PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1483
OLD DOMINION ELECTRIC COOPERATIVE,
Plaintiff – Appellant,
v.
PJM INTERCONNECTION, LLC,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:19-cv-00233-MHL)
Argued: October 28, 2021 Decided: January 19, 2022
Before MOTZ, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Harris joined.
ARGUED: Joseph Michael Rainsbury, MILES & STOCKBRIDGE PC, Richmond,
Virginia, for Appellant. Lucas M. Walker, MOLOLAMKEN, LLP, Washington, D.C., for
Appellee. ON BRIEF: Thomas M. Wolf, MILES & STOCKBRIDGE PC, Richmond,
Virginia, for Appellant. Robert M. Rolfe, Brian A. Wright, HUNTON ANDREWS
KURTH LLP, Richmond, Virginia; Jeffrey A. Lamken, Washington, D.C., Jennifer E.
Fischell, MOLOLAMKEN LLP, New York, New York, for Appellee.
KING, Circuit Judge:
In this appeal, plaintiff Old Dominion Electric Cooperative challenges the district
court’s dismissal of its state law claims seeking nearly $15 million in damages from
defendant PJM Interconnection, LLC. Following a severe cold weather outbreak in
January 2014, Old Dominion unsuccessfully sought to recover certain electricity
generation costs from PJM in an administrative proceeding before the Federal Energy
Regulatory Commission (“FERC”). Old Dominion subsequently instituted the underlying
litigation in Virginia state court, pursuing four putative state law claims against PJM which
seek the same relief unsuccessfully claimed before FERC.
PJM timely removed the state court proceedings to the Eastern District of Virginia,
pursuant to 28 U.S.C. § 1441(a). PJM maintained therein that Old Dominion’s complaint
contests electricity transmission rates set forth in PJM’s federally filed tariff and that the
district court was vested with federal question jurisdiction under 28 U.S.C. § 1331. PJM
promptly moved to dismiss the complaint for failure to state a claim, while Old Dominion
moved for a remand to state court.
On March 31, 2020, the district court denied Old Dominion’s remand motion and
dismissed each of its claims with prejudice. See Old Dominion Elec. Coop. v. PJM
Interconnection, LLC, No. 3:19-cv-00233 (E.D. Va. Mar. 31, 2020), ECF No. 26 (the
“Dismissal Opinion”). In so ruling, the court determined that, consistent with our 2004
decision in Bryan v. BellSouth Communications, Inc., 377 F.3d 424 (4th Cir. 2004), Old
Dominion’s putative state law claims effectively challenge the terms of PJM’s federal
tariff. As such, and in accord with the principles enunciated by the Supreme Court in Gunn
2
v. Minton, 568 U.S. 251 (2013), and Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308 (2005), the court ruled that the claims present
a substantial federal question. In granting PJM’s motion to dismiss, the court further
resolved that the so-called “filed-rate doctrine” barred it from awarding damages on Old
Dominion’s claims. On appeal, Old Dominion maintains that PJM’s tariff stands only as
a defense to its putative state law claims and that the district court consequently lacked
subject matter jurisdiction over those claims. As explained herein, Old Dominion’s
contentions are unpersuasive and are rejected. We therefore affirm the judgment of the
district court.
I.
A.
Old Dominion is a nonprofit electric utility that serves customers in Virginia,
Maryland, and Delaware. It generates and markets wholesale electric power, in part from
the operation of three natural-gas-fired power plants in Virginia and Maryland. PJM, on
the other hand, is not a utility but is instead a “regional transmission organization,” an
entity that operates the electrical grid in a defined geographic area and in accord with
extensive regulatory oversight by FERC. PJM is charged with supervising the transmission
of electricity in its market region, which consists of 13 states and the District of Columbia.
In fulfilling that responsibility, PJM controls the transmission facilities owned by its
member utilities — including Old Dominion. See 18 C.F.R. § 35.34(j), (k).
3
PJM’s relationship with each of its member utilities is governed by FERC’s
regulatory framework. The Federal Power Act vests FERC with exclusive regulatory
authority over “the transmission of electric energy in interstate commerce and the sale of
such energy at wholesale in interstate commerce,” directing FERC to ensure that all “rates
and charges made, demanded, or received by any public utility for or in connection with
the transmission or sale of electric energy” be “just and reasonable.” See 16 U.S.C.
§§ 824(a), 824d(a). Accordingly, FERC requires regional transmission organizations like
PJM to file schedules of proposed electricity transmission rates with the agency for its
approval. Once authorized by FERC, those rates are set forth in tariffs, which “[c]arry the
force of federal law,” in the same sense as ordinary federal regulations. See Bryan v.
BellSouth Commc’ns, Inc., 377 F.3d 424, 429 (4th Cir. 2004). Further, under the regulatory
rule known as the “filed-rate doctrine,” the transmission rates charged by utilities in
association with the generation and sale of electric power may not be higher or lower than
those set forth in FERC-approved tariffs. See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 576
(1981).
PJM’s FERC-approved tariffs include (1) its Open Access Transmission Tariff (the
“PJM Tariff,” or simply “the Tariff”) and (2) its Amended and Restated Operating
Agreement (the “Operating Agreement”). The PJM Tariff prescribes rules controlling
PJM’s management of the mid-Atlantic energy market and, as relevant in this appeal, fixes
the price at which power generators may offer their energy production to PJM in standard
4
electricity auctions — specifically at $1000 per megawatt-hour. See J.A. 127. 1 The
Operating Agreement, to which participating utilities like Old Dominion subscribe, reflects
the terms of the Tariff. The Operating Agreement further affords PJM expansive powers
to take “measures appropriate to alleviate an Emergency, in order to preserve reliability”
in the electric market, principally by calling on its member utilities “to start, shutdown, or
change output levels of [their] generation units” at any time. See Old Dominion Elec.
Coop. v. FERC, 892 F.3d 1223, 1228 (D.C. Cir. 2018). As the relevant regulatory tariffs,
the PJM Tariff and Operating Agreement together “conclusively and exclusively
enumerate the rights and liabilities of the contracting parties.” See Marcus v. AT&T Corp.,
138 F.3d 46, 56 (2d Cir. 1998) (internal quotation marks omitted). That is, all business
that PJM conducts with electric utilities in its extensive market region must conform to the
terms of its FERC-approved tariffs.
The standards established and imposed by the PJM Tariff and Operating Agreement
became particularly significant during the January 2014 “polar vortex,” a weather
disturbance that brought uncharacteristically frigid temperatures to much of the eastern
United States. See J.A. 25. The polar vortex prompted abrupt increases in consumer
demand for electricity, which, in turn, required utilities and transmission organizations like
Old Dominion and PJM to take swift actions to ensure that reliable supplies of power were
available for use in heating homes and businesses. As temperatures plummeted, PJM
1
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
5
directed its member utilities to prepare for increases in their electric generation output.
With respect to Old Dominion, PJM issued specific instructions for the utility to purchase
sufficient quantities of natural gas to begin operating its Virginia and Maryland power
plants at full capacity. Old Dominion maintains that — at that time — PJM also
represented to Old Dominion’s agents that the company would “make [Old Dominion]
whole for its fuel and other costs associated with purchasing the natural gas.” Id. at 26; see
also Br. of Appellant 5.
When PJM issued its directives to Old Dominion, the price of natural gas had spiked
above its pre-polar vortex levels due to the weather-related strains on energy production
resources. Once paired with the costs of operating the Virginia and Maryland facilities,
the heightened gas purchase price forced Old Dominion’s net costs for electricity
generation to approximately $1200 per megawatt-hour — well north of the $1000
maximum rate fixed by the PJM Tariff. In compliance with PJM’s orders, Old Dominion
nevertheless purchased the needed fuel at the inflated price. After it did so, however, PJM
repeatedly cancelled its operation requests or scaled them back in duration because of
overestimates of consumer demand for power. The weather-driven market conditions
compelled Old Dominion to sell generation capacity to PJM at a substantial loss, and Old
Dominion ultimately incurred an aggregate sum of $14,925,669.58 in costs that exceeded
the rate that it could legally charge PJM under the Tariff. In the disputes that followed,
neither party contested that those losses — sustained because Old Dominion’s sales
exceeded PJM’s tariffed rate — were unrecoverable under the express terms of the Tariff.
6
B.
Old Dominion first sought relief from the excess incurred costs by way of a June
2014 administrative proceeding before FERC. See Old Dominion Elec. Coop., 151 FERC
¶ 61,207 (2015). Relying on its facility operation expenses and the excessive costs of
natural gas purchased but not burned, the utility petitioned FERC for the full amount of its
excess costs and damages — again, $14,925,669.58. Old Dominion did not dispute that its
January sales to PJM fell within the scope of the Tariff and Operating Agreement
provisions that control the entities’ relationship. Indeed, Old Dominion “repeatedly
conceded” before FERC that the PJM Tariff “categorically precluded” the compensation it
sought. See Old Dominion, 892 F.3d at 1231. Old Dominion nevertheless petitioned FERC
for a retroactive waiver of the Tariff’s rate-cap provisions, relying on equitable
considerations and PJM’s representations that it would “make [Old Dominion] whole” for
the excessive costs it had incurred during the polar vortex emergency. See J.A. 26.
PJM intervened in the proceeding and, in consideration of its desire to fairly
compensate Old Dominion, actually supported the utility’s waiver request. FERC
nevertheless denied relief, concluding that the filed-rate doctrine and the corresponding
rule against retroactive ratemaking — a rule that prohibits the agency from adjusting
tariffed rates retroactively absent limited and inapplicable exceptions — prohibited
granting any waiver of the PJM Tariff’s established rates. Old Dominion sought a
rehearing of FERC’s denial order, but FERC also denied that request. See Old Dominion
Elec. Coop., 154 FERC ¶ 61,155 (2016). FERC explained that the above-mentioned
equitable concerns did not grant it any authority to waive the filed-rate doctrine and that
7
doctrine’s bar on compensating Old Dominion above the Tariff’s $1000 rate cap.
Additionally, the agency determined that no outside contract providing for recovery of the
emergency-related losses had been made between the parties, and that, in any event, FERC-
approved rates cannot be modified or superseded by way of informal private agreements.
Although appellate relief was sought by Old Dominion in 2018, the D.C. Circuit
denied its petition for review of FERC’s adverse decisions. In so ruling, the court of
appeals observed that the “emphatic rules against retroactively changing filed rates”
disarmed Old Dominion’s arguments supporting a waiver of the PJM Tariff’s rate cap. See
Old Dominion, 892 F.3d at 1231. The court also approved of FERC’s determination that
it lacked discretion to waive filed rates “for good cause or for any other equitable
considerations.” Id. at 1230. Although Old Dominion sought review in the Supreme Court
of the adverse ruling by the court of appeals, the Court promptly denied its petition for a
writ of certiorari. See Old Dominion Elec. Coop. v. FERC, 139 S. Ct. 794 (2019). 2
2
Old Dominion was not alone in its efforts to recover losses incurred during the
polar vortex event. Other PJM member utilities were similarly faced with substantial
excessive costs associated with PJM’s emergency procedures that, under the terms of the
PJM Tariff, were not compensable. Duke Energy, for example, sought a waiver of PJM’s
rate cap just as Old Dominion did. As in this case, FERC denied Duke’s waiver request
and the D.C. Circuit affirmed FERC’s decision. See Duke Energy Corp., 151 FERC
¶ 61,206 (2015); Duke Energy Corp. v. FERC, 892 F.3d 416 (D.C. Cir. 2018).
8
C.
On January 5, 2017, Old Dominion filed this civil action against PJM in the Henrico
County Circuit Court in Virginia. 3 In alleging a breach of several purported private
contracts, the operative Amended Complaint sets forth the same factual contentions at issue
in the FERC proceedings, focusing on PJM’s “failed assurances” that the company would
“make [Old Dominion] whole for its fuel and other costs” incurred in connection with the
polar vortex event. See J.A. 26. The Amended Complaint alleges four discrete claims
against PJM, each purportedly grounded in state law: two claims for breach of contract,
one for unjust enrichment, and another for negligent misrepresentation. Those claims are
alleged in the alternative, with each asserting that it entitles Old Dominion to damages in
the sum of $14,925,669.58 — the precise amount Old Dominion sought in petitioning
FERC for a waiver of the PJM Tariff’s rate cap. See id. at 30-33. The Amended Complaint
refers to the applicable Tariff only once, to allege that Old Dominion and PJM “entered
into a transaction that was outside of the requirements . . . set forth in any tariff or other
regulated PJM policy or process.” Id. at 29.
PJM removed Old Dominion’s state court lawsuit to the Eastern District of Virginia
in April 2019. By its Notice of Removal, PJM maintained that, as required by 28 U.S.C.
§ 1441(a), the litigation could have been initiated in federal court, namely on grounds of
3
Old Dominion’s initial 2017 state court complaint in Henrico County was filed
after the failure of the utility’s administrative pursuits before FERC, but prior to the 2018
resolution of its appeal to the D.C. Circuit. The operative Amended Complaint was filed
by Old Dominion in March 2019, shortly after the Supreme Court’s denial of certiorari in
the FERC litigation.
9
federal question jurisdiction. More specifically, PJM asserted that Old Dominion’s state
law tort and contract claims “arise under” federal law, as contemplated by 28 U.S.C.
§ 1331, because they (1) are completely preempted by federal law or, alternatively,
(2) necessarily raise a substantial federal question by challenging the terms of an applicable
federally filed tariff. PJM also moved to dismiss the entirety of the Amended Complaint
for failure to state a claim, relying on the PJM Tariff and contending that Old Dominion’s
demands for relief are barred by the filed-rate doctrine. Old Dominion opposed PJM’s
motion to dismiss and moved for a remand to the Virginia state court, insisting that its
claims do not fall within the scope of federal question jurisdiction because their allegations
are entirely confined to violations of state law.
By its Dismissal Opinion and Final Order of March 31, 2020, the district court
denied Old Dominion’s motion to remand and granted PJM’s motion to dismiss the
Amended Complaint. Addressing the question of subject matter jurisdiction, the Dismissal
Opinion first explained that Old Dominion’s four claims could “arise under” federal law in
either of two ways: under the “complete preemption” doctrine, or otherwise under the
“substantial federal question” doctrine. See Dismissal Opinion 13. Finding the former to
be inapplicable, the court concluded that, by effectively challenging the terms of the FERC-
filed PJM Tariff, Old Dominion’s claims “necessarily raise” a substantial federal question.
Id. at 27-28. Because it possessed subject matter jurisdiction over the claims, the court
went on to conclude that the filed-rate doctrine proscribed it from awarding relief that
would, in effect, alter the Tariff’s rate cap as applied to Old Dominion. Accordingly, the
court dismissed with prejudice each of the four claims alleged in the Amended Complaint.
10
In its Dismissal Opinion, the district court focused its analysis on our decision in
Bryan v. BellSouth Communications, Inc., 377 F.3d 424 (4th Cir. 2004), which concerned
the removal to federal court of a putative state law claim in North Carolina that challenged
allegedly unfair telephone service rates charged by BellSouth. The rates charged by
BellSouth and other telecommunications carriers were controlled by the Federal
Communications Commission (the “FCC”) through filed tariffs. We concluded in Bryan
that the plaintiff’s claim — which, by requesting damages, effectively sought a refund of
some portion of BellSouth’s service rate and thereby contested the terms of the carrier’s
federal tariff — necessarily presented a substantial question of federal law and ran afoul of
the filed-rate doctrine. See id. at 430-32. We recognized in Bryan that, because federal
tariffs “are the law, not mere contracts,” suits that effectively challenge the substance of
such tariffs “arise[] under federal law” and may be heard in federal court. Id. at 429-30.
The Dismissal Opinion deemed Bryan as controlling here, and further determined
that exercising federal jurisdiction was appropriate under the Supreme Court’s Gunn-
Grable framework, which must be employed in assessing whether a claim rooted in state
law nonetheless poses a “substantial federal question.” See Gunn v. Minton, 568 U.S. 251,
258 (2013) (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
313-14 (2005)). The district court thus ruled that, by demanding the same relief sought
before FERC — relief unambiguously barred by the terms of the PJM Tariff — Old
Dominion’s claims necessarily raise a substantial federal question suitable for adjudication
in federal court. Old Dominion has timely noted this appeal from the dismissal of its claims
with prejudice, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
11
II.
We review de novo a district court’s determination that it possessed subject matter
jurisdiction over a plaintiff’s claims. See Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148, 151 (4th Cir. 1994). PJM removed Old Dominion’s state court proceedings to
the district court pursuant to 28 U.S.C. § 1441(a), which requires that a state case “be fit
for federal adjudication at the time the removal petition is filed.” See Moffitt v. Residential
Funding Co., 604 F.3d 156, 159 (4th Cir. 2010) (quoting Caterpillar Inc. v. Lewis, 519
U.S. 61, 73 (1996)). PJM’s Notice of Removal asserted that the district court possessed
federal question jurisdiction over Old Dominion’s claims alleged in the Amended
Complaint under 28 U.S.C. § 1331, which affords the federal courts jurisdiction over “civil
actions arising under the Constitution, laws, or treaties of the United States.”
In determining whether a claim “arises under” the laws of the United States, courts
abide by the “well-pleaded complaint rule,” assessing whether the plaintiff’s cause of
action — as stated on the face of the complaint — has some basis in federal law. See
Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 807-08 (1986). The “vast majority”
of such claims are those directly created by federal law, and a defense or counterclaim that
raises a federal question is not an adequate basis for § 1331 jurisdiction. See id. at 808
(citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908)). It follows that, as a
general proposition, the plaintiff is the “master of the complaint” and may keep his
complaint out of federal court simply by “eschewing claims based on federal law.” See
Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987). Under the corollary “artful
pleading” doctrine, however, “a plaintiff may not defeat removal by omitting to plead
12
necessary federal questions in a complaint.” See Franchise Tax Bd. v. Constr. Laborers
Vacation Tr., 463 U.S. 1, 22 (1983); see also Travelers Indem. Co. v. Sarkisian, 794 F.2d
754, 758 (2d Cir. 1986) (“[A] plaintiff may not defeat removal by clothing a federal claim
in state garb, or, as it is said, by use of ‘artful pleading.’”).
Claims for relief that are rooted in state law, then, may nevertheless “arise under”
federal law and fall within the scope of federal question jurisdiction in one of two narrow
instances. First, under the “complete preemption” doctrine, federal jurisdiction is proper
under § 1331 “when Congress ‘so completely pre-empt[s] a particular area that any civil
complaint raising th[e] select group of claims is necessarily federal in character.’” See
Pinney v. Nokia, Inc., 402 F.3d 430, 449 (4th Cir. 2005) (quoting Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63-64 (1987)). Second, federal question jurisdiction may be exercised
“where the vindication of a right under state law necessarily turn[s] on some construction
of federal law.” See Merrell Dow, 478 U.S. at 808-09 (quoting Franchise Tax Bd., 463
U.S. at 9). The “substantial federal question” doctrine, that is, operates to permit removal
of a complaint from state court where “a plaintiff’s ability to establish the necessary
elements of his state law claims must rise or fall on the resolution of a question of federal
law.” See Pinney, 402 F.3d at 449. In these circumstances, because Old Dominion’s claims
pose a substantial question of federal law, we need not decide whether the district court
was vested with jurisdiction by way of complete preemption. 4
4
We observe, however, that the complete preemption doctrine is most likely
inapplicable in this situation. The Supreme Court has explained that it is “reluctant” to
find that federal law provides the exclusive cause of action in an area that is federally
(Continued)
13
Although the substantial federal question doctrine has long been recognized in the
federal courts, the Supreme Court brought clarity to what it called an “unruly doctrine”
through the Gunn-Grable framework. 5 See Gunn v. Minton, 568 U.S. 251, 258 (2013)
(citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313-14
(2005)). Gunn-Grable provides for a four-part test, explaining that
federal jurisdiction over a state law claim will lie if a federal issue is:
(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable
of resolution in federal court without disrupting the federal-state balance
approved by Congress.
Id. Since the Court’s decision in Gunn in 2013, that four-part test has been the principal
means for assessing whether resolution of a state law claim requires consideration of
federal law, such that federal question jurisdiction is appropriate. See, e.g., Pressl v.
Appalachian Power Co., 842 F.3d 299, 303 (4th Cir. 2016).
Several years before the Court’s creation of the Gunn-Grable test, our decision in
Bryan described the substantial federal question doctrine as follows:
regulated. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). Indeed, in our 2005
decision in Lontz v. Tharp, we identified only three statutes to which the Court has applied
the complete preemption doctrine — specifically, the Labor Management Relations Act,
ERISA, and the National Bank Act. See 413 F.3d 435, 441 (4th Cir. 2005). Recognizing
the doctrine’s historically sparse application, the Seventh Circuit has ruled that the Federal
Power Act — the very statute affording FERC the rate-regulation authority at issue in this
case — does not completely preempt associated state law claims. See Ne. Rural Elec.
Membership Corp. v. Wabash Power Ass’n, Inc., 707 F.3d 883, 896 (7th Cir. 2013).
5
In Gunn, the Court expounded on the state of the substantial federal question
doctrine by noting that while “outlining the contours” of the rule did not involve “paint[ing]
on a blank canvas . . . the canvas looks like one that Jackson Pollock got to first.” See
Gunn v. Minton, 568 U.S. 251, 258 (2013). Pollock, an abstract expressionist painter, was
noted for his convoluted and chaotic works.
14
[W]hen, as here, state law creates the plaintiff’s cause of action, the lower
federal courts possess jurisdiction to hear “only those cases in which a well-
pleaded complaint establishes . . . that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal law.”
See 377 F.3d 424, 428-29 (4th Cir. 2004) (quoting Franchise Tax Bd., 463 U.S. at 27-28).
We ruled therein that a federally filed and approved regulatory tariff “carries the force of
federal law” and that “a claim that seeks to alter the terms of the relationship . . . set forth
in a filed tariff therefore presents a federal question.” Id. at 429. In similar fashion, a claim
seeking to have a court fix a special, reasonable tariffed rate unique to the plaintiff
“effectively challenges” the relevant filed tariff in contravention of the filed-rate doctrine
and likewise raises a substantial federal question. Id. at 429-30. In such a situation, the
filed-rate doctrine — which strictly directs that “the rate of the carrier duly filed is the only
lawful charge,” and bars the courts from permitting such inequity among ratepayers —
compels a dismissal of the plaintiff’s claim. Id. (quoting Louisville & Nashville R.R. v.
Maxwell, 237 U.S. 94, 97 (1915)).
III.
On appeal, Old Dominion maintains that the district court did not possess federal
question jurisdiction over its state law claims against PJM, and that the court’s dismissal
of those claims was accordingly erroneous. More specifically, Old Dominion contends
that the PJM Tariff is merely a defense to its state claims, rather than being integral to the
claims’ demands for relief. In light of our Bryan decision and our application of the Gunn-
Grable framework, however, we are satisfied that the district court possessed jurisdiction
15
under the substantial federal question doctrine. Consistent with Bryan, the Dismissal
Opinion correctly determined that Old Dominion’s claims effectively challenge the terms
of the PJM Tariff, and that, by extension, the filed-rate doctrine obliged the district court
to dismiss the putative state claims in the Amended Complaint. We are satisfied that Bryan
controls the resolution of this dispute because, as in that case, Old Dominion’s asserted
right to relief necessitates recourse to the Tariff that controls the utility’s relationship with
PJM, thereby presenting a substantial federal question.
Nor are we persuaded that Bryan has somehow been weakened or undermined by
subsequent decisions of this Court, or by the Supreme Court’s Gunn-Grable test. The
Fourth Circuit decisions relied on by Old Dominion as having eroded Bryan’s rulings are
entirely consistent with Bryan’s treatment of the substantial federal question doctrine. 6 The
Gunn-Grable framework, meanwhile, is likewise consistent with Bryan’s standard, and our
application of Gunn-Grable in this case counsels the same outcome as our application of
Bryan. As such, we must affirm the district court’s ruling that it possessed subject matter
jurisdiction. Consistent therewith, we also affirm the court’s dismissal with prejudice of
Old Dominion’s Amended Complaint and its four claims.
6
We also observe that, even if Old Dominion had identified Fourth Circuit decisions
that conflict with Bryan, a panel of this Court cannot circumscribe or undermine an earlier
panel decision, pursuant to McMellon v. United States and its progeny. See 387 F.3d 329,
333 (4th Cir. 2004) (en banc) (“When published panel opinions are in direct conflict on a
given issue, the earliest opinion controls, unless the prior opinion has been overruled by an
intervening opinion from this court sitting en banc or the Supreme Court.”); see also United
States v. Williams, 808 F.3d 253, 261 (4th Cir. 2015); Payne v. Taslimi, 998 F.3d 648, 654
(4th Cir. 2021).
16
A.
1.
The crux of this appeal concerns the applicability of Bryan to the facts of this case
and whether Old Dominion’s claims may fairly be said to necessarily raise a substantial
federal question. PJM deems Bryan to be dispositive, while Old Dominion considers that
decision to be watered down at best, if not impliedly overruled by the Supreme Court. As
explained below, we agree with the district court that Bryan remains “binding case law,”
is factually comparable to this case, and compels the decision we reach today. See
Dismissal Opinion 21.
The Bryan decision resolved a question concerning the removal to federal court of
a North Carolina state law challenge to service rates charged by BellSouth, a major
telecommunications firm later acquired by AT&T. Seeking to represent a class of
BellSouth customers, plaintiff Bryan alleged that the carrier’s “Federal Universal Service
Charge,” a fee assessed to recoup BellSouth’s required payments to a federal
telecommunications fund, was an excessive charge that contravened North Carolina’s
unfair trade practices law. See 377 F.3d 424, 426 (4th Cir. 2004). BellSouth removed the
state court litigation to the Middle District of North Carolina, contending that Bryan’s
complaint necessarily raised federal legal questions. BellSouth explained that the fee
contested by Bryan was definitively established alongside other service rates in its
“Schedule of Charges,” a tariff filed with and approved by the FCC. Id.
Following BellSouth’s removal to federal court, plaintiff Bryan filed an amended
complaint alleging three state law claims: (1) a claim alleging that BellSouth had engaged
17
in unfair trade practices by failing to disclose how it calculated the service fee and that the
fee was in excess of what was paid into the federal fund; (2) an unjust enrichment claim,
maintaining that the fee was excessive and unlawful; and (3) a claim alleging a breach of
the covenant of good faith and fair dealing that stemmed from BellSouth’s charging an
excessive fee. The amended complaint generally sought damages in excess of $10,000 for
each member of the putative class. Bryan moved for a remand to state court, while
BellSouth moved to dismiss the amended complaint pursuant to the filed-rate doctrine. In
disposing of those motions, the district court first determined that removal was proper
because the plaintiff directly alleged that the amount of the federally tariffed fee was
excessive. The court then dismissed Bryan’s second and third claims, but remanded her
first claim alleging unfair trade practices, ruling that the unfair trade practices claim did
not present a federal question. BellSouth appealed the order remanding and denying
dismissal of that claim, maintaining that it also challenged the FCC tariff and therefore
arose under federal law.
On appeal, we vacated and remanded. Our decision concluded that the unfair trade
practices claim “effectively challenge[d]” BellSouth’s filed rate, that it therefore presented
a federal question, and that the district court erred in remanding the claim and should have
dismissed it under the filed-rate doctrine. See Bryan, 377 F.3d at 430. Relying on the
Supreme Court’s 1983 decision in Franchise Tax Board v. Construction Laborers Vacation
Trust, we first explained that federal question jurisdiction will exist for a state law claim
only where the plaintiff’s complaint establishes that his right to relief “necessarily depends
on resolution of a substantial question of federal law.” Id. at 429 (quoting 463 U.S. 1, 28
18
(1983)). Recognizing that filed tariffs carry the force of federal law, we then resolved that
any claim seeking to alter the terms of the relationship between parties to a federally
approved tariff necessarily presents a federal question. By the same token, we recognized
that a claim for relief that would require a court to determine a reasonable tariffed rate
specific to a plaintiff “effectively challenges” the terms of the tariff, again posing a
substantial federal question. Id. at 430-31. That is so, we explained, because the filed-rate
doctrine bars a court from awarding damages that would have the effect of altering the
tariffed rate ordinarily paid by the plaintiff. And doing so would disturb the doctrine’s dual
aims of preventing discrimination among ratepayers and safeguarding the ratemaking
authority of federal agencies.
Ultimately, we determined in our Bryan decision that, although the unfair trade
practices claim underlying the appeal did not directly challenge BellSouth’s tariffed rate,
it had the legal effect of requesting a court to fix a reasonable rate particular to the plaintiff,
thereby presenting a substantial federal question. Because that claim alleged that
BellSouth’s rate was deceptive and sought damages in that regard, we found that “the only
plausible reading” of the claim was that plaintiff Bryan effectively sought a refund of some
portion of BellSouth’s tariffed fee. See Bryan, 377 F.3d at 432. As a result, awarding the
requested damages would have violated the filed-rate doctrine. We therefore concluded
that the district court possessed federal question jurisdiction over the North Carolina unfair
trade practices claim and should have dismissed it.
19
2.
a.
Old Dominion’s putative state law claims are of course facially different from the
North Carolina claim at issue in Bryan, principally alleging the existence of an outside
contract instead of unfair trade practices. That distinction aside, however, the utility’s four
claims in its Amended Complaint fit squarely within the map of our analysis in Bryan. In
fact, although Old Dominion’s claims present an “effective challenge” to the PJM Tariff,
the claims pursued by Old Dominion set up an even more direct challenge to that tariff than
was the situation in Bryan. 7
The Bryan decision controls in this appeal because, as was the situation therein, the
type of relief sought here is incontrovertibly barred by the governing regulatory tariff. 8
That is, determining that the four putative state claims afford Old Dominion a right to relief
in the first instance requires consideration and construction of the federal tariff that controls
7
Old Dominion misreads the Bryan decision in part, observing that the amended
complaint in that case “directly challenged a component of a FCC-filed tariff” and asserting
that Bryan is inapposite for that reason. See Br. of Appellant 28, 30. But the claims
presenting direct challenges to BellSouth’s service fee — that BellSouth unjustly enriched
itself and breached the covenant of good faith and fair dealing by charging an excessive
fee — were not on appeal in Bryan. See 377 F.3d at 427 & n.4. Rather, plaintiff Bryan’s
unfair trade practices claim, which only “effectively challenge[d]” BellSouth’s FCC tariff,
was the claim we assessed in Bryan and is that which is relevant to this appeal. Id. at 430.
8
We also observe that Bryan’s consideration of a telecommunications tariff
approved by the FCC does not render that case distinguishable from this litigation, which
involves a FERC-approved tariff. Public utility regulation, which extends to firms
supplying electricity, gas, and the like, is “essentially the same form of regulation” as that
relating to common carriers providing transportation or communications services. See
Cahnmann v. Sprint Corp., 133 F.3d 484, 487 (7th Cir. 1998).
20
the entirety of Old Dominion’s relationship with PJM. In Bryan, the refund sought by the
plaintiff was barred and forbidden by BellSouth’s FCC tariff. Here, the reimbursement for
electricity generation costs sought by Old Dominion’s Amended Complaint is similarly
precluded by the PJM tariff. In both situations, the plaintiff seeks a special tariffed rate
unique to it, which federal law plainly disallows. Because no court can award the damages
that Old Dominion seeks without finding some way around the terms of the PJM Tariff,
“the plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.” See Bryan, 377 F.3d at 430 (quoting Franchise Tax Bd., 463 U.S. at 28). 9
More specifically, a straightforward assessment of Old Dominion’s various claims
reveals that they seek to “alter the terms of the relationship” set forth in the federally filed
PJM Tariff. See Bryan, 377 F.3d at 429. As we explained in Bryan, such an objective
necessarily presents a federal question. Under both the Tariff and Operating Agreement,
9
Old Dominion also claims on appeal that the district court ran afoul of the well-
pleaded complaint rule by considering matters outside of the Amended Complaint —
including the PJM Tariff, the Operating Agreement, and the FERC and D.C. Circuit
proceedings — in its jurisdictional analysis. As the court explained in its Dismissal
Opinion, however, it properly took notice of those matters in scrutinizing the nature of Old
Dominion’s removed claims. See Dismissal Opinion 2-3 nn. 3-4, 11 n.9 (explaining that a
court is not confined to pleadings in ruling on a motion to remand). It is not the case that
“the grounds for removal must appear on the face of the complaint, unaided by reference
to other pleadings or the notice of removal.” See 14C Charles A. Wright et al., Federal
Practice & Procedure § 3734 (rev. 4th ed. 2021). Rather, “in the context of possible
federal-question jurisdiction,” it is appropriate for the court to conduct an examination of
the record as a whole “to reveal the true nature of the plaintiff’s claim.” See id.; accord
Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 22 (1983) (“[I]t is an
independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat
removal by omitting to plead necessary federal questions in a complaint.”). The Dismissal
Opinion astutely observed that both parties made repeated references to and relied on the
PJM Tariff and the earlier administrative proceedings and appeals.
21
Old Dominion’s relationship with PJM is structured such that when the utility sells its
power generation capacity to PJM, it may not charge more than $1000 per megawatt-hour.
The parties do not dispute here — nor did they in the proceedings before FERC and the
D.C. Circuit — that the losses incurred from Old Dominion’s generating electricity at a
cost of roughly $1200 per megawatt-hour are not compensable under the PJM Tariff. In
petitioning FERC for a waiver of the Tariff, Old Dominion alleged that it sustained
$14,925,669.58 in losses — precisely the sum demanded in each of its four state law claims
against PJM. There can be no good faith contention that the relief that Old Dominion now
seeks is different in character than it was during the utility’s administrative proceedings.
The damages sought are for the costs incurred during the 2014 polar vortex — that is, costs
“in connection with the transmission or sale of electric energy subject to the jurisdiction of
[FERC].” See 16 U.S.C. § 824d(a). And as the district court observed, “the governing
federal statute leaves scant room for [Old Dominion] to maneuver.” See Dismissal Opinion
19. Simply put, federal law provides that Old Dominion cannot have what it asks for, and
the utility is not entitled to “artfully plead” away the fact that its claims seek to alter the
terms of its tariffed relationship with PJM, thereby presenting a federal question under
Bryan.
By extension, awarding the relief that Old Dominion now seeks would require
“entering a judgment that would serve to alter the rate paid by [the] plaintiff,” as the
damages demanded exceed the sum authorized by law under the PJM Tariff’s rate cap. See
Bryan, 377 F.3d at 429 (quoting Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1316
(11th Cir. 2004)). That is, Old Dominion requests a court to stand in the shoes of FERC
22
and set a reasonable tariffed rate specifically for purposes of compensating it for its polar
vortex-related losses. We made plain in our Bryan decision that such a maneuver promotes
discrimination among ratepayers and impinges upon the ratemaking jurisdiction of federal
agencies, in contravention of the filed-rate doctrine’s simple mandate that “the rate of the
carrier duly filed is the only lawful charge.” Id. (quoting Louisville & Nashville R.R. v.
Maxwell, 237 U.S. 94, 97 (1915)). Bryan explained that any claim “hav[ing] the effect of
imposing different rates upon different customers” invokes the filed-rate doctrine, poses a
substantial question of federal law under that doctrine, and must be dismissed pursuant
thereto. Id. at 430. Again, Bryan compels our conclusion that the district court possessed
federal question jurisdiction and properly dismissed Old Dominion’s putative state law
claims as posing an “effective challenge” to the PJM Tariff. 10
b.
Under Bryan, it is evident that the substance of each of Old Dominion’s four claims
necessarily invokes a substantial federal question. 11 The PJM Tariff, then, cannot be
10
We expressed in Bryan that our rulings should not be taken to imply that the filed-
rate doctrine is “conterminous with the scope of federal question jurisdiction.” See 377
F.3d at 430 n.8. Rather, we clarified that in certain instances — as in this appeal — “the
inquiries merge,” id., and as the district court characterized it here, “there is no daylight
between the question of jurisdiction and dismissal in regard to claims that challenge federal
tariffs,” see Dismissal Opinion 28. Indeed, as the Bryan dissenter conceded, “claims
requiring the court to second-guess the reasonableness of [an agency’s rate] determination
are properly said to require the court to resolve a substantial federal question.” See 377
F.3d at 435 (Luttig, J., dissenting).
11
Old Dominion correctly reminds us that the question of whether a state claim
“necessarily” poses a federal question typically calls for consideration of whether the
federal issue constitutes a “necessary element” of the claim. See Pinney v. Nokia, Inc., 402
(Continued)
23
construed simply as a defense to the claims’ allegations when the Tariff is vital to the relief
that they seek. Old Dominion maintains that, if anything, the Tariff only extinguishes its
right to relief. We find that characterization to be premature, however, as determining that
the utility enjoys such a right in the first place requires consulting the terms of the Tariff.
Old Dominion roots its effort to cast the PJM Tariff as a preemptive affirmative
defense in our decision in Burrell v. Bayer Corp., 918 F.3d 372 (4th Cir. 2019). Those
comparative efforts, however, are unavailing. The Burrell decision did not concern any
dispute over a regulatory tariff, nor did it involve Bryan’s controlling principle that an
effective challenge to a filed tariff poses a substantial federal question. Burrell involved a
removal to federal court of state law negligence and product liability claims relating to a
defective birth-control device. The district court ruled that it possessed federal question
jurisdiction because the plaintiffs’ complaint was “replete with” explicit allegations that
the defendant had violated Food and Drug Administration (“FDA”) regulations, thus
“necessarily raising” substantial questions of federal law. Id. at 379. Having concluded
F.3d 430, 449 (4th Cir. 2005). The parties disputed before the district court whether
Virginia or North Carolina law governs Old Dominion’s claims. Technical construction
of the elements of those claims is unnecessary, however, because Bryan directs that the
nature of the claims and the damages they seek inherently poses a federal question.
Nevertheless, it is apparent that weighing the merits of Old Dominion’s tort and contract
claims — under either Virginia or North Carolina law — would require resort to federal
law. Put succinctly, the allegations set forth in each claim relate solely to the relationship
between the parties that is exclusively controlled by the PJM Tariff. See Cahnmann, 133
F.3d at 488 (“Any rights that the plaintiff has to complain about a breach of contract are
rights granted to her by the original tariff . . . .”).
24
that it retained jurisdiction over the plaintiffs’ claims, the court granted the defendant’s
motion to dismiss on preemption grounds.
We explained on appeal, however, that the statutory provision granting the FDA
regulatory authority over the birth-control device contained a preemption provision barring
state remedies for violations of common-law duties unless the alleged wrongs “parallel[ed]
federal regulatory requirements.” See Burrell, 918 F.3d at 377 (internal quotation marks
omitted). Accordingly, the plaintiffs were obliged to plead the regulatory violations in
order to fend off a preemption defense. We thus concluded that the only “federal
questions” involved in Burrell operated as defenses to the plaintiffs’ claims and that,
because jurisdiction does not lie under 28 U.S.C. § 1331 simply because a federal defense
is “anticipated in the plaintiff’s complaint,” the district court erred in failing to remand. Id.
at 381.
Although Burrell’s resolution turned on an application of the substantial federal
question doctrine, that decision bears little factual resemblance to the dispute now before
us. The Burrell plaintiffs’ right to the relief they sought could be established without any
resort to federal law; it was only the case that, after such right was established, federal law
posed the possibility of cutting off the plaintiffs’ ability to recover. That is not the situation
here. In this case, there is not merely a “lurking question of federal law in the form of the
affirmative defense of preemption.” See Burrell, 918 F.3d at 382 (internal quotation marks
omitted). Instead, the federal law embodied in the PJM Tariff is part and parcel of each of
Old Dominion’s claims. The utility simply cannot prove that PJM owes it nearly $15
million “in connection with the transmission or sale of electric energy,” see 16 U.S.C.
25
§ 824d(a), without “seek[ing] to alter the terms of the relationship . . . set forth in [PJM’s]
filed tariff,” see Bryan, 377 F.3d at 429. In sum, Old Dominion’s contention that the Tariff
is merely a defense to its claims is without merit.
c.
In these circumstances, we are persuaded that the Bryan decision permits only one
resolution of this appeal. The nature of Old Dominion’s claims places them squarely within
the scope of the PJM Tariff, such that the utility’s right to relief is inextricably intertwined
with federal law. Critically, that fact does not change by virtue of Old Dominion having
artfully clothed its inherently federal claims “in state garb.” See Travelers Indem. Co. v.
Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986). Just as in Bryan, Old Dominion seeks with
its putative state claims to alter the terms of its tariffed relationship with PJM, to be
awarded a tariffed rate different from that enforced against other electric utilities, and
ultimately to undermine FERC’s statutory authority to ensure that all “rates and charges
made . . . in connection with the transmission or sale of electric energy” be “just and
reasonable.” See 16 U.S.C. § 824d(a). Accordingly, each of Old Dominion’s claims by
necessity poses a substantial federal question, and the district court possessed subject
matter jurisdiction.
B.
1.
Old Dominion alternatively asserts that, irrespective of how it may bear on this
appeal, the Bryan decision “has not withstood the test of time.” See Br. of Appellant 28.
According to Old Dominion, Bryan lacks “continuing precedential force” in view of this
26
Court’s subsequent decisions and the Supreme Court’s formulation of the Gunn-Grable
standard. See Reply Br. of Appellant 29. With respect to our precedent, Old Dominion
specifically maintains that we have weakened or eliminated Bryan’s “effective challenge”
standard in explaining federal preemption defenses in Burrell and Pinney v. Nokia, Inc.,
402 F.3d 430 (4th Cir. 2005), a predecessor to Burrell that similarly found that federal
regulatory defenses to state law tort claims did not provide a district court federal question
jurisdiction.
Old Dominion’s arguments in this regard are unconvincing, as Burrell and Pinney
are not inconsistent with Bryan. Those decisions bore no relation to Bryan’s assessment
of veiled challenges to regulatory tariffs and did not question or undermine Bryan’s
interpretation of the substantial federal question doctrine. Moreover, the PJM Tariff does
not operate as a defense of the sort considered in Burrell and Pinney. And multiple
decisions of our sister circuits are in accord with Bryan’s determination that challenges to
federal tariffs present questions of federal law. See, e.g., Cahnmann v. Sprint Corp., 133
F.3d 484, 488-89 (7th Cir. 1998); Ne. Rural Elec. Membership Corp. v. Wabash Power
Ass’n, Inc., 707 F.3d 883, 891-92, 893 n.5 (7th Cir. 2013); Hill v. BellSouth Telecomms.,
Inc., 364 F.3d 1308, 1315-17 (11th Cir. 2004); Marcus v. AT&T Corp., 138 F.3d 46, 56
(2d Cir. 1998).
Moving beyond Burrell and Pinney, Old Dominion argues that the Supreme Court’s
decisions in Gunn v. Minton, 568 U.S. 251 (2013), and Grable & Sons Metal Products,
Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), impliedly overruled
Bryan by seeking to “refine” the “unruly” substantial federal question doctrine as it existed
27
at the time of Bryan’s decision. See Reply Br. of Appellant 29 (quoting Flying Pigs, LLC
v. RRAJ Franchising, LLC, 757 F.3d 177, 182 (4th Cir. 2014)). We agree with the district
court, however, that Bryan’s explicit standard “closely tracks the Gunn-Grable
framework,” and that the latter did no harm to the former. See Dismissal Opinion 15 n.11.
Gunn-Grable principally inquires whether a “state-law claim necessarily raise[s] a
stated federal issue, actually disputed and substantial,” reflecting the well-established
standard of the substantial federal question doctrine. See Gunn, 568 U.S. at 258 (quoting
Grable, 545 U.S. at 314). Bryan’s own characterization of that doctrine was drawn from
the Supreme Court’s decision in Franchise Tax Board v. Construction Laborers Vacation
Trust, 463 U.S. 1 (1983), which itself informed the Court’s development of the Gunn-
Grable test. See Grable, 545 U.S. at 312-14 (citing Franchise Tax Board in tracing the
history of the “longstanding . . . variety of federal ‘arising under’ jurisdiction [that] will lie
over state-law claims that implicate significant federal issues”). Gunn-Grable then
counsels a further normative consideration, namely whether the state claim at hand is
“capable of resolution in federal court without disrupting the federal-state balance
approved by Congress.” See Gunn, 568 U.S. at 258. That concern is also revealed in
Bryan, however, as reflected in the rationale behind its “effective challenge” standard —
that is, any lawsuit seeking to enforce or invalidate a federally filed tariff may appropriately
be heard in the federal courts. In sum, Bryan and Gunn-Grable share a common foundation
and spell out harmonious legal principles. As such, Bryan remains good law in our circuit.
28
2.
Although the district court grounded its jurisdictional determination in Bryan’s
standard, it appropriately conducted an independent assessment of the Gunn-Grable
framework. And we perceive no error in the court’s explicit conclusion that the same result
obtains when the Supreme Court’s standard is applied to the facts here. The Gunn-Grable
test provides that there is federal question jurisdiction over a state law claim where the
claim presents a federal issue that is (1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in federal court “without disrupting
Congress’s intended division of labor between state and federal courts.” See Gunn, 568
U.S. at 258. Each of those four factors is readily established in this appeal.
As explained at length above, Old Dominion’s putative state claims “necessarily
raise” a federal issue by seeking relief made unavailable by a federally filed regulatory
tariff. The utility’s Amended Complaint explains that the requested damages of
$14,925,669.58 reflect costs incurred during Old Dominion’s operations during the polar
vortex in January 2014. Those costs are not compensable under the PJM Tariff’s rate cap.
By suing PJM for the expenses anyway, Old Dominion effectively challenges the
enforceability of PJM’s federal tariff and seeks to amend its terms.
The federal issue at hand is, of course, also “actually disputed” — the parties
disagree whether the PJM Tariff precludes Old Dominion’s ability to recover. With regard
to whether the issue is adequately “substantial,” the Supreme Court in Gunn explained that
that inquiry looks to “the importance of the issue to the federal system as a whole” and “the
broader significance of the . . . question for the Federal Government.” See 568 U.S. at 260.
29
Here, Old Dominion seeks to have a state court circumvent FERC’s exclusive authority to
regulate electric utilities and the interstate electricity transmission market, and we are
satisfied that a maneuver of that nature poses an issue of “substantial” significance to the
federal government.
Lastly, Old Dominion’s claims may appropriately be resolved in federal court for
much the same reason: they seek to obtain an excuse from strict compliance with federal
regulatory rules. Such an endeavor is most appropriately pursued in the federal
administrative setting, as previously pursued here. PJM’s removal of Old Dominion’s
claims to federal court did not “disrupt[] Congress’s intended division of labor between
state and federal courts” in any way — if anything, the removal could best be said to have
righted that intended division. See Gunn, 568 U.S. at 258. Accordingly, Gunn-Grable is
not only compatible with our decision in Bryan, but likewise directs that the district court
possessed subject matter jurisdiction over Old Dominion’s claims.
C.
In sum, Bryan and Gunn-Grable make it clear that Old Dominion’s claims
necessarily present a substantial question of federal law. In these circumstances, Old
Dominion’s claims make no bones about seeking relief precluded by the PJM Tariff, asking
a state court to fix a reasonable tariffed rate applicable only to the utility’s 2014 losses, and
effectively challenging the terms and enforceability of the Tariff’s rate cap. Given those
efforts, the district court aptly recognized that the substantial federal question doctrine and
the filed-rate doctrine work in tandem to render Old Dominion’s claims nonviable. We
decline Old Dominion’s invitation to turn a blind eye to that reality, and instead resolve
30
that the district court was properly vested with federal question jurisdiction and correctly
dismissed Old Dominion’s claims.
IV.
Pursuant to the foregoing, the judgment of the district court denying remand and
dismissing Old Dominion’s claims with prejudice is affirmed.
AFFIRMED
31