Public Utilities – Rate Decrease – Civil Practice – Federal Jurisdiction

After plaintiff abandoned its nuclear power plant project, the General Assembly passed legislation requiring the Public Service Commission to lower plaintiff’s utility rates and to prohibit review of this “experimental” rate until November. Even though plaintiff does not have access to an adequate and timely state review of its challenge to the legislation, since plaintiff has not made allegations regarding specific acts of defendants showing their enforcement of the legislation that would subject them to the consequences of their official conduct, defendants are entitled to Eleventh Amendment immunity.

The court grants defendants’ motion to dismiss without prejudice.

Eleventh Amendment immunity may extend to state employees acting in their official capacity unless the suit seeks prospective injunctive and/or declaratory relief and challenges the constitutionality of a state official’s action. This exception to Eleventh Amendment immunity is designed to preserve the constitutional structure established by the Supremacy Clause and rests on the notion, often referred to as “a fiction,” that a state officer who acts unconstitutionally is stripped of his official or representative character and thus subjected in his person to the consequences of his individual conduct.

To invoke the exception, a plaintiff must identify and seek prospective equitable relief from an ongoing violation of federal law. In addition, the plaintiff must provide allegations explaining the connection between the officials and the challenged enactment.

This exception is inapplicable here because plaintiff has not made allegations regarding specific acts of defendants showing their enforcement of the legislation that would subject them to the consequences of their official conduct. Accordingly, defendants are entitled to dismissal of this action.

Dismissed without prejudice.

South Carolina Electric & Gas Co. v. Whitfield (Lawyers Weekly No. 002-167-18, 28 pp.) (J. Michelle Childs, J.) 3:18-cv-01795. Benjamin Palmer Carlton, George Craig Johnson, I. S. Leevy Johnson, Steven Pugh, Ashley Parrish, Brandon Keel, David Balser, Jonathan Chally and Julia Barrett for plaintiff; Algernon Gibson Solomons III, Bakari Sellers, Creighton Coleman, Daniel Haltiwanger, Daniel Alvah Speights, Gregory Michael Galvin, James Edward Bell III, James L Ward Jr., Jerry Hudson Evans, Jessica Lerer Fickling, Joseph Preston Strom Jr., Keith Moss Babcock, Mario Pacella, Terry Edward Richardson Jr., Vincent Sheheen, Whitney Boykin Harrison and Joseph Edward Wojcicki for movants; John Reagle and Thomas Kennedy Barlow for defendants; Michael Joseph Anzelmo, Robert Erving Stepp, Robert Tyson Jr., Vordman Carlisle Traywick, Eric Bauman Amstutz, John Moylan III, Matthew Richardson and James Edward Cox Jr. for intervenors; James Emory Smith Jr. and Robert Dewayne Cook for amicus. D.S.C.