In 2016, after several years of review, the PUC issued a certification allowing Sempra to begin constructing (in south Orange County) a power grid upgrade project designed to reduce or prevent blackouts. Part of the project involved updating an electric power substation located within the City of San Juan Capistrano on land owned by Sempra. The City participated in the PUC proceedings and opposed the project. The City could have contested the PUC certification in state court via procedures set forth in the California Public Utilities Code. But the City’s counsel chose instead to sue the PUC in federal court alleging violations of due process and collusion between PUC Commissioners and Sempra. The district court dismissed the City’s action for lack of standing (under the so-called political subdivision doctrine) and based on Eleventh Amendment immunity, and the City appealed.
Sempra retained Horvitz & Levy to retain an amicus brief on its behalf in the Ninth Circuit. Our amicus filings provided context and background about the project, as well as legal authorities describing how the City should have pursued its challenge (some of which the Court cited in its opinion). We also offered separate grounds for affirmance: (1) the PUC is not a “person” who may be sued for federal constitutional violations under 42 U.S.C. § 1983; and (2) the City is not a “person” who may sue for state constitutional violations.
The Ninth Circuit affirmed in a published opinion based on the standing and immunity grounds.