UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA GREGORY SWECKER and BEVERLY SWECKER, Plaintiffs,
v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant. Case No. 1:21-cv-1590-RCL

MEMORANDUM OPINION Plaintiffs Gregory and Beverly Swecker ("the Sweckers") own and operate a wind turbine
ontheirIowafarm. TheSweckersbroughtthisproseactionagainsttheFederalEnergyRegulatory Commission ("FERC") 1 under the Administrative Procedure Act ("APA"), Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. § 701), and the Public Utility Regulatory Policies Act of 1978 ("PURPA"), Pub. L. No. 95--017, 92 Stat. 3117 (codified at 16 U.S.C. § 824a-3). PURPA limits the price that electric utilities may pay for the electricity, such that it cannot exceed the utility's "avoided cost"-the price at which the electricity could be acquired from an alternative
source. Utilities must provide data to their state regulator to calculate avoided cost. FERC may bring enforcement actions against utilities that fail to providethis data. The Sweckers allege that FERC has actedunlawfullyby failing to bring such enforcement actions. FERC filed a motion to dismiss, arguing that its enforcement decisions are not subject tojudicialreview.

1The complaint states that "Plaintiffs bring this action againstMidland, CIPCO, andFERC." Comp1. ,i 96. However, based onthe stated facts and requested relief, it appears that FERC is the only intended defendant in the present case. 1

### After considering the motion, the applicable law, and the parties' briefing, this Court will GRANT 

### the defendant's motion and DISMISS WITH PREJUDICE 

### the plaintiffs' lawsuit. I. BACKGROUND A. PURPA 

### Congress enacted PURPA in part to promote the development of alternative energy
resources. See FERC v. Mississippi, 456 U.S. 742, 745 (1982). Understanding "traditional utilities' reluctance to deal with" alternative energy sources, Congress crafted PURPA to direct FERC to implement "mandatory purchase and sell obligations, requiring electric utilities to purchase electric power from, and sell power to, qualifying cogeneration and small power productionfacilities (collectively, 'qualifying facilities')." Cal. Edison Co. v. FERC, 443 F.3d 94, 95 (D.C. Cir. 2006) (citing 16 U.S.C. § 824a-3(a)). The rates for these purchases shall not "exceed[] the incremental cost to the electric utility of alternative electric energy." 16 U.S.C. § 824a-3(b)(2). These rates are commonly referred to as a utility's "avoided cost." See Midland Power Co-op. v. FERC, 774 F.3d 1, 

### 3 (D.C. Cir. 2014). FERC regulations provide that electric utilities must submit data to their state regulatory authority so that the "avoided cost" can be determined. See 18 C.F.R. § 292.302. FERC may
commence an enforcement action against "any State regulatory authority ornonregulated electric utility" to ensure compliance with PURPA and the rules promulgated thereunder. See 16 U.S.C. § 824a-3(h)(2)(A). PURPA also provides that a qualifying facility maypetitionFERC to enforce these statutory and regulatory requirements. See id. at § 824a-3(h)(2)(B). IfFERC declines to
commence an enforcement action, the qualifying facility may then "bring an action in the appropriate United States district court to require such State regulatory authority ornonregulated electric utilityto complywith suchrequirements." Id. (emphasis added).

2B. The Sweckers' Previous Lawsuits The Sweckers' turbine, operated on theirIowa farm, Compl.

## ,r,r 9, 52, ECFNo. 1, has been
a "qualifying facility" under PURPA since 1999. Id. at 

## ,r 54. Midland Power Cooperative ("Midland") is an electric utility in Greene County, Iowa. Id. at 

## ,r 56. Pursuant to PURPA, the Sweckers sell power from their wind turbine to Midland. Id. 

## ,r 55. Midland buys the rest ofits electricity from Central Iowa Power Cooperative ("CIPCO"). Id. at 

## ,r 58. Under PURPA's definition ofavoided cost, the amountthatMidlandmustpaythe Sweckers for electricity depends
ontheprice at whichMidlandpurchases its electricity from CIPCO. Id. 

## ,r 59. The Sweckers have long disputed Midland's calculation ofits avoided cost, asserting that the utility is required to purchase electricity from them at a higher price. The Sweckers' acrimonious relationship with Midland "has given rise to a number ofheated disputes" resulting in "a veritable litany oflawsuits spanning the last two decades." 

### Swecker v. United States, No. 4:17-cv-00195 (RWP), 2017 WL 11467834, at *1-*2 (S.D. Iowa, Nov. 28, 2017). The Sweckers have repeatedly, and unsuccessfully, petitioned FERC to initiate an enforcement action against Midland.2 The Sweckers have also initiated unsuccessful---or failed to defend themselves in-more than a dozen lawsuits related to their wind farm in both federal and state courts.3

2 See, e.g., Swecker v. MidlandPower Coop., 175 FERC ,i 61,061, 2021 WL 1603289, *I (Apr. 23, 2021); Swecker v. Midland Power Coop., 155 FERC ,i 61,237, 2016 WL 3167694, *1 (June 3, 2016); Swecker v. Midland Power Coop., 149 FERC 

### if 61,236, 2014 WL 7205362, *I (Dec. 18, 2014); Swecker v. Midland Power Coop., 147 FERC 

### if 61,114, 2014 WL 1978994, *1 (May 15, 2014); Swecker v. Midland Power Coop., 142 FERC 

### if 61,207, 2013 WL 1182419, *1 (Mar. 21, 2013); Swecker v. MidlandPower Coop., 136 FERC 

### if 61,085, 2011 WL 3417126, *1 (Aug. 5, 2011). 3 See, e.g., Swecker v. FERC, No. 20-1440, (D.C. Cir. Feb. 22, 2021), ECF No. 1886385; Swecker v. MidlandPower Coop., No. 18-1663, 2019 WL 3720879, *1 (Iowa Ct. App. Aug. 7, 2019); Swecker, 2017 WL 11467834, at *8, aff'd sub nom. Swecker v. US. Dep't of Agric., 741 F. App'x. 349 (8th Cir. Nov. 1, 2018), cert. denied, 139 S. Ct. 2645 (May28, 2019); Swecker v. MidlandPower Coop., 253 F. Supp. 3d274 (D.D.C. 2017),aff'd, 743 F. App'x472 (D.C. Cir. Dec. 3, 2018) (per curiam); United States v. Swecker, No. 4:09-cv-00013 (CRW) (SBJ) (S.D. Iowa Nov. 10, 2016), aff'd, 743 F. App'x 65, 66 (8th Cir. Nov. 20, 2018) (per curiam), cert. denied 139 S. Ct. 2756 (June 24, 2019); Swecker v. Midland Power Coop., No. 4:13-cv-00250 (JEG), 2013 WL 11311233, *l (S.D. Iowa Dec. 30, 2013), 3C. The Sweckers' Present Lawsuit · 

### The Sweckers ask this Court to (1) order FERC to bring enforcement actions against Midland and CIPCO for failing to provide cost rate data and (2) assess penalties for the utilities' previous failure to provide such data.4 

### Compl. 

## ,r96. In response, FERC filed amotionto dismiss. Def.'s Mot. to Dismiss, ECF No. 9. FERC argues that its decisions not to pursue enforcement actions againstMidland orCIPCO are notreviewablebythis Court. See 

### Defs.' Mem., ECF No. 9- 1, 

### at 2. The Sweckers opposed. Pls.' Opp'n, ECF No. 10. FERC subsequently replied. Defs.' Reply, ECF No. 13. FERC'smotion is now ripe for review. II. LEGALSTANDARD A. Motion to Dismiss Under Rule 12(b)(6) 

### "To survive a motion to dismiss, a complaint must contain sufficient factual matter ...to state a claim to reliefthat is plausible on its face." Ashcroft v. Iqbal, 

### 556 U.S. 662, 678 (2009) (internal quotations omitted). Though a complaint is not required to contain "detailed factual allegations," it must present more than "[t]hreadbare recitals ofthe elements ofa cause ofaction, supportedbymere conclusory statements." Id. 

### Takentogether, the facts alleged inthe complaint must be sufficient to raise a plausible claim and to permit "the reasonable inference that the
aff'd, 807 F.3d 883 (8th Cir. 2015), cert. denied, 577 U.S. 1120 (Jan. 25, 2016); MidlandPower Co-op. v. Swecker, No. 09-1218, 2010 WL 2598291, *2-3 (Iowa Ct. App. June 30, 2010); Sweckerv. FERC, No. 06-1170 (D.C. Cir. May 7, 2007), ECF No. 1039008; Swecker v. Veneman, No
. 4:04-cv-90415, 2005 WL 8i57893, *1 (S.D. Iowa July 28, 2005), aff'dsub nom. Swecker v.Johanns, 214 F
.App'x 625 (8th Cir. Jan. 29, 2007), certdenied, 552 U.S. 826 (Oct. 1, 2007); Windway Techs., Inc. v. MidlandPower Co-op., 696 N.W.2d303 (Iowa2005), cert. deniedsub nom. Swecker v. MidlandPower Co-op., 552 U.S. 978 (Oct. 15, 2007); Windway Techs. Inc. v. MidlandPower Coop., No. 3:00-cv03089 (MWB) (N.D. Iowa Mar
. 5, 2001), ECF No. 14;Swecker v. MidlandPower Coop
.,No. FCU-99-3, 2000 WL 1471588, *1 (Iowa Utils. Bd. Aug. 25, 2000), aff'dsub nom. Off. of Cons. Advoc. v. Iowa Utils. Bd., 656 N.W.2d 101 (Iowa 2003); Swecker v. US. Dep 'tof Agric., No. 4:96-cv-80430 (CRW) (S.D. Iowa Jan. 2, 1997), ECF No. 13. 4 The complaint also seeks "[r]eimbursement ofthe electric energy and capacitythat Plaintiffs have already delivered at Midland's full incremental avoided costs rate." Compl. ,i 96. Since FERC is the only defendant in this case, see supra n.l, the Court construes this request as one for money damages from FERC. The Court cannot grant this relief
. FERC is a federal entity which "retains the immunity it is due as an arm ofthe federal sovereign." Settles v. US. Parole Comm 'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). The APA only waives sovereign immunity for actions "seekingreliefotherthan money damages." See Trudeau v. Federal Trade Comm 'n, 456 F. 178, 186 (D.C. Cir. 2006) (quoting 5 U.S.C. § 702). 4

### defendant is liable for the misconduct alleged." Id. Because the Sweckers pursue their actionpro se, the Court will construe their filings and complaint liberally. See Howerton v. Ogletree, 466 F. Supp. 2d 182, 183 (D.D.C. 2006). B. APA, SU.S.C. § 70l(a)(2) 

### While the APA generally permitsjudicial review ofagency actions, the APA expressly prohibitsjudicial review of"agency action [that] is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). "[A]nagency's deci
. sionnotto prosecuteorenforce
... is adecisiongenerally committed to an agency's absolute discretion." Heckler v. Chaney, 470 U.S. 821, 831 (1985). "[When] an action is committed to the agency's discretion under APA§ 70l(a)(2)-as a~ency enforcement decisions are-therecanbe nojudicialreview for abuse ofdiscretion, or otherwise." Citizensfor Resp. & 

### Ethics in Wash. v. FEC, 892 F.3d 434, 441 (D.C. Cir. 2018). When "a complaint seeking r~view of agency action 'committed to agency discretion by law,' 5 U.S.C. § 701(a)(2), has failed to state a claim under the APA, [it] therefore should be dismissed under " 

### Rule 12(b)(6)." Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). 

### III. DISCUSSION 

### The Circuit already held that FERC's decision not to bring enforcement actions under PURPAisunreviewablebecausethedecisionis committedto FERC'sdiscretionbylaw. Swecker, 743 F. App'x at 473. As the Circuit has previously explained, there is a general presumption against reviewability ofagency enforcement decisions, a presumption may be overcome in three
narrow situations: (1) where "the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers"; (2) where the agency refuses "to
. institute proceedings based solely on the beliefthat it lacks jurisdiction"; and (3) where the agency "has consciously and expressly adopted a generalpolicythatis so extreme as to amountto an abdication ofits statutory responsibilities." Bait. Gas & 

### Elec. Co. v. FERC, 252 F.3d 456, 460 (D.C. Cir. 52001) (quoting 

### Chaney, 470 U.S
. at 833 & n.4))
. The last time the Sweckers sought to compel FERC to bring a PURP A enforcement action against Midland, the district court held that the Sweckers "ha[d] failed to overcome the presumption that FERC's decision not to commence an enforcement action is unreviewable." 

### Swecker, 253 F. Supp. 3d at 280. The Circuit affirmed on appeal, agreeingthat "[ t]hepresumption againstjudicialreviewhas notbeenrebuttedinthis case." 

### Swecker, 743 F. App'x at 473. The Circuit went even further in that case, saying that the Sweckers "ha[d] notpersuaded the court to read an implied cause ofaction against [FERC] into the self-contained regulatory and enforcement system established by Congress in 16 U.S.C. § 824a-3." 

### Id. (citing 

### Alexander v. 

### Sandoval, 532 U.S. 275,286 (2001) and

### Niagara MohawkPower Corp
. v. 

### FERC, 117 F.3d 1485, 1488 (D.C. Cir. 1997)). Thus, according to the Circuit, the Sweckers' "complaint as to [FERC]
was subject to dismissal for failure to state a claim, pursuant to Federal Rule ofCivil Procedure 12(b)(6)." 

### Id. (citing 

### Sierra Club, 648 F.3d at 854). The Sweckers insist that the Circuit changed its tune last year and "found that this Court has subject matter jurisdiction with review of such orders [as FERC's non-enforcement determination]." Comp

### I. 

## ,r 1. Thecasethe Sweckersreferenceinvolvedtheirpetitionto the Circuit after FERC-yet again-declined to bring an enforcement action against Midland. 

### See Swecker, No. 20-1440 (D
.C. Cir. Feb
. 22, 2021), ECF No. 1886385. The Circuit determined it did nothave jurisdiction to hear the appeal, noting that the "challenged orders, which were not 'mandatory,"' and thus "not directly reviewable [by the Circuit] under 16 U.S.C. § 824a-3(h)." 

### Id. (quoting 

### Portland Gen. Elec. Co
. v. 

### FERC , 854 F.3d 692, 700-01 (D.C. Cir. 2017)). The Circuit explained that the Sweckers' "only remedy under PURPA is to petition [FERC] to initiate an enforcement action, and, should [FERC] decline to do so, [the Sweckers] may file an enforcement action in

6

### district court." Id. (citing Portland Gen. Elec. Co., 854 F.3d at 700 and 16 U.S.C. § 

### 824a3(h)(2)(B)). The Sweckersinterpretedthis language as the Circuit's directiveto themto sueFERC in this Court. But under the statute, the Sweckers may "bring an action in the appropriate United States district court to require such State regulatory authority or nonregulated electric utility to comply with such requirements." 16 U.S.C. § 824a-3(h)(2)(B) (emphasis added). FERC is not a state regulatory authority or nonregulated electric utility. Thus, PURPA does not permit the Sweckers to hale FERC into court. See Indus. Cogenerators v. FERC, 47 F.3d 1231, 1232 (D.C. Cir. 1995). This Court is bound by Circuit precedent holding that FERC's PURPA enforcement decisions are unreviewable and, even if it were not, the Sweckers do not advance any new arguments persuadingthis Courtto hold differently. The Sweckers insist that "FERChas thenondiscretionary responsibility to impose penalties" and, because "F , ERC has failed to implement PURPA against Midland and CIPCO for non-compliance" with their statutory requirements, FERC has ignored PURPA's directive. See Pls.' Opp'n at 7. However, the Sweckers' argument V 

### isbeliedbytheplaintextofthe statute, which statesthatFERC "may"bring anenforcementaction. 16 U.S.C. § 

### 824a-3(h)(2)(A). Because FERC has the option-ap.d is by no means required-to bring an enforcement action under PURPA, FERC's enforcement responsibility is decidedly discretionary and thereforenot subject tojudicialreview. SeeAss 'n of IrritatedResidents v. EPA, 494 F.3d 1027, 1032 (D.C. Cir. 2007). The Sweckers also seek to relitigate the Circuit's determination that there are no standards to apply to FERC's enforcement decision. See Pls.' Opp'n at 8~9. Yet, as FERC correctly notes, the Sweckers do not "point to any source oflegal authority that would give the Court a meaningful standard against which to determine when the [FERC] has failed to properly exercise or otherwise abused its discretion to not initiate an

7enforcementaction." Def.'sReply at 3. Norcouldthey, as PURPAis "utterly silentonthemanner inwhich [FERC] is to proceed against aparticulartransgressor." See Sec

### '.Yof Laborv. Twentymile Coal Co., 456 F.3d 151, 158 (D.C. Cir. 2006). IV. CONCLUSION Evenconstruingthe Sweckers'prosecomplaintliberally, the Sweckershavefailed to state
a claim

_ upon which reliefmay be granted. Howerton, 466 F. Supp. 2d at 183. Therefore, this Court will GRANT the defendant's motion to dismiss and DISMISS WITH PREJUDICE the plaintiffs' lawsuit. A separate Order consistent with this Memorandum Opinion shall issue this date.

Date: September 

## "1--C',2022 Royce C. Lamberth United States District Judge

8