                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             JUN 28 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


PACIFICORP,                                      No.   16-70245

              Petitioner,

 v.
                                                 MEMORANDUM*
U.S. DEPARTMENT OF ENERGY;
BONNEVILLE POWER
ADMINISTRATION,

              Respondents.


                     On Petition for Review of an Order of the
                        Bonneville Power Administration
                       Argued and Submitted June 11, 2019
                                Anchorage, Alaska

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      Petitioner, PacifiCorp, seeks review of the Bonneville Power Authority’s

(“BPA”) decision to retroactively bill customers given improper Short Distance




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Discounts (“SDDs”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We

deny the petition for review.1

      BPA argues that PacifiCorp’s petition was untimely and that the panel lacks

jurisdiction. The Northwest Power Act (“NWPA”) provides that suit challenging

BPA’s actions must be filed “within ninety days of the time such action or decision

is deemed final . . . or be barred.” 16 U.S.C. § 839(e)(5). The NWPA does not

define finality, so this court has applied “the more general doctrine of finality in

administrative law.” Puget Sound Energy, Inc. v. United States, 310 F.3d 613, 624

(9th Cir. 2002). The parties disagree as to when BPA’s retroactive billing decision

became final. The procedure BPA used in reaching its decision contributed to the

confusion, as BPA did not go through ordinary agency procedures in reaching its

decision. Nevertheless, we conclude that BPA’s October 28, 2015 letter to

PacifiCorp rejecting PacifiCorp’s objections to the retroactive billing was the final

action. Accordingly, PacifiCorp’s January 26, 2016 petition was timely and the

panel has jurisdiction.




      1
        BPA filed a motion for consideration of extra-record materials and judicial
notice (Dkt. 87). PacifiCorp filed a motion to file an overlength combined
response and cross-motion (Dkt. 94) and filed a motion to submit extra-record
material in support of its opposition to BPA’s motions (Dkt. 111) We DENY both
parties’ motions.
                                           2
      BPA’s decision to recoup SDDs to which PacifiCorp and other customers

were not entitled was not arbitrary or capricious. BPA has authority under the

NWPA to set rates and to retroactively bill its customers. Indus. Customers of Nw.

Utils. v. Bonneville Power Admin., 767 F.3d 912, 929 (9th Cir. 2014). BPA

considered the financial impact its decision might have on its customers, as well as

BPA’s own role in contributing to the billing errors that necessitated the retroactive

billing. BPA also considered whether its decision complied with its own policies

and the NWPA. Finally, BPA justified its decision as to the amount PacifiCorp

owed. In short, BPA’s decision reflects “a rational connection between the facts

found and the conclusions made” and so was “not arbitrary and capricious.” Or.

Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).

      PETITION DENIED.




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