DUAMEL SANTIAGO-RAMOS, individually and as representative of the Conjugal Partnership; MARINÉS RIVERA-FIGUEROA; CARIBBEAN ECONOMIC COUNCIL, Plaintiffs, Appellants,
AUTORIDAD DE ENERGÍA ELÉCTRICA DE PUERTO RICO, AEE, a/k/a Puerto Rico Power Company, Defendant, Appellee, MARIMAR PÉREZ-RIERA, Defendant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Jay A. García-Gregory, U.S. District
Quetglas-Jordán, with whom Quetglas Law Offices,
Ricardo Izurieta, Luis Rafael Rivera, Luis Rafael Rivera Law
Offices, and Allan Amir Rivera-Fernández, were on
brief, for appellants.
Fernando J. Fornaris-Fernández, with whom Victoria D.
Pierce-King and Cancio, Nadal, Rivera & Díaz,
P.S.C., were on brief, for appellee.
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
Duamel Santiago-Ramos ("Santiago"), Marinés
Rivera-Figueroa, and Caribbean Economic Council filed a class
action suit on behalf of approximately 1.5 million Puerto
Rican residents who are customers of Autoridad de
Energía Eléctrica de Puerto Rico
("PREPA") against Defendant-Appellee PREPA alleging
that PREPA's use of a portion of its overall revenue to
subsidize municipalities' energy use violates the Takings
Clause and deprives Plaintiffs-Appellants of their property
interest in electricity and/or the funds they paid for
electricity in violation of procedural due process. The
district court granted summary judgment for PREPA. We affirm,
finding Plaintiffs-Appellants lack standing.
describe the facts, drawing all inferences in the
plaintiff's favor, as we must do in summary
judgment." Chaloult v. Interstate Brands Corp.,
540 F.3d 64, 66 (1st Cir. 2008).
charges consumers a base rate of five cents per kilowatt-hour
("kwh"). In addition to the base rate, PREPA
charges customers an adjustment fee each month, which has two
components: (1) a fuel purchase charge based on the estimated
price of fuel that is recalculated monthly and (2) an energy
purchase charge. PREPA's Regulation of General Terms and
Conditions for the Supply of Electric Energy ("PREPA
Regulations") term electricity a "movable
good" that can be illegally appropriated. P.R. Reg. AEE
Reg. 7982. Puerto Rico law defines movable property as things
that can be appropriated. 31 L.P.R.A § 1061.
Rico law requires that PREPA use eleven percent of its
overall revenue to fund, inter alia, subsidies and credits to
select beneficiaries -- for example, churches or social welfare
organizations -- and a Contribution in Lieu of Taxes
("CILT") to municipalities to subsidize their
energy use in exchange for exempting PREPA from taxes. 22
L.P.R.A. § 212(b). As of 2011, following an amendment to
22 L.P.R.A. § 212(b), Law 233, the CILT calculation
effectively excludes consumption billed to municipal
facilities housing for-profit establishments. P.R. Laws No.
233-2011. A 2014 amendment to 22 L.P.R.A. § 212(b), Law
57, maintained that exclusion. P.R. Laws No. 57-2014.
allege PREPA has subsidized municipalities' private use
by $360 million since 2005 and $140 million since 2011,
despite Law 233 and Law 57. They also claim no procedure
exists for resolving disputes regarding the taking of
electricity. Plaintiffs-Appellants are seeking "just
compensation" in the amount of $360 million. A
magistrate judge recommended granting PREPA's motion for
summary judgment and dismissing Plaintiffs-Appellants'
claims with prejudice, finding that they had not identified a
valid property interest, no taking had occurred, and no valid
procedural due process claim existed in light of the absence
of a property interest. The district court adopted the
magistrate judge's recommendation and granted summary
judgment for PREPA. Plaintiffs-Appellants appeal the grant of
appeal, Plaintiffs-Appellants argue (1) they identified a
valid property interest in both electricity as movable
property and the monies paid for electricity; (2) PREPA
effects an unconstitutional taking of that property by taking
"the electric energy paid by [Plaintiffs-Appellants] to
give it to the Municipalities" for private use without
any rational purpose; (3) the "11% [Appellants] are
charged by PREPA . . . to purchase electric power" is
arbitrary and irrational; and (4) Appellants have been denied
procedural due process.
A Standing Problem
Court "review[s] a grant or denial of summary judgment,
as well as pure issues of law, de novo." Sun Capital
Partners III, LP v. New Eng. Teamsters & Trucking
Indus. Pension Fund,724 F.3d 129, 138 (1st Cir. 2013).
Here, our de novo review yields the definite ...