MICHAEL E BOYD v. CALIFORNIA PUBLIC UTILITIES COMMISSION, et al.
Case No. 25-cv-01286-PCP
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
February 10, 2026
Re: Dkt. Nos. 46, 47, 48, 56
Self-represented plaintiff Michael Boyd brings antitrust and regulatory claims against various utility companies, the California Public Utilities Commission (CPUC), and current and past CPUC officials and staff. Defendants move to dismiss for failure to state a claim and lack of statutory jurisdiction. For the reasons below, the Court grants defendants’ motions.
BACKGROUND
Boyd owns and uses solar panels on the roof of his home.1 Boyd filed with the Federal Energy Regulatory Commission (FERC) to become a Qualifying Facility “to get access to the wholesale energy markets regulated by the FERC.” A FERC-approved entity issued Boyd six renewable energy certificates (RECs) for the energy produced by his solar panels. Boyd alleges that, as a Qualified Facility, he would be able to trade his RECs for financial compensation from defendant Pacific Gas & Electric Company (PG&E) if defendants had not denied him access to the wholesale market.
Boyd was a party to the proceedings regarding CPUCS‘s Rulemaking 20-08-020. The
The rulemaking resulted in the CPUC issuing Decision 22-12-056 on December 19, 2022. Colloquially, the decision created NEM 3.0. The decision cites cost shifting as a rationale. Boyd alleges that NEM 3.0 hurts existing customers with solar panels by diminishing their return on investment through lower compensation rates for the excess energy their panels produce.
Boyd alleges claims for violations of (1) the Sherman Act,
LEGAL STANDARD
In considering a
Materials outside the complaint can be considered on a
I. Sherman Act
A. The utility defendants and Peterman are immune under Noerr-Pennington.
The utility defendants and Peterman argue that they are immune under the Noerr-Pennington doctrine because Boyd concedes his antitrust allegations are based entirely on the CPUC‘s decision and the rulemaking. See Dkt. 50 (Opp‘n), at 7, 9.
The Noerr-Pennington doctrine “allows private citizens to exercise their First Amendment rights to petition the government without fear of antitrust liability.” Kaiser Found. Health Plan, Inc. v. Abbott Lab‘ys, Inc., 552 F.3d 1033, 1044 (9th Cir. 2009). Under Noerr-Pennington, “those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). Courts must “construe federal statutes so as to avoid burdening conduct that implicates the protections afforded by the Petition Clause unless the statute clearly provides otherwise.” Id. A plaintiff‘s complaint must “contain specific allegations demonstrating that the Noerr-Pennington protections do not apply.” Boone v. Redevelopment Agency of City of San Jose, 841 F.2d 886 (9th Cir. 1988); Oregon Nat. Res. Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991) (applying a heightened pleading standard to establish an exception to Noerr-Pennington).
“Neither the Petition Clause nor the Noerr-Pennington doctrine,” however, “protects sham petitions, and statutes need not be construed to permit them.” Sosa, 437 F.3d at 932. This “‘sham’ exception to Noerr encompasses situations in which persons use the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon.” City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 380 (1991) (emphasis in original). The sham exception “is limited to situations where the defendant is not seeking official action by a governmental body, so that the activities complained of are ‘nothing more’ than an attempt to interfere with the business relationships of a competitor.” Franchise Realty Interstate Corp. v. San Francisco Loc. Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1081 (9th Cir. 1976).
The Ninth Circuit applies a “a strict two-step analysis to assess whether a single action constitutes sham petitioning.” USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Const. Trades Council, AFL-CIO (”POSCO“), 31 F.3d 800, 810–11 (9th Cir. 1994). “First, the suit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits; second, the baseless lawsuit must conceal an attempt to interfere directly with the business relationships of a competitor.” Id. at 810 (quoting Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc. (”PREI“), 508 U.S. 49, 60 (1993)).3 “The two parts of the test operate in succession: Only if the suit is found to be objectively baseless does the court proceed to examine the litigant‘s subjective intent.” Id.
Boyd does not dispute that the utility defendants’ and Peterman‘s participation in the rulemaking was protected petitioning activity under Noerr-Pennington. Instead, he argues the rulemaking was a sham proceeding. Boyd‘s argument fails for several reasons.
First, Boyd does not allege the utility defendants and Peterman sought to use the process of the rulemaking to harm him or competitors’ interests. He instead takes umbrage with the ultimate decision. Even if a party seeks to harm the interests of others, its petitioning efforts are protected so long as the party “sought to do so not through the very process of lobbying, … but rather through the ultimate product of that lobbying“—here, through the CPUC‘s rulemaking decision. Omni, 499 U.S. at 381. “[I]t is clear that defendants were seeking and obtained official action from a governmental body” by advocating at the rulemaking for a desired decision. Franchise Realty, 542 F.2d at 1080. Boyd‘s few allegations challenging the process of the rulemaking are conclusory and do not change this outcome. For example, Boyd alleges that the rulemaking was a sham because it was “designed to appear as if disadvantaged customers’ interests [were] being considered, when it[] [was] entirely staged to favor utilities’ interests.”4 But this argument still
Second, and for the same reasons, Boyd‘s argument that the utility defendants obscured their ill-intentioned and profit-driven motives at the rulemaking is irrelevant. In Franchise Realty, the Ninth Circuit explained that it is “inevitable” that lobbying parties “would be aware of, and possibly even pleased by, the prospect of” their efforts inflicting “some direct injury upon the interests” of other parties. Id. at 1080. But to “hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns” and undermining Noerr-Pennington‘s protection of the right to petition. Id.; see Empress LLC v. City & Cnty. of San Francisco, 419 F.3d 1052, 1057 (9th Cir. 2005) (explaining that illegal or injurious motives for petitioning activity does not change immunity).
Third, Boyd argues that the utility defendants’ position at the rulemaking was baseless because “no reasonable litigant could expect [their] proposal to be adopted on its merits.” The CPUC, however, did adopt the utility defendants’ proposal to shift costs away from lower-income customers. See Dkt. 43 ¶¶ 20–21; Dkt. 48, Declaration of Justin P. Raphael, Ex. A.5 Advocacy that is “successful in obtaining the governmental action sought” is not objectively baseless. Kottle v. Nw. Kidney Centers, 146 F.3d 1056, 1063 (9th Cir. 1998) (quoting Franchise Realty, 542 F.2d at 1079). Because the utility defendants’ advocacy was not objectively baseless, their subjective motives, again, are irrelevant. See PREI, 508 U.S. at 60.
Accordingly, Boyd‘s argument that the rulemaking and decision were sham petitions fails and the utility defendants and Peterman are immune from his Sherman Act claim under Noerr-Pennington.
Boyd‘s contentions of a conspiracy involving “politically incestuous relationships” between the utility defendants and certain CPUC officials do not provide a basis for this Court to find the “sham petition” exception applicable to the utility defendants’ conduct. As the Supreme Court has made clear, ”Noerr-Pennington cannot be circumvented by merely alleging that a government official was involved in the alleged conspiracy.” Boone, 841 F.2d at 897; Omni, 499 U.S. at 383; Empress, 419 F.3d at 1057 (“[T]here is no ‘conspiracy’ exception to the Noerr-Pennington doctrine that applies when government officials conspire with a private party. … In such circumstances, a remedy lies only against the conspiring government officials, not against the private citizens.“). To the contrary, private advocacy and lobbying—such as the alleged interactions between the utility defendants and the CPUC defendants—are “form[s] of advocacy protected by the Noerr-Pennington rule.” Boone, 841 F.2d at 894–95. Peterman‘s involvement as an advocate for the utility defendants is likewise unremarkable because “[f]ormer government officials are often times hired by organizations seeking to petition government. Their expertise makes them particularly well suited for such a role.” Id. at 895.6
C. The CPUC officials are immune under Parker.
The CPUC officials argue that they are immune from Boyd‘s Sherman Act claim under the
In Parker v. Brown, the Supreme Court “held that the Sherman Act did not apply to anticompetitive restraints imposed by the States ‘as an act of government.‘” Omni, 499 U.S. at 370 (discussing Parker v. Brown, 317 U.S. 341, 352 (1943)). ”Parker covers not only state legislation, but also the acts of … executive-branch officials” and executive agencies operating pursuant to constitutional and statutory authority. Sanders v. Brown, 504 F.3d 903, 915 (9th Cir. 2007) (citing Charley‘s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 876 (9th Cir. 1987) and Deak-Perera Hawaii, Inc. v. Dept. of Transp., 745 F.2d 1281, 1283 (9th Cir. 1984)). Two lines of cases have emerged to determine whether conduct is “directed” by the state legislature and therefore insulated from Sherman Act claims. Sanders, 504 F.3d at 915. Under the Hoover line of cases, “a state‘s own acts in the antitrust area are always immune … as long as the state itself, acting as sovereign, created the restraint of trade.” Id. (citing Hoover v. Ronwin, 466 U.S. 558, 568–69 (1984)). Under the Midcal line of cases, “any action in restraint of trade is only immune if it satisfies a two-part test: The anticompetitive policy not only must be (1) ‘clearly articulated and affirmatively expressed as state policy,’ but also must be (2) ‘actively supervised by the state itself.‘” Id. (quoting Cal. Retail Liquor Dealers Ass‘n. v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980)).
Boyd urges the Court to apply the Midcal test. Opp‘n 12. Each of his arguments as to why the CPUC officials are not immune under Parker likewise relies on the Midcal test. The Midcal test, however, only applies to determining “whether private conduct pursuant to a state statute gets Parker immunity. … Indeed, each of the Midcal line of cases involved a private body—not a state—making anticompetitive decisions under the aegis of a state regulatory scheme.” Sanders, 504 F.3d at 915, 917 (emphasis added); see N. Carolina State Bd. of Dental Examiners v. F.T.C., 574 U.S. 494, 504–08 (2015) (applying Midcal test where a state delegated control over a market to nonsovereign actors). In Charley‘s Taxi, for example, the Ninth Circuit reversed the district court‘s denial of Parker immunity where the district court had relied on the Midcal test to evaluate
Here, the “Commission is an arm of the State of California.” City of San Juan Capistrano v. Cal. Pub. Util. Comm‘n, 937 F.3d 1278, 1281 (9th Cir. 2019); see also
The question, then, is whether the CPUC and its officials acted “pursuant to their constitutional or statutory authority” in conducting the rulemaking and issuing the decision. Id. The answer is yes. The California Public Utilities Code authorizes the CPUC to “supervise and regulate every public utility in the State and [] do all things … which are necessary and convenient in the exercise of such power and jurisdiction.”
As these authorities make clear, the CPUC acted pursuant to its statutory and constitutional authority in conducting the rulemaking and issuing its decision to fix net energy metering rates. Because the CPUC officials participated in the CPUC‘s lawful sovereign acts, they are entitled to Parker immunity from Boyd‘s Sherman Act claim. See Charley‘s Taxi, 810 F.2d at 876. Boyd‘s argument that the CPUC defendants conspired with the utility defendants, as private actors, again does not change this result. Omni, 499 U.S. at 374 (holding that there is no “conspiracy exception” to Parker immunity).
* * *
For the foregoing reasons, Boyd‘s Sherman Act claim is barred by Noerr-Pennington and Parker immunity. The claim is therefore dismissed.
II. Cartwright Act
The Cartwright Act provides that “every trust,” including any “combination of capital, skill or acts by two or more persons … [t]o create or carry out restrictions in trade or commerce,” “is unlawful, against public policy and void.”
Because Boyd fails to plead a claim under the Sherman Act, he likewise fails to plead a claim against any defendant under the Cartwright Act. See Tuolumne, 236 F.3d at 1160 (“Given our analyses and conclusions regarding the federal claims, the district court properly granted summary judgment on the state antitrust claims, as well.“). The utility defendants are immune from the Cartwright Act claim under Noerr-Pennington. See Blank, 39 Cal. 3d at 325–26 (applying Noerr-Pennington immunity to a Cartwright Act claim); Sanders v. Brown, 504 F.3d 903, 919 (9th Cir. 2007) (same). And the claim fails as to the CPUC defendants because state political subdivisions are not subject to the Cartwright Act. Sanders, 504 F.3d at 919 (citing Blank, 39 Cal. 3d at 323). Accordingly, Boyd‘s Cartwright Act claim is dismissed.
III. PURPA
Boyd alleges a claim against the CPUC defendants under section 210(g) of PURPA.8 The CPUC defendants argue that the state courts have exclusive jurisdiction over Boyd‘s PURPA claim.
An “as-applied” claim under PURPA “challenges the application of a state agency‘s rules to an individual petitioner; this type of claim is reserved for adjudication by the state courts.” Sols. for Utilities, Inc. v. California Pub. Utilities Comm‘n, No. 11-cv-04975-JWH-JCGx, 2022 WL 1741128, at *2, 6 (C.D. Cal. Mar. 9, 2022);
Boyd confirms he “alleges an as-applied violation of PURPA § 210(g), asserting that [CPUC] officials denied [him] a standard PURPA contract and forced him into NEM 3.0.” Opp‘n 13. The Ninth Circuit, in a prior case involving Boyd, found an indistinguishable argument that individuals “ha[d] repeatedly been denied a standard contract” and forced to participate in the NEM program “veer[ed] into the category of an as-applied challenge that can only be brought in state court.” Californians for Renewable Energy v. Cal. Pub. Util. Comm‘n, 922 F.3d 929, 939 n.4 (9th Cir. 2019). Boyd concedes as much but nonetheless argues that his claim is a “hybrid implementation claim, which is cognizable in federal court after FERC petition.” The Court is not aware of any authority recognizing a “hybrid implementation claim” and Boyd‘s cited caselaw does not support the existence of such a claim. See Power Res. Grp., Inc. v. Pub. Util. Comm‘n of Texas, 422 F.3d 231, 239 (5th Cir. 2005) (declining to review the district court‘s dismissal of an as-applied claim for lack of jurisdiction). To the extent Boyd argues he can bring an implementation claim, as opposed to an as-applied claim, he neither alleges an implementation claim nor alleges he petitioned FERC before filing this action. See Allco Renewable Energy Ltd. v. Massachusetts Elec. Co., 208 F. Supp. 3d 390, 396 (D. Mass. 2016), aff‘d, 875 F.3d 64 (1st Cir. 2017) (explaining that an implementation claim alleges “that a state agency has failed to
Because Boyd alleges an as-applied PURPA claim, the Court lacks statutory jurisdiction. Accordingly, Boyd‘s PURPA claim is dismissed.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motions to dismiss.9 Dismissal is with leave to amend and without prejudice. Any amended complaint must be filed by March 10, 2026, but Boyd should file an amended complaint only if he can address the deficiencies identified in this Order. If Boyd does not file an amended complaint, his claims under the Sherman Act and the Cartwright Act will be dismissed with prejudice, his PURPA claim will be dismissed without prejudice, and the Court will enter judgment in defendants’ favor.
IT IS SO ORDERED.
Dated: February 10, 2026
P. Casey Pitts
United States District Judge