WILLIAM B. NEWTON, NOREEN ALLISON, individually and on behalf of all others similarly situated, Plaintiffs - Appellants, versus DUKE ENERGY FLORIDA, LLC, a Florida limited liability company, FLORIDA POWER & LIGHT COMPANY, a Florida profit corporation, Defendants - Appellees.
No. 17-10080
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
July 11, 2018
D.C. Docket No. 0:16-cv-60341-WPD; [PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
Before TJOFLAT and JORDAN, Circuit Judges, and STEELE,* District Judge.
In 2006, the Florida Legislature enacted the Florida Renewable Energy Technologies and Energy Efficiency Act1 (the “Act“). The Act authorized the Florida Public Service Commission (“PSC“) to create a plan to incentivize energy utilities to invest in nuclear power plant construction.
This is a putative class action. The plaintiffs’ class representatives, William Newton and Noreen Allison (“Plaintiffs“), claim that two provisions of the Act which authorize the NCRS,
under the Dormant Commerce Clause (“DCC“), which precludes a state from “regulat[ing] Commerce . . . among the several States,”
Plaintiffs did not bring these claims against the State of Florida, the PSC (which is charged with implementing and administering the Act), or its members. Instead, they seek the Act‘s invalidation solely by suing two electric utilities, Duke Energy Florida and Florida Power & Light (“Utilities“), who have been collecting
rate increases from them and their class members for nuclear plant construction that has been discontinued.
Utilities separately moved the District Court to dismiss Plaintiffs’ claims pursuant to
The District Court dismissed Plaintiffs’ DCC claim for lack of “prudential standing” because Plaintiffs were not in the “zone of interests” protected by the Clause.6 See Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994). It dismissed
Plaintiffs’ preemption claims based on the Atomic Energy Act and the Energy Policy Act on the ground that neither act created a cause of action, express оr implied.7 The Court dismissed Plaintiffs’ claims without granting leave to amend.
Plaintiffs moved the District Court for reconsideration pursuant to
The District Court denied the Rule 60(b) motion. Its reading of the motion was that Plaintiffs were seeking to bolster their claims against Utilities by joining the State as а defendant. This would be futile. “Simply joining the State as a party,” the Court explained, “would not suddenly empower Plaintiffs to bring constitutional claims against private entities, such as [Utilities].” Dist. Ct. Ord.
Denying Mot. for Reconsideration at 4. The Court did not expressly respond to Plaintiffs’ request to bring their DCC claim against Utilities under § 1983, but it implicitly rejected the request in stating that Utilities were not acting under color of state law in participating in the NCRS.
Plaintiffs appeal the District Court‘s judgment, arguing that the allegations of their complaint were sufficient to make out their DCC claim and their preemption claim under the Atomic Energy Act.8 They also appeal the Court‘s denial of their Rule 60(b) motion, arguing that the Court abused its discretion in denying the request for leave to amend asserted in the motion.
I.
We review de novo the dismissal of a claim under
preemption claim under the Atomic Energy Act. After that, we consider the denial of leave to amend.
II.
A.
The “modern law” of the DCC is “driven by concern about ‘economic protectionism,‘” or, in other words, “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Dep‘t of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38, 128 S. Ct. 1801, 1808 (2008) (quoting New Energy, 486 U.S. at 273, 108 S. Ct. at 1807). If a state law unduly burdens competition in another state, the law may be unconstitutional under the DCC. The injury contemplated by the DCC, then, is that of an out-of-state person or entity harmed by some other state‘s action.
This is far from the case here. Plaintiffs are Florida electric utility customers. Utilities are Florida companies. Utilities are not “states” such that their actions could give rise to DCC claims from an out-of-state person or entity. Plaintiffs’ interests are well beyond the zone the DCC is meant to protect.9 See
Harris, 20 F.3d at 1121. For these reasons, we affirm the dismissal of Plaintiffs’ DCC claim under
B.
Next, we turn to Plaintiffs’ preemption claim. It is well-settled that there are three types of preemption:
First, Congress has the authority to expressly preempt state law by statute. Second, even in the absence of an express preemption provision, the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Third, federal and state law may impermissibly conflict, for example, where it is imрossible for a private party to comply with both state and federal law, or when the state law at issue stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1293 (11th Cir. 2017) (en banc) (Tjoflat, J., dissenting) (citations and quotations omitted) (alterations accepted). Plaintiffs rely on the second of these, commonly referred to as “field preemption,” and argue that the Atomic Energy Act established the federal government as the exclusive authority to regulate the construction of nuclear power plants such that they may sue to establish preemption.
A claim that a plaintiff asserts under state law, in a field that is complеtely preempted, necessarily arises under federal
defense, we have jurisdiction to consider Plaintiffs’ claim for injunctive relief here. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S. Ct. 2890, 2899 n.14 (1983) (“A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under
Therefore, we address the merits of the claim. In Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S. Ct. 1713 (1983), the Supreme Court turned awаy a preemption challenge to a California law that conditioned the construction of nuclear power plants on findings by a state commission that adequate storage facilities and means of disposal were available for nuclear waste. The Court first explained that “the federal government has occupied the еntire field of nuclear safety concerns.”10 Id. at 212, 103 S. Ct. at 1726 (emphasis added). But the Court concluded that there was an economic (and non-safety) rationale for the California law, and this was
enough to save it from preemption. See id. at 216, 103 S. Ct. at 1728 (“[W]e accept California‘s avowed economic purpose as the rationale for enacting § 25524.2. Accordingly, the statute lies outside the occupied field of nuclear safety regulation.“). The Court also rejected a preemption claim based on the theory that the California law frustrated the purpose of the Atomic Energy Act, which is to promote the use of nuclear power. According to the Court, Congress left states room to determine, for economic reasons, whether a nuclear plant or a fossil-fuel plant, for example, should be built. See id. at 221–22, 103 S. Ct. at 1731.
Where, as here, the federal government has occupied a portion of a given field, “the test of preemption is whether the matter on which the state asserts the right to act is in any way regulated by the federal government.” Id. at 213, 103 S. Ct. at 1727 (citation and internal quotation marks omitted). The NCRS is based оn an economic rationale—whether flawed or not—that utilities like Duke Energy Florida and Florida Power & Light should be able to recoup from their customers the costs associated with a project for the construction of a nuclear power plant, and that they should not have to return the funds received even if the project is not сompleted. See Smalley v. Duke Energy Fla., Inc., 154 So. 3d 439, 440 (Fla. Dist. Ct. App. 2014).
Plaintiffs point to no cases holding (nor authorities suggesting) that state laws promoting investment in new nuclear plants, or shifting the costs of nuclear plant construction, are preempted by the Atomic Energy Act. That failure is not surprising given the language of
C.
Finally, we consider whether the District Court abused its discretion in denying Plaintiffs’ request for leave to amend their complaint. Plaintiffs first expressed a desire to amend the сomplaint in the memorandum they filed in
opposition to Duke Energy Florida‘s
Standing alone, the request possessed no legal effect for two reasons. First, “[w]here a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.” Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018) (quoting Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009)) (alteration in original). Second, “[a] request for a court order must be made by motion. The motion must be in writing unless made during a hearing or trial.”
Plaintiffs did request leave to amend in their Rule 60(b) motion. The question arises as to whether the request they made in opposing the
leave to amend within their Rule 60(b) motion comport with the Rule 7(b) motion requirement? Yes. See Almanza v. United Airlines, Inc., 851 F.3d 1060, 1075 (11th Cir. 2017) (explaining that plaintiffs may seek leave to amend in motions made pursuant to
Was the request for leave to amend legally sufficient? That depends on what the request did or did not contain. When moving the district court for leave to amend its complaint, the plaintiff must “set forth the substance of the proposed amendment or attach a copy of the proposed amendment” to its motion. Cita Tr., 879 F.3d at 1157 (quoting Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)). The substance of the proposed amendment serves as the functiоnal equivalent of a copy of the proposed amendment if it is
First, Plaintiffs could have cured the state action defect by naming the State as a defendant to their Commerce Clause challenge, or the Court itself could have simply ordered the State to join the lawsuit. Plaintiffs also could have amended the Complaint to include allegations that Defendants acted under color of law. The state action requirement of § 1983 is satisfied by the State of Florida‘s active encouragement of Defendants’ participation in the Nuclear Cost Recovery Statute (NCRS) to fulfill state energy goals.
Plaintiffs’ Mot. for Reconsideration at 2. On its face, this statement barely scratches the surface of what Plaintiffs’ amеnded complaint would state. It merely hypothesizes, in broad strokes, the kinds of amendments that Plaintiffs might have been able to make. It clearly does not satisfy Cita Trust‘s requirement. In addition, neither the State of Florida nor its agencies could be named in or added to the lawsuit without violating the Eleventh Amendment, and neither the State of Florida nor its agencies are “persons” within the meaning of
III.
There is no merit in Plaintiffs’ appeal. Plaintiffs’ complaint failed to state a claim for relief.
AFFIRMED.
TJOFLAT
CIRCUIT JUDGE