Boyd

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 MICHAEL E BOYD, Case No. 25-cv-01286-PCP

8 Plaintiff,

ORDER GRANTING MOTIONS TO

9 v. DISMISS FIRST AMENDED

COMPLAINT

10 CALIFORNIA PUBLIC UTILITIES

COMMISSION, et al., Re: Dkt. Nos. 46, 47, 48, 56

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Defendants.

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13 Self-represented plaintiff Michael Boyd brings antitrust and regulatory claims against

14 various utility companies, the California Public Utilities Commission (CPUC), and current and

15 past CPUC officials and staff. Defendants move to dismiss for failure to state a claim and lack of

16 statutory jurisdiction. For the reasons below, the Court grants defendants’ motions.

17 BACKGROUND

18 Boyd owns and uses solar panels on the roof of his home.1 Boyd filed with the Federal

19 Energy Regulatory Commission (FERC) to become a Qualifying Facility “to get access to the

20 wholesale energy markets regulated by the FERC.” A FERC-approved entity issued Boyd six

21 renewable energy certificates (RECs) for the energy produced by his solar panels. Boyd alleges

22 that, as a Qualified Facility, he would be able to trade his RECs for financial compensation from

23 defendant Pacific Gas & Electric Company (PG&E) if defendants had not denied him access to the

24 wholesale market.

25 Boyd was a party to the proceedings regarding CPUCS’s Rulemaking 20-08-020. The

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1 rulemaking focused on possible changes to the state’s Net Energy Metering (NEM) program.

2 California’s “three largest investor-owned utilities,” PG&E, Southern California Edison Company

3 (SCE), and San Diego Gas & Electric Company (SG&E) (collectively, the utility defendants),

4 participated in the rulemaking through joint filings and joint representation by defendant Carla

5 Peterman. Peterman is a former CPUC Commissioner, former officer of SCE, and current officer

6 of PG&E. Rulemaking participants, including the utility defendants and Boyd, submitted

7 proposals for changes to the NEM program. The utility defendants’ proposal was premised on

8 shifting costs to relieve financial burdens on lower-income customers.

9 The rulemaking resulted in the CPUC issuing Decision 22-12-056 on December 19, 2022.

10 Colloquially, the decision created NEM 3.0. The decision cites cost shifting as a rationale.

11 Boyd alleges that NEM 3.0 hurts existing customers with solar panels by diminishing their return

12 on investment through lower compensation rates for the excess energy their panels produce.

13 Boyd alleges claims for violations of (1) the Sherman Act, 15 U.S.C. § 1, (2) the

14 Cartwright Act, Cal. Bus. & Prof. Code §§ 16700 et seq., and (3) the Public Utility Regulatory

15 Policies Act (PURPA). The utility defendants, Peterman, and the CPUC defendants—the CPUC

16 and current and former CPUC officials Matthew Baker, Karen Douglas, Martha Guzman-Aceves,

17 Darcie Houck, Kelly Hymes, Wayne Parker, Clifford Rechtschaffen, John Reynolds, Alice

18 Reynolds, and Genevieve Shiroma, who are sued in their individual and official capacities—each

19 move to dismiss Boyd’s first amended complaint under Federal Rule of Civil Procedure 12(b)(6).2

20 LEGAL STANDARD

21 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include a “short and plain

22 statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule of Civil

23 Procedure 12(b)(6), a defendant may move to dismiss a complaint for failure to state a claim upon

24 which relief can be granted. Dismissal is required if the plaintiff fails to allege facts allowing the

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2 Peterman joins in the utility defendants’ motion in full but “brings [a] separate motion to

27 highlight Plaintiff’s failure to plead particularized facts that establish Ms. Peterman herself was

1 court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”

2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Dismissal under Rule 12(b)(6) is appropriate only

3 where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable

4 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To

5 survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief

6 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

7 In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the

8 complaint as true and construe the pleadings in the light most favorable” to the nonmoving party.

9 Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal

10 conclusions “can provide the [complaint’s] framework,” the Court will not assume they are correct

11 unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept

12 as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

13 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell

14 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).

15 Materials outside the complaint can be considered on a Rule 12(b)(6) motion if they are

16 incorporated by reference therein or otherwise judicially noticeable. See United States v. Ritchie,

17 342 F.3d 903, 908 (9th Cir. 2003) (“A [district] court may [ ] consider certain materials—

18 documents attached to the complaint, documents incorporated by reference in the complaint, or

19 matters of judicial notice—without converting the motion to dismiss into a motion for summary

20 judgment.”). The Court may consider documents that are “not physically attached to the

21 complaint” “if the [ ] ‘authenticity ... is not contested’ and ‘the plaintiff’s complaint necessarily

22 relies’ on them.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Parrino v.

23 FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998)). Federal Rule of Evidence 201 permits judicial

24 notice of “a fact that is not subject to reasonable dispute” because it is “generally known.”

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1 ANALYSIS

2 I. Sherman Act

3 A. The utility defendants and Peterman are immune under Noerr-Pennington.

4 The utility defendants and Peterman argue that they are immune under the Noerr-

5 Pennington doctrine because Boyd concedes his antitrust allegations are based entirely on the

6 CPUC’s decision and the rulemaking. See Dkt. 50 (Opp’n), at 7, 9.

7 The Noerr-Pennington doctrine “allows private citizens to exercise their First Amendment

8 rights to petition the government without fear of antitrust liability.” Kaiser Found. Health Plan,

9 Inc. v. Abbott Lab’ys, Inc., 552 F.3d 1033, 1044 (9th Cir. 2009). Under Noerr-Pennington, “those

10 who petition any department of the government for redress are generally immune from statutory

11 liability for their petitioning conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006).

12 Courts must “construe federal statutes so as to avoid burdening conduct that implicates the

13 protections afforded by the Petition Clause unless the statute clearly provides otherwise.” Id. A

14 plaintiff’s complaint must “contain specific allegations demonstrating that the Noerr-

15 Pennington protections do not apply.” Boone v. Redevelopment Agency of City of San Jose, 841

16 F.2d 886 (9th Cir. 1988); Oregon Nat. Res. Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991)

17 (applying a heightened pleading standard to establish an exception to Noerr-Pennington).

18 “Neither the Petition Clause nor the Noerr-Pennington doctrine,” however, “protects sham

19 petitions, and statutes need not be construed to permit them.” Sosa, 437 F.3d at 932. This “‘sham’

20 exception to Noerr encompasses situations in which persons use the governmental process—as

21 opposed to the outcome of that process—as an anticompetitive weapon.” City of Columbia v.

22 Omni Outdoor Advert., Inc., 499 U.S. 365, 380 (1991) (emphasis in original). The sham exception

23 “is limited to situations where the defendant is not seeking official action by a governmental body,

24 so that the activities complained of are ‘nothing more’ than an attempt to interfere with the

25 business relationships of a competitor.” Franchise Realty Interstate Corp. v. San Francisco Loc.

26 Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1081 (9th Cir. 1976).

27 The Ninth Circuit applies a “a strict two-step analysis to assess whether a single action

1 Council, AFL-CIO (“POSCO”), 31 F.3d 800, 810–11 (9th Cir. 1994). “First, the suit must be

2 objectively baseless in the sense that no reasonable litigant could realistically expect success on

3 the merits; second, the baseless lawsuit must conceal an attempt to interfere directly with the

4 business relationships of a competitor.” Id. at 810 (quoting Pro. Real Est. Invs., Inc. v. Columbia

5 Pictures Indus., Inc. (“PREI”), 508 U.S. 49, 60 (1993)).3 “The two parts of the test operate in

6 succession: Only if the suit is found to be objectively baseless does the court proceed to examine

7 the litigant’s subjective intent.” Id.

8 Boyd does not dispute that the utility defendants’ and Peterman’s participation in the

9 rulemaking was protected petitioning activity under Noerr-Pennington. Instead, he argues the

10 rulemaking was a sham proceeding. Boyd’s argument fails for several reasons.

11 First, Boyd does not allege the utility defendants and Peterman sought to use the process of

12 the rulemaking to harm him or competitors’ interests. He instead takes umbrage with the ultimate

13 decision. Even if a party seeks to harm the interests of others, its petitioning efforts are protected

14 so long as the party “sought to do so not through the very process of lobbying, … but rather

15 through the ultimate product of that lobbying”—here, through the CPUC’s rulemaking decision.

16 Omni, 499 U.S. at 381. “[I]t is clear that defendants were seeking and obtained official action from

17 a governmental body” by advocating at the rulemaking for a desired decision. Franchise Realty,

18 542 F.2d at 1080. Boyd’s few allegations challenging the process of the rulemaking are

19 conclusory and do not change this outcome. For example, Boyd alleges that the rulemaking was a

20 sham because it was “designed to appear as if disadvantaged customers’ interests [were] being

21 considered, when it[] [was] entirely staged to favor utilities’ interests.”4 But this argument still

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3 “This inquiry is essentially retrospective: If the suit turns out to have objective merit, the plaintiff

24 can’t proceed to inquire into subjective purposes, and the action is perforce not a sham.” POSCO,

31 F.3d at 811. “On the other hand, when the antitrust defendant has lost the underlying litigation,

25 a court must resist the understandable temptation to engage in post hoc reasoning by concluding

that an ultimately unsuccessful action must have been unreasonable or without foundation.” White

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v. Lee, 227 F.3d 1214, 1232 (9th Cir. 2000) (quoting PREI, 508 U.S. at 60 n.5 (internal quotations

27 omitted)).

1 centers on Boyd’s disagreement with the decision, which he alleges favors the utility defendants.

2 Second, and for the same reasons, Boyd’s argument that the utility defendants obscured

3 their ill-intentioned and profit-driven motives at the rulemaking is irrelevant. In Franchise Realty,

4 the Ninth Circuit explained that it is “inevitable” that lobbying parties “would be aware of, and

5 possibly even pleased by, the prospect of” their efforts inflicting “some direct injury upon the

6 interests” of other parties. 542 F.2d at 1080. But to “hold that the knowing infliction of such injury

7 renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns” and

8 undermining Noerr-Pennington’s protection of the right to petition. Id.; see Empress LLC v. City

9 & Cnty. of San Francisco, 419 F.3d 1052, 1057 (9th Cir. 2005) (explaining that illegal or injurious

10 motives for petitioning activity does not change immunity).

11 Third, Boyd argues that the utility defendants’ position at the rulemaking was baseless

12 because “no reasonable litigant could expect [their] proposal to be adopted on its merits.” The

13 CPUC, however, did adopt the utility defendants’ proposal to shift costs away from lower-income

14 customers. See Dkt. 43 ¶¶ 20–21; Dkt. 48, Declaration of Justin P. Raphael, Ex. A.5 Advocacy that

15 is “successful in obtaining the governmental action sought” is not objectively baseless. Kottle v.

16 Nw. Kidney Centers, 146 F.3d 1056, 1063 (9th Cir. 1998) (quoting Franchise Realty, 542 F.2d at

17 1079). Because the utility defendants’ advocacy was not objectively baseless, their subjective

18 motives, again, are irrelevant. See PREI, 508 U.S. at 60.

19 Accordingly, Boyd’s argument that the rulemaking and decision were sham petitions fails

20 and the utility defendants and Peterman are immune from his Sherman Act claim under Noerr-

21 Pennington.

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24 reach this argument, however, because advocating for an erroneous decision does not vitiate

Noerr-Pennington’s protections. See Franchise Realty, 542 F.2d at 1079 n.2 (9th Cir. 1976) (“We

25 know of no case that holds that joint action which succeeds in persuading a public body to make

an erroneous decision can give rise to a cause of action under the Sherman Act.”).

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5 Boyd’s first amended complaint incorporates the decision by reference because it “necessarily

27 relies” on the content and issuance of the decision in alleging Boyd’s claims. Lee, 250 F.3d at 688.

1 B. Boyd’s conspiracy allegations do not preclude Noerr-Pennington immunity.

2 Boyd’s contentions of a conspiracy involving “politically incestuous relationships”

3 between the utility defendants and certain CPUC officials do not provide a basis for this Court to

4 find the “sham petition” exception applicable to the utility defendants’ conduct. As the Supreme

5 Court has made clear, “Noerr-Pennington cannot be circumvented by merely alleging that a

6 government official was involved in the alleged conspiracy.” Boone, 841 F.2d at 897; Omni, 499

7 U.S. at 383; Empress, 419 F.3d at 1057 (“[T]here is no ‘conspiracy’ exception to the Noerr-

8 Pennington doctrine that applies when government officials conspire with a private party. … In

9 such circumstances, a remedy lies only against the conspiring government officials, not against the

10 private citizens.”). To the contrary, private advocacy and lobbying—such as the alleged

11 interactions between the utility defendants and the CPUC defendants—are “form[s] of advocacy

12 protected by the Noerr-Pennington rule.” Boone, 841 F.2d at 894–95. Peterman’s involvement as

13 an advocate for the utility defendants is likewise unremarkable because “[f]ormer government

14 officials are often times hired by organizations seeking to petition government. Their expertise

15 makes them particularly well suited for such a role.” Id. at 895.6

16 C. The CPUC officials are immune under Parker.

17 The CPUC officials argue that they are immune from Boyd’s Sherman Act claim under the

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6 Even if allegations of conspiracy could overcome Noerr-Pennington immunity (which they

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cannot), Boyd’s allegations are inadequate to plausibly allege a Sherman Act conspiracy. To state

21 a claim under Section 1, “[i]t is not enough merely to include conclusory allegations that certain

actions were the result of a conspiracy; the plaintiff must allege facts that make the conclusion

22 plausible.” Name.Space, Inc. v. Internet Corp. for Assigned Names & Numbers, 795 F.3d 1124,

1129 (9th Cir. 2015); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (instructing that a

23 Section 1 claim “requires a complaint with enough factual matter (taken as true) to suggest that an

agreement was made”). When presenting circumstantial evidence of a conspiracy, “plaintiffs must

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allege something more than conduct merely consistent with agreement in order to nudge their

25 claims across the line from conceivable to plausible.” In re Dynamic Random Access Memory

(DRAM) Indirect Purchaser Antitrust Litigation, 28 F.4th 42, 47 (9th Cir. 2022). “Something

26 more” includes “[p]lus factors [that] are often economic actions and outcomes that are largely

inconsistent with unilateral conduct but largely consistent with explicitly coordinated action.” Id.

27 Here, none of Boyd’s allegations are inconsistent with the conclusion that the CPUC defendants

1 Parker state action doctrine.7

2 In Parker v. Brown, the Supreme Court “held that the Sherman Act did not apply to

3 anticompetitive restraints imposed by the States ‘as an act of government.’” Omni, 499 U.S. at 370

4 (discussing Parker v. Brown, 317 U.S. 341, 352 (1943)). “Parker covers not only state legislation,

5 but also the acts of … executive-branch officials” and executive agencies operating pursuant to

6 constitutional and statutory authority. Sanders v. Brown, 504 F.3d 903, 915 (9th Cir. 2007) (citing

7 Charley’s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 876 (9th Cir. 1987)

8 and Deak-Perera Hawaii, Inc. v. Dept. of Transp., 745 F.2d 1281, 1283 (9th Cir. 1984)). Two

9 lines of cases have emerged to determine whether conduct is “directed” by the state legislature and

10 therefore insulated from Sherman Act claims. Id. Under the Hoover line of cases, “a state’s

11 own acts in the antitrust area are always immune … as long as the state itself, acting as sovereign,

12 created the restraint of trade.” Id. (citing Hoover v. Ronwin, 466 U.S. 558, 568–69 (1984)). Under

13 the Midcal line of cases, “any action in restraint of trade is only immune if it satisfies a two-part

14 test: The anticompetitive policy not only must be (1) ‘clearly articulated and affirmatively

15 expressed as state policy,’ but also must be (2) ‘actively supervised by the state itself.’” Id.

16 (quoting Cal. Retail Liquor Dealers Ass’n. v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980)).

17 Boyd urges the Court to apply the Midcal test. Opp’n 12. Each of his arguments as to why

18 the CPUC officials are not immune under Parker likewise relies on the Midcal test. The Midcal

19 test, however, only applies to determining “whether private conduct pursuant to a state statute gets

20 Parker immunity. … Indeed, each of the Midcal line of cases involved a private body—not a

21 state—making anticompetitive decisions under the aegis of a state regulatory scheme.” Sanders,

22 504 F.3d at 915, 917 (emphasis added); see N. Carolina State Bd. of Dental Examiners v. F.T.C.,

23 574 U.S. 494, 504–08 (2015) (applying Midcal test where a state delegated control over a market

24 to nonsovereign actors). In Charley’s Taxi, for example, the Ninth Circuit reversed the district

25 court’s denial of Parker immunity where the district court had relied on the Midcal test to evaluate

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1 public officials’ immunity. 810 F.2d at 876. The court explained that “[t]he requirement of

2 specific authorization that we impose on cities to qualify for Parker immunity” under the Midcal

3 test “is not appropriate for the executive branch of the state government. When the state executive

4 or executive agencies act within their lawful authority, their acts are those of the sovereign.” Id.;

5 Sanders, 504 F.3d at 917. The Ninth Circuit proceeded to apply the Hoover test and conclude that

6 the director of the state department of transportation was immune because the department acted

7 pursuant to its constitutional or statutory authority. Charley’s Taxi, 810 F.2d at 876.

8 Here, the “Commission is an arm of the State of California.” City of San Juan Capistrano

9 v. Cal. Pub. Util. Comm’n, 937 F.3d 1278, 1281 (9th Cir. 2019); see also Cal. Const. art. XII, § 1

10 (establishing that commissioners are appointed by the governor and approved by the senate). The

11 CPUC conducted the rulemaking, and its decision establishes a net energy metering regulatory

12 scheme and sets tariff rates; it does not give “price-fixing control” or other discretionary authority

13 to private parties. See Sanders, 504 F.3d at 917. The CPUC thus imposed the alleged restraints on

14 competition. See id. at 918. Accordingly, the Hoover test applies.

15 The question, then, is whether the CPUC and its officials acted “pursuant to their

16 constitutional or statutory authority” in conducting the rulemaking and issuing the decision. Id.

17 The answer is yes. The California Public Utilities Code authorizes the CPUC to “supervise and

18 regulate every public utility in the State and [] do all things … which are necessary and convenient

19 in the exercise of such power and jurisdiction.” Cal. Pub. Util. Code § 701. Section 2827

20 establishes net energy metering. Id. § 2827. Section 2827.1 directs the CPUC to “develop a

21 standard contract or tariff, which may include net energy metering, for eligible customer-

22 generators with a renewable electrical generation facility that is a customer of a large electrical

23 corporation.” Id. § 2827.1(b). The CPUC is authorized to “revise the standard contract or tariff as

24 appropriate to achieve the objectives” enacted and codified by the legislature. Id. Further, the code

25 requires that the “commission shall determine which rates and tariffs are applicable to customer

26 generators only during a rulemaking proceeding.” Id. § 2827.1(b)(7). The powers necessary to

27 conduct rulemakings and issue decisions are enumerated in the California constitution: “The

1 take testimony, punish for contempt, and prescribe a uniform system of accounts for all public

2 utilities subject to its jurisdiction.” Cal. Const. art. XII, § 6.

3 As these authorities make clear, the CPUC acted pursuant to its statutory and constitutional

4 authority in conducting the rulemaking and issuing its decision to fix net energy metering rates.

5 Because the CPUC officials participated in the CPUC’s lawful sovereign acts, they are entitled to

6 Parker immunity from Boyd’s Sherman Act claim. See Charley’s Taxi, 810 F.2d at 876. Boyd’s

7 argument that the CPUC defendants conspired with the utility defendants, as private actors, again

8 does not change this result. Omni, 499 U.S. at 374 (holding that there is no “conspiracy exception”

9 to Parker immunity).

10 * * *

11 For the foregoing reasons, Boyd’s Sherman Act claim is barred by Noerr-Pennington and

12 Parker immunity. The claim is therefore dismissed.

13 II. Cartwright Act

14 The Cartwright Act provides that “every trust,” including any “combination of capital, skill

15 or acts by two or more persons … [t]o create or carry out restrictions in trade or commerce,” “is

16 unlawful, against public policy and void.” Cal. Bus. & Prof. Code §§ 16720, 16726. The analysis

17 under the Cartwright Act “mirrors the analysis” under the Sherman Act. Cnty. of Tuolumne v.

18 Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001); Blank v. Kirwan, 39 Cal. 3d 311, 320

19 (Cal. 1985) (“In interpreting the Cartwright Act, we properly look to the Sherman Act and cases

20 construing it.”).

21 Because Boyd fails to plead a claim under the Sherman Act, he likewise fails to plead a

22 claim against any defendant under the Cartwright Act. See Tuolumne, 236 F.3d at 1160 (“Given

23 our analyses and conclusions regarding the federal claims, the district court properly granted

24 summary judgment on the state antitrust claims, as well.”). The utility defendants are immune

25 from the Cartwright Act claim under Noerr-Pennington. See Blank, 39 Cal. 3d at 325–26

26 (applying Noerr-Pennington immunity to a Cartwright Act claim); Sanders v. Brown, 504 F.3d

27 903, 919 (9th Cir. 2007) (same). And the claim fails as to the CPUC defendants because state

1 39 Cal. 3d at 323). Accordingly, Boyd’s Cartwright Act claim is dismissed.

2 III. PURPA

3 Boyd alleges a claim against the CPUC defendants under section 210(g) of PURPA.8 The

4 CPUC defendants argue that the state courts have exclusive jurisdiction over Boyd’s PURPA

5 claim.

6 An “as-applied” claim under PURPA “challenges the application of a state agency’s rules

7 to an individual petitioner; this type of claim is reserved for adjudication by the state courts.” Sols.

8 for Utilities, Inc. v. California Pub. Utilities Comm’n, No. 11-cv-04975-JWH-JCGx, 2022 WL

9 1741128, at *2, 6 (C.D. Cal. Mar. 9, 2022); 16 U.S.C. § 824a-3(g).

10 Boyd confirms he “alleges an as-applied violation of PURPA § 210(g), asserting that

11 [CPUC] officials denied [him] a standard PURPA contract and forced him into NEM 3.0.” Opp’n

12 13. The Ninth Circuit, in a prior case involving Boyd, found an indistinguishable argument that

13 individuals “ha[d] repeatedly been denied a standard contract” and forced to participate in the

14 NEM program “veer[ed] into the category of an as-applied challenge that can only be brought in

15 state court.” Californians for Renewable Energy v. Cal. Pub. Util. Comm’n, 922 F.3d 929, 939 n.4

16 (9th Cir. 2019). Boyd concedes as much but nonetheless argues that his claim is a “hybrid

17 implementation claim, which is cognizable in federal court after FERC petition.” The Court is not

18 aware of any authority recognizing a “hybrid implementation claim” and Boyd’s cited caselaw

19 does not support the existence of such a claim. See Power Res. Grp., Inc. v. Pub. Util. Comm’n of

20 Texas, 422 F.3d 231, 239 (5th Cir. 2005) (declining to review the district court’s dismissal of an

21 as-applied claim for lack of jurisdiction). To the extent Boyd argues he can bring an

22 implementation claim, as opposed to an as-applied claim, he neither alleges an implementation

23 claim nor alleges he petitioned FERC before filing this action. See Allco Renewable Energy Ltd. v.

24 Massachusetts Elec. Co., 208 F. Supp. 3d 390, 396 (D. Mass. 2016), aff’d, 875 F.3d 64 (1st Cir.

25 2017) (explaining that an implementation claim alleges “that a state agency has failed to

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] implement FERC’s PURPA regulations or has implemented them in a way that is inconsistent

2 || with FERC’s regulations” and that a private party may bring such a claim in federal court only

3 after petitioning FERC to bring an enforcement action and FERC declines).

4 Because Boyd alleges an as-applied PURPA claim, the Court lacks statutory Jurisdiction.

5 || Accordingly, Boyd’s PURPA claim is dismissed.

6 CONCLUSION

7 For the foregoing reasons, the Court grants defendants’ motions to dismiss.’ Dismissal is

8 || with leave to amend and without prejudice. Any amended complaint must be filed by March 10,

9 || 2026, but Boyd should file an amended complaint only if he can address the deficiencies identified

10 || in this Order. If Boyd does not file an amended complaint, his claims under the Sherman Act and

11 the Cartwright Act will be dismissed with prejudice, his PURPA claim will be dismissed without

12 || prejudice, and the Court will enter judgment in defendants’ favor.

13 IT IS SO ORDERED.

14 || Dated: February 10, 2026

16 a Coy

P. Casey Pitts

17 United States District Judge

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28 Boyd’s motion for leave to file written argument, Dkt. 56, is denied because it would not assist

the Court in deciding the motions to dismiss.