# Swecker v. Midland Power Cooperative

> District Court, District of Columbia · May 17, 2017 · 253 F. Supp. 3d 274

URL: https://www.frixlaw.com/law-library/cases/4168917

## Case

- **Full name:** Gregory SWECKER, Et Al., Plaintiffs, v. MIDLAND POWER COOPERATIVE, Et Al., Defendant
- **Court:** District Court, District of Columbia
- **Decided:** May 17, 2017
- **Citations:** 253 F. Supp. 3d 274; 2017 U.S. Dist. LEXIS 74872; 2017 WL 2189496
- **Precedential status:** Published
- **Opinion:** Opinion by Cooper
- **Judges:** Judge Christopher R. Cooper
- **Nature of suit:** Civil
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4168917

## Opinion text

UNI'I`ED STATES DI`S'I`RICT COURT
FOR THE DIS'I`RICT OF COLUMBIA

GREGORY SWECKER, et al.,
Plaintiffs,

v. ` Cas@ No. 16-1434 (CRC)

MIDLAND POWER C()OPERATIVE, _e__t_
a_l=,

Defendant.

M`EMORANDUM OPINION

Plaintiffs Gregory and Beveriy Swecl<er own and operate a wind turbine on their Iowa
farm. They have brought this prc se action against two Iowa electric utilities and the Federal
Energy Regulatory Commission (“FERC”) under the Public Utility Regulatory Policies Act of
1978 (“PURPA”). Under PURPA, FERC must promulgate rules requiring electric utilities to
purchase electricity from small generation facilities like Plaintii`i`s’ wind turbine The statute
limits the price that these utilities must pay for the electricity, such that it cannot exceed the
utility’s “avoided cost”mthe price at which the electricity could have been acquired from an
alternative sourcel The Sweckers allege that the Det`endant utilities have violated several FERC
regulations related to the calculation of avoided cost, and that FERC has failed to enforce these
regulations against the utilitiesl Defendants have moved to dismiss the Complaint. Because the
Court lacks personal jurisdiction over the loWa-based utilities and subject matter jurisdiction

over the Sweckers’ claims against FERC, it must dismiss this case in its entirety

l. Backgi'ound

A. M

Congress enacted PURPA in 1978 in response to a nationwide energy crisis. FERC v_
Mississippi, 456 U.S, 742, 745 (1982). Congress sought to, among other things, encourage the
development of renewable energy sources _S_ee 16 U.S.C. § 824am3(a). ln furtherance of this
objective, PURPA directs .FERC to promulgate rules that require electric utilities to purchase
electricity from “qualifying cogeneration facilities and qualifying small power production

facilities.” §§ see also 18 C.F.R. § 292.303(a) (FERC rule requiring such purchases unless a

utility quaiifies for an exemption under 18 C.F.R. § 292.309 or § 292.310)_ The rates for these
purchases shall not “exceed[ ] the incremental cost to the electric utility oi" alternative electric
energy.” § at § 824a-3(b). These rates are commonly referred to as a utility’s “avoided cost.”
l\/lidland Power Co-op. v. FERC, 774 F.3d 1, 3 (D.C. Cir. 2014). FERC regulations provide that
electric utilities must submit relevant data to the state regulatory authority so that the “avoided
cost” can be determined 18 C.F.R. § 292.302.

FERC rnay commence an enforcement action “against any State regulatory authority or
nonregulated electric utility" to ensure compliance with PURPA and the rules promulgated
thereunder §§ 16 U.S_C. § 824a-3 (h)(l). PURPA also provides that any electric utility or
qualifying facility may petition FERC to enforce these statutory and regulatory requirements l`f
FERC declines to commence an enforcement action, the petitioner may then “bring an action in
the appropriate United States district court to require such State regulatory authority or
nonreguiated electric utility to comply with such requirements.” § at § 824a~3(h)(2)(B).

B_ Piainiirfs’ nigeria with `Midiand

The Complaint alleges the following facts The Sweckers own and operate a wind

turbine on their lowa farm. Compl. 11 9. The turbine has been a “qualifying facility” under
PURPA since 1999. Lt_l. at 11 101 Midland Power Cooperative (“Midland”) is an electric utility in
Greene County, lowa, ld_._ at 11 lZ. Pursuant to PURPA, Plaintiffs have been selling excess

' power from their wind turbine to l\/lidland. § Midland buys the rest ofits electricity from
Central Iowa Power Cooperative (“CIPCO”). l_d at 1111 13~15. Thus, under PURPA’s definition
of avoided cost, the amount that Midland must pay the Sweckers for electricity depends on the
price at which Midland purchases its electricity from CIPCO. §

The Sweckers have long disputed Midland and ClPCO’s calculation of avoided cost,
asserting that Midland is required to purchase electricity from them ata higher price The
Sweckers have repeatedly, and unsuccessfully, petitioned FERC to initiate an enforcement action
against both Midland and CIPCO. See, e.g., Swecker v. Midland Power Coop., 149 FERC il
61236 (20]4); SWecl<er v. Midland Power COOD., 147 FERC 11 61,114 (2014); Swecker v.
i\/lidland Power Coop., 142 FERC 11 61,2,0'7 (2013); Swecker v. Midland Power Coop., 136
FERC 1161085 (2011). They have also unsuccessfully sued l\/lidland and CIPCO in federal court

for violating FERC rules enacted under PURPA. §gg Swecker v. Midland Power Cooo_1 2013
WL11311233(S.D.10waDec. 30, 2013).

B. Procedural History

The Sweckers commenced this pro se action on }uly 11, 2016 after FERC once again
declined to initiate an enforcement action against Midland and CIPCO. Swecker v. Midland
Power Coop., 155 FERC 11 61,237 (2016). While the Cornplaint does not state a specific cause
of action against any of the Defendants, it alleges that Midland and CIPCO have violated FERC
regulations by miscalculating l\/Iidiand’s avoided cost, and further contends that FERC has

unlawfully failed to enforce its own regulations against l\/lidland and CIPCO. The Court will

construe the Sweckers’ claims against Midland and CIPCO as an action under 16 U,S.C. § 824a-
3(h)(2)(B) to compel compliance with FERC regulations The Court will construe the Sweci<ers1
claims against FERC as an action under § 702 of the Administrative Procedure Act, which
provides that “[a] person suffering legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof.” 5 U.S.C. § 702. Midland and CIPCO filed a joint motion to dismiss on
September 30, 2016. FERC filed a motion to dismiss on October 14, 2016.

II. Midland and CIPCO’s Motion to Disrniss

A. Legal Standard

Midland and CIPCO contend, among other things, that the Court lacks personal
jurisdiction over thern. E l\/lidland and ClPCO’s Mot. to Dismiss (“Midland and ClPCO`
MTD”) l-2. Under Federal Rule Of Civil Procedure 12(b)(2), a party may move to dismiss a
complaint for lack of personal jurisdiction lied R. Civ. P. 12(b)(2). While the Suprerne Court
has held that “a pro se complaint, however inartfully pleaded, must be held to less stringent
Standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 914
(2007) (per curiam), the plaintiff nonetheless bears the burden of establishing personal
jurisdiction over each defendant Crane v. N.Y. Zoological Soc’V. 894 F.Zd 454, 456 (D.C. Cir.
2000)

To satisfy this burden, a plaintiff must allege specific facts that connect the defendant to
the forum Stocks v. Cordish Companiesq lnc.. 118 F. Supp. 3d 81, 86 (D.D.C. 2015) (quoting
Second Amend. Found. v. U,S. Conf`. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 200l)).
“Conclusoiy statements . . . [do} not constitute the prima facie showing necessary to carry the

burden of establishing personal jurisdiction.” Gl`E N`ew Media Servs. lnc. v. BellSouth Corp.,

l99 F_3d 1343, 1349 (D_C. Cir. 2000) (quoting First Chicago lnt’l v_ United Exchange Co., 836

F.2d 1375, 1378-79 (D.C. Cir. 1988)). And while the Court must resolve factual discrepancies

in favor of the plaintiff, Crane, 894 F.2d at 456, it need not accept the plaintiffs factual

allegations as true Stocks, 118 F. Supp. 2d at 86 (quoting Capital Bank Int’l Ltd_ v_ Citigroup,

_I_g_t_:_._, 276 F. Supp. 2d 72, 74)).

To establish personal jurisdiction over a non-resident defendant, a plaintiff must (1) show
that the Court has jurisdiction under the District of Columbia’s long-arm statute and then (2)
show that a finding of j urisdiction satisfies the constitutional requirements of due process M
New Media Servs., 199 F.3d at 1348.l The District’s long-arm statute provides:

A District of` Columbia court may exercise personal jurisdiction over a person, who
acts directly or by an agent, as to a claim for relief arising from the person’s_ (l)
transacting any business in the District of Columbia', (2) contracting to supply
services in the District of Columbia; (3) causing tortious injury in the District of
Columbia by an act or omission in the District of Columbia; (4) causing tortious
injury in the District of Columbia by an act or omission outside the District of
Columbia if he regularly does or solicits business, engages in any other persistent
course of`conduct, or derives substantial revenue from goods used or consumed, or
services rendered, in the District of Columbia

D.C. Code § l3-423(a); see also D.Ci Code § 13-423(b) (providing that when personal
jurisdiction is founded on the long-arm statute, the asserted claim for relief must c‘aris[e] from
the acts enumerated.”). “["I`]here are no ‘mechanical tests’ or ‘talismanic formulas’ for the

determination of personal jurisdiction under § 13~423(a)(1) and (b), and the facts of each case

l Even though subject-matter jurisdiction in this case is based on a federal question, and
not on diversity of citizenship, the District’s long-arm statute applies due to the absence of a
federal long-arm statute _S_e_e_ Omni Capital Intern., Ltd_ v. Rudolf Wolff& Co., 484 U.S. 97, 98
(1987) (“Under Federal Rule of Civil Procedure 4(e), a federal court normally looks either to a
federal statute or to the long-arm statute of the State in which it sits to determine whether an out-
of`-state defendant is amenable to service.”); Edmond v. U.S. Postal Serv. Gen. Counsel1 949
F.2d 415, 424 (D.C. Cir. 1991) (“Even though Subject-matter jurisdiction is here predicated upon
a federal question, {Plaintiff`s] must rely on D.C. law to sue nonresident defendants, since no
federal long-arm statute applies.”).

must be weighed against notions of fairness, reasonableness and substantial justice.” m,
ll8 F. Supp. 3d at 86-87 (quoting Shopper Food Warehouse v. Moreno, 746 A.Zd 320, 329
(D.C. 2000) (en banc)). Ultimately, “the most critical inquiry is not whether the nonresident
defendant is physically present in the forum but whether the defendant’s contacts with the forum
are of such a quality and nature that they manifest a deliberate and voluntary association with the
forum.” l\/louzavires v. Baxter, 434 A.2d 988, 995 (D,C. 1981).

T.o show that the exercise of jurisdiction would comply with the constitutional
requirements of due process, a plaintiff must demonstrate that there are “minimum contacts
between the defendant and the forum establishing that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” GTE New Media Servs., 199 F.3d `
at 1347 (internal quotation marks omitted) (citing Int’l Shoe Co. v. Wa`shington, 326 U.S. 310,
316 (1945)). Under this standard “courts must insure that ‘the defendant’s conduct and
connection with the forum State are such that he should reasonably anticipate being haled into
court there”1 I_dp.w (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980))_

B. Discussion

The Sweckers have failed to meet their burden_to show that the Court has personal
jurisdiction over M`idland and CIPCO. The Complaint itself does not allege any facts that would
satisfy the District’s long-arm statute ln fact, it does not allege any connection between these
Defendants and the District whatsoever In their opposition to Midland and CIPCO’s motion to
dismiss, the Sweckers respond to Def`endants’ personal jurisdiction argument by contending only
that “M.idland and CIPCO are members of a national federation.” Pls. ’ Opp’n to Midland and

CIPCO’s MTD (“Opp’n”) 6. Even if the Court accepts this factual assertion as true, which it is

not required to do in resolving a motion to dismiss for lack of personal jurisdiction, _S_to__gl<_s_, 1 18
F. Supp. 2d at 86, there is no allegation that this unnamed national federation or its members
have any ties to the District of Columbia that would subject Midland and CIPCO to personal
jurisdiction under the District’s long-arm statute And because the Sweckers have failed to show
that jurisdiction is proper under the long-arm statute, the Court need not address whether its
exercise of jurisdiction of Midland and CIPCO comports with due process w GTE New
M`edia Servs., 199 F.3d at 1348. Accordingly, the Court will grant Midland and ClPCO’s motion
to dismiss for lack of personal jurisdictionl
III. FERC’s Motion to Disnriss

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a
complaint for lacl< of subject-matter jurisdictionl Fed R. Civ. P. 12(b)(l). Because federal
courts are courts of`limited subject-matter jurisdiction, “‘[i]t is to be presumed that a cause lies
outside [the federal courts’] limited jurisdiction’ unless the plaintiff establishes by a
preponderance of the evidence that the Court possesses jurisdiction.” l\/luhammad v. FDIC, 751
F. Supp. 2d 114, 1 18 (D_D_C. 20l0) (alterations in original) (quoting Kokl<onen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

While the APA generally permits judicial review of agency action, it expressly prohibits
judicial review of “agency action [that] is committed to agency discretion by law.” l_d_._ at
§ 701(a)(2). The D.C. Circuit has held that “[t]he ban on judicial review of actions ‘committed
to agency discretion by law’ is jurisdictional That is, Congress has not given the courts the
power to hear challenges to an agency’s exercise of the discretion with which Congress has

entrusted it.” Ba.ltimore Gas and Elec. Co. v. FERC, 252 F.3d 456, 458~59 (D.C_ Cir. 2001).

B. Discussion

The Sweckers contend that FERC unlawfully refused to initiate an enforcement action
against Midland and CIPCO. The Supreme Court has held, however, that “an agency’s decision
not to take enforcement action should be presumed immune from judicial review under §
701(a)(2).” Heckler vl Chaney, 470 U.S. 821, 833 (1985). This presumption may be overcome
(l) where “the substantive statute has provided guidelines for the agency to follow in exercising
its enforcement powers”; (2) where the agency refuses “to institute proceedings based solely on
the belief that it lacks jurisdiction”; and (3) where the agency “has conspicuously and expressly
adopted a general policy that is so extreme as to amount to an abdication of its statutory
responsibilities.” Baltimore Gas, 252 F.3d at 461 (quoting _C_l_r_a_r_r§y, 470 U.S. at 833 & n.4).
With respect to FERC, specifically, the D.C. Circuit held in Baltimore Gas that an enforcement
decision by FERC under a separate statute, the Natural Gas Act, is committed to that agency’s
discretion and is thus unreviewable §e_§ ida at 458. ln that case, the D.C. Circuit reasoned that
“FERC’s decision how, or whether, to enforce that statute is entirely discretionary Nowhere
does the act place an affirmative obligation on FERC to initiate an enforcement action . _ . .
‘Certainly the statute does not lay out any circumstances in which the agency is required to
undertake or to continue an enforcement action. l_d_. at 460 (quoting New York State Dept. of
Law v. FCC, 984 F.2d 1209, 1215 (D.C. Cir. 1993)).

PU`RPA, too, lacks statutory language that provides guidelines for the agency to follow in
determining whether to commence an enforcement action The statute provides only that a
qualifying facility may petition FERC to initiate an enforcement action, and that if FERC
declines to do so, the petitioner may then itself bring such an action §__ep industrial Cogenerators

v. reno 47 F.3d izsi, 1232 (D_C. Cir. 1995) rating 16 U.s.C. § sz4a-3(h)(2)(s))_ Moreovei,

the Sweckers have not alleged that FERC has declined to initiate proceedings because it believes
it lacks jurisdiction to do so. Nor have they alleged that FERC has adopted a policy that is so
extreme as to constitute an abdication of its responsibilities under PURPA. To the contrary,
FERC’s policy statement on its enforcement responsibilities under PURPA simply notes that
“[t]he Commission is not required to undertake an enforcement action [under the statute}.”
Policy Statement Regarding the Commission’s Enforcement Role under Section 210 of`PURPA,
23 FERC 11 61 ,304, at *3 (1983)_ The Court therefore finds that Plaintiffs have failed to
overcome the presumption that FERC’s decision not to commence an enforcement action is
unreviewable Accordingly, that decision is committed to agency discretion by law, and the
Court thus lacks subject-matter jurisdiction to review it.
IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ motions to dismiss, and will

dismiss this action in its entirety. A separate Order accompanies this Memorandurn Opinion.

delong /z. ahead

CHRISTOPHER R. COOPER
United States District Judge

Date: l'\/Iay 17, 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4168917. Public record. Not legal advice.