United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-50215 

____________ 

Dobbin Plantersville Water Supply Corporation, 

Plaintiff—Appellant, 

versus

Peter Lake, In his official capacity as Commissioner of the Public Utility 

Commission of Texas; Will McAdams, In his official capacity as 

Commissioner of the Public Utility Commission of Texas; Lori Cobos, In 

her official capacity as Commissioner of the Public Utility Commission of Texas; 

Thomas Gleeson, in his official capacity as Executive Director of the 

Public Utility Commission of Texas; SIG Magnolia L.P., a Texas limited 

partnership; Redbird Development, L.L.C., a Texas limited liability 

company; Commissioner Jimmy Glotfelty; Commissioner 

Kathleen Jackson, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 1:21-CV-612 

______________________________ 

Before Jones, Dennis*, and Douglas, Circuit Judges.

Edith H. Jones, Circuit Judge:

_____________________ 

* Judge Dennis concurs in the judgment only. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 16, 2024 

Lyle W. Cayce 

Clerk 

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The Public Utility Commission of Texas issued two orders 

decertifying territory from the certificate of convenience and necessity issued 

to Dobbin Plantersville Water Supply Corporation. Dobbin, the recipient of 

federal loans through 7 U.S.C. § 1926’s lending program for rural water 

utilities, filed this lawsuit in federal court against the PUC’s chairman and 

commissioners and the two developers that sought decertification. It averred 

that section 13.2541 of the Texas Water Code, under which the developers 

sought (and soon after obtained) decertification, is preempted by 7 U.S.C. 

§ 1926(b), which grants monopoly protection to recipients of federal loans 

for “service provided or made available” during the term of the loan. 

Early in the lawsuit, the district court dismissed Dobbin’s 42 U.S.C. 

§ 1983 claims against the PUC officials after concluding that the officials were 

not appropriate defendants under § 1983. At the summary judgment stage, 

the district court dismissed Dobbin’s remaining claims, primarily on 

jurisdictional grounds, with prejudice. It concluded that Dobbin lacked a 

cause of action against the developers, and an injunction prohibiting the PUC 

from enforcing its decertification decisions would not redress Dobbin’s 

injuries. We AFFIRM. 

I. Facts 

1. Statutory background 

 Texas law authorizes the PUC to issue a certificate of convenience and 

necessity, or CCN, to a water utility, granting the utility the exclusive right 

to provide water service in a designated geographic area. See TEX. WATER 

CODE §§ 13.242, 13.244; Tex. Gen. Land Office v. Crystal Clear Water Supply 

Corp., 449 S.W.3d 130, 133 (Tex. App.—Austin 2014, pet. denied). In 

exchange for that right, the utility must agree to “render continuous and 

adequate service within the area” and to “serve every consumer.” TEX.

WATER CODE § 13.250(a). If the utility fails to provide “water or sewer 

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3 

service” to a landowner within its CCN, the landowner may, under section 

13.2541 of the Water Code, “petition [the PUC] for expedited release of [its 

land] from” the CCN. If the petition is granted, the utility is entitled to 

compensation for the loss of its monopoly rights in an amount determined by 

an independent appraiser. See TEX. WATER CODE §§ 13.254(d), 13.2541

(f)–(h). 

 Federal law also features in this regulatory framework. Enacted in 

1961, the Consolidated Farm and Rural Development Act authorizes the U.S. 

Department of Agriculture to “make or insure” loans to rural water and 

sewer utilities. 7 U.S.C. § 1926(a). It also provides, under a provision 

codified at 7 U.S.C. § 1926(b), that a utility that receives a federal loan for 

water or wastewater infrastructure enjoys monopoly protection for “[t]he 

service provided or made available” by the utility during the term of the loan. 

In Green Valley Special Utility District v. City of Schertz, this court, sitting en 

banc, determined that the protection provided by § 1926(b) applies only when 

a loan recipient can show that it “has (1) adequate facilities to provide service 

to the relevant area within a reasonable time after a request for service is 

made and (2) the legal right to provide service.” 969 F.3d 460, 465 (5th 

Cir. 2020). 

2. Factual background 

Dobbin is a nonprofit water supply corporation. At the time it initiated 

this action, Dobbin held Certificate of Convenience and Necessity No. 11052, 

which granted it the exclusive right under state law to service certain areas in 

Montgomery County and Grimes County, Texas, situated north-northwest 

of Houston. When Dobbin took out two forty-year loans in 1997 from the 

USDA through the § 1926(a) lending program, the areas in question were 

rural or semi-rural. Both loans remain outstanding. 

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4 

SIG Magnolia L.P. and Redbird Development L.L.C. are developers 

that each own several hundred acres of land within the original boundaries of 

Dobbin’s CCN. In 2021, SIG and Redbird filed separate petitions with the 

PUC under section 13.2541 of the Texas Water Code seeking expedited 

streamlined release of their developments from Dobbin’s CCN because they 

were not receiving water service. Dobbin intervened in both proceedings 

before the PUC, arguing that it was providing water service even though 

there were no “active water taps or facilities” on the properties. 

The PUC granted each developer’s petition for release. It found that 

the disputed “tract[s] of land [are] not receiving actual water service”; that 

“[t]here are no water or sewer meters, lines, or other facilities owned by 

[Dobbin] located within the tract[s]”; that Dobbin “has not committed or 

dedicated any facilities or lines to the tract[s] for water service”; that Dobbin 

“has no facilities or lines that provide water service to the tract[s]”; and that 

Dobbin “has not performed any acts for or supplied anything to the tract[s].” 

After issuing its decertification orders, the PUC scheduled proceedings to 

determine the compensation owed by the developers to Dobbin as a result of 

the orders. Dobbin, however, waived its right to receive compensation by 

failing to file an appraisal report in either proceeding. 

Instead, Dobbin appealed the PUC’s decisions to the Travis County 

district court on state law grounds. The appeals have been abated by 

agreement pending resolution of this lawsuit.1

_____________________ 

1

 Why the parties chose to abate the state law challenge to decertification is utterly 

mysterious. State courts are perfectly capable of resolving any alleged preemption by 

federal law of the state’s CCN decertification process. But see Green Valley, 969 F.3d at 

492 (Jones, J., concurring) (arguing that federal and state water law statutes are likely not 

in conflict). 

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5 

Since their release from Dobbin’s COA, SIG and Redbird have 

elected to obtain water service from a municipal utility district (MUD 180) 

and a municipality (the City of Montgomery), respectively. 

3. Procedural background 

While the developers’ petitions were pending, Dobbin filed this 

lawsuit in the Western District of Texas against the PUC’s chairman and 

commissioners, in their official capacities, and the two developers. Dobbin 

brought claims at equity, under 42 U.S.C. § 1983, and under the Declaratory 

Judgment Act. It sought an injunction prohibiting the PUC from considering 

SIG’s and Redbird’s pending petitions and, if the petitions were granted, 

from enforcing the decertification orders. It also sought a declaration that 

section 13.2541 of the Texas Water Code is preempted by 7 U.S.C. § 1926(b). 

All defendants moved to dismiss. Agreeing that the PUC officials 

were not proper § 1983 defendants, the district court granted the officials’ 

motion to dismiss Dobbin’s § 1983 claim against them, but denied all other 

relief. The PUC then issued its two decertification orders, which mooted 

Dobbin’s request for an injunction prohibiting the PUC from considering the 

pending motions and brought to the fore Dobbin’s request for an injunction 

prohibiting the PUC from enforcing the decertification orders.

After the PUC issued the two decertification orders, the parties filed 

competing motions for summary judgment on all remaining clams. The 

district court granted the defendants’ motions and dismissed the remaining 

claims with prejudice. It determined that (1) Dobbin lacked a cause of action 

for its claims against the developers based on violations of § 1926(b), (2) 

Dobbin’s claim for declaratory relief against the PUC officials was barred by 

sovereign immunity because it was impermissibly retrospective under Ex 

parte Young, and (3) Dobbin lacked standing to request an injunction 

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6 

prohibiting the PUC from enforcing the decertification orders because such 

an injunction would not redress Dobbin’s injuries. 

Dobbin appealed. In briefing before this court, Dobbin focuses on its 

claim for injunctive relief against the PUC.2

 Dobbin does not challenge the 

district court’s conclusion that it lacked a cause of action against the 

developers, although it contends that its claims against the developers should 

have been dismissed without prejudice. 

II. Discussion 

To circumvent the PUC officials’ sovereign immunity through the Ex 

parte Young doctrine, Dobbin sought prospective relief against the PUC 

officials. The district court correctly held, however, that no such relief would 

redress Dobbin’s injuries, so Dobbin lacked standing to pursue its claims at 

equity against the PUC officials. The district court also correctly dismissed 

Dobbin’s § 1983 claim against the PUC officials in their official capacities, 

and did not abuse its discretion by dismissing the claims against the two 

developers, SIG and Redbird, with prejudice. 

This court reviews a district court’s grant of summary judgment de 

novo. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Legal 

questions relating to standing and mootness are also reviewed de novo.” Ctr. 

for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 

2013). And a district court’s decision to dismiss with prejudice is reviewed 

for abuse of discretion. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 215 n.34 

(5th Cir. 2009). 

_____________________ 

2

 Dobbin has not briefed, and therefore forfeits, any issue pertaining to the court’s 

dismissal of the claim for declaratory relief. 

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7 

1. Standing (PUC officials) 

 Dobbin contends that the district court erred by concluding that it 

lacks standing to seek an injunction prohibiting the PUC officials from 

enforcing the two decertification orders. We disagree. 

Because the PUC’s chairman and commissioners are state officials 

sued in their official capacities and have not consented to suit, they are 

protected by sovereign immunity unless their immunity has been abrogated 

by Congress or the Ex parte Young exception applies. See Tex. Democratic 

Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (describing contours of 

sovereign immunity). Abrogation is not at issue here, only Ex parte Young, 

and Young limits the relief that Dobbin can seek against the PUC officials to 

prospective relief. See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 

635, 645, 122 S. Ct. 1753, 1760 (2002) (indicating that the Young exception 

applies only when a plaintiff sues (1) a state official (2) seeking appropriate 

prospective relief (3) to remedy an ongoing violation of federal law). Dobbin 

requests injunctive relief prohibiting the PUC from enforcing the 

decertification order. This relief is prospective in nature, as required under 

Young. But the PUC officials respond that the relief would not redress 

Dobbin’s injuries, and Dobbin thus does not have Article III standing to 

seek it.

The PUC officials are correct. To have standing, Dobbin “must have 

(1) suffered an injury in fact, (2) that is fairly traceable to the challenged 

conduct of the defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 

1547 (2016). To satisfy redressability, a plaintiff must show that “it is likely, 

as opposed to merely speculative, that the injury will be redressed by a 

favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 

Inc., 528 U.S. 167, 181, 120 S. Ct. 693, 704 (2000). “The relief sought 

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needn’t completely cure the injury, however; it’s enough if the desired relief 

would lessen it.” Inclusive Communities Project, Inc. v. Dep’t of Treasury, 946 

F.3d 649, 655 (5th Cir. 2019). But “[r]elief that does not remedy the injury 

suffered cannot bootstrap a plaintiff into federal court.” Steel Co. v. Citizens 

for a Better Env’t, 523 U.S. 83, 107, 118 S. Ct. 1003, 1019 (1998). Moreover, 

as the Supreme Court recently observed, “a plaintiff who suffers injuries 

caused by the government still may not be able to sue because the case may 

not be of the kind ‘traditionally redressable in federal court.’” FDA v. All. 

for Hippocratic Med., 602 U.S. 367, 381 n.1, 144 S. Ct. 1540, 1555 n.1 (2024) 

(quoting United States v. Texas, 599 U.S. 670, 676, 143 S. Ct. 1964, 

1970 (2023)). 

In accord with the first prong of standing, Dobbin is suffering an 

ongoing injury because the decertification orders issued by the PUC 

eliminated its right to serve SIG’s and Redbird’s developments and to 

exclude others from doing so. But enjoining the PUC officials from further 

enforcement of the two decertification orders would not redress Dobbin’s 

injury, as required by the third prong. First, section 13.2541 of the Texas 

Water Code sets out the PUC’s responsibilities when a landowner has 

petitioned for streamlined expedited release from a utility’s CCN. Under 

that statute, once the PUC has granted a petition for release, as it did here, 

there is no further action or enforcement for the PUC to take. Second, no 

additional PUC authorization is required for a municipal utility district or 

municipality to service SIG’s and Redbird’s developments, now that they 

have been released from Dobbin’s CCN. Both municipally owned utilities 

and municipal utility districts are excluded from the types of “utilities” that 

must obtain a CCN from the PUC as a prerequisite to providing retail water 

or sewer service to the public. See TEX. WATER CODE § 13.242(a); see also 

id. § 13.002(13) (defining “municipally owned utility”), (13-a) (defining 

“municipal utility district”). Consequently, neither MUD 180 nor the City 

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9 

of Montgomery needs to obtain a CCN or any other authorization from the 

PUC to provide water service to the SIG and Redbird developments. In sum, 

enjoining the PUC’s “enforcement” of the orders decertifying the two 

developments would be pointless: MUD 180 and the City of Montgomery 

may provide service regardless. 

Dobbin counters by noting, correctly, that municipally owned utilities 

and municipal utility districts are required, under sections 13.242(a) and 

13.247(a) of the Water Code,3

 to obtain a CCN before providing service 

within an area that is already receiving lawful service from another utility or 

an area that is certificated to another utility. These provisions are, however, 

inapposite in this case because the PUC has already released the developers’ 

properties from Dobbin’s CCN. After the properties’ release, the only way 

Dobbin could obtain real relief against the PUC (and prevent its competitors, 

MUD 180 and the City of Montgomery, from providing service within its 

former CCN) is through a ruling that invalidates the PUC’s two 

decertification orders. But Dobbin has not sought such relief, because the 

invalidation of a final agency order is inherently retrospective and, thus, 

impermissible under Young. This court made that clear in Green Valley: 

“That relief—‘the voiding of a final state’ agency order—is ‘quintessentially 

_____________________ 

3

 Section 13.242(a) provides, in part, that “a retail public utility may not furnish, 

make available, render, or extend retail water or sewer utility service to any area to which 

retail water or sewer utility service is being lawfully furnished by another retail public utility 

without first having obtained a certificate of public convenience and necessity that includes 

the area in which the consuming facility is located.” See also Tex. Water Code § 13.002(a) 

(defining “retail public utility” to include “municipality” and “political subdivision”). 

Section 13.247(a) provides, in part, that “a municipally owned or operated utility 

may not provide retail water and sewer utility service within the area certificated to another 

retail public utility without first having obtained from the utility commission a certificate of 

public convenience and necessity that includes the areas to be served.” 

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retrospective’ and thus out of bounds under Young.” 969 F.3d at 473 

(citation omitted). 

In Dobbin’s view, this court’s disposition of the Young issues in Green 

Valley favors its position, not the defendants’. It is true that in Green Valley, 

as here, the plaintiff requested “relief prospectively requiring the PUC 

Officials to refrain from taking future actions to enforce an unlawful order,” 

but the court held only that this prospective relief was “possibly available” 

under the Ex parte Young exception to sovereign immunity. Id. at 472, 473. 

The Green Valley court moreover did not address the primary issue raised in 

this case, viz., whether the prospective relief identified for purposes of the 

Young exception would redress the plaintiff’s injuries.4

 The above discussion 

shows that, in this case, prospective relief would not avail Dobbin. Contrary 

to Dobbin’s argument, Green Valley therefore does not resolve the standing 

issue in its favor. 

Dobbin’s invocation of two exceptions to mootness also fails. Dobbin 

contends that the capable of repetition yet evading review exception5

 and the 

_____________________ 

4

 The Ex parte Young issues in Green Valley also came before the court on review of 

the district court’s denial of a motion to dismiss. See id. at 467. Here, by contrast, the 

standing issues, which overlap with the Young issues, were raised by the PUC officials in 

their motion for summary judgment, which the district court granted. And while “general 

factual allegations” suffice to establish standing at the motion to dismiss stage, at the 

summary judgment stage a plaintiff must set forth “specific facts” supported by evidence 

to establish standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 

(1992) (citing FED. R. CIV. P. 56(e)). 

5 See Turner v. Rogers, 564 U.S. 431, 439–40, 131 S. Ct. 2507, 2515 (2011) (stating 

that the capable of repetition yet evading review exception applies only when “(1) the 

challenged action [is] in its duration too short to be fully litigated prior to its cessation or 

expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] 

be subjected to the same action again” (alterations in original)). 

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collateral consequences exception6 apply here, allowing it to bring claims for 

injunctive relief against the PUC. 

These arguments are underdeveloped and unconvincing. Principally, 

the two exceptions to mootness do not resolve the redressability issues 

concerning Dobbin’s request for an injunction prohibiting the PUC from 

enforcing the decertification orders. See, e.g., Johnson v. Moore, 958 F.2d 92, 

95 (5th Cir. 1992) (“The ‘capable of repetition, but evading review’ 

exception applies to some mootness problems, but is simply inapposite when 

a plaintiff lacks standing to seek the requested relief.”). If Dobbin invokes 

the exceptions more broadly, in an attempt to revive its now-moot request for 

an injunction prohibiting the PUC from considering the pending motions to 

decertify, it has failed to show that either exception to mootness applies. 

Dobbin has not shown, for example, that it is likely to be subjected to the 

same action (a decertification proceeding) in the future. See Turner v. Rogers, 

564 U.S. at 439–40, 131 S. Ct. at 2515. Nor has it shown that this court is 

capable of providing effective relief to remedy any collateral consequences of 

the decertification orders. See Dailey, 141 F.3d at 227. 

Finally, Dobbin argues that it has standing to challenge a preempted 

state statute. The cases it cites for this argument support two propositions: 

first, that plaintiffs have an implied right of action to assert preemption 

claims; and second, that such claims fall within 28 U.S.C. § 1331’s general 

grant of jurisdiction. Planned Parenthood of Hous. & Se. Tex. v. Sanchez, 403 

F.3d 324, 332–34 (5th Cir. 2005); Verizon Maryland, 535 U.S. at 641–44, 122 

S. Ct. at 1758–60. They do not support the proposition that such claims are 

_____________________ 

6 See Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (“Even if the 

plaintiff’s primary injury has been resolved, the collateral consequences doctrine serves to 

prevent mootness when the violation in question may cause continuing harm and the court 

is capable of preventing such harm.”). 

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viable in the absence of a means of redressing the plaintiff’s injury. See Sierra 

Club v. Peterson, 185 F.3d 349, 362 n.15 (5th Cir. 1999) (noting that plaintiffs 

must establish both standing and statutory jurisdiction), vacated, 228 F.3d 

559 (5th Cir. 2000) (en banc); Moms Against Mercury v. Food & Drug Admin., 

483 F.3d 824, 826 (D.C. Cir. 2007) (same); Green Valley, 969 F.3d at 494 

(Oldham, J., concurring) (explaining that plaintiffs must establish both 

standing and the existence of a cause of action). Because Dobbin does not 

seek relief that would redress its injury, as explained above, it lacks standing 

to assert a preemption claim under Article III. 

The district court correctly dismissed Dobbin’s claim for injunctive 

relief against the PUC for lack of standing. 

2. § 1983 claim (PUC officials) 

 Lack of Article III standing also dooms Dobbin’s argument that it is a 

proper plaintiff, and the PUC officials are proper defendants, under § 1983. 

Case law establishes that “PUC officials [sued in their official capacities] are 

not proper § 1983 defendants.” Green Valley, 969 F.3d at 475; see Will v. 

Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989) 

(“We hold that neither a State nor its officials acting in their official 

capacities are ‘persons’ under § 1983.”). Under Ex parte Young, of course, 

this barrier to suit does not apply when the plaintiff seeks prospective relief 

against state officials in their official capacities. Will, 491 U.S. at 71 n.10, 109 

S. Ct. at 2312 n.10 (“[A] state official in his or her official capacity, when sued 

for injunctive relief, would be a person under §1983 because ‘official-capacity 

actions for prospective relief are not treated as actions against the State.’” 

(citation omitted)). But Dobbin still lacks standing to pursue such 

prospective relief, for the reasons identified above. Whether Dobbin has a 

cause of action under § 1983 against the PUC officials is therefore beside 

the point. 

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Dobbin contends that this court’s decision in City of Safety Harbor v. 

Birchfield, 529 F.2d 1251 (5th Cir. 1976) (holding that municipalities and 

political subdivisions are not proper parties under § 1983), should be 

overruled in light of the Supreme Court’s subsequent decision in Monell v. 

Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978) (holding 

that municipalities and other local government units are “persons” under 

§ 1983). Whatever the merits of this argument, overruling Birchfield would 

be futile in this case. We accordingly decline to do so, as we did in Green 

Valley, 969 F.3d at 474–75. 

3. Dismissal with prejudice (SIG & Redbird) 

 Finally, Dobbin requests that the dismissal of its claims against SIG 

and Redbird with prejudice be converted to dismissal without prejudice. The 

district court dismissed these claims, which alleged violations of § 1926(b), 

because Dobbin lacked a cause of action against SIG and Redbird as private 

entities. Dobbin now apparently urges a distinct claim of conspiracy to 

deprive civil rights under § 1983. But it did not plead a conspiracy claim in 

its complaint, and the district court did not dismiss such a claim. As for the 

claims that Dobbin did plead against SIG and Redbird, the absence of a cause 

of action cannot be cured by amendment. The district thus court did not 

abuse its discretion by dismissing these claims with prejudice. Club Retro, 

568 F.3d at 215 n.34; see also Stem v. Gomez, 813 F.3d 205, 215–16 (5th Cir. 

2016) (noting that leave to amend need not be granted when amendment 

would be futile). 

III. Conclusion 

 For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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