Item I. Mindful that courts are not to substitute their judgment for that of the Executive, we agree with the District Court‘s assessment of the merits and with its conclusion that preliminary injunctive relief was inappropriate.
The District Court‘s alternate basis for denying relief—that the delays associated with bringing in a new general contractor if preliminary injunctive relief were granted would not be in the public interest because it would further delay the renovation of a vital liver transplant center—is based on factual findings amply supported by the record. (Supp. Findings of Fact 12 et seq.). We agree with the District Court that the equities here do not lie with Glancy, especially in light of the fact that even under its understanding of the first solicitation, Glancy was not the low bidder. (See Gov‘t Br. at 40-41 (“Glancy‘s claimed interest in fair procurement procedures rings hollow. Glancy was not the low bidder in the initial round of bidding even under its own reading of the original solicitation.“)).
III.
Accordingly, we affirm the District Court‘s March 10, 1999, Order denying Glancy‘s motion for preliminary injunctive relief.
James A. Michaels, Washington, D.C., for Board of Governors of the Federal Reserve System as Amicus Curiae.
Before: SLOVITER and MANSMANN, Circuit Judges, and O‘NEILL,* District Judge.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Plaintiff Mark B. Aronson appeals from the order of the District Court granting summary judgment in favor of Peoples Natural Gas Co. (“Peoples Gas“) on Aronson‘s claim that the billing practices of Peoples Gas violate the Truth in Lending Act (“TILA“),
I.
Aronson is a customer of Peoples Gas and has purchased utility services for his Allegheny County home since 1970. His August 21, 1997, utility bill included new charges of $16.24 and an accumulated balance of $541.12 for a total account balance of $557.36. The bill stated, “Please Pay By Sep 11, 1997 To Avoid A Late Payment Charge of $6.57 (1.5%).” It also listed an optional payment amount of $113.00. Aronson‘s September 23 bill updated these figures to show an unpaid accumulated balance of $557.36, a late payment charge of $6.57, and new charges of $22.51, for a new account balance totaling $586.44. That bill stated, “Please Pay By Oct 14, 1997, To Avoid A Late Payment Charge of $6.91 (1.5%),” and listed an optional payment amount of $206.57. On October 3, Peoples Gas issued a ten-day turn-off notice which stated the company would turn the gas service off if Aronson failed to pay the total amount of $557.36 by October 16.
Aronson initially filed a complaint with the Pennsylvania Public Utility Commission (“PUC“) on October 10, 1997, complaining of Peoples Gas‘s billing practices.1 Prior to a final decision from the PUC, Aronson filed a substantially similar complaint in the Court of Common Pleas for Allegheny County in March 1998, and sought class certification. That complaint alleges that billing practices of Peoples Gas violate TILA because the bills do not contain a “due date,” reveal the annual interest rate corresponding to the late payment charge, or explain how the 1.5% late payment charge is calculated. The bills refer only to “the amount you owe,” without specifying whether that amount is the total balance, the current charges, or the optional payment amount.
The complaint also alleges that the utility‘s billing practices deviate materially from the tariff Peoples Gas filed with the PUC, violate the Pennsylvania Act, perpetrate common law fraud, and contain fraudulent misrepresentations.
Peoples Gas removed the action to the United States District Court for the Western District of Pennsylvania pursuant to
The Magistrate Judge filed a Report and Recommendation recommending the grant of summary judgment for Peoples Gas on Aronson‘s TILA claim. The Magistrate Judge reasoned first that the fact that Peoples Gas files its tariff with the PUC pursuant to state law establishes that a state regulatory body indeed does regulate the tariff of Peoples Gas. The Magistrate Judge recommended that the two state law claims (for common law fraud and misrepresentation and violation of the Pennsylvania Act) be remanded under
Aronson filed a timely notice of appeal. After receiving the briefs of the parties, we invited the Board to file a brief amicus curiae, as the propriety and interpretation of its regulation are at issue, and it has obliged us with its brief. We have jurisdiction pursuant to
II.
Aronson raises three issues on appeal. First, he claims that the Board exceeded its authority under TILA by creating a blanket exemption for public utilities; instead, he claims, the Board was required to make an individual determination whether the state in fact regulated the utility‘s tariffs. Second, Aronson contends that the District Court erred in holding that the Board had authority to issue a regulation exempting public utilities, such as Peoples Gas, “upon the mere filing of tariffs without proof of state regulatory control.” Finally, Aronson contests the ruling that his testimony and documents were not admissible on summary judgment.
Congress enacted TILA to promote “the informed use of credit,” by assuring consumers “meaningful disclosure of credit terms.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (quoting
A provision of TILA exempts public utility charges as follows:
§ 1603. Exempted transactions
This subchapter does not apply to the following:
. . . .
(4) Transactions under public utility tariffs, if the Board determines that a State regulatory body regulates the charges for the public utility services involved, the charges for delayed payment, and any discount allowed for early payment.
Pursuant to its authority under TILA, the Board in turn promulgated Regulation Z. One of those regulations provides as follows:
§ 226.3 Exempt transactions.
This regulation does not apply to the following:
. . . .
(c) Public utility credit. An extension of credit that involves public utility services provided through pipe, wire, other connected facilities, or radio or similar transmission (including extensions of such facilities), if the charges for service, delayed payment, or any discounts for prompt payment are filed with or regulated by any government unit. The financing of durable goods or home improvements by a public utility is not exempt.
Aronson argues that the statutory language of TILA does not authorize the Board to make a blanket exemption for public utilities. He does not argue that the charges about which he complains are different than “the charges for delayed payments” referred to in the TILA exemption provision covered by § 1603. Instead, he focuses on the statutory language that exempts a public utility‘s charges for delayed payment from TILA “if the Board determines that a State regulatory body regulates the charges for the public utility services involved.” He argues that the Board must make an affirmative individualized determination that a state regulates the particular utility before that utility‘s charges become exempt from TILA. Aronson contends that in the absence of a factual finding that Pennsylvania does regulate Peoples Gas, the regulation‘s blanket exemption is arbitrary. Moreover, he contends that the regulation is arbitrary because it is not reasonably related to TILA.
In arguing that the Board is required to make a determination of state regulation in each instance in which a utility claims exemption from a provision of TILA, Aronson in effect challenges the Board‘s authority to promulgate the provision of Regulation Z which broadly exempts utility charges that are “filed with or regulated by any government unit.” We need look no further than the Supreme Court‘s opinion in Ford Motor Credit Co. for a discussion of the extent of the Board‘s authority under TILA and an explanation of its broad scope.
In that case, the Court stated that, because the complexity and variety of credit transactions covered by TILA “defy exhaustive regulation by a single statute[,] Congress . . . delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit.” Ford Motor Credit Co., 444 U.S. at 559-60, 100 S.Ct. 790 (emphasis added). The Court then noted that “[t]he Board executed its responsibility by promulgating Regulation Z,
The Board construes its broad power under TILA as permitting it to implement the exception either by a uniform rule or case by case. It opted for the former method by adopting the regulation that exempts certain utility credit transactions from TILA whenever “the charges . . . are filed with or regulated by any government unit.”
The Supreme Court considered the effect of a staff memorandum in Ford Motor Credit, and commented:
To be sure, the administrative interpretations proffered in this case were issued by the Federal Reserve staff rather than the Board. But to the extent that deference to administrative views is bottomed on respect for agency expertise, it is unrealistic to draw a radical distinction between opinions issued under the imprimatur of the Board and those submitted as official staff memoranda. See FRB Public Information Letter No. 444, [1969-1974 Transfer Binder] CCH Consumer Credit Guide ¶ 30,640. At any rate, it is unnecessary to explore the Board/staff difference at length, because Congress has conferred special status upon official staff interpretations. See
15 U.S.C. § 1640(f) ;12 C.F.R. § 226.1(d) (1979).
444 U.S. at 566 n. 9, 100 S.Ct. 790.
Moreover, it stated that “deference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive. . . .” Id. at 565, 100 S.Ct. 790.
We cannot conclude that the Board‘s or its staff‘s understanding of the statute or its authority is “demonstrably irrational.” Therefore, we will defer to the Board‘s interpretation, and conclude that TILA does not require the Board to make a fact-specific determination in every exemption case.
In light of this conclusion, Aronson‘s arguments based on the lack of any evidence that Peoples Gas made an individualized request for exemption are beside the point. No determination was necessary, so no request was required. It follows that the admissibility of the material that Aronson sought to introduce consisting of his verification in opposition to summary judgment, which was addressed to the Board‘s exemption of utility charges, was irrelevant.2 Moreover, we note that the courts that have considered arguments like Aronson‘s regarding late payment assessments under TILA unequivocally have rejected them. See Ferguson v. Electric Power Bd. of Chattanooga, 378 F.Supp. 787, 790 (E.D.Tenn.1974) (“Acting pursuant to
We also reject Aronson‘s claim that the Board exceeded its authority in promulgating the regulation that exempts a utility‘s charges for service if they are “filed with . . . any government unit.” Under the Board‘s expansive authority to implement TILA, it reasonably could interpret the reference of § 1603(4) to charges that are “regulate[d]” to include charges that are “filed with” state authorities.
In any event, it is clear that Pennsylvania both requires a utility to file its tariff and regulates utility rates. See
III.
For the reasons stated above, we conclude that the District Court did not err in granting the motion of Peoples Gas for summary judgment.
Shammara RICHARDS, Individually and as Personal Representative of the Estate of Charles A. Richards, Jr., and as Guardian and next of Kin of Shanee A. Richards and Charles Richards, Appellant, v. UNITED STATES of America
No. 98-7235.
United States Court of Appeals, Third Circuit.
June 30, 1999.
Present: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, McKEE, RENDELL, and GARTH,* Circuit Judges.
SUR PETITION FOR REHEARING
The petition for rehearing filed by the appellant in the above-entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied.
RENDELL, Circuit Judge, dissenting:
This case presents yet another compelling argument for the abandonment of the Feres doctrine. Feres represents more than a “bad estimation[ ]” of what Congress intended to do (but did not do), in the Federal Tort Claims Act. See United States v. Johnson, 481 U.S. 681, 695, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting), for it is also being employed by many courts on a regular basis to deny a military employee‘s recovery.