The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, District Judge.
In this suit, plaintiff asks the Court to declare that certain ex parte communications to the Federal Energy Regulatory Commission (FERC) were illegal, that FERC failed to follow the APA, specifically 5 U.S.C. § 557(d), and its own guidelines in handling those communications and to award damages, pursuant to 42 U.S.C. § 1983, for the resulting violations of plaintiff's civil and constitutional rights. This matter is before the Court on the motions to dismiss filed by the remaining defendants.
The Court conducted a plenary hearing on these motions on August 16, 1983, at which time it advised the parties that upon review of all the pleadings and the relevant case law, and after consideration of the arguments, it would grant all motions to dismiss for lack of subject matter jurisdiction. The Court briefly explained the bases for its decision and herein supplements those findings.
Plaintiff Municipal Electric Utilities Association of the State of New York (MEUA) is an organization of 47 municipally-owned electric utilities in the State of New York which brings this action on behalf of and as representative for each of its members. Defendant PASNY is a corporate municipal instrumentality of the State of New York. In 1957, the Federal Power Commission (now FERC) issued a license to PASNY to construct and operate a project to utilize water from the Niagara River as a power source (the Niagara project). As one of the conditions for receiving this license, PASNY as licensee was statutorily required ". . . in disposing of 50 per centum of the project power [to] give preference and priority to public bodies and non-profit cooperatives within economic transmission distance . . .," 16 U.S.C. § 836(a). MEUA alleges that under the Act it is required to receive such a preference.
In a notice dated March 28, 1978, PASNY published in the New York State Register a notice of proposed action, in which PASNY proposed to withdraw electric power from the James A. FitzPatrick Nuclear Plant to serve preference customers though PASNY had not yet allocated to preference customers their 50% share of the output of the Niagara Project power. MEUA protested this action and the PASNY trustees voted to defer action on the proposed withdrawal of nuclear power. On May 12, 1978, MEUA filed a complaint and petition with FERC, which is authorized pursuant to 16 U.S.C. § 813 to regulate and control services rendered and rates and charges imposed for the sale in interstate commerce of wholesale power. MEUA sought to have FERC declare that PASNY's proposed action violated the terms of the Act and its license. The matter remained with the agency until October 22, 1980 when the Administrative Law Judge issued his Initial Decision, finding in MEUA's favor, that PASNY had committed statutory and license violations. As part of this initial decision, he ordered that increased allocations be made to preference customers. Over two years later on October 13, 1982, the Commissioners issued Opinion 151, finding as the ALJ had, that PASNY had violated the Act and the terms of its license and ordering increased allocations to PASNY's preference customers. Petitions for rehearing, as required by 16 U.S.C. § 825l were filed on November 12, 1982 and on November 30, 1982. FERC granted rehearing for further consideration (FERC Docket No. EL78-24).
On February 25, 1983, MEUA filed a petition to deny rehearing. Over the next few months, as plaintiff alleges, various defendants sued here, attempted to influence FERC in its rehearing of Opinion 151. Plaintiff also alleges that FERC did not handle those communications in a manner consistent with the APA and its own regulations. Whether or not FERC was so influenced or conformed to regulations, on April 6, 1983, FERC issued Opinion 151-A which vacated the relief it had earlier ordered in Opinion 151, but upheld its earlier decision that PASNY had violated the law. On April 12, 1983, the Commission issued a Supplemental Opinion explaining its denial of plaintiff's February 25, 1983 motion for a denial of rehearing.
On May 6, 1983, MEUA filed two petitions with FERC: 1) a Petition for Declaratory Order and Request for Expedited Consideration (Petition for Declaratory Order); 2) a Petition for Rehearing of Opinion 151-A and Supplemental Opinion Explaining Denial of MEUA motion (Petition for Rehearing). In its Petition for Declaratory Order, MEUA challenged the substantive basis of Opinion No. 151-A, as well as FERC's refusal to disqualify itself from consideration of the case. In this petition for rehearing, MEUA presented evidence regarding its allegation that PASNY initiated ex parte contacts with members of the Commission. In its Petition for Rehearing, MEUA asked FERC to determine whether MEUA's Petition for Rehearing of Opinion No. 151-A was necessary in order to preserve its objections to that opinion before the Court of Appeals.
On May 27, 1983, FERC issued an "Order Granting Declaratory Relief, Denying in Part and Granting in Part Rehearing, and Modifying Opinion No. 151 and Clarifying Opinion No. 151-A." FERC found therein that MEUA was required to seek rehearing of those aspects of Opinion No. 151-A to which it objected to preserve those objections before the Court of Appeals. FERC clarified aspects of Opinion 151-A but denied MEUA's petition for rehearing of that opinion. FERC further refused to rehear MEUA's request that it adopt Opinion 151 based on subsequent "interference" from the President and Congress. The Commission found that MEUA had not, to its satisfaction, overcome the "presumption of regularity in administrative proceedings" to warrant that relief. MEUA v. PASNY, No. EL78-24-022 (May 27, 1983), slip op. at 5. FERC also considered MEUA's claims that PASNY had initiated ex parte communications in violation of 5 U.S.C. § 557(d) but held that, "our earlier finding that the Commission's process was not tainted by its handling of the communications are left untouched by MEUA's new allegations." Id. at 6. Thus, FERC expressly considered MEUA's claims that PASNY's communications had subtroverted the rehearing of Opinion 151, rejected them and found it inappropriate to prescribe the remedy allowed by 5 U.S.C. § 557(d).
FERC refused to reconsider its earlier determination that it had complied with its procedures concerning the handling of correspondence regarding the pending decisions.
As provided for in 16 U.S.C. § 825, MEUA filed a petition for review of the May 27, 1983 orders in the U.S. Court of Appeal for the D.C. Circuit and PASNY filed a petition for review in the U.S. Court of Appeals for the Second Circuit, seeking review of the same matters it presented the agency.
THE COMMUNICATIONS TO FERC PERSONNEL
Plaintiff alleges in this action that on December 6, 1982, defendant Dyson, Chairman of the Board of Trustees of PASNY,
and defendant Millonzi met with Representative Kemp in Washington, D.C. to urge him to appeal through the White House for relief from FERC Opinion 151. By letter dated December 17, 1982 to President Reagan, Representatives Kemp and Conable urged the President to assure that FERC would seriously reconsider its decision in Opinion 151 in light of the alleged negative economic consequences that it might cause (the "Kemp/Conable" letter). Representatives Kemp and Conable sent a copy of that letter to C. M. Butler, III, Chairman of FERC, and to defendant Millonzi. Millonzi transmitted the Kemp/Conable letter to FERC for a response. FERC's Office of Congressional and Public Affairs prepared and transmitted to the White House a proposed response to the Kemp/Conable letter according to normal Commission procedure. The White House rejected the draft and FERC was directed to respond to Kemp and Conable directly. Chairman Butler responded personally by letter dated February 15, 1983. On February 6, 1983, plaintiff alleges that Richard Meyer, Legal Assistant to Chairman Butler, participated in a press conference attended by defendants Daly, Kemp, Conable, Nowak and LaFalce where Chairman Butler's February 15, 1983 letter to Representatives Kemp and Conable was presented and the views of Congressmen and others concerning Opinion No. 151 were heard.
Plaintiff premises its Section 1983 cause of action against the State defendants, Congressman Kemp and Chairman C. M. Butler for their combining and conspiring under color of State law to deprive it and its members of rights guaranteed it by FERC's own regulations, the APA and the Constitution.
Plaintiff seeks a declaration that the actions of the House of Representatives defendants constitute political interference in an adjudicatory proceeding (MEUA v. PASNY) in violation of 5 U.S.C. § 557 and deprives MEUA of due process of law. Plaintiff also asks the Court to declare that the House of Representatives and the State defendants' actions constitute initiation of and participation in ex parte contacts and that the Federal defendants' receipt of and participation in those ex parte contacts relating to an adjudicatory proceeding violate 5 U.S.C. § 557, regulations of FERC, 18 C.F.R. § 385.2201, and ...