Wah Chang v. Duke Energy Tradidng ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAH CHANG, a division of TDY 
Industries, Inc., a California
corporation,
Plaintiff-Appellant,
v.
No. 05-55367
DUKE ENERGY TRADING AND
MARKETING, LLC, a Delaware  D.C. No.
limited liability company; RELIANT CV-04-01839-RHW
ENERGY SERVICES INC., a Delaware
corporation; TRANSALTA ENERGY
MARKETING (CALIFORNIA), INC., a
Delaware corporation,
Defendants-Appellees.

15087
15088 WAH CHANG v. DUKE ENERGY TRADING
WAH CHANG, a division of TDY 
Industries, Inc., a California
corporation,
Plaintiff-Appellant,
v.
AVISTA CORPORATION, a
Washington corporation; AVISTA
ENERGY, INC., a Washington
corporation; AVISTA POWER LLC, a
Washington limited liability
company; DYNEGY POWER
MARKETING, INC., a Texas
corporation; EL PASO ELECTRIC
COMPANY, a Texas corporation;
IDACORP INC., an Idaho No. 05-55369
corporation; IDAHO POWER
COMPANY, an Idaho corporation;  D.C. No.
CV-04-01840-RHW
IDACORP ENERGY, L.P., a
Delaware limited partnership; OPINION
PORTLAND GENERAL ELECTRIC
COMPANY, an Oregon corporation;
POWEREX CORPORATION, a British
Columbia corporation; PUGET
ENERGY, INC., a Washington
corporation; PUGET SOUND ENERGY,
INC., a Washington corporation;
SEMPRA ENERGY, a California
corporation; SEMPRA ENERGY
RESOURCES, a California
corporation; SEMPRA ENERGY
TRADING, a Delaware corporation;
WILLIAMS POWER COMPANY INC., a
Delaware corporation,
Defendants-Appellees.

WAH CHANG v. DUKE ENERGY TRADING 15089
Appeal from the United States District Court
for the Southern District of California
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
April 10, 2007—Pasadena, California
Filed November 20, 2007
Before: Harry Pregerson, Ferdinand F. Fernandez and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Fernandez;
Dissent by Judge Pregerson
15090 WAH CHANG v. DUKE ENERGY TRADING
COUNSEL
Edward A. Finklea, Cable Huston Benedict Haagensen &
Lloyd, LLP, Portland, Oregon; Richard H. Williams, Lane
Powell PC, Portland, Oregon, for the plaintiff-appellant.
WAH CHANG v. DUKE ENERGY TRADING 15091
Gordon P. Erspamer, Morrison & Foerster LLP, Walnut
Creek, California, for defendants-appellees Transalta Energy
Marketing (U.S.), Inc., Transalta Energy Marketing (Califor-
nia), Inc., IDACORP, Inc., Idaho Power Company, and IDA-
CORP Energy L.P.; David M. Jacobson, Dorsey & Whitney
LLP, Seattle, Washington, for defendants-appellees Avista
Corporation, Avista Energy, Inc., and Avista Power, LLC.;
Joel B. Kleinman, Dickstein, Shapiro, Morin & Oshinsky,
Washington, D.C., for defendant-appellee Duke Energy Trad-
ing and Marketing, L.L.C.; Michael J. Kass, Pillsbury Win-
throp Shaw Pittman LLP, San Francisco, California, for
defendant-appellee Dynegy Power Marketing, Inc.; Kenneth
R. Heitz, Irell & Manella LLP, Los Angeles, California, for
defendant-appellee El Paso Electric Company; Steven M.
Wilker, Tonkon Torp, LLP, Portland, Oregon, for defendant-
appellee Portland General Electric Company; Andrew M. Edi-
son, Bracewell & Giuliani, LLP, Houston, Texas, for
defendant-appellee Powerex Corp.; Thomas L. Boeder, Per-
kins Coie, LLP, Seattle, Washington, for defendants-appellees
Puget Energy, Inc. and Puget Sound Energy, Inc.; Terry J.
Houlihan, Bingham McCutchen, San Francisco, California,
for defendant-appellee Reliant Energy Services, Inc.; Michael
J. Weaver, Latham & Watkins, LLP, San Diego, California,
for defendants-appellees Sempra Energy, Sempra Energy
Resources, and Sempra Energy Trading Corp.; Jeffrey M.
Shohet, DLA Piper Rudnick Gray Cary US LLP, San Diego,
California, for defendant-appellee Williams Power Company
Inc.
OPINION
FERNANDEZ, Circuit Judge:
Wah Chang, a division of TDY Industries, Inc., a Califor-
nia corporation, appeals the district court’s dismissal of its
actions against Duke Energy Trading and Marketing, L.L.C.,
15092 WAH CHANG v. DUKE ENERGY TRADING
Avista Corporation, and a multitude of other companies (all
hereafter referred to as the Energy Companies). Wah Chang,
whose complaints arise out of the energy crisis of 2000-2001,
seeks to recover damages because of the difference between
the rate it was actually charged for electricity, which was a
retail rate based upon the wholesale rate, and the rate that it
claims a fair rate would have been were it not for manipula-
tion of the market by the Energy Companies and others. Like
the actions of those who have come before it, Wah Chang’s
actions must fail. We affirm.
BACKGROUND
As pled by Wah Chang,1 it purchased electricity for its
plant in Oregon at retail from PacifiCorp, a purchaser of elec-
tricity in the wholesale spot market. Under its purchase con-
tract, Wah Chang’s rates were indexed to the wholesale spot
market price at the California-Oregon border so that price
changes in that market were passed on to Wah Chang.
During the 2000-2001 energy crisis, the wholesale price of
electricity increased substantially,2 and so too did Wah
Chang’s costs. It asserts that the reason for the change was
rates that were artificially increased by the Energy Companies
through their anticompetetive and fraudulent manipulation of
the wholesale markets, which affected customers, like Wah
Chang, who purchased power in the Pacific Northwest mar-
ket. Of course, the rates in question were, as a matter of law,
1
Because the district court dismissed Wah Chang’s complaints pursuant
to Federal Rule of Civil Procedure 12(b)(1), all material factual allegations
in the complaint are taken as true. See Whisnant v. United States, 400 F.3d
1177, 1179 (9th Cir. 2005); United States v. One 1997 Mercedes E420,
175 F.3d 1129, 1130 n.1 (9th Cir. 1999) (per curiam).
2
We have outlined the nature of that crisis previously, and need not
repeat the history here. See California ex rel. Lockyer v. FERC, 383 F.3d
1006, 1009-10 (9th Cir. 2004), petitions for cert. filed, 75 U.S.L.W. 3355(Dec. 28, 2006), 75 U.S.L.W. 3410 (Feb. 05, 2007); California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 836-37 (9th Cir. 2004).
WAH CHANG v. DUKE ENERGY TRADING 15093
a result of tariffs approved by the Federal Energy Regulatory
Commission under its market-based rate setting approach. We
have described the nature of that approach in our prior forays
into this territory. See, e.g., Pub. Util. Dist. No. 1 of Snoho-
mish County v. Dynegy Power Mktg., 384 F.3d 756, 760-61
(9th Cir. 2004); Lockyer, 383 F.3d at 1012-13. Suffice it to
say that its legal effect is the same as the effect of any other
tariff set by FERC. See, e.g., Snohomish County, 384 F.3d at
761; Pub. Util. Dist. No. 1 of Grays Harbor County Wash. v.
IDACORP Inc., 379 F.3d 641, 650-52 (9th Cir. 2004);
Dynegy, 375 F.3d at 852-53. Because of that, the district court
dismissed these actions. Wah Chang appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court’s decision to dismiss a complaint
for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1) de novo. See Assoc. of Am. Med.
Colls. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).
DISCUSSION
[1] While the problems arising out of the 2000-2001 energy
crisis were serious and even scandalous, we have often dis-
cussed them at length. Moreover, we have analyzed the
market-based approach and have, effectively, said that the
claims of those who have come before us must be presented
to FERC. Thus, we have turned away purchasers of electricity
when they have attempted to bring a direct federal rate action
against sellers in the position of the Energy Companies. See
Grays Harbor, 379 F.3d at 646-52; Dynegy, 375 F.3d at 849-
53. We have done so on the basis of a number of doctrines,
including the filed rate doctrine.
[2] That doctrine is a form of deference and preemption,
which precludes interference with the rate setting authority of
15094 WAH CHANG v. DUKE ENERGY TRADING
an administrative agency, like FERC. See Dynegy, 375 F.3d
at 852-53. It is a far reaching doctrine. As we have explained:
At its most basic, the filed rate doctrine provides
that state law, and some federal law (e.g. antitrust
law), may not be used to invalidate a filed rate nor
to assume a rate would be charged other than the rate
adopted by the federal agency in question. The doc-
trine applies to rates charged by railroads, natural
gas companies, and other interstate operators over
whom federal agencies have exclusive power to set
rates. More relevant here, the Supreme Court has
extended the doctrine to the Federal Power Act and
to electricity rates.
....
As further developed, the filed rate doctrine has
prohibited not just a state court (or a federal court
applying state law) from setting a rate different from
that chosen by FERC, but also from assuming a
hypothetical rate different from that actually set by
FERC.
Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295
F.3d 918, 929-30 (9th Cir. 2002) (TANC) (citations omitted);
see also Ark. La. Gas Co. v. Hall, 453 U.S. 571, 578-579, 101
S. Ct. 2925, 2931, 69 L. Ed. 2d 856 (1981) (speculation on
what Commission “might have done” is prohibited). And, as
we have explained, the doctrine applies to the market-based
tariffs and rates in question here, even if they were not set in
the traditional way. See Snohomish County, 384 F.3d at 761;
Lockyer, 383 F.3d at 1012-13; Grays Harbor, 379 F.3d at
650-51; Dynegy, 375 F.3d at 852-53.
[3] The filed rate doctrine’s fortification against direct
attack is impenetrable. It turns away both federal and state
WAH CHANG v. DUKE ENERGY TRADING 15095
antitrust actions;3 it turns away Racketeer Influenced and Cor-
rupt Organization Act actions;4 it turns away state tort actions;5
and it even turns away state attempts to assert sovereign
power to commandeer power contracts.6 In short, it turns
away attempts like Wah Chang’s, which necessarily hinge on
a claim that the FERC approved rate was too high and would,
therefore, undermine FERC’s tariff authority through the
medium of direct court actions against the Energy Companies.7
[4] But, argues Wah Chang, its actions differ from others
we have considered because it did not directly purchase
wholesale power. Rather, it was a retail customer. That is an
asthenic distinction at best. If we do not have a retail custom-
er’s case on all fours with this one, we do have a case stand-
ing on three legs, with the fourth just a millimeter off the
ground. We have considered a situation where direct retail
(residential and commercial) customers of a utility sued it and
its FERC regulated pipeline subsidiary for alleged antitrust
violations. County of Stanislaus, 114 F.3d at 860. We deter-
3
See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S.
409, 422, 106 S. Ct. 1922, 1929-30, 90 L. Ed. 2d 413 (1986); Keogh v.
Chi. & Nw. Ry. Co., 260 U.S. 156, 162, 43 S. Ct. 47, 49, 67 L. Ed. 183(1922); County of Stanislaus v. Pac. Gas & Elec. Co., 114 F.3d 858, 863
(9th Cir. 1997).
4
We have not previously addressed RICO as such. However, we agree
with the Second Circuit Court of Appeals that those actions are barred. See
Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d. 58, 61-62 (2d
Cir. 1995) (holding that the filed rate doctrine precludes a RICO action);
Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 22 (2d Cir. 1994) (same); see
also Taffet v. S. Co., 967 F.2d 1483, 1485-86, 1488 (11th Cir. 1992) (en
banc) (same); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.
1992) (same).
5
See Dynegy, 375 F.3d at 836-37, 852-53; TANC, 295 F.3d at 932-33.
6
See Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042,
1056-59 (9th Cir. 2001).
7
We note that Wah Chang is not attacking the contract it had with Paci-
fiCorp; it seeks damages against the Energy Companies only. Cf. Grays
Harbor, 379 F.3d at 652-53 (an attempt to reform a contract might be sus-
tainable, but damages are not available).
15096 WAH CHANG v. DUKE ENERGY TRADING
mined that all of the customers’ claims challenged “a rate that
a federal agency [FERC] has reviewed and filed.” Id. at 866.
The claims were, therefore, barred by the filed rate doctrine.
Id. at 867. Wah Chang’s claims amount to the same thing. Try
as it may, Wah Chang cannot avoid the fact that it seeks what
amounts to having the courts determine what rates the Energy
Companies should have charged instead of the rates they did
charge. Wah Chang would inevitably drag the courts into a
determination of what rate would be fair and proper. That is
precisely what Wah Chang cannot do. See TANC, 295 F.3d at
930 (holding that courts can neither set a rate different from
that set by FERC nor assume a different hypothetical rate).
Wah Chang attempts to reinforce its faltering attack on the
filed rate fortress by rushing in snippets from various opin-
ions, but those troops are not up to the task assigned to them.
For example, Wah Chang points to the exception for antitrust
actions by competitors,8 but ignores the fact that we have not
extended that exception to a third-party customer,9 which it
admits it is. And, Wah Chang argues, the doctrine was origi-
nally designed to prevent price discrimination among custom-
ers,10 which it perceives no danger of here, but, even if its own
perception is not obscured, it ignores the fact that an exceed-
ingly strong prop for the doctrine is preservation of the exclu-
sive role of the regulatory agencies.11 Wah Chang’s actions
would undermine that role. Still, Wah Chang says, it will not
have a separate right of action for damages if it does not have
this one,12 but lack of a damage remedy is not determinative.13
8
See Cost Mgmt. Servs., Inc. v. Wash. Natural Gas Co., 99 F.3d 937,
945-48 (9th Cir. 1996).
9
County of Stanislaus, 114 F.3d at 866; see also, Cost Mgmt., 99 F.3d
at 945 (clarifying that it is speaking about competitors, not customers).
10
See Keogh, 260 U.S. at 163, 43 S. Ct. at 49-50; Verizon Del., Inc. v.
Covad Comms. Co., 377 F.3d 1081, 1086 (9th Cir. 2004).
11
Verizon Del., 377 F.3d at 1086.
12
See Keogh, 260 U.S. at 162, 43 S. Ct. at 49 (alluding to possible sepa-
rate right).
13
See County of Stanislaus, 114 F.3d at 862-67; see also Montana-
Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 254-55, 71 S. Ct.
692, 697, 95 L. Ed. 912 (1951); Lockyer, 383 F.3d at 1016.
WAH CHANG v. DUKE ENERGY TRADING 15097
We will not speculate about other possible remedies against
(or involving) those from whom Wah Chang actually pur-
chased electricity.
Wah Chang does point to a case allowing relief where sham
protests were filed with an agency in order to delay rate
requests by the plaintiff,14 but neither the rates ultimately
adopted by the agency nor its own procedures were in question.15
That case avails Wah Chang nothing; it is far removed from
the rate claims made here.
Finally, Wah Chang ululates about FERC’s lax oversight,
but laxness does not indicate, much less establish, that Wah
Chang can turn directly to the courts for rate relief. See
Square D, 476 U.S. at 422, 106 S. Ct. at 1929-30; Lockyer,
383 F.3d at 1016. To permit it to do so would make the vices
suppressed by the filed rate doctrine recrudescent.
In fine, none of these added points overcomes, or even seri-
ously undermines, the fact that what Wah Chang seeks against
the Energy Companies is a deviation in its favor from the
FERC-accepted wholesale power rates that Wah Chang, by its
own hypothesis, wound up being charged with.16
CONCLUSION
[5] There may well have been a shadow of wrongdoing
brooding over the Pacific Northwest wholesale power market,
but Wah Chang cannot succeed in this forum. The filed rate
doctrine bars its rate-based action,17 just as it has barred the
14
Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690
F.2d 1240, 1250-51, 1254 (9th Cir. 1982).
15
Id. at 1266-67.
16
We are well aware of E.&J. Gallo Winery v. Encana Corp., 05-17352,
slip op. 12523 (9th Cir. Sept. 19, 2007). However, that does not affect our
analysis because, as Gallo acknowledges, FERC’s control over the natural
gas market is quite different from its control over the electricity market.
17
Because we hold that the filed rate doctrine completely disposes of
this case, we do not address the issues of field and conflict preemption.
15098 WAH CHANG v. DUKE ENERGY TRADING
similar actions brought by other victims of the 2000-2001
energy crisis. Perhaps Wah Chang can hope to obtain relief
for some of its alleged damages, but it cannot realize that
hope in this litigation.
AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
These cases require us to decide whether the filed rate doc-
trine bars the claims of retail electricity consumers who do not
directly challenge FERC’s established rates. Because I believe
we should not extend the reach of this flawed doctrine, I dis-
sent.
The majority holds that the filed rate doctrine bars the
claims of Wah Chang, a retail consumer of electricity. The
filed rate doctrine, a doctrine of agency deference, prohibits
courts from invalidating FERC-established rates. California
ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 852-53 (9th
Cir. 2004). Pursuant to this doctrine, we have required those
who contest a filed rate to first bring their claims before
FERC. See, e.g., Pub. Util. Dist. No. 1 of Snohomish County
v. Dynegy, 384 F.3d 756, 762 (9th Cir. 2004); California ex
rel. Lockyer v. FERC, 383 F.3d 1006, 1012 (9th Cir. 2004).
In this case, however, the plaintiff is not directly contesting a
filed rate, and it is not clear that FERC has jurisdiction to hear
Wah Chang’s claims.
I.
Wah Chang, a chemical manufacturer with a plant in Ore-
gon, contracted with PacifiCorp, its local electricity utility, to
provide electricity for its plant. Under the terms of the agree-
ment, the price of electricity was indexed to spot market
wholesale prices at the California-Oregon border, as reported
WAH CHANG v. DUKE ENERGY TRADING 15099
by the Dow Jones California-Oregon Border Electricity Price
Index (“Dow Jones COB Index”). Wah Chang alleges that the
Defendants engaged in illegal practices that artificially raised
electricity prices throughout the Pacific Northwest, including
at the delivery points considered by the Dow Jones COB
Index.
Wah Chang did not purchase electricity from the Defen-
dants, nor does Wah Chang challenge any filed rates. Instead,
Wah Chang alleges that (1) the Defendants’ illegal market
manipulations artificially increased filed rates, (2) these filed
rates influenced the Dow Jones COB Index, (3) Wah Chang’s
contract with PacifiCorp tied energy prices to the Dow Jones
COB Index, and thus (4) Wah Chang paid higher energy
prices as a result of the Defendants’ illegal market manipula-
tions.1
Wah Chang is not asking the court to calculate what the
filed rates should have been but instead is seeking acknowl-
edgment that the Defendants’ fraudulent actions and anti-trust
market manipulations adversely affected Wah Chang’s retail
1
I am also aware of E. & J. Gallo Winery v. Encana Corp., ___ F.3d
___, 2007 WL 2713126 (9th Cir. 2007). One of the issues presented in E.
& J. Gallo was whether all the rates reported in the natural gas indices
were authorized by FERC. The court conducted an in-depth analysis of the
Natural Gas Policy Act of 1978, Pub.L. No. 95-621, 92 Stat. 3352 (codi-
fied as amended at 15 U.S.C. §§ 3301-3432 (1994)), and the Wellhead
Decontrol Act of 1989, Pub.L. No. 101-60, 103 Stat. 157, to determine
that certain rates reported were not FERC-authorized. Thus, the court held
that the plaintiff, a retail purchaser of natural gas, was not barred from
bringing damages claims to the extent that they were based on rates
derived from transactions that were not subject to FERC’s jurisdiction.
Here, the issue presented is different. It is not whether the Dow Jones
COB Index included reports of market rates that were not authorized by
FERC; the issue is whether the Defendants’ illegal practices affected filed
rates, in turn influencing the Dow Jones COB Index. For this reason, and
because FERC’s control of the natural gas market is different from its con-
trol over the electricity market, I agree that E. & J. Gallo does not control
the outcome of this case.
15100 WAH CHANG v. DUKE ENERGY TRADING
contract with PacifiCorp. Although Wah Chang alleges injury
resulting from the Defendants’ actions, its claims arise out of
a retail contract between Wah Chang and PacifiCorp, and not
from a wholesale contract between Wah Chang and any of the
Defendants.2 Thus, Wah Chang’s claims do not fall directly
under the purview of the filed rate doctrine because Wah
Chang is not seeking a judicial review of the validity of the
filed rate, nor is Wah Chang asking the court to establish what
the filed rate should have been.
II.
We have deferred to FERC cases arising out of the 2000-
2001 energy crisis where the cases involved evaluation of
FERC-established filed rates. FERC’s jurisdiction in such sit-
uations is clear. It is not clear, however, that FERC has juris-
diction over Wah Chang’s claims.
Under the Federal Power Act (“FPA”), FERC has jurisdic-
tion over facilities engaged in “the transmission of electric
energy in interstate commerce and [ ] the sale of electric
energy at wholesale in interstate commerce.” 16 U.S.C.
§ 824(b)(1).3 However, “[r]etail sales of electricity and whole-
sale intrastate sales are within the exclusive jurisdiction of the
States.” Duke Energy Trading & Mktg., L.L.C. v. Davis, 267
F.3d 1042, 1056 (9th Cir. 2001).
2
The majority suggests that the present case is controlled by County of
Stanislaus, 114 F.3d 858, 863 (9th Cir. 1997), in which we held that the
filed rate doctrine barred customers’ antitrust claims against a public util-
ity and its pipeline subsidiary. The present case is distinguishable.
Although the plaintiffs in County of Stanislaus were also retail consumers
of a public utility, they directly challenged a filed rate. Id. at 863. By con-
trast, Wah Chang alleges it was injured because its retail contract with
PacifiCorp was indexed to the Dow Jones COB Index, not to a specific
filed rate.
3
The federal government could regulate retail sales and wholesale intra-
state sales under its expansive Commerce Clause power. Congress has not
chosen to do, however, but has limited FERC’s reach to interstate trans-
mission of electricity and wholesale interstate transactions.
WAH CHANG v. DUKE ENERGY TRADING 15101
Wah Chang purchased power for its chemical manufactur-
ing facility from PacifiCorp, its local electric utility. This
transaction was a retail intrastate purchase, not a wholesale
interstate transaction subject to FERC’s regulatory oversight.
Wah Chang did not contract with the Defendants and does not
seek a refund of filed rates. Therefore, it is not clear that
FERC could entertain Wah Chang’s claim for relief.4 When
FERC does not have jurisdiction over a claim, the rationale
for the filed rate doctrine does not apply.
III.
The majority argues that granting Wah Chang relief will
necessarily require the court to determine what the filed rate
should have been. Maj. Op. 15095-96. But, there is no need
to do that to calculate damages in this case.
For example, Wah Chang suggests that the District Court
could calculate a monetary remedy based on the difference
between the Dow Jones COB rate and an existing alternate
uncorrupted rate under which Wah Chang could have pur-
chased power. Wah Chang contends that if it had not executed
the retail contract tying prices to the Dow Jones COB Index,
it would have purchased power from PacifiCorp under a
default retail tariff established by the Oregon Public Utilities
Council (“OPUC”). Thus, the District Court could calculate
Wah Chang’s damages based on the difference between the
rates Wah Chang paid under the retail contract with Pacifi-
Corp and the rates it would have paid under the OPUC default
retail tariff. This method of computing damages would not
require the District Court to calculate what the appropriate
rate should have been absent the Defendants illegal conduct.5
4
Although the Defendants argue that Wah Chang intervened in related
FERC proceedings, the majority denied a request that we take judicial
notice of those proceedings. Therefore, we cannot determine whether
FERC has agreed to hear any of Wah Chang’s claims.
5
This is but one example of a potential damage calculation a district
court could consider on remand. Wah Chang also asserts damage claims
based on consequential damages, calculation of which would not necessar-
ily involve examination of any rates.
15102 WAH CHANG v. DUKE ENERGY TRADING
IV.
In sum, Wah Chang’s position as a outsider to the chain of
transactions flowing from FERC rates is important in three
respects. First, because Wah Chang did not contract with any
of the Defendants, it is not clear that Wah Chang could pursue
its claim before FERC. Second, because Wah Chang is not a
customer of a regulated entity, an award of relief to Wah
Chang does not raise the specter of price discrimination
among competing customers. Third, because Wah Chang did
not purchase power from the Defendants, it does not seek, and
would not benefit from, a refund of a filed rate.
Wah Chang did not directly participate in transactions regu-
lated by FERC and does not seek to invalidate a filed rate
approved by FERC. Nonetheless, the majority invokes the
filed rate doctrine to avoid impinging on FERC’s authority to
regulate wholesale interstate power sales. I do not agree that
Wah Chang’s claims would require a court to review filed
rates approved by FERC.
One other important point: the original purpose of the filed
rate doctrine is to ensure that all those who compete in the
same market and transfer their products by rail are charged at
the same rate. The doctrine has been extended to prevent price
discrimination in the electricity industry. See Mont.-Dakota
Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 251-52 (1951).
The purpose of the filed rate doctrine is not to protect compa-
nies engaging in illegal anti-trust manipulative practices.
I would reverse the district court’s dismissal and remand
for further proceedings.