                              Illinois Official Reports

                                      Supreme Court



              State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co.,
                                         2014 IL 116844




Caption in Supreme       THE STATE OF ILLINOIS ex rel. JOSEPH PUSATERI, Appellee, v.
Court:                   THE PEOPLES GAS LIGHT AND COKE COMPANY, Appellant.


Docket No.               116844


Filed                    November 20, 2014


Held                       A circuit court complaint was properly dismissed as raising
(Note: This syllabus ratemaking issues which are within the exclusive jurisdiction of the
constitutes no part of the Illinois Commerce Commission where it alleged that a gas utility
opinion of the court but company’s failure to make accurate reports to the Commission caused
has been prepared by the rates to be higher and the State, as a customer, to pay
Reporter of Decisions more—Whistleblower Act and False Claims Act.
for the convenience of
the reader.)




Decision Under           Appeal from the Appellate Court for the First District; heard in that
Review                   court on appeal from the Circuit Court of Cook County, the Hon.
                         Raymond W. Mitchell, Judge, presiding.



Judgment                 Appellate court judgment reversed.
                         Circuit court judgment affirmed.
     Counsel on                 Michael M. Conway, David B. Goroff, Lisa M. Noller, Theodore T.
     Appeal                     Eidukas and John L. Litchfield, of Foley & Lardner LLP, and J.
                                Timothy Eaton, of Taft Stettinius & Hollister LLP, all of Chicago, for
                                appellant.

                                David Novoselsky, Edward J. Stawicki and Jonathan P. Novoselsky,
                                of Novoselsky Law Offices, of Chicago, for appellee.

                                John E. Rooney, Anne W. Mitchell and Conor B. Ward, of Rooney
                                Rippie & Ratnaswamy LLP, of Chicago, for amici curiae Ameren
                                Illinois and Nicor Gas Company.

                                John J. Hamill and Ramon Villalpando, of Jenner & Block LLP,
                                Thomas S. O’Neill and Anastasia O’Brien, all of Chicago, for amicus
                                curiae Commonwealth Edison Company.


     Justices                   CHIEF JUSTICE GARMAN delivered the judgment of the court,
                                with opinion.
                                Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis
                                concurred in the judgment and opinion.

                                                  OPINION

¶1         Plaintiff Joseph Pusateri filed a complaint under the False Claims Act 1 alleging
       defendant Peoples Gas Light and Coke Company (PG) used falsified gas leak response
       records to justify a fraudulently inflated natural gas rate before the Illinois Commerce
       Commission (Commission). As a customer, the State of Illinois would have paid such
       fraudulently inflated rates, making PG liable under the False Claims Act. The Cook County
       circuit court dismissed Pusateri’s complaint with prejudice, finding that as a matter of law,
       there was no causal connection between the allegedly false reports and the
       Commission-approved rates. The appellate court reversed, construing the complaint’s
       allegations liberally to find PG could have submitted the safety reports in support of a request
       for a rate increase, despite not being required to do so under the Administrative Code.
       Accordingly, the appellate court found Pusateri had presented enough of a viable claim to
       survive dismissal. 2013 IL App (1st) 120972-U.

           1
            At the time Pusateri filed his suit, the Illinois False Claims Act was known as the Whistleblower
       Reward and Protection Act. 740 ILCS 175/1 (West 2008). The textual amendments that accompanied
       the 2010 name change do not affect our analysis of this case. Pub. Act 96-1304 (eff. July 27, 2010)
       (amending 740 ILCS 175/1 et seq. (West 2008)). The parties have referred to the Whistleblower
       Reward and Protection Act as the Whistleblower Act, but that is the proper name of another statute. 740
       ILCS 174/1 (West 2008). To avoid confusion, we use the statute’s current name, the Illinois False
       Claims Act. 740 ILCS 175/1 (West 2012).

                                                      -2-
¶2       This court granted PG’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
     We also permitted the Commonwealth Edison Company, the Ameren Illinois Company, and
     the Northern Illinois Gas Company to file briefs amici curiae on behalf of defendant PG. Ill.
     S. Ct. R. 345 (eff. Sept. 20, 2010). For the reasons that follow, we reverse the judgment of
     the appellate court and affirm the judgment of the circuit court.

¶3                                        BACKGROUND
¶4       Pusateri is a former PG employee who filed a sealed complaint against the company
     under the False Claims Act on September 2, 2009. 740 ILCS 175/1 et seq. (West 2008). In
     his complaint, Pusateri alleged PG must file a report with the Commission any time its
     response to a possible gas leak, from receipt of the call to arrival of the maintenance crew,
     takes more than one hour. In late 2001, Pusateri rose to the level of service supervisor.
     Pusateri alleged that his superiors then instructed him to change computer logs to reflect a
     better response time, so that no Commission report would be filed, and that he and other
     managers would alter such records. Pusateri further alleged that these falsified reports were
     used by PG to help justify rate increases in Commission rate-setting proceedings. Pusateri’s
     complaint contained two counts, premised on separate subsections of the False Claims Act.
     The first count argued the allegedly false safety records were themselves a “false or
     fraudulent claim for payment or approval” under section 3(a)(1) of the False Claims Act; the
     second count argued the allegedly false safety records were “false record[s] or statement[s] to
     get a false or fraudulent claim paid or approved” under section 3(a)(2). 740 ILCS
     175/3(a)(1)-(2) (West 2008). No particular rate increase or order was specified in the
     complaint. The State, as a purchaser of natural gas, would have paid any such inflated rate.
¶5       The Attorney General declined to proceed with the action. See 740 ILCS 175/4 (West
     2008). On April 27, 2011, the circuit court ordered Pusateri to conduct the action on behalf of
     the State as plaintiff. The court ordered the complaint unsealed and served on PG. On
     February 29, 2012, the circuit court dismissed Pusateri’s complaint with prejudice, pursuant
     to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2008). The circuit
     court looked to the definition of a claim for payment under the False Claims Act, which
     included “any request or demand, whether under a contract or otherwise, for money or
     property” made to the State or someone to be reimbursed by the State. 740 ILCS 175/3(c)
     (West 2008). Noting the requirement of a causal nexus between the false claim and payments
     by the State, the circuit court examined the Illinois Administrative Code to conclude the
     Commission would never look at safety reports in deciding a rate. See 83 Ill. Adm. Code
     §§ 285.305, 285.315 (2011). Therefore, there could be no causal connection between a false
     safety report and a Commission rate approval.
¶6       The appellate court reversed. It held that although PG was not required to use its natural
     gas leak reports in support of a rate increase, it may have done so. 2013 IL App (1st)
     120972-U, ¶ 21. Construing the complaint liberally, the appellate court found the alleged
     false reports could form the basis of a claim under section 3(a)(2), submitting a false record
     in support of a claim for payment. Id. ¶ 22. It also held that Pusateri’s complaint alleged PG
     had submitted fraudulent bills to the State, making the basis of a claim under section 3(a)(1)
     for a false or fraudulent claim. Id. ¶ 28. One justice dissented, on the basis that the
     Commission’s legislative rate making is a regulatory act, whereas the False Claims Act is


                                                 -3-
       concerned with procurement and the government’s bills. Id. ¶¶ 42-46 (Palmer, J., dissenting).

¶7                                              ANALYSIS
¶8         A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint.
       Kanerva v. Weems, 2014 IL 115811, ¶ 33. A court deciding a section 2-615 motion must
       accept all well-pleaded facts in the complaint as true, and it should dismiss the complaint
       only where it is apparent no set of facts could be proven that would entitle the plaintiff to
       recover. Id. We review de novo an order granting a motion to dismiss under section 2-615.
       Id. Whether Pusateri’s complaint is a proper one under the False Claims Act is a question of
       statutory interpretation. The primary objective of statutory interpretation is to give effect to
       the legislature’s intent, which is best indicated by the plain language of the statute itself.
       Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. The court
       may affirm on any basis appearing in the record. In re Veronica C., 239 Ill. 2d 134, 151
       (2010).
¶9         Before this court, PG reiterates its prior arguments that Pusateri has not stated a claim
       within the meaning of the False Claims Act, or within the analogous federal False Claims
       Act. 31 U.S.C. § 3729 et seq. PG argues first that any false reports to the Commission would
       not be a claim for payment, and any falsity therein would be mere false statements
       unconnected to any claim for payment. PG argues second that there is no causal nexus
       between the allegedly false reports and the State’s gas bills—both because changing the logs
       would mean no report was generated at all, and because the Commission would not rely upon
       gas leak reports in setting rates anyway. Pusateri responds that a false record in support of a
       claim for payment is sufficient, even where the State is only a partial payor of the claim,
       relying largely on People ex rel. Levenstein v. Salafsky, 338 Ill. App. 3d 936 (2003). Pusateri
       thus argues the gas leak reports were sufficiently causally linked to the State’s payment of
       gas bills. Pusateri also argues that the Commission has considered gas leak reports in the
       past, relying chiefly on People ex rel. Madigan v. Illinois Commerce Comm’n, 2011 IL App
       (1st) 100654. Pusateri argues that the Commission’s consideration of prospective safety
       improvements in light of a proposed infrastructure cost recovery rider in Madigan indicates
       the Commission will consider gas leak reports in setting rates, irrespective of the reports’
       absence in that portion of the Illinois Administrative Code.
¶ 10       PG additionally argues that Pusateri’s complaint is a prohibited collateral attack on a
       Commission rate order. See, e.g., Peoples Gas Light & Coke Co. v. Buckles, 24 Ill. 2d 520,
       528 (1962). Pusateri counters that PG has forfeited this argument by not raising it in the
       circuit or appellate courts. Pusateri additionally argues that his complaint does not seek to
       “adjust or countermand any rate making decisions of” the Commission, because he is asking
       the court only to review PG’s conduct and order disgorgement. Pusateri also contends that
       arguments against applying the False Claims Act to PG’s safety reports to the Commission
       are a constitutional attack on the False Claims Act. In reply, PG notes that no party has
       argued the False Claims Act is unconstitutional, facially or as applied to the Commission.

¶ 11                      Jurisdiction of the Illinois Commerce Commission
¶ 12      The Public Utilities Act creates the Illinois Commerce Commission and charges it with
       “general supervision of all public utilities.” 220 ILCS 5/2-101, 4-101 (West 2008). “The


                                                  -4-
       Commission is the administrative agency responsible for setting the rates utilities charge their
       customers.” United Cities Gas Co. v. Illinois Commerce Comm’n, 163 Ill. 2d 1, 11 (1994).
       The Commission has “exclusive jurisdiction over rates” under the Public Utilities Act.
       Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 41 (citing 220 ILCS 5/9-252 (West
       2006)). The Commission establishes rates based on its finding such rates are “just and
       reasonable.” 220 ILCS 5/9-201(c) (West 2008). In a rate-setting process before the
       Commission, the regulated utility bears the burden of proving the “justness and
       reasonableness of the proposed rates.” Id. The Public Utilities Act also prohibits a utility
       from charging a rate other than one approved by the Commission, or from offering a refund.
       220 ILCS 5/9-240 (West 2008) (providing that, “[e]xcept as in this Act otherwise provided,
       no public utility shall charge *** a greater or less or different compensation for any product
       *** than the rates or other charges applicable to such product *** as specified in its
       schedules on file and in effect at the time, *** nor shall any such public utility refund or
       remit, directly or indirectly, in any manner or by any device, any portion of the rates or other
       charges so specified”). The Commission may not make rates retroactively or for single issues
       (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 146
       Ill. 2d 175, 195 (1991)), but the Commission may order a refund where it concludes a utility
       has charged an excessive or unjustly discriminatory rate. 220 ILCS 5/9-252 (West 2008).
¶ 13        The circuit and appellate courts have jurisdiction to review administrative agency actions
       only as provided by statute. Ill. Const. 1970, art. VI, §§ 6, 9. The Public Utilities Act
       provides for appeal of a Commission order directly to the appellate court, under standards
       deferential to the Commission’s expertise. See 220 ILCS 5/10-201(e) (West 2008).
                    “An order of the Commission will be reversed only if it is outside the jurisdiction
                of the Commission or is not supported by substantial evidence, or if the proceedings
                or manner in which the order was arrived at violated the State or Federal
                Constitutions or relevant laws, to the prejudice of the appellant. *** Apart from
                examining whether the Commission acted outside the scope of its constitutional or
                statutory authority, a reviewing court is limited to determining whether the findings
                of the Commission are against the manifest weight of the evidence.” United Cities
                Gas Co., 163 Ill. 2d at 12.
¶ 14        Rate-setting is a legislative function, not a judicial one. Business & Professional People,
       146 Ill. 2d at 196. “In the rate-making scheme, the Commission and not the court is the
       fact-finding body.” Id. “On appeal from an order of the Commission, its findings of fact are
       to be considered prima facie true; its orders are considered prima facie reasonable; and the
       burden of proof on all issues raised in an appeal is on the appellant.” United Cities Gas Co.,
       163 Ill. 2d at 11.
¶ 15        When the court reverses a Commission rate order, it does not set a new rate. See, e.g.,
       Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 136
       Ill. 2d 192, 242 (1989). Ordinarily, where a Commission order approving a rate increase is
       reversed, and the rate increase has not been stayed pending litigation, ratepayers are not
       entitled to any refund for excess charges collected between the rate’s effective date and
       reversal. Id. This court has previously ordered a utility to refund excess money collected after
       we had reversed the applicable rate order, but only as “a result of a direct, statutorily
       authorized, review of the Commission order.” Independent Voters of Illinois v. Illinois


                                                  -5-
       Commerce Comm’n, 117 Ill. 2d 90, 105 (1987). Such refunds were available for charges
       collected only after the court held “that a Commission-approved rate order included
       allowance of improper expenses and deductions for the utility company.” Id. In Independent
       Voters, the court declined to order disgorgement where the amounts collected under the
       Commission-approved rate were not unlawfully obtained. As noted above, the court
       considered the question only upon “direct, statutorily authorized” review. Id. The
       Commission’s orders within its statutory authority are “not subject to collateral attack.”
       Peoples Gas Light & Coke Co. v. Buckles, 24 Ill. 2d 520, 528 (1962).
¶ 16       The legislature enacted the False Claims Act in 1991, long after the establishment of the
       Commission’s exclusive rate-setting jurisdiction. See Pub. Act 87-662 (eff. Jan. 1, 1992).
       The False Claims Act allows the Attorney General or a private individual to bring a “civil
       action” on behalf of the State for false claims. See 740 ILCS 175/4 (West 2008). The False
       Claims Act enumerates certain individuals and circumstances to which it does not apply. 740
       ILCS 175/4(e)(1)-(2) (West 2008) (stating “No court shall have jurisdiction over an action”
       between members of the Guard arising from service in the Guard, or over an action by an
       individual against a member of the legislature, judiciary, or other exempt official if based on
       information known to the State at the time the action was brought). No part of the False
       Claims Act enlarges the subject matter jurisdiction of the circuit courts. Nothing in the False
       Claims Act indicates an intent to abridge or disturb the Commission’s exclusive jurisdiction.

¶ 17                        Reparations as Distinguished From Civil Damages
¶ 18        This court has recently examined which causes of action against a regulated utility are
       subject to the exclusive jurisdiction of the Commission. Claims for reparations are subject to
       the exclusive jurisdiction of the Commission. Sheffler, 2011 IL 110166, ¶ 41 (“It has long
       been recognized that the ‘evident intent and purpose of the legislature in providing a method
       by which reparation may be recovered and in requiring that an application therefor shall be
       first made to the commission, precludes an action at law for such reparation until the
       commission has heard a claim therefor.’ ” (quoting Terminal R.R. Ass’n of St. Louis v. Public
       Utilities Comm’n, 304 Ill. 312, 317 (1922))). In Sheffler, we noted “a claim is for reparations
       when the essence of the claim is that a utility has charged too much for a service, while a
       claim is for civil damages when the essence of the complaint is that the utility has done
       something else to wrong the plaintiff.” Id. ¶ 42 (citing Flournoy v. Ameritech, 351 Ill. App.
       3d 583, 585 (2004)).
¶ 19        At its heart, Pusateri’s complaint alleges PG used fraudulent means to get the State (and
       others) to pay too much for natural gas. While the False Claims Act could subject PG to civil
       penalties of $5,500 to $11,000, PG would also be subject to paying treble damages for its
       actions. 740 ILCS 175/3(a) (West 2008). Pusateri, as plaintiff, could share in 25% to 30% of
       the civil penalty and damages awarded. 740 ILCS 175/4(d)(2) (West 2008). Though the
       remedy Pusateri seeks is a mix of penalty and damages, the sole reason the alleged
       falsehoods might be actionable under the False Claims Act is that they would have induced
       the State to pay too much for PG’s natural gas. See 740 ILCS 175/3(a)(1)-(7) (West 2008)
       (establishing liability for false claims, actions in support of false claims, and other actions
       used to deprive the State of property to which it is entitled). Pusateri’s complaint is one for
       reparations, and it is subject to the exclusive, original jurisdiction of the Commission.


                                                  -6-
¶ 20       Pusateri’s complaint in the circuit court also constitutes a prohibited collateral attack on a
       Commission rate order. It is not possible to determine how much PG’s alleged safety-related
       fraud increased its rate without determining what its rate should have been without any false
       reports. At oral argument, Pusateri suggested this difficulty could be resolved through the
       testimony of expert witnesses, who could opine on how much PG’s rate might have been
       inflated by fraudulent reports. The use of expert witnesses would not resolve the defect in
       this procedure—the circuit court would simply be asking experts to exercise the judgment
       statutorily reserved to the Commission. The court would then exercise the rate-setting
       authority reserved to the Commission, then order a refund outside of “direct,
       statutorily-authorized, review of the Commission order.” Independent Voters, 117 Ill. 2d at
       105. The circuit court is without jurisdiction to offer such remedies.

¶ 21                                             Forfeiture
¶ 22       Pusateri has argued that PG forfeited the issue of a collateral attack on a Commission rate
       order, by not raising it below. Issues not raised below may be forfeited, meaning they are not
       properly before the court exercising appellate review. See, e.g., City of Champaign v. Torres,
       214 Ill. 2d 234, 240 n.1 (2005). Forfeiture does not apply to questions of subject matter
       jurisdiction, however. People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370,
       387 (2008) (describing forfeiture argument as “ultimately irrelevant, as the issue in this case
       is one of jurisdiction, which any reviewing court has an obligation to consider” (citing
       Franson v. Micelli, 172 Ill. 2d 352, 355 (1996))). The prohibition against collateral attacks on
       Commission rate orders concerns the court’s ability to adjudicate the controversy and to offer
       relief. People v. Hughes, 2012 IL 112817, ¶ 20 (“A court’s subject matter jurisdiction relates
       to ‘the power of a court to hear and determine cases of the general class to which the
       proceeding in question belongs.’ ” (quoting Belleville Toyota, Inc. v. Toyota Motor Sales,
       U.S.A., Inc., 199 Ill. 2d 325, 334 (2002))). Outside the administrative review prescribed by
       section 10-201, the circuit court lacked subject matter jurisdiction to adjudicate the central
       question of Pusateri’s complaint: whether the rate set by the Commission was too high by
       virtue of the allegedly false gas leak reports. The circuit court was further unable to offer the
       relief sought: reparations, as augmented by the civil penalty provisions of the False Claims
       Act.
¶ 23       The legislature enacted the False Claims Act well after this court’s rulings on the
       exclusive jurisdiction of the Commission. No part of the False Claims Act indicates the
       legislature intended to abridge that exclusive jurisdiction. This conclusion should not be
       mistaken for a conclusion that the legislature constitutionally cannot craft a remedy or
       whistleblower reward within the context of utility rates, as Pusateri suggested at oral
       argument. The legislature simply has not done so. This result emanates from analysis of the
       statutes, not our Constitution.

¶ 24               Whistleblower Protections and the Commission’s Enforcement Role
¶ 25       At oral argument, Pusateri contended his complaint should proceed in the circuit court,
       lest he be subject to retaliation if not proceeding under “the Whistleblower Act.” The False
       Claims Act provides relief for employees who suffer retaliation for bringing a False Claims
       Act action, including reinstatement with double back pay. 740 ILCS 175/4 (West 2008).


                                                   -7-
       However, the argument that Pusateri would be unprotected without the False Claims Act is
       unpersuasive for a number of reasons. First, we note that Pusateri was already a former
       employee at the time he filed his complaint. Second, the absence of False Claims Act
       protections would have no impact on the application of the Whistleblower Act (740 ILCS
       174/1 et seq. (West 2008)). The plain language of the Whistleblower Act would prohibit
       retaliation for making a good faith complaint to the Commission that a utility is violating the
       law. 740 ILCS 174/15 (West 2008) (prohibiting retaliation “against an employee for
       disclosing information to a government or law enforcement agency, where the employee has
       reasonable cause to believe that the information discloses a violation of a State or federal
       law, rule, or regulation”). An employee who is the victim of retaliation for such a disclosure
       would be entitled to “all relief necessary to make the employee whole,” including
       reinstatement with back pay and compensation for litigation expenses. 740 ILCS 174/30
       (West 2008). This relief for retaliation under the Whistleblower Act is less plentiful than that
       offered under the False Claims Act, and the Whistleblower Act does not offer a
       whistleblower the opportunity to share in any recovery by the State, but the Whistleblower
       Act nonetheless prohibits retaliation. Compare 740 ILCS 175/4 (West 2008), and 740 ILCS
       174/30 (West 2008); see 740 ILCS 175/4(d)(2) (West 2008).
¶ 26       Finding that the legislature did not intend the False Claims Act to apply to a
       Commission-set rate likewise does not create an enforcement gap. The legislature has
       granted the Commission an array of enforcement duties and powers. The Commission has the
       authority to pursue penalties, ranging from $1,000 to $500,000, for each misrepresentation to
       the Commission. 220 ILCS 5/5-202.1 (West 2008). The Commission has the duty to ensure
       regulated utilities obey the Public Utilities Act and other statutes, except where enforcement
       duties are “specifically vested in some other officer or tribunal.” 220 ILCS 5/4-201 (West
       2008). The Public Utilities Act directs the Commission to seek an injunction in the circuit
       court to prevent continued violation of the law. 220 ILCS 5/4-202 (West 2008). The
       Commission also has a procedure for receiving complaints from an individual or a wide
       range of entities; it may also initiate a complaint sua sponte. 220 ILCS 5/10-108 (West
       2008). The Commission is to hear and enter orders on complaints within one year, in the
       absence of an agreed upon extension of time. Id. Where the Commission has failed to do so,
       a complainant may seek an order of mandamus only to compel the Commission to issue an
       order, further demonstrating the legislature’s deference to Commission expertise. Id. Finally,
       the Commission may order a refund where it concludes a utility has charged an excessive or
       unjustly discriminatory rate. 220 ILCS 5/9-252 (West 2008).
¶ 27       As noted above, the legislature enacted the False Claims Act long after this court’s
       relevant findings about the exclusive jurisdiction of the Commission, and we find no
       indication the legislature intended to abridge that jurisdiction. This conclusion is bolstered by
       the existence of a robust regulatory scheme already existing within the Public Utilities Act.
       Pusateri’s interpretation of the False Claims Act would invite the circuit court to review a
       Commission rate order collaterally, in the absence of any specific grant of jurisdiction and
       less deferentially than the manner prescribed under the Public Utilities Act. The complaint
       cannot proceed in the circuit court, and dismissal was proper. Accordingly, we need not
       address the parties’ arguments on whether the gas leak reports properly resemble a claim or a
       false record in support of a claim under the False Claims Act.


                                                   -8-
¶ 28                                          CONCLUSION
¶ 29      Because the circuit court was without jurisdiction to offer the relief sought by Pusateri’s
       complaint, dismissal was appropriate. The judgment of the appellate court is reversed. The
       judgment of the circuit court is affirmed.

¶ 30      Appellate court judgment reversed.
¶ 31      Circuit court judgment affirmed.




                                                  -9-
