Metropolitan Edison Co v. Pennsylvania Public Utility Co , 767 F.3d 335 ( 2014 )


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  •                                 PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 13-4288
    _____________
    METROPOLITAN EDISON COMPANY;
    PENNSYLVANIA ELECTRIC COMPANY,
    Appellants
    v.
    PENNSYLVANIA PUBLIC UTILITY COMMISSION;
    ROBERT F. POWELSON; JOHN F. COLEMAN, JR.;
    PAMELA A. WITMER; *GLADYS M. BROWN; JAMES
    H. CAWLEY,
    In their Official Capacities as Commissioners of The
    Pennsylvania Public Utility Commission; OFFICE OF
    SMALL BUSINESS ADVOCATE; MET-ED INDUSTRIAL
    USERS GROUP; PENELEC INDUSTRIAL CUSTOMER
    ALLIANCE
    *(Pursuant to Fed. R. App. P. 43(c)(2))
    _______________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 5-11-cv-04474)
    District Judge: Hon. James Knoll Gardner
    _______________
    Argued
    April 8, 2014
    Before: AMBRO, JORDAN and ROTH, Circuit Judges.
    (Filed: September 16, 2014 )
    _______________
    Bradley A. Bingaman
    Morgan E. Parke
    FirstEnergy Corporation
    76 Main Street
    Akron, OH 44308
    John N. Estes, III
    Karis A. Gong
    Christopher R. Howland
    John L. Shepherd, Jr. [ARGUED]
    Skadden, Arps, Slate, Meagher & Flom
    1440 New York Avenue, NW
    Washington, DC 20005
    Glen R. Stuart
    Morgan, Lewis & Bockius
    1701 Market Street
    Philadelphia, PA 19103
    Counsel for Appellants
    2
    James P. Melia
    Robert F. Young
    Bohdan R. Pankiw
    Aspassia V. Staevska [ARGUED]
    Kenneth R. Stark
    Pennsylvania Public Utility Commission
    400 N. Street – 3rd Fl.
    Harrisburg, PA 17102
    Counsel for Appellees Pennsylvania Public
    Utility Commission, Robert F. Powelson,
    John F.Coleman, Jr., Pamela A. Witmer,
    Gladys M. Brown, James H. Cawley
    Kimberly M. Colonna
    Vasiliki Karandrikas
    Charis Mincavage
    McNees, Wallace & Nurick
    100 Pine Street
    P.O. Box 1166
    Harrisburg, PA 17108
    Counsel for Intervenors-Appellees
    _______________
    OPINION OF THE COURT
    _______________
    JORDAN, Circuit Judge.
    This case requires us to decide the preclusive effect of
    a state utility agency’s ruling, which has been affirmed by
    Pennsylvania’s Commonwealth Court and denied review by
    the Pennsylvania Supreme Court and the United States
    Supreme Court. Although the Appellants, electric utility
    3
    companies Metropolitan Edison Co. (“Met-Ed”) and
    Pennsylvania Electric Co. (“Penelec”) (collectively, the
    “Companies”), also, in effect, invite us to review the agency’s
    ruling on the merits, we need not and do not take that step.
    The Companies’ end-game appears to be to recoup
    from their customers more than $250 million in costs
    associated with “line losses” – i.e., energy that is lost when
    electricity travels over power lines – and interest related to
    those costs. For reasons we will explain, the Companies’ line
    loss costs had increased pursuant to a mandate by the Federal
    Energy Regulatory Commission (“FERC”), and the
    Companies’ ability to recover those costs depended on
    whether line-loss costs were classified as a cost of electricity
    generation or as a cost of electricity transmission on their
    customers’ utility bills.     In a prior proceeding, the
    Pennsylvania Public Utility Commission (“PUC”) rejected
    the Companies’ proposal to classify line-loss costs as a cost
    of transmission, thereby preventing the Companies from
    passing those costs through to their customers.             The
    Companies then pressed their arguments and lost in the
    Pennsylvania state courts and were denied review by the
    United States Supreme Court.
    The Companies now seek declaratory judgment and
    injunctive relief in federal court against the PUC and its
    Commissioners in their official capacities, which would
    effectively set aside the result of the earlier state proceeding.
    The United States District Court for the Eastern District of
    Pennsylvania held that the Companies’ unsuccessful pursuit
    of relief in the state proceeding precluded their effort to claim
    relief in federal court. In short, none of the Companies’
    claims survived application of the doctrine of issue
    4
    preclusion. We agree and will affirm the District Court’s
    order of dismissal.
    I.    BACKGROUND1
    To understand the issues raised in this appeal, it is
    helpful to first look at the legislative and administrative
    framework of electricity regulation and how that framework
    affects the parties before us.
    A.     The Federal Power Act and the Filed Rate
    Doctrine
    In 1935, Congress enacted the Federal Power Act
    (“FPA”), 16 U.S.C. § 791a et seq., which authorized “federal
    regulation of the expanding business of transmitting and
    selling electric power in interstate commerce.” New York v.
    FERC, 
    535 U.S. 1
    , 6 (2002) (internal quotation marks and
    citation omitted). As it stands today, the FPA grants FERC
    jurisdiction over “the transmission of electric energy in
    interstate commerce and the sale of such energy at wholesale
    in interstate commerce,” 16 U.S.C. § 824(a), and requires
    “[a]ll rates and charges … subject to the jurisdiction of the
    1
    Consistent with our standard of review for dismissal
    under Federal Rule of Civil Procedure 12(b)(6), the facts
    from the Companies’ amended complaint are taken as true.
    See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 
    551 U.S. 308
    , 322 (2007).       We also consider the documents
    incorporated by reference in the amended complaint. 
    Id. 5 Commission”
    to be “just and reasonable,” 
    id. § 824d(a).2
    The
    scope of that authority, broad though it is, is meant “to extend
    only to those matters which are not subject to regulation by
    the States.” 
    Id. § 824(a).
    The so-called “filed rate doctrine” is an application of
    the FPA’s statutory grant of authority to FERC. See Borough
    of Ellwood City v. FERC, 
    583 F.2d 642
    , 648 (3d Cir. 1978)
    (calling the filed rate doctrine “not so much a judicially
    created ‘doctrine’ as an application of explicit statutory
    language”). It may be understood for our purposes as the rule
    that “interstate power rates filed with FERC or fixed by
    FERC must be given binding effect by state utility
    commissions determining intrastate rates.” Nantahala Power
    & Light Co. v. Thornburg, 
    476 U.S. 953
    , 962 (1986). The
    filed rate doctrine thus “concern[s] the pre-emptive impact of
    federal jurisdiction … on state regulation.” Miss. Power &
    Light Co. v. Mississippi, 
    487 U.S. 354
    , 371 (1988). The
    doctrine of federal pre-emption, in turn, is rooted in the
    Supremacy Clause of the Constitution, which provides that
    federal law “shall be the supreme Law of the Land[,] … any
    Thing in the Constitution or Laws of any State to the Contrary
    notwithstanding.” U.S. Const. art. VI, cl. 2; see also
    
    Nantahala, 476 U.S. at 963
    (stating that the application of the
    filed rate doctrine to state tribunals is “a matter of enforcing
    the Supremacy Clause”).
    2
    The FPA originally vested authority in the Federal
    Power Commission, but that commission was reorganized
    and renamed FERC in 1977.           Department of Energy
    Organization Act, Pub. L. No. 95-91, § 204, 91 Stat. 565, 571
    (codified at 42 U.S.C. § 7134).
    6
    B.     The Market for Electricity
    Before the passage of the FPA, electricity was usually
    sold by vertically integrated electric utilities that controlled
    their own generators, transmission lines, and local distribution
    networks.3 New 
    York, 535 U.S. at 5
    ; see also ARIPPA v. Pa.
    Pub. Util. Comm’n, 
    792 A.2d 636
    , 642 (Pa. Commw. Ct.
    2002) (noting that, historically, electric utilities in
    Pennsylvania were vertically integrated). Services were
    typically “bundled” together, “meaning consumers paid a
    single price for generation, transmission, and distribution.”
    Midwest ISO Transmission Owners v. FERC, 
    373 F.3d 1361
    ,
    1363 (D.C. Cir. 2004); see also 66 Pa. Cons. Stat. Ann.
    § 2802(13) (stating that the same was the case in
    Pennsylvania). “Although there were some interconnections
    among utilities, most operated as separate, local monopolies
    subject to state or local regulation.” New 
    York, 535 U.S. at 5
    .
    Advances in technology since the enactment of the
    FPA have resulted in “[t]ransmission grids [that] are now
    largely interconnected, which means that ‘any electricity that
    3
    In contrast with a horizontally integrated monopoly,
    which relates to consolidation of market power “at the same
    level of market structure,” a vertically integrated monopoly
    consolidates “different levels of the market structure,” such as
    electricity generation, transmission, and distribution facilities
    and services. Oreck Corp. v. Whirlpool Corp., 
    579 F.2d 126
    ,
    131 (2d Cir. 1978); cf. Sitkin Smelting & Refining Co. v. FMC
    Corp., 
    575 F.2d 440
    , 446 (3d Cir. 1978) (distinguishing
    horizontal and vertical price-fixing).
    7
    enters the grid immediately becomes a part of a vast pool of
    energy that is constantly moving in interstate commerce.’”
    N.J. Bd. of Pub. Utils. v. FERC, 
    744 F.3d 74
    , 81 (3d Cir.
    2014) (quoting New 
    York, 535 U.S. at 7
    ).               “[T]he
    development of a national, interconnected grid has made it
    possible for a generator in one state to serve customers in
    another, thus opening the door to potential competition that
    did not previously exist.” 
    Id. Nevertheless, electric
    utilities
    maintained ownership of transmission lines, and, thus, “the
    ability to stifle competition from new generators by
    ‘refus[ing] to deliver energy produced by competitors or [by]
    deliver[ing] competitors’ power on terms and conditions less
    favorable than those they appl[ied] to their own
    transmissions.’” 
    Id. (alterations in
    original) (quoting New
    
    York, 535 U.S. at 8-9
    ). As a result, for many years,
    monopolistic tendencies still restrained competition in the
    market for electricity.
    In 1996, FERC issued Order No. 888, a landmark
    ruling aimed at encouraging competition and lowering
    electricity rates. See Promoting Wholesale Competition
    Through Open Access Non-Discriminatory Transmission
    Services by Public Utilities, 61 Fed. Reg. 21,540, 21,541
    (May 10, 1996) [hereinafter Order No. 888], aff’d in relevant
    part, Transmission Access Policy Study Grp. v. FERC, 
    225 F.3d 667
    (D.C. Cir. 2000), aff’d sub nom. New York v. FERC,
    
    535 U.S. 1
    (2002). Significantly for this case, that Order
    requires the “unbundling” of wholesale generation and
    wholesale transmission services. 
    Id. at 21,558,
    21,571,
    21,577-78. Each electric utility must apply the same rate for
    wholesale transmission services to itself and others so as to
    provide open access to transmission services. 
    Id. at 21,541.
    Although FERC noted that unbundling retail services would
    8
    also be helpful to encouraging competition, Order No. 888
    only required the unbundling of wholesale transmission from
    wholesale generation. 
    Id. at 21,577.
    That same year, Pennsylvania enacted the Electricity
    Generation Customer Choice and Competition Act (the
    “Electric Competition Act”), 66 Pa. Cons. Stat. Ann. § 2801
    et seq., which deregulated the business of electricity
    generation within the Commonwealth.                  The Electric
    Competition Act was designed to promote competition in the
    electricity market and lower retail rates for electric energy.
    See 66 Pa. Cons. Stat. Ann. § 2802(4), (7) (noting the
    relatively high rates for electricity in Pennsylvania and the
    importance of transitioning to “greater competition in the
    electricity generation market”); see also 
    ARIPPA, 792 A.2d at 642
    (stating the rationale behind the Electric Competition
    Act). The Act “requires electric utilities to unbundle their
    rates and services and to provide open access over their
    transmission and distribution systems to allow competitive
    suppliers to generate and sell electricity directly to consumers
    in this Commonwealth.” 66 Pa. Cons. Stat. Ann. § 2802(14).
    Under the law, customers in Pennsylvania can purchase
    generation services directly from licensed “electric generation
    suppliers” rather than just from electric utilities. 
    Id. Electric utilities,
    however, continue to provide the transmission and
    distribution of electricity, and “[i]f consumers d[o] not choose
    to or [a]re unable to purchase power from another supplier,
    the local utility [i]s still required to provide electricity to them
    as the Provider of Last Resort.”4 
    ARIPPA, 792 A.2d at 642
    (citing 66 Pa. Cons. Stat. Ann. § 2802(16)).
    4
    The Electric Competition Act calls electric utilities
    “electric distribution companies” since they do not
    9
    As a result of introducing competition into the market
    for electricity generation services, the Electric Competition
    Act left electric utilities with “transition,” or “stranded,”
    costs, which are defined as “known and measurable”
    generation-related costs that “traditionally would be
    recoverable under a regulated environment but which may not
    be recoverable in a competitive electric generation market
    and which the [PUC] determines will remain following
    mitigation by the electric utility.”5 66 Pa. Cons. Stat. Ann.
    § 2803 (defining “[t]ransition or stranded costs”). In other
    words, stranded costs are costs that were incurred while an
    electric utility developed as a generator and supplier of power
    within a regulated market but that will no longer be
    recoverable in a more competitive market. Indianapolis
    Power & Light Co. v. Pa. Pub. Util. Comm’n, 
    711 A.2d 1071
    ,
    1074 (Pa. Commw. Ct. 1998); see also Roger A. Greenbaum,
    Annotation, Recovery of “Stranded Costs” by Utilities, 
    80 A.L.R. 6th 1
    (2012) (“‘Stranded costs’ represent that portion
    necessarily provide customers with direct generation services
    anymore. See 66 Pa. Cons. Stat. § 2803 (defining “[e]lectric
    distribution company”). For ease of reference, we will
    continue to refer to them as “local” or “electric” utilities.
    5
    Under the Electric Competition Act, electric utilities
    have a “duty to mitigate generation-related transition or
    stranded costs to the extent practicable,” which may include
    efforts such as accelerating the depreciation and amortization
    of existing generation assets, minimizing new capital
    spending on generation assets, and maximizing market
    revenues from existing generation assets. 66 Pa. Cons. Stat.
    Ann. § 2808(c)(4).
    10
    of … a utility’s generation assets not yet recovered through
    [regulated rates] that has become unrecoverable in a
    deregulated environment.”). For example, stranded costs may
    include a long-term investment in a generation facility that is
    no longer used due to deregulation of the market or other
    transition costs like the cost of retraining employees. 66 Pa.
    Cons. Stat. Ann. § 2803; see also PECO Energy Co. v.
    Commonwealth, 
    919 A.2d 188
    , 189 n.2 (Pa. 2007) (“Stranded
    costs … often [involve] assets with high construction costs
    which were due to be recuperated through the rate guaranteed
    under the previous monopoly system and which now will
    operate at a loss.”); Indianapolis Power & 
    Light, 711 A.2d at 1074
    n.4 (explaining the main categories of stranded costs).
    The Electric Competition Act allows electric utilities to
    recover certain stranded costs through a “charge applied to
    the bill of every customer accessing the transmission or
    distribution network,” separate from the charge for the actual
    amount of electricity consumed. 
    ARIPPA, 792 A.2d at 643
    (internal quotation marks omitted) (citing 66 Pa. Cons. Stat.
    Ann. §§ 2803, 2806(c), 2808).
    To ease transition to a competitive market, the Electric
    Competition Act required electric utilities in the
    Commonwealth to submit “restructuring plans,” including
    proposed rate schedules and plans for the recovery of
    stranded costs, for approval by the PUC. 66 Pa. Cons. Stat.
    § 2806(d)-(f). The Act outlined some restructuring standards,
    such as “caps” on service rates for certain periods of time in
    exchange for electric utilities being able to recover their
    stranded costs. 
    Id. § 2804(4).
    The rate caps allowed
    customers to obtain electricity at the capped rates, which put
    downward pressure on any market rate above that level. Cf.
    
    ARIPPA, 792 A.2d at 643
    (noting that customers would buy
    11
    from an electric utility as the provider of last resort if market
    rates rose above the capped rates). Electric utilities could
    seek approval from the PUC for exceptions to the rate-cap
    standards. 66 Pa. Cons. Stat. Ann. § 2804(4)(iii).
    C.     The Companies’ Settlement Agreement
    The Companies provide electricity and associated
    services to customers in their prescribed territories within
    Pennsylvania.       Pursuant to passage of the Electric
    Competition Act, they filed restructuring plans with the PUC
    in 1997. In 1998, they jointly and voluntarily entered into an
    omnibus settlement agreement (the “Settlement Agreement”)
    that resolved disputes related to their restructuring plans and
    to pending litigation in the United States District Court for the
    Eastern District of Pennsylvania. Of importance in the
    present matter, the Companies agreed to caps on
    “Transmission and Distribution (T&D) Charges” through
    December 31, 2004, as well as caps on “Generation rates”
    through December 31, 2010. (J.A. at 115.) Compared to the
    standard time-frames for rate caps under the Electric
    Competition Act, the periods for those agreed-upon rate caps
    represented extensions of three-and-a-half years on the
    transmission rate cap and five years on the generation rate
    cap. 66 Pa. Cons. Stat. Ann. § 2804(4)(i), (ii). In exchange
    for accepting those extensions, the Companies were given
    additional time to recover certain stranded costs from their
    customers. The PUC entered a final order approving the
    Settlement Agreement in October 1998.6
    6
    Upon a challenge filed by a Pennsylvania state
    representative, the Pennsylvania Commonwealth Court
    upheld the PUC’s final order approving the terms of the
    12
    D.     The Companies’ Line-Loss Costs
    The Companies’ distribution facilities are connected to
    an interstate transmission grid that is overseen by PJM
    Interconnection, LLC (“PJM”).            PJM is a regional
    transmission organization, a voluntary association “to which
    transmission providers … transfer operational control of their
    facilities for the purpose of efficient coordination” of the
    wholesale electricity market. Morgan Stanley Capital Grp.
    Inc. v. Pub. Util. Dist. No. 1., 
    554 U.S. 527
    , 536 (2008).
    Among other things, PJM ensures that there is a sufficient
    amount of electricity in its regional transmission system,
    which reaches the District of Columbia and thirteen Mid-
    Atlantic and Midwest states, including Pennsylvania. N.J.
    Bd. of Pub. 
    Utils., 744 F.3d at 79
    , 82. FERC regulates the
    wholesale rates that PJM charges the Companies, and those
    rates are set forth in PJM’s Open Access Transmission Tariff
    (“PJM’s Tariff”), which is on file with FERC. Among the
    costs that the Companies are billed by PJM are the costs for
    line losses.7 As noted earlier, line losses represent the energy
    Settlement Agreement. George v. Pa. Pub. Util. Comm’n,
    
    735 A.2d 1282
    (Pa. Commw. Ct. 1999).
    7
    The parties refer to lines losses interchangeably as
    “line losses,” “marginal transmission line losses,” “marginal
    transmission losses,” and “generation line losses.” (See, e.g.,
    Appellants’ Opening Br. at 32, 35; Br. of PUC and PUC
    Commissioners at 9.) Because the dispute underlying this
    case relates to whether the cost of those losses should be
    billed to the Companies’ customers as a cost of transmission
    or, instead, a cost of generation, we will use the neutral term
    “line losses” to refer to such loss of energy.
    13
    that is lost when electricity travels over power lines. PJM
    bills the Companies for line losses as a discrete line item
    within the charge for “transmission” service. (J.A. at 41-42
    (Amended Complaint); 
    id. at 481,
    483, 486, 488, 191-92
    (PJM’s Tariff).)
    Until June 30, 2007, PJM calculated and billed for line
    losses using what is called the “average loss” methodology.
    See Atl. City Elec. Co. v. PJM Interconnection, LLC (Atlantic
    City I), 115 FERC ¶ 61,132, p. 61,473 (2006), reh’g denied,
    117 FERC ¶ 61,169. As the name suggests, PJM charged its
    customers for line losses “equal to the average loss cost” –
    PJM recovered line-loss costs by allocating the cost to all of
    its customers equally. 
    Id. at 61,473.
    As a result, line-loss
    costs did not depend on the distance between the point of
    electricity generation and the point of electricity delivery. 
    Id. at 61,473-74.
    On March 2, 2006, several electric utilities (but not the
    Companies) filed a complaint with FERC alleging that, under
    an agreement appended to PJM’s Tariff, PJM was required to
    switch from the average loss methodology to a “marginal
    loss” methodology to calculate the cost of line losses. 
    Id. at 61,473.
    “Under the marginal loss method, the effect of losses
    on the marginal cost of delivering energy is factored into the
    energy price … at each location.” 
    Id. at 61,474.
    Thus,
    “[o]ther things being equal, customers near generation centers
    pay prices that reflect smaller marginal loss costs while
    customers far from generation centers pay prices that reflect
    higher marginal loss costs.” Id.; see also Sacramento Mun.
    Util. Dist. v. FERC, 
    616 F.3d 520
    , 524 (D.C. Cir. 2010)
    (describing the marginal loss methodology as a rate structure
    in which “prices are designed to reflect the least-cost of
    14
    meeting an incremental [energy] demand at each location on
    the grid, and thus prices vary based on location and time”).
    After issuing notice of the complaint, FERC solicited
    comments from numerous electric utilities and customer
    coalitions. Atlantic City I, 115 FERC at 61,474-77.
    In an order issued in 2006, FERC held that the
    agreement appended to PJM’s Tariff required PJM to use the
    marginal loss methodology once it was technologically
    feasible to do so and that PJM had conceded that it possessed
    the necessary technology. 
    Id. at 61,477.
    FERC also noted
    that using marginal loss pricing would result in cost savings
    to PJM and efficiencies in resource allocation. 
    Id. at 61,474,
    61,477-78. Accordingly, FERC required PJM to switch from
    using the average loss methodology to the marginal loss
    methodology of calculating line losses. 
    Id. at 61,478.
    The
    Companies did not participate in the comments process
    before FERC or challenge the resulting order. 
    Id. at 61,474-
    77.
    A few months later, FERC denied rehearing requests
    but granted a request to delay implementation of the marginal
    loss methodology to June 2007. Atl. City Elec. Co. v. PJM
    Interconnection, LLC (Atlantic City II), 117 FERC ¶ 61,169,
    pp. 61,858, 61,861 (2006). The Companies did not directly
    challenge that order either; in fact, they assert that “no one
    did.”      (Appellants’ Opening Br. at 36.)              PJM’s
    implementation of FERC’s orders to change the calculation of
    line-loss costs, which orders we will refer to collectively as
    the Atlantic City decision, decreased the line-loss costs for
    some electric utilities. However, it increased the line-loss
    costs that PJM billed to the Companies.
    15
    II.   PROCEDURAL HISTORY
    Not surprisingly, the Companies eventually sought to
    recover their increased line-loss costs by asking the PUC to
    allow them to pass the expense through to their customers. A
    “transmission rider,” which was approved by the PUC in
    2006 after the Companies’ transmission rate cap had lapsed,
    allowed the Companies to pass through various proposed
    transmission costs to their customers and to engage in an
    annual updating and reconciliation process in order to recover
    projected transmission costs and adjust for the over- or under-
    collection of past transmission costs. Pa. Pub. Util. Comm’n
    v. Metro. Edison Co., Nos. R-00061366C0001 et al., 
    2007 WL 496359
    (Pa. PUC Jan. 11, 2007), aff’d sub nom. Met-Ed
    Indus. Users Grp. v. Pa. Pub. Util. Comm’n, 
    960 A.2d 189
    (Pa. Commw. Ct. 2008). Under that annual process, the
    Companies proposed for the first time in April 2008 to charge
    their customers for the higher line-loss costs that the
    Companies incurred after PJM’s implementation of the
    Atlantic City decision. Because the generation rate cap under
    the Settlement Agreement was still in effect at that time, the
    Companies could only recover the line-loss costs if granted
    approval to bill them to customers as a cost of transmission.
    A.      The PUC Order
    Pennsylvania’s Office of Consumer Advocate and
    Office of Small Business Advocate8 and two groups known as
    8
    The briefing refers to the “Office of Small Business
    Advocate.” (See, e.g., Br. of PUC and PUC Commissioners
    at 9.)   We understand that to be an agency of the
    Commonwealth of Pennsylvania.
    16
    the Met-Ed Industrial Users Group and the Penelec Industrial
    Users Alliance (collectively, the “Customer Groups”) – all
    representing the interests of various customers – filed
    complaints before the PUC to contest the Companies’
    proposed rate increase. They argued that line-loss costs
    should properly be viewed as a generation cost, not a
    transmission cost, and, thus, could not be increased due to the
    Settlement Agreement’s generation rate cap in effect through
    the end of 2010. The Customer Groups’ complaints were
    consolidated for a hearing before a PUC administrative law
    judge (“ALJ”).9 An evidentiary hearing was held after the
    Companies and Customer Groups completed briefing.
    The ALJ recommended dismissing the Customer
    Groups’ complaints and approving the Companies’ requests
    to recover line-loss costs as a transmission cost. In re Pa.
    Elec. Co. Transmission Serv. Charge, Nos. M-2008-2036188
    et al., 2009 Pa. PUC LEXIS 2328 (July 24, 2009). The
    Customer Groups filed exceptions to the ALJ’s
    recommendation, triggering review by the Commissioners of
    the PUC. See 66 Pa. Cons. Stat. Ann. § 332(h) (providing
    procedure for excepting to an ALJ’s recommendation).
    The Customer Groups argued to the PUC that line-loss
    costs should not be billed to them as transmission costs
    because (1) line losses have historically been recognized as
    part of the cost of electricity generation; (2) how PJM bills
    9
    Before consolidation, the PUC had instituted an
    investigation of Met-Ed’s proposed transmission charges and
    conditionally approved Penelec’s proposed charges, pending
    resolution of the complaints.
    17
    the Companies for line losses is irrelevant to whether those
    losses should be billed to the Companies’ customers as a
    generation or transmission cost; and (3) the Companies
    themselves have historically treated line-loss costs as
    generation costs.       The Companies responded by (1)
    emphasizing how line losses are related to transmission, i.e.,
    as electricity is transmitted over longer distances, line losses
    increase; (2) pointing to the FERC-approved definition of
    “transmission losses” in PJM’s Tariff;10 and (3) arguing that
    PJM bills the Companies for line losses as a cost of
    transmission service. The Companies also claimed that they
    did not initially seek to recover line-loss costs as a
    transmission cost because, at the time, FERC had not yet
    mandated the use of marginal loss pricing.
    The PUC in a split decision entered March 3, 2010 (the
    “PUC Order”) ultimately rejected all of the Companies’
    arguments and agreed with the Customer Groups. The PUC
    did not adopt the ALJ’s recommendation that line losses be
    considered a transmission cost, concluding instead that the
    Companies’ line losses were generation costs subject to the
    Settlement Agreement’s generation rate cap that was in effect
    through 2010. As the merits of the PUC Order are not before
    us, suffice it to say that the PUC thoroughly reviewed all of
    the Companies and the Customer Groups’ arguments. By a
    three-to-two vote of the Commissioners, the agency required
    10
    As defined in PJM’s Tariff, “[t]ransmission losses
    refer to the loss of energy in the transmission of electricity
    from generation resources to load, which is dissipated as heat
    through transformers, transmission lines and other
    transmission facilities.” (J.A. at 481.)
    18
    the Companies to file tariff supplements consistent with the
    majority’s decision.11
    B.     Review of the PUC Order
    The Companies petitioned the Pennsylvania
    Commonwealth Court for review of the PUC Order to the
    extent it denied their request to classify line-loss costs as a
    transmission cost.12 In June 2011, the Commonwealth Court,
    sitting en banc, affirmed that aspect of the PUC Order in a
    unanimous opinion and order. The Commonwealth Court
    11
    Commissioner Powelson filed a dissenting
    statement, saying that the Companies’ line-loss costs were a
    cost of transmission because, inter alia, they were not
    expressly included as a generation cost in the Settlement
    Agreement, and including them in transmission costs would
    be consistent with FERC’s view of line losses. However, he
    was careful to note that “[t]his is not to say that … line losses
    cannot be included within generation rates,” and he agreed
    with the PUC majority that FERC’s treatment of line losses
    “certainly is not controlling on whether the [PUC] should
    allow for the recovery of such losses in retail rates.” (J.A. at
    165.)
    12
    The Commonwealth Court consolidated the
    Companies’ petition with a cross-petition for review filed by
    Pennsylvania’s Office of Small Business Advocate that
    sought review of the PUC Order to the extent it allowed the
    Companies to recover certain interest charges.            The
    Commonwealth Court vacated the PUC Order with respect to
    that issue, which is immaterial to this appeal.
    19
    reviewed whether the PUC’s findings of fact – “including the
    [PUC’s] finding that line loss costs were and are being
    recovered in [the] Companies’ generation rates” – were
    supported by substantial evidence. (J.A. at 176.) The court
    also reviewed whether the PUC erred as a matter of law in
    concluding that line-loss costs are a generation cost. It found
    no reversible error in either regard.
    Important for purposes of this appeal, the
    Commonwealth Court addressed the Companies’ argument
    that classifying line-loss costs as a generation cost for
    purposes of retail billing “violates the Filed Rate Doctrine and
    is inconsistent with … FERC’s characterization of line
    losses.” (J.A. at 183.) The Companies had cited FERC
    decisions that allegedly treated line losses as a cost of
    transmission, but the Commonwealth Court held that those
    decisions “do not unambiguously state that such costs are
    transmission-related.” (J.A. at 188.) As the court saw it,
    several of those FERC decisions included language tying line
    losses to the costs of generating electricity. The court thus
    concluded that FERC’s decisions did not create any “direct
    conflict” with the classification of the Companies’ line-loss
    costs as generation costs. (J.A. at 189.)
    Furthermore, the Commonwealth Court held that, for
    two reasons, there was no impermissible “trapping” of the
    Companies’ costs. Cost trapping, in this context, refers to a
    state “bar[ring] regulated utilities from passing through to
    retail consumers FERC-mandated wholesale rates.” Miss.
    Power & 
    Light, 487 U.S. at 372
    . First, the court stated that
    the Companies’ trapping argument was “premised on the
    [rejected] assumption that line loss costs are transmission-
    related.” (J.A. at 191.) Second, it determined that any
    20
    alleged trapping was resolved by the Settlement Agreement
    “because [the] Companies voluntarily extended th[e]
    [generation] rate cap through December 31, 2010 … in
    exchange for recovering stranded costs,” thus assuming the
    risk that any increased costs would not be recoverable. (Id.)
    The Commonwealth Court therefore affirmed the PUC Order
    in relevant part, holding that the Order was not inconsistent
    with FERC precedent, did not run afoul of the filed rate
    doctrine, and did not improperly trap the Companies’ costs.
    The Pennsylvania Supreme Court subsequently denied
    the Companies’ petition for allowance of appeal, and the
    United States Supreme Court denied the Companies’ petition
    for a writ of certiorari. The Commonwealth Court’s decision
    (the “State Decision”) affirming the classification of line-loss
    costs for retail billing purposes thus became final.
    C.     The Federal Action
    On July 13, 2011, while their petition for review
    before the Pennsylvania Supreme Court was pending, the
    Companies filed the present action in the District Court,
    naming as defendants the PUC and PUC Commissioners
    Robert F. Powelson, John F. Coleman, Jr., Pamela A. Witmer,
    Wayne E. Gardner,13 and James H. Cawley in their official
    13
    Gardner has since been replaced as a defendant,
    pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
    Procedure, with PUC Commissioner Gladys M. Brown. See
    Fed. R. App. P. 43(c)(2) (providing that, if an officeholder
    who is sued in his or her official capacity ceases to hold
    office, the officeholder’s successor is automatically
    substituted as a party).
    21
    capacities (collectively, the “PUC Defendants”).            As
    originally filed, the suit claimed that the PUC Defendants had
    violated the FPA and the filed rate doctrine, as well as the
    Companies’ property interests under the Fourteenth
    Amendment.         The Companies later filed an amended
    complaint to add a claim that the Electric Competition Act is
    unconstitutional as applied. Pennsylvania’s Office of Small
    Business Advocate, the Met-Ed Industrial Users Group, and
    the Penelec Industrial Users Alliance filed motions to
    intervene, which the District Court granted, permitting them
    “to intervene as defendants.” (J.A. at 5 (Dkt. 41).)
    The gravamen of the Companies’ amended complaint
    is that the outcome of the state proceeding resulted in
    unlawful trapping of the line-loss costs that PJM charged
    them pursuant to FERC-approved tariffs. The Companies
    ultimately seek to recover the line-loss costs they incurred
    between 2007 and 2010.14 Those disputed costs, including
    interest, allegedly total more than $250 million.15
    Count I of the Companies’ amended complaint asserts
    that the alleged cost-trapping violates the FPA and the filed
    rate doctrine. Count II alleges that the PUC Order “imposes a
    confiscatory rate on the Companies” by depriving them of a
    14
    There is no dispute that the State Decision leaves
    them free to recover line-loss costs after the Settlement
    Agreement’s generation rate cap lapsed at the end of 2010.
    15
    According to the Companies’ amended complaint in
    this action, the amount that they seek to recover exceeds their
    combined net income in 2009 and 2010.
    22
    property interest in recovering line-loss costs and, thus,
    violates the Due Process Clause of the Fourteenth
    Amendment and, by extension, the FPA’s requirement that
    rates be just and reasonable. (J.A. at 50.) Count III claims
    that the Electric Competition Act is unconstitutional as
    applied because it is pre-empted by federal law. In sum, the
    Companies allege that, by barring them from recovering the
    line-loss costs that PJM charged them under a FERC-
    mandated methodology, the PUC Order violates the filed rate
    doctrine, the Supremacy Clause of the Constitution, the
    Fourteenth Amendment, and the FPA, and, to the extent the
    PUC and the Commonwealth Court relied on the Electric
    Competition Act, that statute, as applied, is pre-empted by
    federal law.
    The PUC Defendants moved to dismiss the amended
    complaint,16 arguing that the Companies’ claims are barred by
    issue preclusion, claim preclusion, abstention principles, and
    judicial estoppel.17     With respect to preclusion, the
    16
    The District Court initially denied the motion to
    dismiss the amended complaint without prejudice to renew,
    pending resolution of the certiorari petition in the United
    States Supreme Court from the state proceeding. The PUC
    Defendants renewed their motion to dismiss after the
    Supreme Court denied certiorari.
    17
    The PUC Defendants also raised the Full Faith and
    Credit Statute, 28 U.S.C. § 1738, as a separate ground for
    dismissal in the District Court. However, as we will explain,
    that statute directs us to Pennsylvania’s law on preclusion.
    So, like the District Court, we will not examine the Full Faith
    and Credit Statute as a separate basis for dismissal.
    23
    Companies responded with three arguments for why their
    claims are not barred by preclusion principles: the state
    proceeding was legislative, rather than judicial, in nature; the
    Commonwealth Court reviewed the PUC’s ruling under the
    wrong standard; and the PUC Order was facially pre-empted
    by FERC’s exclusive jurisdiction.
    After hearing oral argument on the renewed motion to
    dismiss, the District Court dismissed all of the Companies’
    claims on the basis of issue preclusion. The Companies then
    timely filed this appeal.18
    18
    The Met-Ed Industrial Users Group and Penelec
    Industrial Users Alliance filed a brief before us as
    Intervenors-Appellees. In it, they adopt and join all of the
    PUC Defendants’ arguments and emphasize that “the []PUC
    appropriately enforced the Companies’ obligation under the
    … Settlement Agreement.” (Intervenors-Appellees’ Br. at
    14-15.) For simplicity, we only cite to the PUC Defendants’
    briefing, and when we refer to the PUC Defendants in the text
    from this point on, that reference includes the Met-Ed
    Industrial Users Group and the Penelec Industrial Users
    Alliance as well. Pennsylvania’s Office of Small Business
    Advocate did not file a brief on appeal.
    24
    III.   DISCUSSION19
    At the outset, it is worth emphasizing what is and is not at
    issue here. The question before us is whether the State
    Decision – i.e., the Commonwealth Court’s decision that the
    PUC’s classification of line-loss costs did not violate the filed
    rate doctrine or impermissibly trap costs – bars litigation of
    the claims in this federal action. It is not whether the PUC
    correctly classified the Companies’ line-loss costs as
    generation costs in the first instance.
    19
    The District Court had jurisdiction under 28 U.S.C.
    §§ 1331 and 1343(a)(3). The Companies argue that the Court
    also had jurisdiction under 16 U.S.C. § 825p, which provides
    federal district courts with jurisdiction to “enforce any
    liability or duty created by, or to enjoin any violation of [the
    FPA] or any rule, regulation, or order thereunder.” We have
    jurisdiction pursuant to 28 U.S.C. § 1291. We exercise
    plenary review of a district court’s order of dismissal under
    Federal Rule of Civil Procedure 12(b)(6), Atkinson v.
    Lafayette Coll., 
    460 F.3d 447
    , 451 (3d Cir. 2006), including
    the application of issue preclusion, Jean Alexander
    Cosmetics, Inc. v. L’Oreal USA, Inc., 
    458 F.3d 244
    , 248-49
    (3d Cir. 2006). “Under Rule 12(b)(6), a motion to dismiss
    may be granted only if, accepting the well-pleaded allegations
    in the complaint as true and viewing them in the light most
    favorable to the plaintiff, a court concludes that those
    allegations ‘could not raise a claim of entitlement to relief.’”
    Simon v. FIA Card Servs., N.A., 
    732 F.3d 259
    , 264 (3d Cir.
    2013) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 558
    (2007)).
    25
    The Companies offer several arguments for denying
    the State Decision any preclusive effect, based on what they
    call exceptions to the application of the Full Faith and Credit
    Statute, 28 U.S.C. § 1738. (Appellants’ Opening Br. at 29-
    44.) They also argue that the District Court misinterpreted
    the reach of the State Decision to preclude all of their claims.
    The PUC Defendants respond that the principles of issue
    preclusion properly bar the present case and, in the
    alternative, that dismissal would be proper under claim
    preclusion, abstention principles, and judicial estoppel.
    A.     Issue Preclusion
    The District Court viewed the State Decision as having
    preclusive effect because the Commonwealth Court addressed
    the Companies’ arguments that the PUC Order violated the
    filed rate doctrine and impermissibly trapped costs. Under
    the doctrine of issue preclusion, also referred to as collateral
    estoppel, “once a court has decided an issue of fact or law
    necessary to its judgment, that decision may preclude
    relitigation of the issue in a suit on a different cause of action
    involving a party to the first case.” Allen v. McCurry, 
    449 U.S. 90
    , 94 (1980). Federal courts give preclusive effect to
    issues decided by state courts, to “not only reduce
    unnecessary litigation and foster reliance on adjudication, but
    also promote the comity between state and federal courts that
    has been recognized as a bulwark of the federal system.” 
    Id. at 95-96.
    The preclusive effect of a state court judgment in a
    subsequent federal lawsuit is determined by the Full Faith and
    Credit Statute, which provides, in relevant part, that state
    judicial proceedings “shall have the same full faith and credit
    in every court within the United States … as they have by law
    or usage in the courts of such State … from which they are
    26
    taken.” 28 U.S.C. § 1738. That statute has been interpreted
    by the Supreme Court to require a federal court to look to
    state law to determine the preclusive effect of a prior state
    judgment. Marrese v. Am. Acad. of Orthopaedic Surgeons,
    
    470 U.S. 373
    , 380 (1985).
    Here, there is no dispute that Pennsylvania’s
    preclusion law applies. The Pennsylvania Supreme Court has
    established a five-prong test providing that issue preclusion
    will apply when:
    (1) the issue decided in the prior case is
    identical to the one presented in the later action;
    (2) there was a final adjudication on the merits;
    (3) the party against whom the plea is asserted
    was a party or in privity with a party in the prior
    case; (4) the party … against whom the doctrine
    is asserted had a full and fair opportunity to
    litigate the issue in the prior proceeding; and (5)
    the determination in the prior proceeding was
    essential to the judgment.[20]
    Office of Disciplinary Counsel v. Kiesewetter, 
    889 A.2d 47
    ,
    50-51 (Pa. 2005).
    20
    Some earlier Pennsylvania cases apply the same
    issue preclusion test but without the fifth prong regarding
    whether the prior determination was essential to the
    judgment. E.g., Shaffer v. Smith, 
    673 A.2d 872
    , 874 (Pa.
    1996).
    27
    As noted before, Count I of the amended complaint
    alleges that the PUC Order trapped the Companies’ line
    losses in violation of the filed rate doctrine and, by extension,
    in violation of the FPA and the Supremacy Clause of the
    Constitution. The Companies do not appear to dispute that
    Count I meets all five of the requirements for issue preclusion
    under Pennsylvania law. That is wise, since (1) the
    Commonwealth Court squarely decided that the PUC Order
    did not violate the filed rate doctrine or impermissibly trap
    costs; (2) the court’s decision was on the merits and final after
    both the Pennsylvania Supreme Court and the United States
    Supreme Court denied petitions to review the State
    Decision;21 (3) the Companies were parties to the underlying
    state proceeding; (4) the Companies were given the
    opportunity to fully and fairly litigate the issue, as they were
    represented by counsel, filed multiple briefs, pointed to
    evidence from the PUC proceeding, and presented oral
    argument to the en banc Commonwealth Court;22 and (5) the
    21
    The Companies argue that the State Decision was a
    legislative action rather than an adjudication. We will
    address that argument when discussing the exceptions that
    they raise to the application of issue preclusion.
    22
    “A party has been denied a full and fair opportunity
    to litigate only when state procedures fall below the minimum
    requirements of due process as defined by federal law.”
    Bradley v. Pittsburgh Bd. of Educ., 
    913 F.2d 1064
    , 1074 (3d
    Cir. 1990). Those minimum requirements may, depending on
    circumstances, include “the right to be represented by
    counsel, … present testimony and documentary evidence, and
    … subpoena and cross-examine witnesses.” Rue v. K-Mart
    Corp., 
    713 A.2d 82
    , 85 (Pa. 1998); see also Rogin v.
    28
    determination was essential to the judgment because, had the
    Commonwealth Court decided that there was a violation of
    the filed rate doctrine, it could not have affirmed the PUC
    Order as it did. Absent some exception, Count I is therefore
    barred by issue preclusion.
    According to the Companies, however, their claims in
    Counts II and III – which allege a confiscatory taking and
    federal pre-emption of the Electric Competition Act,
    respectively – do not meet the five-prong issue preclusion test
    under Pennsylvania law. They argue that those claims raise
    new issues that were not decided in the state proceedings and
    that the Companies were not given a full and fair opportunity
    to litigate them. The PUC Defendants argue that the
    Companies failed to object to the application of issue
    preclusion to Counts II and III before the District Court,
    thereby waiving their arguments against preclusion of those
    two counts. The PUC Defendants further submit that Counts
    II and III, like Count I, require adjudication of the very issues
    that were fully litigated and decided in the state proceedings.
    We consider the waiver argument first.
    Bensalem Twp., 
    616 F.2d 680
    , 694 (3d Cir. 1980) (noting that
    elements of procedural due process include whether there is
    notice, a neutral arbiter, an opportunity for oral argument, an
    opportunity to present evidence, an opportunity to cross-
    examine witnesses or respond to written evidence, and an
    explanatory decision based on the record).
    29
    1.     Waiver
    “[F]ailure to raise an issue in the district court
    constitutes a waiver of the argument.” Gass v. V.I. Tel.
    Corp., 
    311 F.3d 237
    , 246 (3d Cir. 2002) (internal quotation
    marks and citation omitted). “We only depart from this rule
    when manifest injustice would result from a failure to
    consider a novel issue.” 
    Id. (internal quotation
    marks and
    citation omitted). The Companies do not attempt to show that
    manifest injustice would result from a failure to consider their
    arguments regarding Counts II and III. Rather, they claim
    that there is no waiver because they “provided [the PUC
    Defendants] with fair notice and the grounds on which Counts
    II and III separately rested.” (Appellants’ Reply Br. at 24
    (citing Phillips v. Cnty. of Allegheney, 
    515 F.3d 224
    , 233-35
    (3d Cir. 2008)).) That argument misses the mark because,
    even if it were factually accurate, it relates to pleading
    requirements. It does not show that the Companies preserved
    their arguments for appeal by raising them in the District
    Court, and indeed they did not.
    The Companies claim that they did not waive their
    arguments because their “[b]rief … explain[ed] why Counts
    II and III were not commingled with Count I.” (Appellants’
    Reply Br. at 25.) But that argument is unavailing because the
    brief that they cite to is the opening brief before us, not
    anything that they filed in the District Court.23 The
    23
    The opening brief before us is the first time the
    Companies raised arguments regarding how issue preclusion
    might apply differently to Counts II and III. As the PUC
    Defendants point out, the Companies did not even identify
    30
    Companies also argue that they did not litigate the merits of
    Count III in the state proceeding, but that is an argument that
    Count III is not precluded; it is not a justification for failing to
    raise arguments specific to Count III in response to the
    motion to dismiss in the District Court.
    The only colorable argument that the Companies make
    to rebut waiver is that the PUC and its Commissioners, in
    their motion to dismiss, “did not argue [in the first place] that
    Count II was barred by issue preclusion.” (Appellants’ Reply
    Br. at 25.) In that regard, the Companies are correct. As a
    consequence, we are not prepared to say that they were
    required, at the risk of waiver, to argue that issue preclusion
    does not apply to Count II. We will not consider the
    Companies’ issue preclusion arguments with respect to Count
    II waived. The PUC and its Commissioners did, however,
    argue in the District Court that issue preclusion bars Counts I
    and III. As the Companies did not attempt to distinguish
    Count III in the District Court in response to the issue
    preclusion arguments, they waived at least their arguments as
    to that count.24
    2.     Issue preclusion analysis
    In any event, as the PUC Defendants argue, Counts II
    and III of the Companies’ amended complaint are both barred
    by issue preclusion, absent any exceptions that would
    those arguments in their Concise Summary of the Case filed
    before us.
    24
    For the reasons already discussed, issue preclusion
    does apply to Count I, absent any applicable exception.
    31
    preserve them. Count II alleges that the PUC Order “imposes
    a confiscatory rate on the Companies in violation of the
    Constitution because it deprives the Companies of their
    property right to recover their federally-approved costs of
    providing electric service, which includes marginal
    transmission line loss charges, to their Pennsylvania
    customers.” (J.A. at 50.) Count II further alleges that the
    PUC Order is confiscatory because it violates the FPA’s
    requirement for rates to be just and reasonable. In other
    words, Count II is premised on the success of the argument
    that the PUC Order violated the filed rate doctrine and, thus,
    impermissibly “trapped” the Companies’ line-loss costs – the
    same argument that the Companies raise in Count I and that is
    precluded by the State Decision, absent an applicable
    exception. Without a legal determination that their costs were
    impermissibly “trapped,” the Companies have no basis for
    asserting an unconstitutional deprivation of any property
    interest. Because Count II depends entirely on the same
    issues that were already litigated to finality in the state
    proceeding, it is foreclosed by issue preclusion.
    A similar fate would befall Count III, even if the
    Companies’ arguments regarding that count were not waived.
    Count III relates to the constitutionality of the Electric
    Competition Act as applied to the Companies, to the extent
    the PUC Order “disregard[ed] FERC orders or …
    interpret[ed] FERC tariffs” in violation of the filed rate
    doctrine. (J.A. at 51.) Although the constitutional challenge
    to the Electric Competition Act was not raised until the PUC
    made its decision, it depends, like Count II, on the Companies
    being able to establish that the PUC Order violated the filed
    rate doctrine. Again, the State Decision expressly held that
    32
    there was no violation of the filed rate doctrine, so Count III
    would also be precluded, absent any exception.25
    B.     Exceptions to the Full Faith and Credit
    Statute
    Although issue preclusion would typically foreclose
    their claims, the Companies argue that three exceptions to the
    Full Faith and Credit Statute apply to render the State
    Decision devoid of any preclusive effect: (1) the state
    proceeding was legislative rather than judicial in nature; (2)
    the Companies had a substantially higher burden of
    persuasion in the Commonwealth Court than they do in this
    federal action; and (3), under the filed rate doctrine, the PUC
    and the Commonwealth Court infringed on FERC’s exclusive
    jurisdiction. [Appellants’ Opening Br. at 24-26.] We are
    not persuaded that any of those exceptions apply to foreclose
    the application of issue preclusion in this case.
    25
    To the extent the Companies claim that they have
    not had a full and fair opportunity to litigate Counts II and III,
    that argument is unavailing. While the Companies may not
    have litigated the claims set forth in Counts II and III in the
    state proceeding, they had a full and fair opportunity to
    litigate the underlying issues of whether classifying their line-
    loss costs as a generation cost for retail billing purposes
    violated the filed rate doctrine or impermissibly trapped costs.
    33
    1.    Whether the state proceeding            was
    legislative or judicial in nature
    The Full Faith and Credit Statute, by its terms, applies
    only to “judicial proceedings.” 28 U.S.C. § 1738.           The
    Companies argue that the state proceeding was legislative, not
    judicial, in nature, so the Full Faith and Credit Statute – and
    the principles of preclusion that stem from it – do not apply.
    The parties do not dispute that the Supreme Court has
    counseled federal courts to defer to each state’s
    characterization of its own proceedings. See Okla. Packing
    Co. v. Okla. Gas & Elec. Co., 
    309 U.S. 4
    , 7 (1940) (looking
    to “[t]he pronouncements of the Oklahoma Supreme Court
    concerning the character of … a [prior] determination”);
    Okla. Natural Gas Co. v. Russell, 
    261 U.S. 290
    , 291 (1923)
    (“The Constitution of Oklahoma[] … gives an appeal to the
    Supreme Court of the State, acting in a legislative capacity …
    , with power to substitute a different order and to grant a
    supersedeas in the meantime.”); cf. Prentis v. Atl. Coast Line
    Co., 
    211 U.S. 210
    , 226 (1908) (“We shall assume that when[]
    … a state Constitution sees fit to unite legislative and judicial
    powers in a single hand, there is nothing to hinder, so far as
    the Constitution of the United States is concerned.”). In
    addition, the Supreme Court in New Orleans Public Service,
    Inc. v. Council of New Orleans (“NOPSI”), 
    491 U.S. 350
    (1989), said that the proper characterization of an agency’s
    actions “depends not upon the character of the body but upon
    the character of the proceedings. … The nature of the final act
    determines the nature of the previous inquiry.” 
    Id. at 371
    (first alteration in original) (internal quotation marks and
    citation omitted). NOPSI teaches that
    34
    [a] judicial inquiry investigates, declares and
    enforces liabilities as they stand on present or
    past facts and under laws supposed already to
    exist. That is its purpose and end. Legislation
    on the other hand looks to the future and
    changes existing conditions by making a new
    rule to be applied thereafter to all or some part
    of those subject to its power.
    
    Id. at 370-71
    (internal quotation marks and citation omitted).
    The Companies argue that Pennsylvania has not
    clearly decided whether the Commonwealth Court’s review
    of a PUC order is legislative or judicial, while the PUC
    Defendants counter that the Pennsylvania Administrative Law
    and Procedure Act and the Pennsylvania Judicial Code
    unequivocally call appellate review of PUC proceedings
    “judicial.” (PUC Defendants’ Br. at 44.) The District Court
    concluded that the Commonwealth Court’s review of the
    PUC Order was judicial in nature because the Commonwealth
    Court’s authority to review PUC orders under 2 Pa. Cons.
    Stat. § 704 “is limited to determining whether a constitutional
    violation, an error of law, or a violation of PUC procedure has
    occurred and whether necessary findings of fact are supported
    by substantial evidence.”26 (J.A. at 30 (quoting Popowsky v.
    26
    Under 2 Pa. Cons. Stat. Ann. § 704, which relates to
    “Judicial Review of Commonwealth Agency Action”:
    The [reviewing] court shall hear the appeal
    without a jury on the record certified by the
    Commonwealth agency. After hearing, the
    court shall affirm the adjudication unless it shall
    35
    Pa. Pub. Util. Comm’n, 
    910 A.2d 38
    , 48 (Pa. 2006)) (internal
    quotation marks omitted).) The District Court further found
    support for the judicial nature of the proceeding in “the
    Commonwealth Court[’s] reli[ance] upon past facts (as found
    in the proceeding before the []PUC) and existing law (as the
    Commonwealth Court interpreted it) to resolve a challenge to
    the legality of a prior action (the []PUC … Order).” (Id.)
    The Companies contend that the District Court’s
    reasoning was erroneous because “[i]t cannot be true that
    [the] commonplace standard of agency review – one that
    applies to both ratemaking and non-ratemaking agencies alike
    – makes the Commonwealth Court’s decision here judicial.”
    (Appellants’ Opening Br. at 51.) In other words, they argue
    that the scope of the Commonwealth Court’s review, alone,
    cannot determine whether such review is judicial or
    legislative in nature. That argument fails, however, because
    find that the adjudication is in violation of the
    constitutional rights of the appellant, or is not in
    accordance with law, or that the provisions of
    Subchapter A of Chapter 5 (relating to practice
    and procedure of Commonwealth agencies)
    have been violated in the proceedings before the
    agency, or that any finding of fact made by the
    agency and necessary to support its adjudication
    is not supported by substantial evidence. If the
    adjudication is not affirmed, the court may enter
    any order authorized by 42 Pa. C.S. § 706
    (relating to disposition of appeals).
    2 Pa. Cons. Stat. Ann. § 704.
    36
    the scope of agency review is not the sole basis for
    concluding that the State Decision was judicial rather than
    legislative. Other aspects of the state proceeding also indicate
    that it was judicial in nature.
    The Companies rely on two Pennsylvania cases from
    the 1950s to argue that Pennsylvania courts consider their
    review of a state agency’s rate-making to be legislative in
    nature. The two are a 1954 Pennsylvania Superior Court
    case, Duquesne Light Co. v. Pennsylvania Public Utility
    Commission, which includes the comment that “[r]ate making
    is an exercise of the legislative power, delegated to the
    Commission,” 
    107 A.2d 745
    , 755 (Pa. Super. Ct. 1954), and a
    Pennsylvania Supreme Court opinion from 1956,
    Pennsylvania State Chamber of Commerce v. Torquato, that
    says “[t]he [United States Supreme] Court has permitted
    resort to a federal court of equity where a state was enforcing
    confiscatory rates and by its law precluded a stay … until the
    state courts ‘acting in a legislative capacity’ had taken final
    action,” 
    125 A.2d 755
    , 763 (1956) (quoting Aircraft & Diesel
    Equip. Corp. v. Hirsch, 
    331 U.S. 752
    , 773 n.38 (1947)).
    Duquesne, however, relates to the nature of certain PUC rate-
    making; it does not dictate that all PUC actions are legislative
    in nature, let alone hold that the Commonwealth Court’s
    review of a PUC decision is a legislative act. And the
    Pennsylvania Supreme Court in Torquato simply recognized
    that a state court acting in a legislative capacity does not
    necessarily establish precedent that prevents resort to a
    federal court; it did not hold that review of a PUC action is by
    definition legislative.
    We recognized in Kentucky West Virginia Gas Co. v.
    Pennsylvania Public Utility Commission, 
    837 F.2d 600
    (3d
    37
    Cir. 1988), that PUC proceedings may be judicial in nature:
    “When a state agency acting in a judicial capacity resolves
    disputed issues of fact properly before it which the parties
    have had an adequate opportunity to litigate, federal courts
    must give the agency factfinding the same preclusive effect to
    which it would be entitled in the state’s courts.” 
    Id. at 611
    (emphasis added). Moreover, Pennsylvania law recognizes
    that PUC action and subsequent court review can be judicial
    in nature. See 2 Pa. Cons. Stat. Ann. § 704 (Pennsylvania
    Administrative Law and Procedure Act describing the various
    dispositions when a court reviews a state agency’s
    “adjudication”). As the PUC Defendants point out, PUC
    decisions can be “the product of a quasi-judicial, on-the-
    record proceeding that includes a presiding ALJ who has the
    power to administer oaths, conduct evidentiary hearings,
    allow for cross-examination, rule on motions, review briefs
    submitted by the parties, and issue recommended decisions
    with findings of fact and conclusions of law.” (PUC
    Defendants’ Br. at 44 (citing 66 Pa. Cons. Stat. Ann. § 331; 2
    Pa. Cons. Stat. Ann. §§ 504-507).) By implication, if a state
    agency proceeding is judicial, appellate review of that
    proceeding is also judicial.
    A straightforward application of the distinction
    between judicial and legislative inquiry outlined in NOPSI
    confirms that the Commonwealth Court decision at issue here
    is judicial in nature. As the District Court held, “the
    Commonwealth Court of Pennsylvania did not conduct an
    independent, forward-looking ... investigation.” (J.A. at 30.)
    Instead, the Commonwealth Court, like the PUC, referred to
    and endeavored to enforce (whether correctly or not is
    immaterial at this juncture) the pre-existing Settlement
    Agreement. The Commonwealth Court further made a
    38
    determination specific to the Companies. It determined that
    there was no violation of the filed rate doctrine with respect to
    how the PUC required the Companies to classify their line
    losses, which involved a review of the record regarding how
    the Companies, specifically, had treated line losses in the
    past. At bottom, both the PUC and the Commonwealth Court
    adjudicated the adversarial dispute between the Customer
    Groups and the Companies after considering those parties’
    respective legal arguments. We have no difficulty holding
    that the state proceeding was judicial, not legislative. The
    nature of the state proceeding therefore does not bar the
    application of issue preclusion in this case.
    2.     Whether the Companies’ burdens before
    the Commonwealth Court and in the
    instant case are different
    The Companies also argue that the so-called
    “difference-in-burden exception” bars giving the State
    Decision any preclusive effect. (Appellants’ Opening Br. at
    44.) They rely on Section 28(4) of the Restatement (Second)
    of Judgments, which states that preclusion does not apply
    when
    [t]he party against whom preclusion is sought
    had a significantly heavier burden of persuasion
    with respect to the issue in the initial action than
    in the subsequent action; the burden has shifted
    to his adversary; or the adversary has a
    significantly heavier burden than he had in the
    first action.
    39
    Restatement (Second) of Judgments § 28(4) (1982). The
    Companies do not argue that the burden of proof ever shifted
    to their adversaries. (See Oral Argument Transcript (“Tr.”) at
    29:11-12 (“We have the burden – either way we have the
    burden.”).) Rather, they argue that, in reviewing the PUC
    Order, the Commonwealth Court applied the wrong standard
    of review and placed a substantially more onerous burden of
    persuasion on them than the Companies would face in this
    action. The PUC Defendants respond by arguing that “the
    use of the [difference-in-burden] exception is not ‘well-
    established’ in relevant case law,” and that, in any event, the
    Companies confuse the concept of a party’s burden of proof
    with a court’s standard of review. (PUC Defendants’ Br. at
    42.)
    According to the Companies, Section 28(4) of the
    Restatement is well-established because it provides the basis
    for the axiomatic rule that, “‘even when the parties are the
    same, an acquittal in a criminal proceeding is not conclusive
    in a subsequent civil action arising out of the same event.’”
    (Appellants’ Opening Br. at 44 (quoting Restatement
    (Second) of Judgments § 28 cmt. f).) A comment to Section
    28 of the Restatement explains that, “[t]o apply issue
    preclusion in the cases described in Subsection (4) would be
    to hold, in effect, that the losing party in the first action would
    also have lost had a significantly different burden been
    imposed.” Restatement (Second) of Judgments § 28 cmt. f.
    However, we need not decide whether Pennsylvania
    recognizes the difference-in-burden exception, wherein a
    party that lost on an issue in a first proceeding is nevertheless
    permitted to relitigate the issue in a second proceeding if its
    40
    burden of proof is lower in the second proceeding.27
    Assuming such an exception exists in Pennsylvania law, the
    Companies have failed to show any relevant difference in
    burden here. They argue that a federal district court reviews
    an issue of federal pre-emption de novo as a question of law,
    whereas the Commonwealth Court afforded deference to the
    PUC’s factual findings underlying the determination that line
    losses are not a transmission cost.         Contrary to the
    Companies’ position, the District Court was not reviewing the
    merits of the PUC Order, so it makes little sense to speak of
    the Companies’ burden of persuasion in the District Court in
    terms of de novo “review.” What the Companies point to is
    the Commonwealth Court’s use of an allegedly incorrect
    standard of review, not a change in their own burden of proof
    27
    We note, without holding, that Pennsylvania would
    appear to recognize the difference-in-burden exception under
    Restatement (Second) of Judgments § 28(4).                   The
    Pennsylvania Supreme Court has cited other provisions of
    Section 28 favorably. See, e.g., Cohen v. Workers’ Comp.
    Appeal Bd., 
    909 A.2d 1261
    , 1267 n.13, 1270-71 (Pa. 2006)
    (declining to apply collateral estoppel for policy reasons
    consistent with Restatement (Second) of Judgments § 28);
    
    Rue, 713 A.2d at 86
    (relying on Restatement (Second) of
    Judgments § 28(3), (5)).        Moreover, the Pennsylvania
    Superior Court recently adopted the difference-in-burden
    exception. See Weissberger v. Myers, 
    90 A.3d 730
    , 735 (Pa.
    Super. Ct. 2014) (“[T]he fact that the [plaintiffs] proved fraud
    by the preponderance of the evidence in the Bankruptcy Court
    does not establish that they met their burden of proving fraud
    by clear and convincing evidence[,] [so] the collateral
    estoppel doctrine is foreclosed.”).
    41
    on the merits. To the extent the Companies complain that the
    Commonwealth Court applied the incorrect standard of
    review, that argument was something to be remedied on
    direct appeal, not something that opens the PUC Order to
    collateral attack in federal court.28 See Del. River Port Auth.
    v. Fraternal Order of Police, 
    290 F.3d 567
    , 576 (3d Cir.
    2002) (“Error in a prior judgment is not a sufficient ground
    for refusing to give it preclusive effect.”). The Companies’
    reliance on the Restatement (Second) of Judgments § 28(4) is
    therefore unpersuasive.
    3.     Whether the PUC and the
    Commonwealth Court were without
    jurisdiction
    That brings us to the Companies’ only remaining
    argument that the State Decision lacks any preclusive effect:
    that “[t]he PUC and [the] Commonwealth Court lacked
    subject matter jurisdiction to construe the nature of new
    charges imposed by a FERC transmission tariff.”
    (Appellants’ Opening Br. at 24.) We have recognized that
    Pennsylvania’s preclusion law appears to require subject
    matter jurisdiction in the first proceeding for a decision made
    in that proceeding to have preclusive effect, McCarter v.
    Mitcham, 
    883 F.2d 196
    , 199 (3d Cir. 1989), and the PUC
    28
    At oral argument, the Companies also raised the
    concern that Pennsylvania “ha[s] [its] own version of
    Chevron deference” that would not apply in federal court.
    (Tr. at 29:20-24, 30:17-31:8.) The Companies, however,
    conceded that that argument also relates to a “standard of
    review,” not a burden of proof on the merits. (Tr. at 31:9-14.)
    42
    Defendants do not dispute that jurisdiction is a prerequisite to
    the application of issue preclusion in this case.
    To be clear, the Companies’ position is that the State
    Decision is “void ab initio for want of subject matter
    jurisdiction and not merely voidable as wrongly decided on
    the merits.” (Appellants’ Supp. Br. at 10.) They argue that
    the PUC and the Commonwealth Court “invaded th[e]
    exclusive federal scheme [of power regulation] by purporting
    to reclassify FERC-mandated interstate transmission rates as
    generation charges.” (Appellants’ Opening Br. at 32.) In
    other words, the Companies’ jurisdictional argument is
    premised on the outcome of the merits in the state proceeding
    being adverse to them. Notably, they do not dispute that the
    Commonwealth Court had jurisdiction to consider the import
    of the filed rate doctrine to the classification of line losses.
    (Id. at 33-34 (“The Companies did not contend that the
    Commonwealth Court lacked subject matter jurisdiction to
    address the Companies’ filed rate doctrine claim.”).) They
    only dispute that the PUC and the Commonwealth Court had
    jurisdiction to say they lose.
    We begin by emphasizing “the limited scope of review
    one court may conduct to determine whether a foreign court
    had jurisdiction to render a challenged judgment.”
    Underwriters Nat’l Assurance Co. v. N.C. Life & Accident &
    Health Ins. Guar. Ass’n, 
    455 U.S. 691
    , 706 (1982).
    Generally, when fully and fairly litigated to finality, “a
    tribunal’s determination of its own jurisdiction is accorded
    the same status for issue preclusion purposes as the merits of
    a dispute.” Crossroads Cogeneration Corp. v. Orange &
    Rockland Utils., 
    159 F.3d 129
    , 135 (3d Cir. 1998); see also
    Durfee v. Duke, 
    375 U.S. 106
    , 111 (1963) (“[A] judgment is
    43
    entitled to full faith and credit – even as to questions of
    jurisdiction – when … those questions have been fully and
    fairly litigated and finally decided in the court which rendered
    the original judgment.”).
    With respect to its jurisdiction, the PUC held:
    [I]t is within the [PUC’s] discretion whether
    and how to allocate costs via [the Transmission
    Rider] or otherwise. And, we believe it is
    unreasonable to suggest that the [PUC] is
    required to rubber stamp recovery of such costs
    simply because they are imposed by PJM, even
    when the Companies voluntarily (and properly)
    sought approval of their recovery from [the
    PUC] acting within its jurisdiction to set just
    and reasonable retail rates for jurisdictional
    transmission and distribution facilities.
    (J.A. at 154.) In short, the PUC concluded that it had
    jurisdiction not only to consider how to classify line losses for
    the Companies’ retail rate structure but also to resolve the
    classification of costs under the Settlement Agreement as it
    did. As the Companies have conceded, they challenged the
    PUC’s exercise of jurisdiction on direct appeal to the
    Commonwealth Court and lost. (See Appellants’ Supp. Br. at
    10 (“The basis for the Companies’ appeal – forum and field
    preemption under the FPA and filed rate doctrine – was
    jurisdictional, not factual.”).)
    Under Pennsylvania law, the Commonwealth Court
    has “jurisdiction of appeals from final orders of … the
    [PUC].”     42 Pa. Cons. Stat. Ann. § 763(a).      The
    44
    Commonwealth Court affirmed the PUC, holding that the
    PUC Order “was not inconsistent with FERC precedent, did
    not violate the Filed Rate Doctrine, and did not improperly
    prevent [the] Companies from recovering trapped costs.”
    (J.A. at 191.) On application for discretionary review to both
    the Pennsylvania Supreme Court and the United States
    Supreme Court, the Companies again argued that the state
    tribunals lacked authority to decide the matter adversely to
    the Companies.       (Tr. at 22:6-11 (confirming that the
    Companies’ petitions for discretionary review in the state
    proceeding sought a determination that the PUC lacked
    authority to make the decision that it did).) Both courts
    denied discretionary review, and the PUC’s determination of
    its own jurisdiction stood as final. Typically, we would
    afford that determination of jurisdiction preclusive effect, and
    that would be the end of it.
    The Companies, however, submit that their argument
    raises a question that we reserved in Crossroads
    Cogeneration v. Orange & Rockland: whether “an exception
    to the rule [of according preclusive effect to a tribunal’s
    determination of jurisdiction] applies in a case … where a
    federal statute … preempts [a] state agency from acting
    
    altogether.” 159 F.3d at 135
    . But we again do not need to
    reach that question because we conclude that, contrary to the
    Companies’ position, the PUC and the Commonwealth Court
    were not divested of jurisdiction to act altogether in the state
    proceeding.
    45
    a.     Whether the state tribunals have
    been divested of jurisdiction
    The Companies maintain that the result of the state
    proceeding is void for lack of jurisdiction, and it is true that
    “[a] void judgment is a legal nullity.” United Student Aid
    Funds, Inc. v. Espinosa, 
    559 U.S. 260
    , 270 (2010). To be
    deemed void, a judgment must be “so affected by a
    fundamental infirmity that the infirmity may be raised even
    after the judgment becomes final.” 
    Id. “Federal courts
    considering [whether] a judgment is void because of a
    jurisdictional defect generally have reserved relief only for
    the exceptional case in which the court that rendered
    judgment lacked even an arguable basis for jurisdiction.” 
    Id. at 271
    (internal quotation marks and citation omitted)
    (discussing a motion filed under Rule 60(b)(4) of the Federal
    Rules of Civil Procedure to render a judgment void).
    Showing that a state tribunal lacked even an arguable
    basis for jurisdiction over a federal question is difficult
    because, under the principles of federalism, there is a “deeply
    rooted presumption in favor of concurrent state court
    jurisdiction.” Tafflin v. Levitt, 
    493 U.S. 455
    , 459 (1990).
    Federal and state law “together form one system of
    jurisprudence, which constitutes the law of the land for the
    State; and the courts of the two jurisdictions are … courts of
    the same country, having jurisdiction partly different and
    partly concurrent.” Claflin v. Houseman, 
    93 U.S. 130
    , 137
    (1876). The concurrent jurisdiction of the States is “subject
    only to limitations imposed by the Supremacy Clause.”
    
    Tafflin, 493 U.S. at 458
    ; see also Del. River Port 
    Auth., 290 F.3d at 576
    (noting that it is well-settled that “[s]tate courts
    may answer federal questions”). Indeed, “[s]o strong is the
    46
    presumption of concurrency that it is defeated only in two
    narrowly defined circumstances: first, when Congress
    expressly ousts state courts of jurisdiction, and second,
    ‘[w]hen a state court refuses jurisdiction because of a neutral
    state rule regarding the administration of the courts.’”29
    Haywood v. Drown, 
    556 U.S. 729
    , 735 (2009) (second
    alteration in original) (citations omitted).      The second
    circumstance is not relevant here, so we focus on the first,
    which is typically stated in unmistakable terms:
    29
    There seems to be some tension in the Supreme
    Court’s jurisprudence as to how Congress may remove
    jurisdiction from state courts. In an earlier case, the Supreme
    Court said, more broadly, that Congress may divest states of
    jurisdiction in three ways: explicit statutory directive,
    unmistakable implication of the statute’s legislative history,
    or clear incompatibility between federal interests and state
    jurisdiction. 
    Tafflin, 493 U.S. at 459-60
    . However, the
    Companies do not point to any legislative history of the FPA
    or any “factors indicating clear incompatibility,” such as “the
    desirability of uniform interpretation, expertise of federal
    judges in federal law, [or] the assumed greater hospitality of
    federal courts to peculiarly federal claims.” 
    Id. at 464
    (internal quotation marks and citation omitted).            The
    Companies would be hard pressed to make any such
    arguments, since, as cited infra, state courts have been
    recognized as properly considering issues arising under the
    FPA. Therefore, even under Tafflin’s more expansive
    framework, we cannot discern a clear ouster of state
    jurisdiction by Congress.
    47
    In the standard fields of exclusive federal
    jurisdiction, the governing statutes specifically
    recite that suit may be brought “only” in federal
    court, Investment Company Act of 1940, as
    amended, 84 Stat. 1429, 15 U.S.C. § 80a-
    35(b)(5); that the jurisdiction of the federal
    courts shall be “exclusive,” Securities Exchange
    Act of 1934, as amended, 48 Stat. 902, 15
    U.S.C. § 78aa; Natural Gas Act of 1938, 52
    Stat. 833, 15 U.S.C. § 717u; Employee
    Retirement Income Security Act of 1974, 88
    Stat. 892, 29 U.S.C. § 1132(e)(1); or indeed
    even that the jurisdiction of the federal courts
    shall be “exclusive of the courts of the States,”
    18 U.S.C. § 3231 (criminal cases); 28 U.S.C.
    §§ 1333 (admiralty, maritime, and prize cases),
    1334 (bankruptcy cases), 1338 (patent, plant
    variety protection, and copyright cases), 1351
    (actions against consuls or vice consuls of
    foreign states), 1355 (actions for recovery or
    enforcement of fine, penalty, or forfeiture
    incurred under Act of Congress), 1356 (seizures
    on land or water not within admiralty and
    maritime jurisdiction).
    
    Tafflin, 493 U.S. at 471
    .
    The Companies are correct that the FPA grants FERC
    exclusive jurisdiction over certain matters, but the relevant
    question here is whether Congress divested state utility
    agencies or state courts of jurisdiction to hear cases requiring
    an adjudication of the filed rate doctrine’s scope, and the
    answer to that is no. The FPA plainly leaves a role for states
    48
    in electricity regulation.30 While section 201(b) of the FPA
    grants federal regulatory authority as to “the transmission of
    electric energy in interstate commerce and to the sale of
    electric energy at wholesale in interstate commerce,”31 16
    30
    Our dissenting colleague asserts that Congress,
    through the FPA, “divest[ed] states of jurisdiction to interpret
    FERC orders that define the elements of the rates of
    transmission facilities, such as PJM.” (Dissenting Op. at 7.)
    The authorities she cites for that proposition, however, are
    two cases reviewing whether FERC had jurisdiction to make
    certain other determinations. See New Orleans Pub. Serv.,
    Inc. v. Council of New Orleans, 
    911 F.2d 993
    , 1001 (5th Cir.
    1990) (“We must decide whether FERC has jurisdiction to
    determine whether [the public utility] acted prudently once
    the … project [at issue to build nuclear reactors] was
    underway.”); N.J. Bd. of Pub. 
    Utils., 744 F.3d at 95-96
    (reviewing whether FERC’s elimination of a state-mandated
    exception was “in excess of statutory jurisdiction, authority,
    or limitations, or short of statutory right” (internal quotation
    marks omitted) (quoting 5 U.S.C. § 706(2)(C))). It is neither
    troubling nor surprising that the PUC’s adjudication here
    required the interpretation of FERC orders. Adjudication of
    the reach of the filed rate doctrine will in some cases
    necessarily involve looking to and interpreting FERC
    decisions.
    31
    “Furthermore, § 205 of the FPA prohibited, among
    other things, unreasonable rates and undue discrimination
    ‘with respect to any transmission or sale subject to the
    jurisdiction of [FERC],’ 16 U.S.C. §§ 824d(a)-(b), and § 206
    gave [FERC] the power to correct such unlawful practices, 16
    U.S.C. § 824e(a).” New 
    York, 535 U.S. at 7
    .
    49
    U.S.C. § 824(b)(1), at the same time, it provides that federal
    regulation is “to extend only to those matters which are not
    subject to regulation by the States,” 
    id. § 824(a).
    Thus, in
    enacting the FPA, Congress expressly envisioned a role for
    state utility agencies in electricity regulation, which may well
    require consideration of the import of the filed rate doctrine.
    Cf. 
    Crossroads, 159 F.3d at 135
    (“Given the substantial role
    given state utility agencies by Congress in enacting [the
    Public Utility Regulatory Policies Act], we conclude
    Congress did not intend to prevent application of common
    law rules of preclusion.”).
    Nevertheless, the Companies submit that the PUC and
    Commonwealth Court so exceeded the scope of their
    authority under the “preemptive force of the federal
    regulatory scheme” of the FPA and the filed rate doctrine that
    those tribunals utterly lacked jurisdiction. (Appellants’
    Opening Br. at 29.) The Companies point out that a federal
    statute or regulation may pre-empt state regulation in three
    ways. First, under express pre-emption, Congress can pre-
    empt state law by explicit statutory language. Barnett Bank
    of Marion Cnty., N.A. v. Nelson, 
    517 U.S. 25
    , 31 (1996).
    Second, under field pre-emption, Congress can enact a
    regulatory scheme “so pervasive as to make reasonable the
    inference that Congress left no room for the States to
    supplement it.” 
    Id. at 31
    (internal quotation marks and
    citation omitted). And third, “federal law may be in
    ‘irreconcilable conflict’ with state law,” which creates what is
    known as conflict pre-emption.32 
    Id. (internal quotation
    32
    Field pre-emption and conflict pre-emption can be
    characterized as falling under “implied,” as opposed to
    “express,” pre-emption. See Roth v. Norfalco LLC, 
    651 F.3d 50
    marks and citation omitted). The Companies have cast their
    net widely, arguing that “[t]his case concerns all three” types
    of pre-emption.33 (Appellants’ Supp. Br. at 1.) Not ones to
    367, 374 (3d Cir. 2011). We recognize, though, “that the
    categories of preemption are not ‘rigidly distinct.’” Crosby v.
    Nat’l Foreign Trade Council, 
    530 U.S. 363
    , 372 n.6 (2000)
    (quoting English v. Gen. Elec. Co., 
    496 U.S. 72
    , 79 n.5
    (1990)).
    33
    At oral argument, we asked the parties to submit
    supplemental briefing on whether pre-emption may be
    waived. The PUC Defendants argue that the Companies
    waived their pre-emption arguments by entering into the
    Settlement Agreement. They point to a provision in the
    agreement that provides, in part, that the Companies “agree
    that they shall not initiate or join in any court challenge,
    arising out of the issues resolved by this Settlement, to the
    constitutionality or legality of the Electric Competition Act
    such that would prevent or preclude implementation of this
    Settlement.” (Supp. App. at 70.) There may be an argument
    that the Companies, pursuant to that provision, waived their
    ability to bring Count III to challenge the constitutionality of
    the Electric Competition Act as applied. We need not reach
    that conclusion, though, because, as we have already
    discussed, 
    see supra
    Part III.A.1, the Companies waived any
    argument that Count III rises or falls separately from Count I
    for purposes of issue preclusion.
    The PUC Defendants also submit that, by fully arguing
    pre-emption in the Commonwealth Court, the Companies
    have waived their ability to raise pre-emption in federal court.
    But that is not a waiver argument related to the Companies’
    failure to raise an argument when it should have. It simply
    51
    shy from emphatic declarations, they submit that the filed rate
    doctrine is “a uniquely sweeping and clear manifestation of
    field preemption” that divests states of jurisdiction to classify
    line losses as generation costs in a retail rate structure.
    (Appellants’ Opening Br. at 29.) We cannot concur.
    As we have recently noted, pre-emption arguments do
    not ordinarily raise issues of subject matter jurisdiction.
    Harris v. Kellogg Brown & Root Servs., Inc., 
    724 F.3d 458
    ,
    464 n.1 (3d Cir. 2013) (“[W]e must clarify that our prior
    decision did not imply … that Rule 12(b)(1) [of the Federal
    Rules of Civil Procedure] is the right vehicle for ordinary
    preemption arguments.”). That is because “[p]reemption
    arguments, other than complete preemption, relate to the
    merits of the case.” 
    Id. (citing In
    re U.S. Healthcare, Inc.,
    
    193 F.3d 151
    , 160 (3d Cir. 1999)); see also Joyce v. RJR
    Nabisco Holdings Corp., 
    126 F.3d 166
    , 171 (3d Cir. 1997)
    (pointing out the distinction “between the complete
    preemption doctrine for jurisdictional purposes and ordinary
    preemption, which merely constitutes a defense to a state law
    cause of action”).
    While the Supreme Court has said that “[d]octrines of
    federal pre-emption … may in some contexts be controlling”
    over “the general rule of finality of jurisdictional
    determinations,” 
    Durfee, 375 U.S. at 114
    , this case does not
    restates the PUC Defendants’ view that the State Decision –
    having been fully litigated – should bar the Companies from
    relitigating the issue of pre-emption. We are satisfied from a
    review of the record that the Companies timely raised their
    pre-emption arguments in the District Court.
    52
    present such an exception. In the Atlantic City decision on
    which the Companies so heavily rely, FERC required PJM to
    factor marginal line losses into the energy price at each
    location. Atlantic City I, 115 FERC at 61,473-74. Certain
    FERC language from that decision certainly does highlight
    the connection between line losses and the transmission of
    electricity. See, e.g., 
    id. at 61,473
    (“As in the case of all
    electric transmission, there is some loss … as … power is
    transmitted from the point of generation to the point of
    delivery.”). But the agency did not say that line losses should
    be categorized as a cost of transmission, and indeed it made
    comments that can be read as supporting the view that line
    losses could be understood as a factor in electricity
    generation. It noted, for example, that “[s]uch loss[es]
    result[] in a cost PJM incurs to maintain the level of the
    scheduled power and to deliver it under conditions of system
    reliability.” 
    Id. at 61,473.
    34 In the end, the FERC orders that
    the parties point us to require PJM to calculate line losses in a
    certain way but do not make the kind of categorical
    statements that lead to pre-emption and override the finality
    of the state ruling the Companies themselves sought. That is
    in sharp contrast with a case like Nantahala Power & Light
    Co. v. Thornburg, in which the Supreme Court held that
    FERC’s express allotment of entitlement power to two
    owners of hydroelectric power plants pre-empted a state
    agency’s retail rate-making order allocating entitlement
    power 
    differently. 476 U.S. at 955
    , 958.
    34
    We are not suggesting that FERC would endorse
    what the PUC and the Commonwealth Court decided. Our
    dissenting colleague has ably discussed why that can be
    doubted. We eschew any comments on the merits beyond our
    observation that there is no definitive FERC ruling.
    53
    The Companies also try to rely on “complete pre-
    emption,” which is jurisprudentially distinct from the three
    “ordinary” types of pre-emption – express, field, and conflict
    pre-emption – described above. Ry. Labor Exec. Ass’n v.
    Pittsburgh & Lake Erie R.R. Co., 
    858 F.2d 936
    , 939 (3d Cir.
    1988); see also Lontz v. Tharp, 
    413 F.3d 435
    , 440 (4th Cir.
    2005) (“[W]e may not conflate ‘complete preemption’ with
    … ‘ordinary’ preemption. While these two concepts are
    linguistically related, they are not as close kin
    jurisprudentially as their names might suggest. Complete pre-
    emption is a ‘jurisdictional doctrine,’ while ordinary
    preemption simply declares the primacy of federal law,
    regardless of the forum or the claim.”). Under complete pre-
    emption, “the pre-emptive force of a statute is so
    ‘extraordinary’ that it ‘converts’” a state-law complaint into a
    federal one. Caterpillar Inc. v. Williams, 
    482 U.S. 386
    , 393
    (1987) (quoting Metro. Life Ins. Co. v. Taylor, 
    481 U.S. 58
    ,
    65 (1987)).
    Complete pre-emption, however, stands as a limited
    exception to the well-pleaded complaint rule, i.e., the rule that
    “a case may not be removed to federal court on the basis of a
    federal defense, including the defense of pre-emption, even if
    the defense is anticipated in the plaintiff’s complaint, and
    even if both parties concede that the federal defense is the
    only question truly at issue.” 
    Id. Complete pre-emption,
    in
    other words, arises in the context of removal jurisdiction. It
    serves as a basis for federal jurisdiction over causes of action
    that may appear, on their face, to be based on state law but
    that are in truth only actionable under federal law due to
    Congress’s clear intent “to completely pre-empt a particular
    area of law.” U.S. 
    Healthcare, 193 F.3d at 160
    (internal
    quotation marks and citation omitted). It does not resolve
    54
    whether state tribunals have been wholly divested of
    jurisdiction to hear the federal cause of action.35 Cf. Avco
    Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists &
    Aerospace Workers, 
    390 U.S. 557
    , 560 n.2 (1968)
    (recognizing that a state court may retain jurisdiction over an
    action that is completely pre-empted if the defendant does not
    elect to have the case removed to federal court). The
    Companies have cited no cases to indicate otherwise.
    Perhaps recognizing that the doctrine is not the best vehicle
    for their argument, they did not even raise complete pre-
    35
    We have some doubt that either the FPA or the filed
    rate doctrine effects a complete pre-emption of state law.
    “The Supreme Court has recognized the ‘complete
    preemption’ doctrine in only three instances: § 301 of the
    [Labor Management Relations Act]; § 502(a) of [the
    Employee Retirement Income Security Act of 1974]; and
    §§ 85 and 86 of the National Bank Act.” N.J. Carpenters v.
    Tishman Constr. Corp., -- F.3d --, 
    2014 WL 3702591
    , at *4
    (3d Cir. 2014) (citations omitted). With respect to whether
    the FPA completely pre-empts state law, the United States
    Court of Appeals for the Seventh Circuit has observed that
    “nearly all of the other courts that have considered the
    question [have] conclude[d] that the [FPA] does not
    completely preempt state law. … [F]ederal law leaves a role
    for state law in wholesale power regulation.” Ne. Rural Elec.
    Membership Corp. v. Wabash Valley Power Ass’n, Inc., 
    707 F.3d 883
    , 893, 895 (7th Cir. 2013). The Seventh Circuit also
    held that the filed rate doctrine does not completely pre-empt
    state law because that doctrine is “properly treated as a
    federal defense rather than an affirmative basis for
    jurisdiction.” 
    Id. at 896.
    55
    emption, used as a term of art, until oral argument. (Tr. at
    5:22-24 (saying that field pre-emption and conflict pre-
    emption in this case “add up to complete preemption”).) That
    has the look of a waiver, but even assuming, arguendo, that
    the Companies have not waived their argument, complete pre-
    emption has no place in this discussion.
    Furthermore, history matters here. The Supreme Court
    has recognized, without indicating that there were any
    jurisdictional defects, that “state courts have examined th[e]
    interplay [of the filed rate doctrine] in determining the effect
    of FERC-approved wholesale power rates on retail rates for
    electricity.” 
    Nantahala, 476 U.S. at 964-65
    ; see also Gen.
    Motors Corp. v. Ill. Commerce Comm’n, 
    574 N.E.2d 650
    , 655
    (Ill. 1991) (deciding whether a state utility agency’s action
    violated the filed rate doctrine); Me. Yankee Atomic Power
    Co. v. Me. Pub. Utils. Comm’n, 
    581 A.2d 799
    , 804-05 (Me.
    1990) (same); Pa. Power Co. v. Pa. Pub. Util. Comm’n, 
    561 A.2d 43
    , 49-52 (Pa. Commw. Ct. 1989) (same). Binding
    precedent instructs that, “when a state proceeding presents a
    federal issue, even a pre-emption issue, the proper course is to
    seek resolution of that issue by the state court.” Chick Kam
    Choo v. Exxon Corp., 
    486 U.S. 140
    , 149-50 (1988). Thus,
    despite the Companies’ attempt to craft a way for us to review
    whether the State Decision complies with their interpretation
    of the FPA and the filed rate doctrine, we cannot say that the
    PUC and the Commonwealth Court “lacked even an arguable
    basis for jurisdiction,” 
    Espinosa, 559 U.S. at 270
    , to decide
    the merits of classifying line losses for purposes of a retail
    rate structure. As the PUC and the Commonwealth Court
    were not divested of authority to act altogether, the result of
    the state proceeding is not void on that ground.
    56
    b.     Whether the state proceedings
    were an impermissible “collateral
    attack” on a FERC decision
    The Companies also argue that the FPA explicitly
    proscribes the state agencies and courts, as improper forums,
    from resolving the dispute between the Companies and the
    Customer Groups such that the state proceedings were an
    impermissible “collateral attack” on a FERC decision. The
    United States Supreme Court in City of Tacoma v. Taxpayers
    of Tacoma, 
    357 U.S. 320
    (1958), held that, pursuant to FPA
    § 313(b), “Congress … prescribed the specific, complete and
    exclusive mode for judicial review of the Commission’s
    orders,” which consists of direct review by a federal circuit
    court of appeals and, possibly, the United States Supreme
    Court.36 
    Id. at 336.
    Direct review of FERC’s orders
    36
    FPA § 313(b) provides, in relevant part:
    Any party to a proceeding under this chapter
    aggrieved by an order issued by the
    Commission in such proceeding may obtain a
    review of such order in the United States court
    of appeals for any circuit wherein the licensee
    or public utility to which the order relates is
    located … by filing in such court, within sixty
    days after the order of the Commission upon the
    application for rehearing, a written petition
    praying that the order of the Commission be
    modified or set aside in whole or in part. …
    Upon the filing of such petition such court shall
    have jurisdiction, which upon the filing of the
    record with it shall be exclusive, to affirm,
    57
    necessarily preclude[s] de novo litigation
    between the parties of all issues inhering in the
    controversy, and all other modes of judicial
    review. Hence, upon judicial review of the
    Commission’s order, all objections to the order,
    to the license it directs to be issued, and to the
    legal competence of the licensee to execute its
    terms, must be made in the Court of Appeals or
    not at all.
    
    Id. (footnote omitted).
    Emphasizing that the rule bars
    tribunals – with the exception of federal circuit courts and the
    United States Supreme Court – from hearing direct challenges
    to FERC orders, the Companies claim it shows a
    jurisdictional deficiency with the state proceeding. Their
    argument is akin to what we have referred to as “forum pre-
    emption”:
    modify, or set aside such order in whole or in
    part. … The judgment and decree of the court,
    affirming, modifying, or setting aside, in whole
    or in part, any such order of the Commission,
    shall be final, subject to review by the Supreme
    Court of the United States upon certiorari or
    certification … .
    16 U.S.C. § 825l(b) (emphasis added). The relevant language
    of that provision has not changed materially since the City of
    Tacoma decision, except that when that opinion issued,
    exclusive jurisdiction attained “[u]pon the filing of [the]
    transcript” from the challenged FERC proceeding. 16 U.S.C.
    § 825l(b) (1958).
    58
    When Congress intends a particular forum to
    have exclusive jurisdiction … , that policy
    decision deprives other fora of subject matter
    jurisdiction.       This doctrine of “forum
    preemption”        implements        Congressional
    determinations that development of the
    substantive law in a particular area should be
    left to a particular administrative agency created
    for that purpose.
    Ry. Labor Execs. Ass’n v. Pittsburgh & L.E.R. Co., 
    858 F.2d 936
    , 943 (3d Cir. 1988); see also Int’l Longshoremen’s Ass’n
    v. Davis, 
    476 U.S. 380
    , 388 (1986) (“It is clearly within
    Congress’ powers to establish an exclusive federal forum to
    adjudicate issues of federal law in a particular area that
    Congress has the authority to regulate under the
    Constitution.”).
    The Companies argue that, to the extent the Customer
    Groups had any grievances regarding the proposed line
    losses, they could and should have brought their grievances in
    a federal court of appeals on direct appeal of a FERC order,
    rather than waiting to contest the Companies’ proposed rates
    before the PUC in a separate proceeding. However, the issue
    in the state proceeding – whether the Companies could
    classify line losses as transmission charges – was not an issue
    arising from any FERC order that the Companies have
    identified. To the extent the Companies complain that the
    Customer Groups should have directly appealed the Atlantic
    City decision, their argument is misplaced. The Customer
    Groups did not challenge how FERC has mandated PJM to
    calculate its line losses. If anything, the classification of the
    Companies’ line-loss costs for retail billing was an issue
    59
    made relevant by the voluntarily agreed-upon terms of the
    Settlement Agreement, which provided different end dates on
    transmission rate caps and generation rate caps.37
    c.     Conclusion on state jurisdiction
    Ultimately, for purposes of jurisdiction, we need not
    resolve whether the Companies are correct that their
    interpretation of line losses is required under FERC’s
    regulatory scheme or that the Commonwealth Court
    improperly deferred to certain aspects of the PUC Order. Cf.
    Decker v. Nw. Envtl. Defense Ctr., 
    133 S. Ct. 1326
    , 1335
    (2013) (“For jurisdictional purposes, it is unnecessary to
    determine whether [the respondent] is correct in arguing that
    only its readings of the [relevant] Rule is permitted under the
    [Clean Water] Act.”); 
    Avco, 390 U.S. at 561
    (“Any error in
    granting … relief does not go to the jurisdiction of the court.”
    (internal quotation marks and citation omitted)).
    The Companies have not cited a single instance in
    which a party has been allowed to litigate a substantive issue
    all the way through the state courts and a petition for
    certiorari to the United States Supreme Court and then
    subsequently argue that the state courts lacked jurisdiction in
    the first place. The closest case is Southern Union Co. v.
    FERC, 
    857 F.2d 812
    (D.C. Cir. 1988), in which the United
    States Court of Appeals for the District of Columbia Circuit
    declined to apply issue preclusion “with its full rigor” and
    37
    The Companies themselves, who were adversely
    affected by the Atlantic City decision, did not mount any
    challenge to that FERC order.
    60
    decided that a state court had no power to enforce a damage
    award that effectively awarded a price for interstate gas that
    was under FERC’s exclusive jurisdiction. 
    Id. at 816.
    However, Southern Union is distinguishable because the D.C.
    Circuit’s rationale for not applying issue preclusion rested on
    “the distinct possibility that the [United States Supreme]
    Court may have declined to issue … [a] writ [of certiorari] in
    deference to the pendency of the proceedings [in FERC].” 
    Id. We have
    no such indication here prompting us to set aside the
    result of a state proceeding that has been litigated to finality
    and denied review by the United States Supreme Court.38
    The Companies also cite several Supreme Court
    decisions in which actions by state utility agencies were held
    to be pre-empted by FERC actions. See Entergy La., Inc. v.
    La. Pub. Serv. Comm’n, 
    539 U.S. 39
    (2003); Miss. Power &
    
    Light, 487 U.S. at 356-57
    ; 
    Nantahala, 476 U.S. at 955
    . But
    those decisions were all made on direct review from state
    agency decisions. 
    Entergy, 539 U.S. at 49-50
    ; Miss. Power &
    
    Light, 487 U.S. at 373-75
    ; 
    Nantahala, 476 U.S. at 970-72
    .
    Here, the United States Supreme Court denied discretionary
    review, rendering the State Decision final. We have held that,
    “[i]f [a state tribunal] answered federal questions erroneously,
    it remained for state appellate courts, and ultimately for the
    United States Supreme Court, to correct any mistakes. Error
    in a prior judgment is not a sufficient ground for refusing to
    38
    To be clear, we agree with our dissenting colleague
    that “[t]he fact that the Supreme Court did not grant certiorari
    does not mean that [a] question may not be validly raised in
    federal district court.” (Dissenting Op. at 14 n.3.) As
    Southern Union illustrates, there may be exceptions.
    61
    give it preclusive effect.”39 Del. River Port 
    Auth., 290 F.3d at 576
    . The Supreme Court’s decisions in Entergy, Mississippi
    Power & Light, and Nantahala support the conclusion that
    any error in the application of the filed rate doctrine should
    have been corrected on direct appeal of the PUC Order.
    Moreover, “[t]here is … no reason to believe that
    Congress intended to provide a person claiming a federal
    right an unrestricted opportunity to relitigate an issue already
    decided in state court simply because the issue arose in a state
    proceeding in which he would rather not have been engaged
    at all.” San Remo Hotel, L.P. v. San Francisco, 
    545 U.S. 323
    ,
    343 (2005) (internal quotation marks and citation omitted).
    Here, the Companies have even less reason to complain, as
    they affirmatively chose to litigate their case through the state
    system. They admit that “[t]here was nothing preventing
    39
    Although we have no occasion to revisit the
    substance of the PUC Order, it is worth noting that FERC has
    gone to some lengths to reserve to state agencies various
    issues regarding the potential recovery of retail costs. See
    Exelon Corp. v. PPL Elec. Utils. Corp., EL05-49-000, EL05-
    49-001, 117 FERC ¶ 61,176, p. 61,876 (Nov. 9, 2006)
    (stating that “issues involving potential recovery of costs
    from retail customers are within the province of the state” and
    that, in approving a settlement, FERC was “not specifically
    endorsing … characterizations” of the charges as transmission
    related); Va. Elec. & Power Co., ER08-1540-000, 125 FERC
    ¶ 61,391, p. 62,845 (Dec. 31, 2008) (approving tariff
    revisions but leaving “the issue of whether, or under what
    circumstances, [wholesale] costs may be recovered in retail
    rates” to the state).
    62
    [them] from going to FERC” and that, had they obtained a
    favorable ruling from FERC, they could have enforced it.
    (Tr. at 7:3-8:9; see also 
    id. at 21:8-19
    (stating that the
    Companies could go to FERC, even at this point).) In other
    words, the Companies chose their forum for litigation and
    lost. As the Supreme Court has stated,
    [p]ublic policy[] … dictates that there be an end
    of litigation; that those who have contested an
    issue shall be bound by the result of the contest;
    and that matters once tried shall be considered
    forever settled as between the parties. We see
    no reason why this doctrine should not apply in
    every case where one voluntarily appears,
    presents his case and is fully heard, and why he
    should not, in the absence of fraud, be thereafter
    concluded by the judgment of the tribunal to
    which he has submitted his cause.
    
    Durfee, 375 U.S. at 111-12
    (internal quotation marks and
    citation omitted).40
    40
    Our dissenting colleague believes that the policy
    interests in pre-emption outweigh those in applying issue
    preclusion. Even if her view of those policy interests were
    correct, however – and that is something as to which we make
    no further comment – the premise of her argument about pre-
    emption is problematic, for reasons we have noted already.
    She asserts that FERC has spoken in a binding way as to the
    classification of line losses. We respectfully disagree. While
    FERC has ruled on the method that PJM must use to calculate
    line losses, no one has presented to FERC the issue presented
    here, i.e., how line losses should be categorized for billing
    63
    The Companies could have withdrawn their federal
    issues from the state proceeding and brought them in federal
    court, as has been done before. See Ky. W. Va. Gas v. Pa.
    Pub. Util. Comm’n, 
    837 F.2d 600
    , 604 n.2 (3d Cir. 1988)
    (noting that a gas utility that had appealed a PUC denial of a
    pass-through rate to the Commonwealth Court had withdrawn
    its constitutional claims from the state proceeding and
    brought them in federal court). The only reason the
    Companies proffered for not withdrawing their federal pre-
    emption issues was that they had to keep those issues before
    the Commonwealth Court to complete “[t]he legislative
    process.” (Tr. at 23:1-2.) As we have explained, however,
    the state proceeding was a judicial process, not a legislative
    one, and the Companies’ excuses now for not pursuing their
    claims in federal court in the first instance have the ring of
    post-hoc rationalization.41
    purposes, especially in light of a settlement agreement of the
    sort involved in this case. (At least no one has directed our
    attention to such a FERC order.)
    41
    In their supplemental briefing, the Companies argue
    that “[i]f the state court found the FERC tariff and precedent
    unclear, it should have certified the question to FERC itself.”
    (Appellants’ Supp. Br. at 3.) That, however, is immaterial
    because “[t]he relevant question … is not whether the [party]
    has been afforded access to a federal forum; rather, the
    question is whether the state court actually decided an issue
    of fact or law that was necessary to its judgment.” San 
    Remo, 545 U.S. at 342
    .
    64
    In the end, we are compelled to reject the Companies’
    efforts to pose their merits-based pre-emption arguments –
    the same ones that were rejected in the State Decision – as
    jurisdictional arguments. They would like, as the saying
    goes, to have it both ways – if they had obtained approval to
    charge their customers line-loss costs as a transmission cost,
    the PUC and the Commonwealth Court would have had
    jurisdiction to approve their proposed rates; otherwise, as they
    perceive it, the PUC and the Commonwealth Court must lack
    jurisdiction, and the Companies get a “do-over” with a clean
    slate in federal court. It is the classic “heads I win, tails you
    lose” approach to dispute resolution.42 (Tr. at 5:9.) And it
    must fail because there is no sound justification for a rule that
    provides for jurisdiction in a state tribunal only when a pre-
    ordained merits outcome is reached by that tribunal.
    42
    At oral argument, the Companies conceded that they
    were taking such a position. (Tr. at 5:8-19 (“THE COURT:
    So your position is really a heads I win, tails you lose
    position? … [COUNSEL FOR THE COMPANIES]: Well,
    that’s the … characterization that the … opposing side put in
    their briefs[,] … but it’s accurate.”).) They tried to distance
    themselves from that characterization on rebuttal but simply
    highlighted their position that, again, the state had to decide
    in their favor on the merits. (Id. at 59:13-17 (“This is not a
    heads I win, tails you lose situation, really … . It’s a … heads
    we all win if the State follows federal law, and tails we all
    win if … the State follows federal law.”).)
    65
    IV.   CONCLUSION
    The Companies chose to challenge the PUC Order on
    direct appeal, and they must abide by the result.43 The
    operative concern before us is not whether the result of the
    state proceeding “got it right” but whether the Companies
    litigated the merits of the underlying issues legitimately and
    to finality. They did. To refuse to give the State Decision
    any preclusive effect would be a violation of the Full Faith
    and Credit Statute, which we cannot endorse.                Cf.
    Underwriters 
    Nat’l, 455 U.S. at 694
    (concluding that a state
    court’s refusal to accord preclusive effect to another state’s
    prior judgment was a violation of the Full Faith and Credit
    Clause and its implementing federal statute).
    We will therefore affirm the District Court’s dismissal
    of the Companies’ amended complaint.
    43
    Because all of the Companies’ claims in this action
    are foreclosed by the doctrine of issue preclusion, we need
    not reach matters of claim preclusion, abstention, or judicial
    estoppel.
    66
    Metropolitan Edison, et. al. v. PA Public Utility Commission,
    et. al.
    No. 13-4288
    _________________________________________________
    ROTH, Circuit Judge, dissenting:
    I do not dispute that the federal courts are precluded
    from reviewing a state court decision applying filed rates.
    However, I disagree with the majority that this is what is at
    issue. The issue here is whether the Commonwealth Court’s
    misinterpretation of FERC orders, defining a component of a
    rate, is subject to collateral attack in federal court. I would
    hold that it is.
    Contrary to the Commonwealth Court’s assessment
    that the FERC orders in question are ambiguous, FERC has
    clearly classified the component “line loss” as a transmission
    related cost. Atl. City Elec. Co. v. PJM Interconnection, LLC
    (Atlantic City I), 115 FERC ¶ 61,132 (2006); Atl. City Elec.
    Co. v. PJM Interconnection, LLC (Atlantic City II), 117
    FERC ¶ 61,169 (2006) (denying rehearing of Atlantic City I);
    Pa.–N.J.–Md. Interconnection (PJM Interconnection I), 81
    FERC ¶ 61,257 (1997); Pa.–N.J.–Md. Interconnection (PJM
    Interconnection II), 92 FERC ¶ 61,282 (2000) (denying
    rehearing and granting clarification of PJM Interconnection
    I). I therefore respectfully dissent.
    I.   Background
    1
    The dispute here starts in June 2007, when PJM, a
    facility that transmits wholesale electricity over an interstate
    grid, implemented a new pricing scheme. Atlantic City I, 115
    FERC ¶ 61,132. This change resulted in an additional
    amount of over $250 million being charged for line loss to the
    Companies when they purchased power from PJM to be
    resold at retail. Line loss is the power lost as electricity is
    transmitted over a distance.         The Companies sought
    permission from the PUC to pass this line loss expense along
    to their retail ratepaying customers. The PUC denied the
    request. The PUC held that the line losses were related to the
    cost of generation, and that the Companies had agreed to
    postpone any increase in generation costs until 2010. The
    Companies appealed to the Commonwealth Court arguing
    that the new charges are related to transmission costs. The
    Commonwealth Court affirmed the PUC’s determination
    reasoning that the PUC’s classification was permissible
    because FERC has not expressly classified “line loss” as a
    transmission related cost. Metropolitan Edison Co. v. Pa.
    Pub. Util. Comm’n, 22A.3d 353, 365. The Commonwealth
    Court is incorrect. FERC has clearly classified line losses as
    a transmission related cost.        As a consequence, the
    Commonwealth Court lacked jurisdiction to interpret the
    FERC orders.
    To understand these issues, I will go back to the
    enactment of the Federal Power Act (FPA) and the ensuing
    FERC oversight of the interstate transmission of electric
    power. In 1927, the Supreme Court held that the sale of
    electricity in interstate commerce falls under the exclusive
    jurisdiction of Congress. Pub. Utils. Comm’n v. Attleboro
    Steam & Elec. Co., 
    273 U.S. 83
    (1927).          In response,
    Congress enacted the FPA, “which authorized federal
    2
    regulation of the interstate sale of electricity, and created a
    new independent agency, the Federal Power Commission
    (precursor to FERC), to administer the statute.” N.J. Bd. of
    Pub. Utils. v. FERC, 
    744 F.3d 74
    , 80 (3d Cir. 2014). The
    FPA grants FERC exclusive regulatory authority over “all the
    facilities for such transmission or sale of electricity,” but
    reserves for the states regulatory authority over “facilities
    used for the generation of electric energy.” 
    Id. (citing 16
    U.S.C. § 824). In addition, the FPA tasks FERC with
    ensuring that “[a]ll rates and charges … subject to the
    jurisdiction of the Commission … be just and reasonable.”
    16 U.S.C. § 824d(a). FERC’s approach to this task has been
    to review rates proposed by each facility, rather than to
    directly set the rates itself. N.J. Bd. of Pub. 
    Utils., 744 F.3d at 81
    .
    The Companies acquire electricity from PJM and
    deliver it to retail ratepayers. Id at 82. Pursuant to the FPA,
    the rate PJM charges the Companies for this transaction is
    regulated exclusively by FERC. 
    Id. FERC has
    reviewed
    PJM’s rates on various occasions. Relevant here is FERC’s
    review of PJM rates calculated via the locational marginal
    pricing (LMP) methodology, which classifies line losses as a
    transmission related costs. See PJM Interconnection I, 81
    FERC ¶ 61,257 (1997); see also PJM Interconnection II, 92
    FERC ¶ 61,282 (2000); see also Atlantic City I, 115 FERC
    ¶ 61,132 (2006); see also Atlantic City II, 117 FERC ¶ 61,169
    (2006).
    In PJM Interconnection I, FERC approved a proposal
    by PJM to begin calculating rates based on the LMP
    methodology. 
    Id. 81 FERC
    ¶ 61, 257. The issue to be
    decided by this ruling was the allocation of the additional cost
    3
    to transmission caused by congestion of demand in certain
    areas. FERC summarized the purpose and mechanics of the
    LMP as follows:
    The Commission accepted, with certain
    modifications, the Supporting Companies’
    locational marginal pricing (LMP) model for
    calculating and recovering congestion costs.
    LMP is defined as the marginal cost of
    supplying the next increment of electric demand
    at a specific location on the electric power
    network, taking into account both generation
    and marginal cost and the physical aspects of
    the transmission system. When the PJM system
    is unconstrained, there is a single market
    clearing price for hourly energy equal to the
    marginal cost of meeting the last increment of
    demand. When transmission constraints occur
    on the PJM system, the marginal cost of energy
    varies by location because not all supply can be
    delivered to all demand. The differences
    between the LMPs at different locations
    represent congestion costs.
    PJM Interconnection II, 92 FERC at p. 61,952. In other
    words, the LMP accounted for two components, (1)
    generation and (2) transmission constraints, and at this time
    transmission constraints consisted of only transmission
    congestion. The generation component pertained to the cost
    of providing electricity absent transmission constraints. The
    transmission constraints component pertained to the
    additional costs incurred to meet demand of providing
    electricity in congested areas, which increases as congestion
    4
    in an area increases. Accordingly, calculation of this cost
    creates an incentive for PJM to consider methods for
    alleviating congestion and “encourage[d] efficient use of the
    transmission system.” PJM Interconnection I, 81 FERC at p.
    62,253. For example, billing for congestion will “send price
    signals that are likely to encourage efficient location of new
    generating resources, dispatch of new and existing generating
    resources, and expansion of the transmission system.” 
    Id. In Atlantic
    City I, FERC issued an order requiring PJM
    to account for a third component in the LMP, “transmission
    line losses.” 
    Id. 115 FERC
    ¶ 61,132. The “transmission line
    loss” component pertains to the additional costs incurred to
    compensate for the “loss of the scheduled megawatts as the
    power is transmitted from the point of generation to the point
    of delivery.” 
    Id. at p.
    61,474. In other words, the longer the
    distance that electricity travels across a power line, the greater
    the loss of power, creating the additional cost necessary to
    compensate for the power lost in transmission, i.e., line loss.
    Prior to Atlantic City, “transmission line losses” were
    recovered under an average loss method. 
    Id. at 61,473.
    The
    average loss method calculated losses separately from the
    LMP via an uplift charge, distributing losses equally among
    all loads. 
    Id. In other
    words, customers in nearby locations
    paid the same amount as customers in more distant locations
    – the cost of the lost power being distributed equally among
    all customers. In Atlantic City, FERC mandated that PJM
    implement the marginal loss method, in which “the effect of
    losses on the marginal cost of delivering energy is factored
    into the energy price (i.e., the Locational Marginal Price, or
    the LMP) at each location.” 
    Id. at 61,474.
    Under this
    method, the cost of line losses increases as the distance
    5
    between generator and user increased.            
    Id. Akin to
    calculating congestion costs, calculating line losses is an
    incentive to PJM to use the transmission grid more
    efficiently. For example, in an effort to decrease the costs of
    line loss, PJM will consider distance in determining “which
    generators to dispatch to meet its loads.” 
    Id. 1 Pertinent
    here, PJM implemented the marginal loss
    method in June 2007, resulting in new charges to the
    Companies, reflecting the cost of transmitting power over
    long distances. The Commonwealth Court, in affirming the
    PUC, misinterpreted the above mentioned FERC orders,
    holding these orders to be ambiguous. On this basis, the court
    denied the Companies’ appeal to pass these costs on to retail
    ratepayers.
    II.   Preclusive Effects of the Commonwealth’s
    Determination
    How we frame the question presented in this case
    matters a great deal. The Companies do not question that the
    Commonwealth Court can review rates to be charged to retail
    customers, taking into account the interstate rate charged by
    PJM.     Rather, the Companies ask us to review the
    Commonwealth Court’s interpretation of one of these
    elements of the PJM rate, the charge for “line loss” as defined
    in the FERC orders.
    1
    In a separate order, FERC noted that prior to the
    implementation of the marginal loss method, “[l]osses were
    not included in the calculation of LMPs, and thus, were not
    recovered in the LMP energy prices collected from loads.”
    Black Oak Energy, LLC, 122 FERC ¶ 61,208 (2008).
    6
    The FPA clearly divests states of jurisdiction to
    interpret FERC orders that define the elements of the rates of
    transmission facilities, such as PJM. See New Orleans Pub.
    Serv., Inc. v. Council of New Orleans, 
    911 F.2d 993
    , 1001
    (5th Cir. 1990) (“Nantahala and Mississippi Power and Light
    reaffirmed the well-established principle that if FERC has
    jurisdiction over a subject, states cannot have jurisdiction
    over it”); see also N.J. Bd. of Pub. 
    Utils., 744 F.3d at 82
    (FERC has jurisdiction over rates set by PJM). It is true that
    the states have flexibility in reviewing rates. However, once
    FERC has defined an element of a rate, the states cannot
    redefine it.2 The Commonwealth Court acknowledged as
    much in its ruling on this matter. According to the court,
    “[b]ecause FERC’s opinions have not expressly stated that
    line loss costs are transmission costs, there is no direct
    conflict between the Commission’s Order and FERC.”
    Metropolitan Edison 
    Co., 22 A.3d at 365
    . It is the
    Commonwealth Court’s conclusion that there was no conflict
    here with FERC that is at issue. As explained in depth below,
    FERC has clearly defined the element of “line loss,” and
    therefore, the Commonwealth Court’s interpretation is
    preempted.
    2
    It is FERC’s prerogative to determine the elements that
    go into a filed rate. In Nantahala the element in question was
    the percentage of entitlement power to be allocated between
    two utilities. In the present case, the element is “line loss”
    and its classification by FERC as an element of transmission.
    Once FERC has spoken on the definition of any such element,
    the matter is preempted. The states may not then dispute that
    classification. The Commonwealth Court’s conclusion that
    there was no conflict here with FERC is invalid for the
    reasons set forth above.
    7
    As the majority indicates, we are not bound by
    preclusion when “Congress expressly ousts state courts of
    jurisdiction.” Haywood v. Drown, 
    556 U.S. 729
    , 771 (2009).
    Therefore, preclusion does not apply here.
    Furthermore, the Supreme Court has cautioned that a
    state-court judgment is subject to collateral attack when “the
    policy underlying the doctrine of res judicata is outweighed
    by the policy against permitting the court to act beyond its
    jurisdiction.” Durfee v. Duke, 
    375 U.S. 106
    , 115 n.12 (1963)
    (quoting Restatement (First) of Conflict of Laws § 451(2)
    (Supp. 1948)). In Travelers Indemnity, Co. v. Bailey, the
    Court provided similar guidance, noting that collateral attack
    is warranted under circumstances where “[a]llowing the
    judgment to stand would substantially infringe the authority
    of another tribunal or agency of government[.]” 
    557 U.S. 137
    , 153 n.6 (2009). Additionally, this Court has noted:
    When Congress intends a particular forum to
    have exclusive jurisdiction to determine the
    rights of the parties in a particular situation, that
    policy decision deprives other fora of subject
    matter jurisdiction. This doctrine of “forum
    preemption”         implements       Congressional
    determinations that development of the
    substantive law in a particular area should be
    left to a particular administrative agency created
    for that purpose.
    Ry. Labor Exec. Ass’n v. Pittsburgh & Lake Erie R.R.
    Co., 
    858 F.2d 936
    , 939 (3d Cir. 1988).
    8
    Here, it is clear that the policy interests in preemption
    outweigh the policy interests of applying issue preclusion.
    Allowing the Commonwealth Court’s judgment to stand,
    without clarification, substantially infringes upon FERC’s
    exclusive authority over its own orders. Furthermore, the
    Commonwealth should not be permitted to use filed rates as a
    pretense for construing FERC orders solely to benefit retail
    ratepayers, the constitutents of the PUC. Therefore, the
    Commonwealth Court’s assessment of FERC orders, as
    ambiguous, is subject to collateral attack.
    III. Commonwealth’s Review of FERC Orders
    The Commonwealth Court’s conclusion that the FERC
    orders “do not unambiguously state that [line losses] are
    transmission related” is flatly contradicted by FERC’s
    persistent use of the term “transmission line losses”
    throughout the orders of Atlantic City I and Atlantic City II.
    Metropolitan Edison 
    Co., 22 A.3d at 356
    ; see 115 FERC ¶
    61,132; see also 117 FERC ¶ 61,169. These repeated
    references explicitly classify “line losses” as related to
    “transmission.”
    Furthermore, the language quoted by the court to
    illustrate ambiguity does nothing of the sort. According to
    the Commonwealth Court, FERC associated line losses with
    both transmission and generation. Metropolitan Edison 
    Co., 22 A.3d at 365
    . First, the court referred to FERC’s statement
    that “marginal losses are a part of the payment for
    transmission service.” 
    Id. (quoting 117
    FERC at p. 61,863).
    Then, the court referred to language in Atlantic City I and
    Atlantic City II that seemingly associated line loss with the
    cost of generation. According to the Commonwealth Court:
    9
    FERC stated “locational marginal prices [ (how
    line losses are calculated) ] are at the core of the
    PJM pricing methodology, because marginal
    prices send the proper price signals about the
    cost of obtaining generation.” FERC then
    explained how line loss costs impact a utility’s
    decision regarding from which generator to
    purchase energy. Similarly, in Atlantic City I,
    FERC noted that requiring PJM to charge for
    line loss on a locational marginal basis “ensures
    that each customer pays the proper marginal
    cost price for the power it is purchasing” and
    that, in using marginal pricing, “PJM would
    change the way that it dispatches generators by
    considering the effects of losses.”
    
    Id. (quoting Atlantic
    City I, 115 FERC at p. 61,478; Atlantic
    City II, 117 FERC at pp. 61,862, 61,863). The court was
    misguided.
    In these statements, FERC simply illustrated the
    transmission related incentives that arise when line losses are
    calculated into the LMP. When line loss costs are calculated,
    PJM will attempt to shorten the route of delivering electricity
    by choosing the generators that are closest to the customers.
    Thus, this calculation encourages PJM to use the transmission
    system more efficiently. Atlantic City I, 115 FERC at 61,478.
    Furthermore, FERC has indicated that similar
    incentives arise when congestion is calculated into the LMP,
    a cost that both the PUC and the Commonwealth Court have
    found to be related to transmission. PJM Interconnection I,
    81 FERC at p. 62,253; Metropolitan Edison 
    Co., 22 A.3d at 10
    356. FERC noted that calculating congestion costs would
    “send price signals that are likely to encourage efficient
    location of new generating resources, dispatch of new and
    existing generating resources, and expansion of the
    transmission system.” PJM Interconnection I, 81 FERC at p.
    62,253. Accordingly, the calculation “encourage[s] efficient
    use of the transmission system.” 
    Id. It is
    noteworthy that
    neither the PUC nor the Commonwealth Court found this
    statement to be ambiguous in their finding that congestion
    was related to transmission, and not generation.
    Finally, the Commonwealth Court referred to language
    in PJM Interconnection I and PJM Interconnection II that
    seemingly associated line loss with the cost of generation.
    Metropolitan Edison 
    Co., 22 A.3d at 365
    . According to the
    court, “FERC did refer to the amount of line losses as being
    related to transmission; however, it also indicated that ‘the
    price of line losses is related to generation, and the cost of
    generation is determined by LMP.’” 
    Id. (quoting PJM
    Interconnection, 92 FERC at p. 61,960). The court took this
    statement out of context.
    At the time PJM Interconnection was decided, the
    LMP calculated two cost components, generation and the
    transmission constraints of congestion. PJM Interconnection
    II, 92 FERC at 61,952. In PJM Interconnection II, FERC
    noted, “[w]hen transmission constraints occur on the PJM
    system, the marginal cost of energy varies by location
    because not all supply can be delivered to all demand.” 
    Id. Meanwhile, generation
    refers to the baseline cost for
    providing electricity absent transmission constraints, which
    does not vary by location. 
    Id. At the
    time, line losses were
    not associated with transmission constraints, but rather, were
    11
    calculated via an uplift charge. Atlantic City I, 115 FERC at
    61,473. Thus, like generation, line losses did not vary by
    location. It is therefore understandable why FERC, at that
    time, might categorize line losses with generation, as opposed
    to transmission.
    However, under LMP, the Commonwealth Court’s
    assessment of FERC orders as ambiguous is misplaced. It is
    clear that in conjunction with LMP, FERC has consistently
    classified line loss as a transmission related cost.
    IV. Conclusion
    In focusing on the Companies’ attempt to have us
    review the Commonwealth’s substantive determination under
    the filed rate doctrine, the majority misses the forest for the
    trees. The state may not improperly interpret a matter outside
    of its jurisdiction when the matter has been left to the
    exclusive jurisdiction of FERC.3 Because our review is not
    3
    From the beginning the Companies have taken the
    position that this is a matter that can only be determined by
    FERC. And, in essence, this is the question asked by the
    Companies in their petition for certiorari to the Supreme
    Court:
    The Federal Power Act, 16 U.S.C. §§824
    et seq., grants the Federal Energy Regulatory
    Commission (“FERC”) “exclusive authority to
    regulate the transmission and sale at wholesale
    of electric energy in interstate commerce.” New
    England Power Co. v. New Hampshire, 
    455 U.S. 331
    , 340 (1982). A regional transmission
    12
    organization (“RTO”) implementing its federal
    tariff charged petitioners for “transmission line
    losses” - the energy that dissipates when
    electricity is transmitted through wires.
    Although it was undisputed that the RTO
    imposed those charges as a cost of transmission,
    the Pennsylvania Public Utility Commission
    and the court below barred petitioners from
    recovering those federally imposed costs in
    retail rates by ruling that “transmission line
    losses” are generation costs (a cost of producing
    electricity),    not      transmission      costs.
    Notwithstanding the filed rate doctrine, they
    deemed it irrelevant that the RTO had imposed
    the charges as “transmission” costs. They held
    that state regulators were free to recategorize
    the charges because FERC had not
    “unambiguously” or “explicitly” declared that
    “transmission line losses” are “transmission
    costs.” The questions presented are:
    1. Whether, contrary to a decision of the
    Fifth Circuit, the Federal Power Act and filed
    rate doctrine permit a state public utility
    commission to deny recovery of FERC-
    mandated charges by classifying those costs
    differently from the entity responsible for
    administering the federal tariff on the ground
    that the tariff and FERC's orders do not
    “unambiguously” or “explicitly” foreclose the
    State's chosen classification.
    2. Whether, contrary to a decision of the
    D.C. Circuit, “transmission line losses” reflect
    13
    precluded and FERC has clearly spoken, I respectfully
    dissent. Thus, I conclude that this matter should be remanded
    to the District Court with instructions to issue an order
    enjoining the PUC and its Commissioners from asserting
    jurisdiction to define line losses in any manner other than is
    provided by FERC, i.e., that “marginal losses are part of the
    payment for transmission service.” Atl. City Elec. Co., 117
    FERC at 61,858.
    the costs of generating electricity rather than the
    costs of transmitting it.
    Petition for Writ of Certiorari, Metro. Edison Co. v. Pa. Pub.
    Util. Comm'n, 
    133 S. Ct. 426
    (No. 12-4) (emphasis added).
    The fact that the Supreme Court did not grant certiorari does
    not mean that this question may not be validly raised in
    federal district court. Cf. White v. Ragen, 
    324 U.S. 760
    , 767
    (1945) (“A denial of certiorari by this Court in such
    circumstances does not bar an application to a federal District
    Court for the relief, grounded on federal rights, which the
    Supreme Court of Illinois has denied.”).
    14
    

Document Info

Docket Number: 13-4288

Citation Numbers: 767 F.3d 335

Filed Date: 9/16/2014

Precedential Status: Precedential

Modified Date: 1/12/2023

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