Bristol Energy Corp. v. State of New Hampshire Public Utilities Commission

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1824

BRISTOL ENERGY CORPORATION, d/b/a ALEXANDRIA POWER ASSOCIATES,
BIO-ENERGY CORPORATION, BRIDGEWATER POWER COMPANY, L.P.,
HEMPHILL POWER AND LIGHT COMPANY, PINETREE POWER, INC.,
PINETREE POWER - TAMWORTH, INC., TIMCO, INC., AND
WHITEFIELD POWER AND LIGHT COMPANY,

Plaintiffs, Appellants,

v.

STATE OF NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION,

Defendant, Appellee.

No. 93-1835

BRISTOL ENERGY CORPORATION, d/b/a ALEXANDRIA POWER ASSOCIATES,
BIO-ENERGY CORPORATION, BRIDGEWATER POWER COMPANY, L.P.,
HEMPHILL POWER AND LIGHT COMPANY, PINETREE POWER, INC.,
PINETREE POWER - TAMWORTH, INC., TIMCO, INC., AND
WHITEFIELD POWER AND LIGHT COMPANY,

Plaintiffs, Appellants,

v.

STATE OF NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION,

Defendant, Appellee,

AMERICAN HYDRO, INC. - PETERBOROUGH AND ENERGY TACTICS, INC.,

Intervenors, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Bryan K. Gould, with whom Robert A. Olson and Brown, Olson &

Wilson, P.C. were on brief for appellants and Peter W. Brown,

Daniel W. Allegretti, and Brown, Olson & Wilson, P.C. on brief

for intervenors, appellants.
Harold T. Judd, Senior Assistant Attorney General, with whom

Jeffrey R. Howard, Attorney General, was on brief for appellee.

Susan Tomasky, Jerome M. Feit and Samuel Soopper on brief

for Federal Energy Regulatory Commission, amicus curiae.

January 18, 1994

BOWNES, Senior Circuit Judge. Plaintiffs-
BOWNES, Senior Circuit Judge

appellants, a group of power producers, challenge the

district court's dismissal of their suit to enjoin defendant-

appellee, New Hampshire Public Utilities Commission (PUC),

from ordering a disclosure of their business and financial

data.1 PUC requested the information for a study conducted

pursuant to section 712 of the federal Energy Policy Act of

1992, 16 U.S.C. 2621(d)(10). Plaintiffs allege that

federal law preempts PUC's inquiries. The district court

dismissed the suit for lack of subject matter jurisdiction.

Concluding that the case presents a federal question, we find

jurisdiction, but affirm the dismissal because plaintiffs

failed to state a cognizable claim.

I.

Background
Background

Plaintiffs are non-utility power producers known as

"qualifying small power production facilities" and

"qualifying cogeneration facilities" (collectively "QFs"),

see 16 U.S.C. 796(17)(C), (18)(B). QFs are a class of

facilities, defined by their size, fuel use, efficiency, and

1. Throughout this opinion, we use the term "plaintiffs" to
include the plaintiffs-intervenors, Energy Tactics, Inc. and
American Hydro, Inc.-Peterborough, as well as the original
plaintiffs: Bristol Energy Corp.; Bio-Energy Corp.;
Bridgewater Power Co., L.P.; Hemphill Power and Light Co.;
Pinetree Power, Inc.; Pinetree Power-Tamworth, Inc.; Timco,
Inc.; and Whitefield Power and Light Company. The complaints
of these parties are identical in all relevant respects.

-3-
3

ownership, see FERC v. Mississippi, 456 U.S. 742, 750 & n.11

(1982), entitled to special treatment under federal and state

laws regulating power producers. See 16 U.S.C. 824a-

3(e)(1); 18 C.F.R. 292.602(c)(1). The Federal Energy

Regulatory Commission (FERC) promulgates regulations

affecting QFs. State utility regulatory commissions such as

PUC implement FERC's regulations on the purchases and sales

of power between utilities and QFs.

In passing the legislation authorizing special

rules for QFs, the Public Utility Regulatory Policies Act of

1978 (PURPA), Congress viewed QFs as desirable alternatives

to traditional electric utility generating facilities. See

FERC, 456 U.S. at 750. At that time, Congress perceived two

impediments to QF development: [1] the reluctance of public

utilities to sell power to and buy power from QFs; and [2]

the financial burdens imposed on QFs by state and federal

laws designed to regulate utilities providing electricity to

the public. See id. at 750-51. To overcome the first

impediment, Congress mandated that FERC promulgate

regulations, for states to implement, governing transactions

between utilities and QFs, including a requirement that

utilities purchase electricity from QFs at a rate up to the

utility's avoided cost (i.e., the utility's cost if it

generated the power itself, or purchased it from another

source). See 16 U.S.C. 824a-3(b), -3(d).

-4-
4

To solve the second problem, Congress eased the

financial burdens on QFs by authorizing FERC to exempt QFs

from certain federal laws, and from state laws or regulations

"respecting the rates, or respecting the financial or

organizational regulation, of electric utilities," if

necessary to encourage QFs. Id. 824a-3(e). FERC's

exemptions for QFs are codified at 18 C.F.R. 292.601 and

.602. Plaintiffs allege that PUC's business and financial

disclosure order violates the regulation exempting QFs from

state regulation of the finances and organization of electric

utilities. See id. 292.602(c)(1)(ii) (hereinafter "QF

exemption").

On April 16, 1993, PUC commenced proceedings to

perform a study of wholesale power supplies required by the

Energy Policy Act of 1992, 16 U.S.C. 2621(d)(10).2 In

connection with its study, PUC sent detailed data requests to

eighty QFs in New Hampshire, including plaintiffs, seeking

detailed disclosures offinancial and proprietaryinformation.3

2. Congress passed the Energy Policy Act in part to foster
greater competition in the wholesale power production market.
See generally H.R. Rep. No. 474(I), 102d Cong., 2d Sess. 138-

40 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1961-63.

3. Plaintiffs characterize these requests as inquiries into:
[1] each facility's business form and ownership;
[2] plaintiff's financing agreements, including
the identity of the lender, and the amount of the
loan, its rate of interest, any required operating
reserve, and the priority of creditors;
[3] plaintiff's retired debt;

-5-
5

On June 14, 1993, plaintiffs filed an action in the

United States District Court for the District of New

Hampshire, alleging that they were exempt from PUC's

inquiries, pursuant to FERC's QF exemption. They sought a

declaratory judgment and an injunction to prevent PUC from

enforcing its disclosure orders. PUC countered that, because

the QF exemption does not apply to PUC's data requests, the

complaint failed to state a claim upon which relief could be

granted.4

On July 20, 1993, the district court dismissed

plaintiffs' action sua sponte, stating that it lacked subject

matter jurisdiction. In denying plaintiffs' motion for

reconsideration, the district court ruled:

[4] allocations of income, gains, losses,
distributions, credit, and cash, from the closing
of any construction loans through the present;
[5] the form of sales of power, monthly volume of
electricity generated, and the identity of their
customers; and
[6] each facility's fuel use, including heat rate,
price paid for fuel, projected fuel use through the
year 2000, method of fuel transportation, fuel
storage capacity, and fuel use risk management
strategies.
PUC's data requests also seek copies of plaintiffs' fuel
supply contracts and a year-by-year spreadsheet analysis of
financial operations from the commencement of operation
through the year 2010. Joint Br. for Appellants and

I n t e r v e n o r s - A p p e l l a n t s a t 4 - 5 .

4. PUC did not file a motion to dismiss under Fed. R. Civ.
P. 12(b)(6), but alleged as a defense in its answer that
plaintiffs failed to state a cognizable claim.

-6-
6

Assuming arguendo that this court could
exercise jurisdiction over plaintiffs'
purported preemption claim at this stage
in the process, there remain at least two
problems with plaintiffs' argument.
First, defendant's data requests were
issued pursuant to federal law; i.e., the
Energy Policy Act of 1992. Therefore,
[FERC's regulation exempting QFs from
state regulation] is inapposite. . . .

Bristol Energy Corp. v. New Hampshire Pub. Utils. Comm'n, 827

F. Supp. 81, 83 (D.N.H. 1993). Plaintiffs appealed. By

order of this court dated August 30, 1993, we directed the

parties to address the merits, as well as the jurisdictional

issue.

II.

Discussion

A. Jurisdiction

The district court ruled that 16 U.S.C. 2633

stripped it of jurisdiction. That statute provides, in

pertinent part: "Notwithstanding any other provision of law,

no court of the United States shall have jurisdiction over

any action arising under [16 U.S.C. 2611 - 2634] . . . ."

The authority PUC cited for issuing its data requests is 16

U.S.C. 2621(d)(10). Thus, we would lack jurisdiction if

this case were, in fact, an "action arising under" section

2621(d)(10).

According to plaintiffs, the district court looked

at the wrong "action" in deciding the jurisdictional issue.

Although PUC sent out data requests pursuant to section

-7-
7

2621(d)(10), plaintiffs argue that this case does not

"aris[e] under" that section. Rather, plaintiffs argue that

their cause of action implicates principles of preemption,

relating to the QF exemption and the Supremacy Clause.

Plaintiffs maintain that this preemption claim triggers

federal question jurisdiction. We agree.

"It is well established that to invoke federal

question jurisdiction, a federal issue must appear on the

face of a well pleaded complaint." Cable Television Ass'n v.

Finneran, 954 F.2d 91, 94 (2d Cir. 1992); see also Colonial

Penn Group v. Colonial Deposit Co., 834 F.2d 229, 233 (1st

Cir. 1987). Here, plaintiffs allege that FERC's QF exemption

under PURPA preempts PUC's authority under state law to order

QFs to disclose business and financial information.

Plaintiffs seek an injunction, as well as a declaratory

judgment, to prevent the enforcement of PUC's data requests.

This case is thus aligned with Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983), in which the Supreme Court noted:

It is beyond dispute that federal courts
have jurisdiction over suits to enjoin
state officials from interfering with
federal rights. See Ex parte Young, 209

U.S. 123, 160-62 (1908). A plaintiff who
seeks injunctive relief from state
regulation, on the ground that such
regulation is pre-empted by a federal
statute which, by virtue of the Supremacy
Clause of the Constitution, must prevail,
thus presents a federal question which
the federal courts have jurisdiction
under 28 U.S.C. 1331 to resolve.

-8-
8

Shaw, 463 U.S. at 96 n.14; see also Playboy Enters. v. Public

Serv. Comm'n, 906 F.2d 25, 31 (1st Cir.), cert. denied, 458

U.S. 959 (1990).

We have considered--and we reject--PUC's argument

that 16 U.S.C. 824a-3(g) divests federal courts of

jurisdiction. Section 824a-3(g) places limits on federal

jurisdiction in proceedings involving rules implementing 16

U.S.C. 824a-3(a) and -3(f), rules not at issue in this

case.5 See id. 824a-3(g). The record in this case

confirms what PUC's counsel conceded at oral argument: PUC's

data requests were issued pursuant to both state law and 16

U.S.C. 2621(d)(10), not under the rules cited in section

824a-3(g). We conclude that federal question jurisdiction

exists in this case, as in Shaw, because plaintiffs allege a

preemption claim and seek to enjoin state officials from

interfering with a federal right, i.e., the QF exemption.

B. Merits

Plaintiffs have alleged that they are entitled to

declaratory and injunctive relief because PUC's action is

preempted by federal law. The federal law that allegedly

preempts PUC's inquiries is the QF exemption. That

regulation provides in pertinent part: "Any qualifying

5. Section 824a-3(a) and -3(f) rules concern, inter alia,

the purchases and sales of power between electric utilities
and QFs. See 16 U.S.C. 824a-3(a), -3(f).

-9-
9

facility shall be exempted . . . from State law or regulation

respecting . . . [t]he financial and organizational

regulation of electric utilities." 18 C.F.R.

292.602(c)(1)(ii). We consider, seriatim, two issues: [1]

whether PUC's one-time inquiry of QFs to gather information

for a study mandated by 16 U.S.C. 2621(d)(10) constitutes

state "regulation respecting . . . [t]he financial and

organizational regulation of electric utilities"; and [2]

whether Congress intended state agencies such as PUC to

request information from QFs to complete the study mandated

by 16 U.S.C. 2621(d)(10).

1. Are QFs Exempt from PUC's Inquiries?

FERC, as an amicus in this case, argues that the QF

exemption does not preempt PUC's inquiries because PUC is

seeking information on a one-time basis, to complete a

federally mandated study of wholesale power supplies. See

section 712 of the Energy Policy Act of 1992, 16 U.S.C.

2621(d)(10). According to FERC, such a limited collection of

information for a federally mandated study does not

contravene the letter or the spirit of the QF exemption from

state "regulation respecting . . . the financ[es] and

organization[]" of QFs. We agree.

FERC promulgated the QF exemption pursuant to

Congress's mandate that QFs be exempted from state

regulations on the rates, finances, and organization of

-10-
10

electric utilities, if FERC found such an exemption necessary

to encourage QF power production. See 16 U.S.C. 824a-

3(e)(1). FERC takes the position that its exemption allows

QFs to avoid "utility-type" regulation, 45 Fed. Reg. 12,214,

12,232 (Feb. 25, 1980) (preamble to final rule), including

state control of electricity rates and the finances,

capitalization, and organization of electric utilities.

PUC's inquiries are not preempted by FERC's QF

exemption. We do not dispute that PUC is seeking financial

and organizational information from plaintiffs. And we can

visualize circumstances in which a state agency's standing

order requiring periodic disclosures of financial records

might be part-and-parcel of the control over electric

utilities from which QFs are exempt. See generally 18 C.F.R.

292.601(c) (exempting QFs from, inter alia, 16 U.S.C.

825(b) (authorizing FERC to have access "at all times" to

accounts, records, and memoranda of public utilities)); 44

Fed. Reg. 38,863, 38,865 (July 3, 1979) (FERC Staff Paper)

(noting that FERC could exempt QFs from "requirements for

filing voluminous reports concerning operating, cost and

revenue data").

But PUC did not assert such plenary authority over

QFs when it issued the document requests. In fact, PUC cited

only its authority under state law and the necessity of

completing the evaluation mandated by section 712 of the

-11-
11

Energy Policy Act, 16 U.S.C. 2621(d)(10). The record

suggests that PUC's inquiries seek information related to the

factors enumerated in 16 U.S.C. 2621(d)(10)--assuming QFs

are proper sources of such information. Because PUC is

gathering data on a one-time basis to perform the study

mandated by the Energy Policy Act, 16 U.S.C. 2621(d)(10),

the QF exemption is not a sound foundation for a preemption

claim. Such an inquiry is not utility-type regulation. Nor

does the record suggest that the information will be used for

utility-type regulation.

2. Did Congress Intend QFs To Be Included in the Study?

Plaintiffs argue that Congress did not intend QFs

to be included in the Energy Policy Act study. The Energy

Policy Act requires that certain state agencies perform "a

general evaluation" of four factors relating to wholesale

power supplies: [1] the impact of long-term wholesale power

purchases on a utility's cost of capital and retail rates;

[2] the effect of the debt-laden capital structure of "exempt

wholesale generators" on utilities and on reliability; [3]

the propriety of advance approval for long-term wholesale

power purchase contracts; and [4] the need for assurances of

fuel supply adequacy in long-term wholesale power purchase

contracts.6 See 16 U.S.C. 2621(d)(10)(A); see generally

6. Section 2621(d)(10) provides, in pertinent part:
(A) To the extent that a State
regulatory authority requires or allows

-12-
12

Jeffrey D. Watkiss & Douglas W. Smith, The Energy Policy Act

of 1992--A Watershed for Competition in the Wholesale Power

Market, 10 Yale J. on Reg. 447, 475 & n.130 (1993). PUC is

included in the class of state agencies required to perform

this study; that is, those requiring or allowing utilities to

purchase long-term wholesale power supplies. See 16 U.S.C.

electric utilities for which it has
ratemaking authority to consider the
purchase of long-term wholesale power
supplies as a means of meeting electric
demand, such authority shall perform a
general evaluation of:
(i) the potential for increases or
decreases in the costs of capital for
such utilities, and any resulting
increases or decreases in the retail
rates paid by electric consumers, that
may result from purchases of long-term
wholesale power supplies in lieu of the
construction of new generation facilities
by such utilities;
(ii) whether the use by exempt wholesale
generators . . . of capital structures
which employ proportionally greater
amounts of debt than the capital
structures of such utilities threatens
reliability or provides an unfair
advantage for exempt wholesale generators
over such utilities;
(iii) whether to implement procedures for
the advance approval or disapproval of
the purchase of a particular long-term
wholesale power supply; and
(iv) whether to require as a condition
for the approval of the purchase of power
that there be reasonable assurances of
fuel supply adequacy.
16 U.S.C. 2621(d)(10). A state agency need not perform the
evaluation or implement any procedures suggested by it, if
such action would be inconsistent with state law or
inappropriate under PURPA. See 16 U.S.C. 2621(a), (c)(1);

FERC, 456 U.S. at 764-70. PUC has decided that it is

required to perform the study.

-13-
13

2621(d)(10)(A). The statute provides that states must

"consider and make a determination concerning whether . . .

to implement the[se] standards" by October 24, 1993. Id.

2621(d)(10)(E).

Plaintiffs maintain that the Energy Policy Act

study concerns only a new class of non-utility power

producers called "exempt wholesale generators" (EWGs).7

Plaintiffs also contend that the only power producers

intended by Congress to be subject to PUC's inquiries are

EWGs, electric utilities, and certain affiliates of EWGs.

The central issue is whether Congress intended

state agencies to make inquiries of QFs to complete their

evaluation of wholesale power supplies. Considering first

the language of the statute to be construed, see American

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982), we note

that Congress mandated that agencies, including PUC, perform

"a general evaluation" of the enumerated factors respecting

wholesale power supplies. Although the statute makes no

mention of QFs, the use of the term "general evaluation"

suggests that the scope of the study is intended to be broad.

Only the second factor--the impact of debt-laden EWG capital

structures on utilities and on reliability--explicitly refers

7. EWGs are so called because they are entitled to
exemptions from certain federal utility regulations,
including ownership and capitalization restrictions under the
Public Utility Holding Company Act and the Federal Power Act.
See generally Watkiss & Smith, supra, at 465 n.74, 467.

-14-
14

to EWGs; the remaining three factors refer to "long-term

wholesale power purchases." It is undisputed that plaintiffs

supply power at wholesale to electric utilities in New

Hampshire under long-term contracts, and that QFs entering

the market in the future could enter into long-term contracts

with utilities in the state. The language and structure of

the statute indicate that Congress intended QFs to be a

source of information.

Common sense reinforces this conclusion. Congress

clearly intended the "general evaluation" of wholesale power

supply issues to be meaningful and comprehensive, especially

because the Energy Policy Act is designed to increase

competition in the wholesale power production market. See

generally H.R. Rep. No. 474(I), supra, at 138-40, reprinted

in 1992 U.S.C.C.A.N. at 1961-63; Watkiss & Smith, supra, at

449. Nurtured by FERC's regulations and by PURPA since 1978,

QFs have become an important source of power for utilities to

purchase at wholesale. For example, there were at least

eighty QFs operating in New Hampshire in the spring of 1993.

EWGs, in contrast to QFs, are a new category of wholesale

power producer, created by the Energy Policy Act of 1992. A

company can become an EWG only by filing an application with

FERC. See 15 U.S.C. 79z-5a(a)(1). Accordingly, there were

no EWGs in existence when Congress enacted the provision

requiring states to study wholesale power supply issues. We

-15-
15

are led inexorably to the conclusion that Congress intended

state agencies to gather data from QFs, because they are

significant existing sources of wholesale power, in order to

assess the present power situation and to predict the impact

of new entrants into the wholesale power market.

At oral argument, counsel for plaintiffs stated

that state agencies could acquire information regarding QFs

from third-party sources. This point does not affect our

determination that Congress intended states to make inquiries

of QFs, so that the general evaluation of long-term wholesale

power purchases would be meaningful. No source of

information on QFs would be as authoritative as the QFs

themselves. If Congress intended information regarding QFs

to be part of the Energy Policy Act "general evaluation,"

presumably Congress intended that QFs would be the source of

this information.

Plaintiffs' next argument is that section 714 of

the Energy Policy Act, 16 U.S.C. 824(g)(1), manifests

Congress's intent that states cannot subject QFs to business

and financial inquiries. Section 714 provides, "[u]pon

written order of a State commission, a State commission may

examine the books, accounts, memoranda, contracts, and

records of" electric utilities, EWGs, and affiliates of EWGs.

16 U.S.C. 824(g)(1). Because Congress enacted both section

714 and the provision mandating the study of wholesale power

-16-
16

supplies under the Energy Policy Act, plaintiffs argue that

section 714 limits the scope of the "general evaluation"

required by 16 U.S.C. 2621(d)(10) to electric utilities,

EWGs, and their affiliates.

Plaintiffs' argument elevates a rule of statutory

construction--that two provisions of the same legislation

must be read together--above a full and sensible reading of

the statutes at issue. Section 714 specifically provides:

"Nothing in this section shall-- (A) preempt applicable State

law concerning the provision of records and other

information; or (B) in any way limit rights to obtain records

and other information under Federal law, contracts, or

otherwise." 16 U.S.C. 824(g)(4). That provision negates

plaintiffs' attempt to use the facilities enumerated in

section 714 as an exclusive list of power producers

susceptible to state data requests pursuant to section

2621(d)(10).

Furthermore, there is an obvious reason why

Congress would have omitted QFs from section 714, while still

intending that QFs respond to inquiries pursuant to section

2621(d)(10): section 714 is an unrestricted grant of

authority. The statute provides that a state agency may

examine the records of electric utilities, EWGs, and

affiliates of EWGs, "if such examination is required for the

effective discharge" of the agency's "responsibilities

-17-
17

affecting the provision of electric service." 16 U.S.C.

824(g)(1). The statute does not mention section 2621(d)(10),

let alone limit the exercise of this document inspection

authority to gathering information for an evaluation of long-

term wholesale power supply purchases. If QFs were among the

power producers listed in section 714, a court could infer

Congress's intent to repeal partially FERC's QF exemptions,

so that QFs would be proper subjects of any information

requests by state agencies. See Natural Resources Defense

Council v. Environmental Protection Agency, 824 F.2d 1258,

1278 (1st Cir. 1987) (more recent, more specific enactments

prevail over prior, more generalized law); 1A Norman J.

Singer, Sutherland on Stats. 23.14, at 372 (5th ed. 1993).

Excluding QFs from section 714 preserves the general QF

exemption from state laws and regulations respecting the

finances and organization of electric utilities.

Finally, plaintiffs argue that allowing PUC to make

inquiries into the finances and organization of QFs is

tantamount to finding an implied repeal of the QF exemption.

Our holding does not cut that broadly. We hold that PUC may

make inquiries of QFs on a one-time basis because it is

acting to complete a study mandated by federal law. Such

regulatory action is not a state "law or regulation

respecting . . . [t]he financial and organizational

regulation of electric utilities," 18 C.F.R.

-18-
18

292.602(c)(1)(ii). Our decision does not alter the QF

exemption.

In light of the foregoing, we reject plaintiffs'

preemption claim. Even accepting all plaintiffs' factual

allegations as true, we find no basis on which plaintiffs may

proceed. This case is thus properly dismissed under Fed. R.

Civ. P. 12(b)(6) for failure to state a cognizable claim.

We recognize that the district court did not rely

on this ground for dismissing this case. We note, however,

that PUC affirmatively pleaded that the complaint failed to

state a claim. Moreover, the district court stated that even

if it had subject matter jurisdiction, there would still be

"problems with plaintiffs' argument," Bristol Energy, 827 F.

Supp. at 83, and we ordered the parties to address the merits

on appeal. Even assuming the district court did not deem

that reason dispositive, we may affirm the court's ruling on

any theory supported by the record. See Willhauck v. Halpin,

953 F.2d 689, 704 (1st Cir. 1991). We do so here.8

We conclude in this case that plaintiffs'

allegations provide a basis for federal question

jurisdiction, but we find that their preemption claim lacks

8. We also note that an appellate court may dismiss a claim
sua sponte on Rule 12(b)(6) grounds when, taking a

plaintiff's factual allegations as true, there is a
dispositive issue of law. See Gregory v. United

States/United States Bankruptcy Court, 942 F.2d 1498, 1500

(10th Cir. 1991), cert. denied, 112 S. Ct. 2276 (1992).

-19-
19

merit. The district court's dismissal of this case is

therefore

Affirmed.
Affirmed.

-20-
20