                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 06 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SOLUTIONS FOR UTILITIES, INC., a                No. 13-55206
California Corporation,
                                                D.C. No. 2:11-cv-04975-SJO-
              Plaintiff,                        JCG

  and

CALIFORNIANS FOR RENEWABLE                      MEMORANDUM*
ENERGY, INC., a California Non-Profit
Corporation; MICHAEL E. BOYD;
ROBERT SARVEY,

              Plaintiffs - Appellants,

  v.

CALIFORNIA PUBLIC UTILITIES
COMMISSION, an Independent California
State Agency; MICHAEL R. PEEVEY;
TIMOTHY ALAN SIMON; MICHAEL R.
FLORIO; CATHERINE J.K.
SANDOVAL; MARK J. FERRON, in
their official and individual capacities as
current Public Utilities Commission of
California Members,

              Defendants - Appellees,



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  and

SOUTHERN CALIFORNIA EDISON
CO., a California Corporation; RACHEL
CHONG; JOHN A. BOHN; DIAN M.
GRUENICH; NANCY E. RYAN, in their
individual capacities as former Public
Utilities Commission of California
Members,

               Defendants.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                      Argued and Submitted February 10, 2015
                               Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and MAHAN,** District
Judge.

        Plaintiffs Californians for Renewable Energy, Inc., a California-based non-

profit energy company, and its members Michael Boyd and Robert Sarvey

(collectively “CARE”) appeal the dismissal of their claims against defendants

California Public Utilities Commission, the state agency responsible for California

energy policymaking, and its past and present commissioners in both their official



        **
         The Honorable James C. Mahan, District Judge for the U.S. District Court
for the District of Nevada, sitting by designation.
                                          2
and individual capacities (collectively “CPUC”).1 We review de novo a district

court’s grant of a motion to dismiss. Gompper v. VISX, Inc., 298 F.3d 893, 895

(9th Cir. 2002); Vestron, Inc. v. Home Box Office Inc., 839 F.2d 1380, 1381 (9th

Cir. 1988). We review the denial of leave to amend for abuse of discretion.

Gompper, 298 F.3d at 898. We reverse and remand on claim one but affirm the

dismissal of all other claims.

      1. We need not decide whether the administrative exhaustion requirement

under the Public Utility Regulatory Policies Act of 1978 (“PURPA”) is

jurisdictional. CARE fulfilled the requirement to exhaust administrative remedies.

It petitioned for enforcement, and the Federal Energy Regulatory Commission did

not initiate an enforcement action within 60 days. The statute does not forbid

“activating” a premature complaint when there is a proper petition and no action

within 60 days. See 16 U.S.C. § 824a-3(h)(2)(B). Therefore, the district court

erred. This claim is remanded for further proceedings.

      2. The district court correctly dismissed CARE’s 42 U.S.C. § 1983 claim for

First Amendment violations. CARE did not sufficiently plead that CPUC had a

retaliatory motive that was the but-for cause of seeking to have CARE declared a


      1
        The underlying complaint also included as parties co-plaintiff Solutions for
Utilities, Inc., and co-defendant Southern California Edison Co. Neither is a party
to this appeal.
                                         3
vexatious litigant. See Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1231-32 (9th

Cir. 2006). Though the district court’s rationale for dismissal was arguably

different, "we may affirm based on any ground supported by the record." Johnson

v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

      3. The district court correctly dismissed CARE’s claim for intervenor fees.

The Johnson Act applies because the award of intervenor fees has a dollar-for-

dollar effect on utility rates. See Cal. Pub. Util. Code § 1807(a). All four prongs

of the Johnson Act were satisfied. See US West, Inc. v. Nelson, 146 F.3d 718, 722

(9th Cir. 1998). First, jurisdiction over the claim rests on the alleged First

Amendment violation. Second, CARE did not satisfy its burden to explain how

CPUC’s actions were directly burdensome to or discriminatory against interstate

commerce. See id. at 724. Third, there are extensive notice, hearing, and review

procedures in place for CPUC proceedings. See Cal. Pub. Util. Code §§ 1701-

1736, 1756-1758. Finally, procedures in place allow intervenors to have an

administrative law judge address their request for compensation for their

contributions in CPUC proceedings. See Cal. Pub. Util. Code § 1804. Because the

Johnson Act withdraws state utility rate cases from federal jurisdiction when all

four prongs of the Act are satisfied, we affirm the district court’s dismissal of

CARE’s intervenor fees claim for lack of jurisdiction.


                                           4
      4. The district court correctly dismissed CARE’s § 1983 claim for PURPA

violations. PURPA provides a mechanism for parties to seek an administrative or

judicial remedy. See 16 U.S.C. § 824a-3(h)(2)(B). That PURPA provides fewer

remedies than § 1983 is evidence that Congress did not intend to permit a PURPA

claim to be brought under § 1983. See City of Rancho Palos Verdes v. Abrams,

544 U.S. 113, 121 (2005). Because PURPA has a comprehensive remedial

scheme, CARE is precluded from alleging a PURPA violation through § 1983.

      5. The district court properly dismissed CARE’s takings claim. Under

California law, CARE has no protected property interest in the profits that it

anticipated earning with a PURPA-compliant contract. See Yee v. Mobilehome

Park Rental Review Bd., 73 Cal. Rptr. 2d 227, 235 (Ct. App. 1998). Though

CARE tries to recharacterize its claim as one for complete loss of the use of its

property, CARE’s claim does not amount to the forfeiture of all economically

beneficial uses. See id. at 1421-22; cf. Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1019 (1992).

      AFFIRMED in part, REVERSED in part, and REMANDED. Parties to

bear their own costs.




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