# Duke Energy Trading and Marketing, L.L.C. v. Gray Davis, Governor of the State of California, and California Power Exchange Corporation

> Court of Appeals for the Ninth Circuit · September 20, 2001 · 267 F.3d 1042

URL: https://www.frixlaw.com/law-library/cases/9494435

## Case

- **Full name:** DUKE ENERGY TRADING AND MARKETING, L.L.C., Plaintiff-Appellant, v. Gray DAVIS, Governor of the State of California, Defendant-Appellee, and California Power Exchange Corporation, Defendant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 20, 2001
- **Citations:** 267 F.3d 1042; 2001 Daily Journal DAR 10193; 51 Fed. R. Serv. 3d 91; 2001 Cal. Daily Op. Serv. 8263; 2001 U.S. App. LEXIS 20660; 2001 WL 1117438
- **Precedential status:** Published
- **Opinion:** Dissent by Kozinski
- **Judges:** Wood, Kozinski, O'Scannlain
- **Cited by:** 114 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/9494435

## How later opinions describe it (automated extraction)

- holding the governor’s emergency powers to take private property for the public benefit was a “special sovereignty interest,” but the relief requested was not so much of a divestiture of the state’s sovereignty to render the suit as one against the state itself
- explaining that Rule 41(a)(1)(i) dismissal has the effect that no case 18 was brought
- noting that a “ ‘final decision’ ... ‘ends the litigation on the merits and leaves nothing for the court to do but to execute the judgment’ ” (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978))
- noting that a “ ‘final deci- sion’ . . . ‘ends the litigation on the merits and leaves nothing for the court to do but to execute the judgment’ ” (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978))
- noting that a preemption claim involving state actions that conflict with the Federal Power Act are properly understood as predicated on the Supremacy Clause

## Opinion text

KOZINSKI, Circuit Judge,
dissenting.
Whether plaintiff may maintain this action against the Governor of California under Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), is surely a close and difficult question. Judge O’Scannlain has written a fine opinion and I am almost persuaded — but not quite. I read Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 , 117 S.Ct. 2028 , 138 L.Ed.2d 438 (1997), as creating an exception to Ex parte Young where the suit implicates the state’s fundamental sovereign interests. 521 U.S. at 282-84, 287-88 , 117 S.Ct. 2028 . Here, Governor Davis exercised the state’s power of eminent domain in response to what was concededly a major emergency affecting the health, safety, welfare and comfort of the people of California. This emergency affected not merely the price of electrical power, but its very availability. For the first time in its history, the state was confronted with rolling blackouts which themselves caused serious disruptions; there was good reason to believe that far worse was in store.
Under authority vested in him by the state legislature, the Governor acted decisively to restore order in the electricity market and thus to avert further disruptions. Plaintiff here challenges one aspect of the Governor’s response; it asks the court to second-guess the actions of the Governor, taken for the purpose of averting what he reasonably believed to be an impending power catastrophe. A more pointed interference with the state’s essential sovereign interests by the federal courts is hard to imagine. If Coeur d’Al-ene does not cover this situation, then it must apply only where Indian tribes challenge the state’s title to submerged lands and nowhere else. Unlike the majority, I cannot read Coeur d’Alene quite so narrowly. Whether one follows the balancing approach of Justice Kennedy’s - principal opinion, or the categorical approach of Justice O’Connor’s concurrence, “it simply cannot be said that the suit [here] is not a suit against the State.” 521 U.S. at 296 , 117 S.Ct. 2028 (O’Connor, J., concurring in part and concurring in the judgment).
Because it is important not to let the case become moot by the passage of time, I will not belabor the point. I believe the lines are clearly drawn by Judge O’Scann-lain’s excellent opinion and my, hopefully, adequate dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494435. Public record. Not legal advice.