WILLIAM B. NEWTON, NOREEN ALLISON, individually and on behalf of all others similarly situated, Plaintiffs - Appellants,
DUKE ENERGY FLORIDA, LLC, a Florida limited liability company, FLORIDA POWER & LIGHT COMPANY, a Florida profit corporation, Defendants - Appellees.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:16-cv-60341-WPD
TJOFLAT and JORDAN, Circuit Judges, and STEELE, [*] District Judge.
TJOFLAT, CIRCUIT JUDGE.
2006, the Florida Legislature enacted the Florida Renewable
Energy Technologies and Energy Efficiency Act (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. Fla. Stat. § 366.93(2). Acting on this
authority, the PSC promulgated a regulation creating the
Nuclear Cost Recovery System
("NCRS"). If a utility chooses to participate in the
NCRS and receives PSC approval of its plant construction
project, it may preemptively charge its customers through an
electricity rate increase for "costs incurred in the
siting, design, licensing, and construction" of the
project through its completion. Id. Under the NCRS,
the utility retains the funds generated by the rate increase
even if the project is never completed.
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, Florida Statutes §§
366.93 and 403.519(4), are invalid under the Dormant Commerce
Clause ("DCC"), which precludes a state from
"regulat[ing] Commerce . . . among the several
States," U.S. Const. art. I, § 8, cl. 3, and
"directly limits the power of the States to discriminate
against interstate commerce." New Energy Co. of Ind.
v. Limbach, 486 U.S. 269, 273, 108 S.Ct. 1803, 1807
(1988). Plaintiffs also claim that the two provisions of the
Act are preempted by the Atomic Energy Act of 1954,
U.S.C. § 2011 et seq., and the Energy Policy
Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.
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.
separately moved the District Court to dismiss
Plaintiffs' claims pursuant to Federal Rule of Civil
Procedure 12(b)(6) on numerous grounds. As to the DCC claim,
Utilities argued that if a cause of action lies under the
DCC, it belongs to the States that may have been injured due
to Florida's regulation of interstate commerce and not to
Plaintiffs, who are Florida utility customers. Utilities also
argued that they are private parties, not state actors, and,
as such, could not have violated the DCC. As to the
preemption claims, Utilities argued that they failed for
numerous reasons, including that preemption is a
defense, not a claim for relief. Utilities also
argued that the preemption claims failed on the merits.
District Court dismissed Plaintiffs' DCC claim for lack
of "prudential standing" because Plaintiffs were
not in the "zone of interests" protected by the
Clause. 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 or implied. The Court dismissed
Plaintiffs' claims without granting leave to amend.
moved the District Court for reconsideration pursuant to
Federal Rule of Civil Procedure 60(b). The motion focused on
the Court's dismissal of their claims without leave to
amend. Citing Federal Rule of Civil Procedure 15(a)(2), which
states that "[t]he court should freely give leave [to
amend] when justice so requires," Plaintiffs argued that
they could cure the deficiencies in their complaint if given
leave to join the State of Florida as a defendant and to
prosecute their claims against Utilities under 42 U.S.C.
§ 1983 on the ground that, in increasing their rates
under the NCRS, Utilities acted under color of state law.
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 a 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
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. 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.
review de novo the dismissal of a claim under
Federal Rule of Civil Procedure 12(b)(6). Caver v. Cent.
Ala. Elec. Coop., 845 F.3d 1135, 1147 n.9 (11th Cir.
2017). In this posture, we accept the factual allegations
supporting a claim as true and draw all reasonable inferences
in favor of the nonmovant. West v. Warden, Comm'r,
Ala. DOC, 869 F.3d 1289, 1296 (11th Cir. 2017). We
review a district court's denial of leave to amend under
the abuse of discretion standard. Smith v. Duff &
Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993). With
these principles in hand, we turn to the dismissal of
Plaintiffs' DCC claim, then to their preemption claim
under the Atomic Energy Act. After that, we consider the
denial of leave to amend.