Case Information

Dalia Morales-Velasquez v. Jefferson B. Sessions III, Attorney General

No. 15-71234

United States Court of Appeals, Ninth Circuit

May 12, 2017

308

Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

tion Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Dalia Morales-Velasquez, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals' order dismissing her appeal from an immigration judge's decision denying her application for withholding of removal and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings and review de novo questions of law. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We grant the petition for review and remand.

In denying Morales-Velasquez's withholding of removal claim the agency found she failed to establish Guatemalan authorities would have been unwilling or unable to control her persecutors because she did not report the abuse and failed to establish that doing so would have been futile or would have subjected her to further abuse. Further in reaching its conclusion as to whether the Guatemalan government was unwilling or unable to control Morales-Velasquez's persecutors, the agency did not have the benefit of our decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).

In denying Morales-Velasquez's claims, the agency also relied on a relocation finding. Substantial evidence does not support the agency's relocation determination, where Morales-Velasquez testified her abuser followed her from the United States to Guatemala, beat her, repeatedly raped her, and threatened to kill her for leaving without his permission. See Mashiri v. Ashcroft, 383 F.3d 1112, 1123 (9th Cir. 2004) (agency finding that relocation would be safe and reasonable not supported in light of substantial evidence of threats of violence).

Thus, we grant the petition for review and remand Morales-Velasquez's withholding of removal and CAT claims for further analysis consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Case Information

Catherine WOOLSEY; et al., Plaintiffs-Appellants, v. J.P. MORGAN VENTURES ENERGY CORPORATION and JPMorgan Chase & Co., Defendants-Appellees.

No. 15-56697

United States Court of Appeals, Ninth Circuit.

May 12, 2017

309

Submitted May 8, 2017

Before: CLIFTON and FRIEDLAND, Circuit Judges, and RICE,** Chief District Judge.

Pasadena, California. Mitchel James Olson, Attorney, Law Office of Mitchel J. Olson, JD, MD, Encinitas, CA, Joseph Siprut, Esquire, Todd L. McLawhorn, Siprut, PC, Chicago, IL, for Plaintiffs-Appellants. Richard P. Bress, Attorney, Michael J. Gergen, Esquire, Attorney, Latham & Watkins LLP, Washington, DC, Robert W. Perrin, Jonathan Michael Jackson, Litigation Counsel, Latham & Watkins LLP, Los Angeles, CA, James E. Brandt, Attorney, Latham & Watkins LLP, New York, NY, for Defendants-Appellees

MEMORANDUM ***

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Thomas O. Rice, Chief United States District Judge for the Eastern District of Washington, sitting by designation.

This appeal requires us to again consider the application of the filed rate doctrine to claims involving California's wholesale electricity market. Plaintiffs-Appellants Catherine Woolsey, Carol Ball, and Rachel Reidinger ("Plaintiffs") appeal the dismissal of their Complaint against Defendants-Appellees J.P. Morgan Ventures Energy Corporation ("JPM Ventures") and its parent company, JPMorgan Chase & Co. Plaintiffs sought damages in a civil action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, et seq., alleging that JPM Ventures fraudulently manipulated rates in California's wholesale electricity market, resulting in higher electricity costs for retail consumers. The district court held that the filed rate doctrine barred Plaintiffs' RICO claim.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Our court has had numerous occasions to reaffirm the reach of the filed rate doctrine's formidable barrier to suit in cases involving California's wholesale electricity market. See, e.g., Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1225-27 (9th Cir. 2007); Pub. Util. Dist. No. 1 of Snohomish Cty. v. Dynegy Power Mktg., Inc., 384 F.3d 756, 760-62 (9th Cir. 2004); Pub. Util. Dist. No. 1 of Grays Harbor Cty. Wash. v. IDACORP Inc., 379 F.3d 641, 650-52 (9th Cir. 2004); California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 852-53 (9th Cir. 2004); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 929-33 (9th Cir. 2002). In our most recent foray in this area, we held that the doctrine barred a claim virtually identical to the one asserted by Plaintiffs. See Wah Chang, 507 F.3d at 1225-27 (holding that the filed rate doctrine barred a retail electricity consumer's civil RICO claim seeking damages for increased electricity costs allegedly caused by defendants' fraudulent manipulation of wholesale electricity rates).

Plaintiffs nonetheless argue that the filed rate doctrine should not apply here in light of our decision in Carlin v. DairyAm-erica, Inc., 705 F.3d 856 (9th Cir. 2013). In Carlin, we declined to apply the filed rate doctrine to bar RICO claims arising from alleged price manipulation in the milk industry because the rate-setting agency had explicitly rejected the relevant rates as resulting from fraud and attempted to recalculate them. Id. at 873-83. We carefully cabined our holding in Carlin to the particular facts presented, however, and specifically indicated that our reasoning in that case would not extend to claims involving rates set by the Federal Energy Regulatory Commission—the rate-setting agency in the present case. See id. at 875 ("Obviously, where the controlling statute prohibits the federal agency from altering a filed rate retroactively [as the Natural Gas Act2 does for FERC] ..., then the agency cannot effectively suspend or set aside the published rates for purposes of a lawsuit seeking recovery based on injuries arising from the imposition of those rates."); id. at 879 ("[T]his case presents a narrow exception to the general rule that the filed rate doctrine not only applies but functions so as to bar ... price-related claims [involving federally regulated milk rates]."). On its face, Carlin thus does not encompass claims involving FERC-approved rates.

Plaintiffs' other attempts to evade the doctrine are similarly unavailing. Try as they might to distinguish their claim for relief from actions we have barred in the past, Plaintiffs cannot escape the fact that they—like those who have come before them—fundamentally allege that the FERC-approved electricity rates in California's wholesale market were, for a time, too high. Our precedents make clear that the "only avenue" for such a complaint, however framed, "[is] with FERC." Grays Harbor, 379 F.3d at 653; Snohomish, 384 F.3d at 762 ("FERC approved tariffs that governed the California wholesale electricity markets. Therefore, if the prices in those markets were not just and reasonable or if the defendants sold electricity in violation of the filed tariffs, [plaintiff's] only option is to seek a remedy before FERC.").

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Footnotes

1 Plaintiffs also challenge the district court's alternative ground for dismissal. We need not reach that issue because the filed rate doctrine bars Plaintiffs' Complaint.

2 The present case involves FERC's regulatory authority under the Federal Power Act rather than the Natural Gas Act, but the two statutes are "substantially identical." Grays Harbor, 379 F.3d at 649 n.8 (quoting Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981)).