wasn't good morning i represented the customers of the utility defendants in this case duke energy florida and florida power and light those customers include individuals such  william newton who is a named plaintive but because it is alleged as a class action it includes all customers that means small businesses is very big business is the whole range this section was brought to recover two billion dollars that was transferred from the customer to the utilities under florida's nuclear cost recovery law now that the purpose of that  to promote nuclear power and to protect the utilities from risk if they chose to build a nuclear power plant that purpose is not a legitimate purpose so what we have here is the state of florida and the florida public service commission using its power to transfer wealth from one group of private parties to another without any knowledge of them it public purpose isn't they were the effect of your complaint and collateral because the customers never had a right to raise constitutional issues before the public service commission race i'm in a frame court of florida and they can but they have to do so without benefit of any evidentiary hearing to support those claims numbers and they could go to the florida stop public service commission and get a refund no because the refund returns money to current and future customers not the customers from whom this amount was collected this is been collected over ten years the red appropriate remedy is or your argument is it is not a collateral tack because they could not have been before the supreme court of florida and raise a constitutional issue that there are no because they could not get relief had their money no no the utilities went to the florida public service commission all look all of the rate payers had standing to appear before the commission and complain about the rate increase will start there they mean i don't know what period of time you're talking about talking about when they went before the the commission to get the rate increase in the first instance the rate payers under florida law had the power to appear before the commission and argue that it attack that's just a minute and so they could have appeared before the supreme court of florida and raise the very question you raise here and what and they would pay don't rate increase if they prevail but i would like to answer th possibly that with the preemption claim because it is not as fact dependent they could have but the government commerce clause claim involves facts in involves facts in particular if you have to look at whether or not this law unduly burdens interstate commerce the federal of the florida public service commission couldn't hold a factual hearing on a constitutional issue so it would have arrived at the supreme court in a trun cated form so could they have addressed a partial version of this constitutional challenge they could have but suppose they had and suppose they had won the  ty is not to recover any prior amounts of being collected it is typically allow future rate payers to get some sort of refund can i switch  yes issues on you for a second you say in your initial brief that with regards to the state law unjust enrichment claim the district court heard by not looking at whether or not it was really in a rising under claim under grable and son's right was that theory presented to the district court yes it was i mean what happened in the district court is you told the district court that they didn't have to worry about supplemental jurisdiction because a turn to believe you had in a rising under claim we did the second the second ok but let me explain our gross procedural florida power and light did not move to dismiss for lack of subject matter jurisdiction do did move to dismiss for lack of subject matter jurisdiction arguing soley that there was no supplemental jurisdiction we answered that cite crable in a couple of places but this one argument which would see in our response to duke is is a couple pages long and it focuses mostly on the cases that do but that grable relied on in reaching that result now the argument is that we have raised federal substantial federal questions and therefore there is federal question jurisdiction it and it applied to all of the claims and in fact we later argue that thirteen thirty one does indeed apply to all of the claims right now i understand the argument just wanted to make sure have been raised below well it was raised below but since they never really attacked federal question jurisdiction over any i think it was done in this general we have federal question jurisdiction because there are substantial federal issues all right now one more tangent on the arising under issue in part of your brief you say or at least i think you say that federal jurisdiction was proper because some not all of your preemption claims could be asserted as defenses in claims brought it by the utilities am i right right than that means you lose on those claims because you cannot be in federal court as a plaintive asserting a normal preemption defense that you would assert as a defendant to a state law cause of action brought by a different plane of right in other words you need you need that type of utter complete preemption like a risk to get you into federal court if all you have is ordinary run of the mill preemption that does not get you into federal court as a plaintiff right ok i see what you're asking about and the answer to that is that the preemption claim t the argument i understand ok but you said but you say in your brief a couple of times that your preemption claim is valid because it could be raised as a defense to a claim brought by the utility and if that's the case it's not full preemption it's normal normal run of the mill preemption my understanding of the complete preemption doctrine is it's an exception to the usual rule that federal defenses do not give rise to tourist diction but we've made that argument we're making the argument that thirteen thirty one gave the court jurisdiction over our civil rights act which was brought to based on by a lay sions of our co clause rights we have thirteen thirty one jurisdiction over the declaratory judgment action and that's the only place where this versus delta airlines says is the case that recognizes this very narrow exception for  cases of complete preemption and that's a basis for jurisdiction there and then we have the third at basis for stiction which is the grable argument so we were just trying to show of you know in in the district court we said there are major there are significant federal issues here there's thirteen thirty one jurisdiction of everything and in the appeal we break it down into why this year stiction of the civil rights act claim why there's jurisdiction of to have a ninety three claim right you need state action of some sort right right ok there are one maybe two supreme court cases which indicate that when a private entity is drawing the benefits of a state statute it is not a state actor for nine hundred three purposes how do you think that duke an f p o become state actors here while there are supreme court cases holding that private conduct is attributable to the state and what distinguishes them from the cases where private actors are not found to be acting under color of state law is that the state is not involved in the proceeding that gives rise to the deprivation alleged deprivation of rights for example in lugar and brentwood academy two cases where the supreme court found that the private actor was a state actor the state was intimately involved in the proceeding for example and lugar the private defendant used a state rid of attachment law which was ultimately found but the state had nothing to do with the proceeding here the state of florida is intimately involved in every proceeding that transfers this wealth to the utilities are i thank you very much mr fact  here that the grievance is that when the power companies went before the commission to get a rate increase they did not have to question you're either with or so what is not what i'm saying is that as i perceive their grievance the effect on everest think commerce is the power company doesn't have to the commission doesn't have to consider whether they could get power wheeled in from elsewhere to satisfy the need and so they wouldn't have to build the nuclear facility elsewhere or internally but that's the nature of retail power you are wholesale power is part of the grid mean i understand that but i mean that's that's the that's the basic grievance well i understand that's one and the timing there's a couple of aspects of this law that are objected to but they all relate to that went to the nomics of the plant and i don't understand then what's the problem with the timing of typical rate making i couldn't agree more you know in all this is part of talking running all of this is part of what the supreme court looked at in the pacific gas and electric case and said this is what states have been doing since time immemorial and again the arkansas electric co op case talk about as part of a very fabric of our of our nation and that the distinction between retail and wholesale power and i think that's a critical distinction that's fatal to all of the of the ornate interstate aspect of it as i understand it is that the commission did not have to take into account because the power companies that have to demonstrate the ability to get whether they can get the capacity elsewhere the happy in from other states that does exactly the same sort of potential nexus and held there to be no commerce clause violation in a closer case than this one because that will wholesale power that happened to be truly interesting so yes your honor i agree that's the allegation but i also in the same breath that while they waited ten years or were they in two thousand and six so i agreed that there and that there was an opportunity to challenge these rights and ultimately get judicial review of the constitutional challenges by the florida supreme court and i need to emphasize again that the commerce clause claims do not involve fact issues in fact lou they do not involve factitious again the arcus all electrical up case talked about the interconnectedness of wholesale markets which are in interstate commerce and these florida statutes have do not regulate wholesale power prices have nothing to do with wholesale markets they are retail rates were retail markets are as alleged correctly by the plaintiffs a monopoly in florida there is no competition in turkey or in trust state the commerce claus again cannot be overcome in this case these are in state plaintiffs the structure of the retail market does not allow that they can't be customers of a ga utility for retail power it doesn't work that way and in all of the cases we're in state plaintiffs have been found to have the requisite prodigious standing they have been either actual or potential customers of out of state suppliers that by definition and as alleged by the plaintiffs can't be the case here and in those those few cases where in state parties have had the requisite potential standing they've either been trying to sell to an out of state party trying to buy to an out of state party or suffering the burden of a penalty imposed on the out of state party in the city of los angeles versus current decision in the ninth circuit which we saw briefs lays all that out these plaintiffs can never satisfy that and again that's another reason why the dismissal with prejudice was appropriate and and can never be cured no matter who they sue or what what the nature of the amended allegations would be just briefly on the preemption you cannot get past i would respectfully submit pacific gas and electric you know it goes on and on talking about the respective roles between the atomic energy act and the traditional role of states and this is right making it may not be right making action there in the involved and i would respectfully submit of the state was was an order of magnitude different than what happens in dozens and dozens and dozens of states which is a permission required to charge rates for retail actressy in the second piece of that is it's fallen top how different to how different is that in syria than what happened in lugar lugar was just a use of force but you had to go to the state authorities to get the writ of attachment or whatever it was and then use the sheriff's office to the next acute the writ here you're using my older means you're going you're going to the government agency you're trying to get the approval for the rating crease through a p s c order and then you're going to the florida supreme court to get that valid and the florida supreme court says go ahead it's good i would respectfully disagree with the characterization or here what's happened is duke wants to charge for the product that it produces it wants to charge as prices but the state makes it get permission to do that and they want to go and do something that they wouldn't otherwise been allowed to do so it's an affirmative versus a negative involvement i would submit to only gets to you said it's a monopoly so you do only gets to do what it does because of state approval correct and it doesn't like a lot of companies get to charge whatever it wants for electricity so so i guess and you go back to the jackson versus metropolitan as a i mean again you may not like this right making but it's right w to court stuart sing on behalf of florida power and light company i'd like to start by noting that i think the court is completely correct in characterizing this as a collateral attack on a public service commission terminations where t florida supreme court approved it and you had a proceeding where constitutional issues could have been raised and were raised it was a separation of powers argument for example that was raised in those proceedings and there is no reason why not i believe  supreme court will deal with fact finding in florida supreme court we believe has authority to take the procedural steps necessary to deal with the constitution that there's a there's a supreme court case that nobody's mentioned which arises in the against the sheriff because the sheriff violated his fourth amendment rights in seizing some evidence that was used to result in his conviction there's so there's  but but the supreme court invited states says dog because that would be a collateral attack on his convictions as long as that conviction doesn't disturb under state law we won't interfere well here then i mean were denied relief because they waited too long that's their problem your honor there was a consideration one constitutional argument was raised others could have been raised the florida supreme court approved this stating that the concerns of the objectors quote amount to a policy consideration best addressed by the legislature not this court which is really what we're dealing with here we're dealing with a policy decision that the legislature made as to the timing of recovery nuclear costs and these individuals disagree with that but that is ultimately a legislative decision and it's a state decision as the court made clear in its effect gas and electric that the state's role is with respect to rate making and generation of power and the federal role is simply with radiological safety and a supreme court specifically set that congress has preserved in the atomic energy at the state's traditional authority over to need for additional generating capacity which would include nuclear capacity the type of facilities to be licensed and rate making and that's what we have here and think about the consequences your honor if one had the opposite decision it would mean that virtually every nuclear plant in this country priests right to engage in the capital investment of the of the coal fired plant or they could build the plant in including out of that cancer before the plant came on line is what i'm trying to say that under certain circumstances that would be approach to be taken  and i understand that the commission would have the power to do that yes they would and the point is here that it would create havoc throughout the country if all of a sudden you said any state support through rate making approvals for nuclear power is preempted that can't be right and it isn't similarly under the commerce clause you would be saying any approval of a rate for cost recovery by a state of well regulated my problem is what's the difference between nuclear power and called fire power i don't think there is a difference to state has authority over to economic decisions for both that was the point of pacific gas and electric and similarly under the commerce clause think about the implications that apply his position there you would basically be saying that every state has to instead of running as a regulated entity would have to make its regulatory decisions in a way that are inconsistent with being a regulated monopoly where you have to look at the effects on consumers with not going out and out of state to get competition that has never been the law and  fags indicated the arkansas electorate case said that's not true and i'd like to address judge gordon's questions regarding lugar because i think there is a distinction between a defendant who takes it upon himsel act like a sheriff to execute a writ of an action which is a traditional state role and a role that is a private role of receiving the benefits of a state decision just like if someone gets the benefits of a state statute it challenged in court and allegedly is unconstitutional does it mean that all the thousands perhaps millions of beneficiaries are defendants in a lawsuit i think not it's a suit that was brought against the state and similarly luger was dealing when you act like the state not when you're a private party receiving state benefits and the approach which the plaintiffs would take in not naming the state and naming private citizens to tease here like utilities as defendants would create havoc would be constitutional issues are not decided in litigation with the state but could be brought against any number of private parts so there are multiple grounds that support the decision below as a matter of law it is not preemption case under pacific gas and electric as a matter of law it's not a a commerce clause violation under arkansas electric as a matter of law under luger you don't have state action so i think all of those grounds the federal actions were properly dismissed that leaves an unstable state unjust enrichment claim which to court i it properly dismissed for two reasons one it depends on the federal claims the federal claims disappear then that falls to one is that one of the arguments made at least on appeal is that the unjust enrichment claim was essentially in a rising under claim under federal law and should have been treated as such well it it may be such if you want to ignore is to dargon it they also made that it disses a defense which i think was asked about it which would be inconsistent with that interpretation of grable but even if one gave them federal jurisdiction  they they lose that on all but they'd lose the unjust enrichment case because it's substantive bases is preemption right all the things you mentioned before right so it doesn't have any independent significance once you get by the federal play would provide if  that theory was valid it would provide federal jurisdiction but then your argument is they lose on the merits exactly first i would like to address the dormant commerce clause part of this case that issue the merits of it did this law discriminate against interstate commerce was not reached by the district court and it's not part of this appeal and i mention that because a great deal of time has been devoted to it the only substantive issue here is the preemption argument at one point the court asked what's the difference between nuclear and coal and she's very simple it's the atomic energy act there is no comparable federal regulation of coal and there's no statement by the federal government that the development of coal has to be balanced against national security and  because the state cannot use the retail what they're doing here is this is a financing mechanism this is not rate regulation it's voluntary it's sole purpose is to provide financing for new nuclear power plants and to protect the nuclear industry from financial risk and the way you can tell it's not part of regular rate making is first of all it's voluntary and second of all the repairs got nothing in return you've focused on the fact that  is coming up after this law has been running for ten years i mean that often happens for example in antitrust cases you get the people group of people who are the most recent victims of it but one of the biggest reasons for that is for the first many years these projects were all going ahead and had the facts turned out that all these plants were built this would be a very very different case this case arose because these plants were well i'll keep the money and bart for i'm sorry but that's not quite correct because if your theory is that this is preempt that might affect your unjust enrichment claim but if your argument is that it's preempted it doesn't matter whether or not the plants were built right it matters to injury no if if your argument on preemption is that florida had no business whatsoever and acting this law then you win even if they had built the plant ok when i agree that this could be challenged on preemption grounds at any time you're challenging it injury that prompted the case you aren't challenging it on preemption grounds are you not yes we are and if you win on that claim that means that florida had no business in acting this statute and even if the power plants were ultimately built you would still win is that not correct such clear damages i mean it's a very and just and unjust enrichment if you get something in return that's a very different case might not have been an economically viable case without that but you still have a valid federal claim if your theory about preemption is correct well i think we've covered this ground i still think that is historically and factually why the case arose when it abandonment and it goes to the question of both injury and standing how do you want to force how do you enforce a judgment against the state of florida under this law if you have been sued any state officials well we don't need to they don't hold the money it's the are no utility so you're arguing that the law is preempted correct if the state of florida is not an entity in this case either as an intervener as as a party or anything else how do you enforce that judgment against the state of florida going forward well the answer is that's not really the goal of this case this case so they can say they can apply the law to another t that i think it's unlikely that they would go on using the law if there were such a judgment but yes if you don't sue them you don't get an order against them but the relief that's needed is has to come from the utilities because it's the utilities that hold the money i would like to address some other points if you just you have to bring your bit to a close yes pacific gas and electric does not preclude other kinds of preemption and the it that's clear in the language we quoted in the brief in a lugar you described florida is involvement as but nine it is much more extensive and much more reus although there's no physical component of serving a writ on on some other party so in conclusion i would just like you to keep in mind what's really going on here which is this transfer of wealth from one private group to another private group with no public benefit or no legitimate public benefit because it's not under it's you know their status day cannot promote nuclear power thank you very much