Destek Group, Inc. v. New Hampshire Public Utilities Commission

United States Court of Appeals
For the First Circuit

No. 01-2286

THE DESTEK GROUP, INC.,
d/b/a The Destek Networking Group,

Plaintiff, Appellant,

v.

STATE OF NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION;

DOUGLAS L. PATCH, Chairman, PUC Commission;
NANCY BROCKWAY, PUC Commissioner;
SUSAN S. GEIGER, PUC Commissioner;
VERIZON NEW ENGLAND, INC.,
d/b/a Verizon New Hampshire,

Defendants, Appellees.

__________

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY,
d/b/a Bell Atlantic-New Hampshire,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell and Magill,* Senior Circuit Judges.

*
Of the Eighth Circuit, sitting by designation.
 Eugene F. Sullivan, III, with whom Ingersoll & Sullivan, P.A.
was on brief, for appellant.
Sean A. Lev, with whom Gregory M. Kennan and Thomas J. Donovan
were on brief, for appellee Verizon New England.
Daniel J. Mullen, Associate Attorney, with whom Philip T.
McLaughlin, Attorney General, was on brief, for appellee State of
New Hampshire Public Utilities Commission, et al.

January 28, 2003
 MAGILL, Senior Circuit Judge. This case concerns the

subject matter jurisdiction of federal district courts pursuant to

§ 252(e)(6) of the Telecommunications Act of 1996 (the

"Telecommunications Act" or "Act"), 47 U.S.C. § 252(e)(6) (2000),

and the scope of immunity of a state commission and state

commissioners from suit under 42 U.S.C. § 1983 (2000). In October

1999, The Destek Group, Inc. ("Destek"), Plaintiff-Appellant,

initiated this action in the district court against the State of

New Hampshire, Public Utilities Commission (the "State

Commission"), Members of the Commission (the "Commissioners"),1 and

Verizon New England, Inc. ("Verizon"),2 Defendants-Appellees.

Destek sought judicial review pursuant to § 252(e)(6) of the Act,

as well as injunctive relief and damages from the State Commission,

the Commissioners, and Verizon pursuant to § 1983 for violations of

the Telecommunications Act and the Due Process Clause of the

Fourteenth Amendment. Ultimately, the district court granted

summary judgment for the State Commission, the Commissioners, and

Verizon on all claims, save the § 1983 claim for prospective

injunctive relief against the Commissioners. The district court

denied Destek's summary judgment motion. Destek stipulated to

1
The members of the Commission are Douglas Patch, Susan S.
Geiger, and Nancy Brockway.
2
The company we refer to as Verizon throughout this opinion
was known as New England Telephone and Telegraph Company and did
business as Bell Atlantic-New Hampshire prior to August 1, 2000.

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dismissal with prejudice of the § 1983 claim for prospective

injunctive relief in order to proceed with this appeal.

I.

On March 16, 1999, Verizon executed an agreement (the

"Agreement") with the University of New Hampshire in which Verizon

contracted to provide asynchronous transfer mode ("ATM")3 cell

relay service to the University of New Hampshire within the State

of New Hampshire at a uniform statewide rate of $655.75 per

interface4 per month, provided the University of New Hampshire

purchase at least thirty interfaces. On June 4, 1999, Verizon

submitted a petition with the State Commission seeking approval of

the Agreement as a special contract pursuant to N.H. Rev. Stat.

3
ATM is

[a] network architecture that divides messages into
fixed-size units (called cells) of small size (53 bytes)
and that establishes a switched connection between the
originating and receiving stations. . . . The advantage
of breaking all transmissions into small-sized cells is
that the network can transmit voice, audio, and computer
data over a single line without any single type of data
dominating the transmission. ATM's connection-oriented
design differs from the Internet's connectionless design;
unlike the Internet, ATM enables service providers to
bill by network usage and is capable of very high
transmission speeds.

B. Pfaffenberger, Webster's New World Computer Dictionary 30 (9th
ed. 2001).
4
An interface, generally, is "the connection between two
hardware devices, between two applications, or between different
sections of a computer network." Pfaffenberger, supra note 3, at
196.

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Ann. § 378:18 (2002).5 Verizon claimed that the Agreement would

enable the University of New Hampshire to provide "distance

learning"6 services to New Hampshire school students and libraries,

as well as high speed internet access.7

On June 25, 1999, Destek8 sought to intervene in the

State Commission proceedings and opposed the approval of the

Agreement. Destek maintained, inter alia, that special contracts

pursuant to N.H. Rev. Stat. Ann. § 378:18, such as the Agreement at

issue, are discriminatory and minimize competition. Additionally,

5
Section 378:18, entitled "Special Contracts for Service,"
provides

Nothing herein shall prevent a public utility from making
a contract for service at rates other than those fixed by
its schedules of general application, if special
circumstances exist which render such departure from the
general schedules just and consistent with the public
interest and, except as provided in [N.H. Rev. Stat. Ann.
§] 378:18-b, the commission shall by order allow such
contract to take effect.

N.H. Rev. Stat. Ann. § 378:18. Section 378:18-b provides that
special contracts for telephone utilities shall become effective
thirty days after filing provided certain rate conditions are met.
Id. § 378:18-b.
6
Distance learning is "[t]he use of telecommunications (and,
increasingly the Internet) to provide educational outreach programs
for students at remote locations." Pfaffenberger, supra note 3, at
118.
7
Concurrently, Verizon sought to keep certain cost data
relevant to the Agreement confidential by filing a motion for a
protective order, which the State Commission granted on October 4,
1999.
8
Destek provides telecommunications services throughout New
Hampshire and New England.

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Destek noted that the University of New Hampshire had not filed

with the State Commission to become a telecommunications reseller

or competitive local exchange carrier ("CLEC").9

By an order dated July 7, 1999, the State Commission

approved the proposed special contract, subject to two conditions:

(1) the State Commission required that Verizon file a tariff,

within ninety days, making ATM services available statewide with

the same terms, conditions, and at the same prices as in the

Agreement; and (2) the State Commission required that Verizon

resubmit the Agreement to the State Commission disclosing more

details regarding the ATM circuits.10 Noting the special

circumstances of this Agreement, the State Commission opined that

the public interest strongly favored quick approval of the contract

because any delay could deny school children the benefits of ATM

services.

9
A CLEC "is a local exchange carrier [("LEC")] that now is
permitted (thanks to the U.S. 1996 Telecommunications Act) to
compete in local telephone markets with the incumbent local
exchange carrier [("ILEC")], the company that possessed a monopoly
in that market prior to the passage of the 1996 reforms."
Pfaffenberger, supra note 3, at 75.

An LEC is "[a] public telephone company that provides local
services." Id. at 218.
10
Subsequently, Verizon complied with these conditions.

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 Destek sought reconsideration of the State Commission's

order,11 arguing that approval of the Agreement violated,

inter alia, (1) the Telecommunications Act, and (2) the Due Process

Clause of the Fourteenth Amendment. Specifically, Destek argued

that (1) Congress intended the Act to promote competition and thus,

special contracts, as defined by N. H. Rev. Stat. § 378:18, are

preempted by the Act because they stifle competition; and (2) to

the extent that special contracts are not preempted, the State

Commission's approval of this special contract violates § 251(b)

and § 253(a) of the Act. In an order dated November 22, 1999, the

State Commission denied Destek's motion for reconsideration.

On October 18, 1999, Destek filed suit in the U.S.

District Court for the District of New Hampshire. Destek's amended

complaint sought declaratory relief, injunctive relief, and

damages, raising three specific claims. First, Destek asserted a

right to judicial review under § 252(e)(6) of the

Telecommunications Act, claiming that the Agreement was an

interconnection agreement12 and discriminatory and contrary to the

11
In addition, the New Hampshire Office of the Consumer
Advocate and Vitts Networks, Inc., filed motions for
reconsideration of the State Commission's order. These motions
were denied by the State Commission.
12
An interconnection agreement is a contract between an ILEC
and a telecommunications carrier linking their two networks
together for mutual exchange consistent with the duties set out in
47 U.S.C. § 251. Section 252 describes, inter alia, the procedures
by which the parties may reach an interconnection agreement (either
by negotiation or arbitration) and the procedures for State

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public interest. Second, Destek sought injunctive relief and

damages from the State Commission, the Commissioners, and Verizon,

pursuant to 42 U.S.C. § 1983, for alleged violations of Destek's

rights under the Act, citing the State Commission's approval of the

Agreement without considering the federal standards for approval of

interconnection agreements. Third, Destek sought injunctive relief

and damages, pursuant to 42 U.S.C. § 1983, against the State

Commission and the Commissioners for alleged violations of Destek's

rights under the Due Process Clause of the Fourteenth Amendment by

repeated denials of Destek's requests for a hearing.

All parties sought summary judgment based on the agency

record developed before the State Commission. The district court

(1) granted Verizon's motion for summary judgment in its entirety,

(2) granted partial summary judgment for the State Commission and

the Commissioners, and (3) denied Destek's motion for summary

judgment. First, the district court found that Destek could not

proceed under § 252(e)(6) of the Act because the State Commission

had not made a "determination" under that section, a prerequisite

for federal district court review. Second, the district court held

that Destek's failure to demonstrate that Verizon's conduct was

fairly attributable to the State precluded Destek from asserting §

1983 claims against Verizon, a private actor. Third, the district

commission approval or rejection of the agreement. 47 U.S.C. §
252.

-8-
court held that the State Commission and Commissioners in their

official capacities were immune from suit under § 1983. Fourth,

the district court found that Destek's claims for damages against

the Commissioners in their individual capacities were barred by the

doctrine of "quasi-judicial" immunity. Finally, the district court

denied both the Commissioners' and Destek's motions for summary

judgment with respect to Destek's § 1983 claim for prospective

injunctive relief, finding a potentially viable claim for seeking

to compel the Commissioners to comply with the Telecommunications

Act, depending on the resolution of genuine issues of material fact

as to whether the Agreement was subject to the Act.

In order to allow this appeal to proceed to this court,

Destek stipulated to the dismissal with prejudice of claims not

resolved against it by the district court's summary judgment

decision, including the § 1983 claim for prospective injunctive

relief. On September 28, 2001, the district court entered final

judgment based on the stipulation. This appeal follows.

II.

Destek raises four main arguments on appeal: the district

court erred in concluding that (1) the State Commission had not

made a § 252 "determination"; (2) Verizon was not liable under §

1983; (3) the State Commission and Commissioners acting in their

official capacity were immune from the § 1983 claims; and (4) the

Commissioners were immune from the § 1983 claim in their individual

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capacities. We disagree with Destek and for the reasons discussed

below affirm the judgment of the district court.

We review the district court's grant of summary judgment

de novo. R.I. Depositors Econ. Prot. Corp. v. Hayes, 64 F.3d 22,

25 (1st Cir. 1995). Summary judgment is appropriate when the

record reflects "no genuine issue as to any material fact and . . .

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). We review the record in the light most

favorable to the nonmoving party, and all reasonable inferences are

drawn in that party's favor. Hayes, 64 F.3d at 25. "[W]e are

'mindful that the party invoking the jurisdiction of a federal

court carries the burden of proving its existence.'" P.R. Tel. Co.

v. Telecomms. Regulatory Bd., 189 F.3d 1, 7 (1st Cir. 1999)

(quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60

(1st Cir. 1993)). In addition, we recognize that a party seeking

immunity bears the burden of showing that immunity is justified.

Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 784 n.15

(1st Cir. 1990).

A.

First, Destek argues that the district court erred in

holding that Destek lacked subject matter jurisdiction because the

State Commission had not made a § 252 "determination." We disagree

and affirm the district court's dismissal. Ultimately, the State

Commission never made a determination for the purposes of §

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252(e)(6) and Destek never raised this issue before the State

Commission.

A principal purpose of the Telecommunications Act is to

increase competition in the market for local telephone services.

See Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.

56, 56; P.R. Tel. Co., 189 F.3d at 7. The statute imposes

obligations on companies that control the existing

telecommunications network in the local area, known as ILECs. See

47 U.S.C. § 251; P.R. Tel. Co., 189 F.3d at 7. Verizon is an ILEC.

Section 252 of the Act provides a comprehensive framework

within which competitor telecommunications carriers, seeking to

enter the local market, may negotiate interconnection agreements

(linking the two networks for mutual exchange of traffic) with

ILECs. 47 U.S.C. § 252.13 Under § 252(e)(1), if the

telecommunications carrier and the ILEC agree on the terms for the

interconnection, the parties must submit their interconnection

agreement to the relevant state regulatory commission for review.

Id. § 252(e)(1). The state commission must then either approve or

disapprove the voluntarily negotiated interconnection agreement

within ninety days; otherwise the agreement is deemed approved.

Id. § 252(e)(4).

13
If the parties are unable to voluntarily negotiate an
interconnection agreement, § 252 provides for compulsory
arbitration. 47 U.S.C. § 252(b).

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 Section 252(e)(2)(A) provides, in relevant part, that the

state commission may only reject a proposed interconnection

agreement adopted by voluntary negotiation if

(i) the agreement (or portion thereof) discriminates
against a telecommunications carrier not a party to the
agreement; or (ii) the implementation of such agreement
or portion is not consistent with the public interest,
convenience, and necessity . . . .

Id. § 252(e)(2)(A).

Finally, § 252(e)(6) allows any party aggrieved by the

state commission's determination under § 252 to seek judicial

review, in a federal district court, of the determination for

compliance with §§ 251 and 252. Id. § 252(e)(6). Under § 252, the

only "determination" that can be made by a state commission in the

case of a voluntarily negotiated interconnection agreement is the

determination of whether to approve or reject it. See id. § 252.

A fundamental principle of the structure of our democracy

is that federal courts are courts of limited jurisdiction. E.g.,

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978);

U.S.I. Props. Corp. v. M.D. Constr. Co., 230 F.3d 489, 499 (1st

Cir. 2000). The power of lower federal courts is limited to

jurisdiction authorized by the Constitution and expressly conferred

by Congress. Id.

In this case, Destek sought review of the State

Commission's actions under § 252(e)(6) of the Act. Section

252(e)(6) provides, in relevant part,

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 [i]n any case in which a State commission makes a
determination under this section, any party aggrieved by
such determination may bring an action in an appropriate
Federal district court to determine whether the agreement
or statement meets the requirements of section 251 of
this title and this section.

47 U.S.C. § 252(e)(6) (emphasis added). Thus, in order for a

federal district court to have jurisdiction under this section,

Congress required (1) a determination by the state commission under

§ 252, approving or rejecting an interconnection agreement; and (2)

a party aggrieved by that determination. Clearly, the dispositive

jurisdictional inquiry under § 252(e)(6) is whether there was a

"determination" for the purposes of that section. We will assume,

without deciding, for the purpose of this inquiry, that the

Agreement is an interconnection agreement.

Verizon and the University of New Hampshire sought

approval of their Agreement as a special contract, pursuant to N.H.

Rev. Stat. Ann. § 378:18. Upon motion to intervene, Destek argued

that such contracts were discriminatory and anticompetitive, never

mentioning the Telecommunications Act. The State Commission

conditionally approved the Agreement as a special contract. Destek

sought reconsideration of the State Commission's approval, arguing,

inter alia, that the Agreement violated § 251(b) (describing the

obligations of local exchange carriers not to impose discriminatory

conditions on the resale of telecommunications)14 and § 253(a)

14
Section 251, entitled "Interconnection," imposes the general
duty on telecommunications providers to interconnect by, inter

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(prohibiting state and local regulations from creating barriers to

entry) of the Act. The State Commission denied the motion for

reconsideration. Destek then sought review of this case in the

district court, claiming that the State Commission had made a

"determination" for the purposes of § 252(e)(6). The district

court correctly found this claim to be without merit. The record

indicates that no determination approving or rejecting an

interconnection agreement, pursuant to § 252, was made by the State

Commission. The State Commission reviewed and approved the

Agreement solely under New Hampshire state law. Accordingly, §

252(e)(6) cannot be the court's source of subject matter

jurisdiction in this case.

Moreover, "orderly procedure and good administration

require that objections to the proceedings of an administrative

agency be made while it has opportunity for correction in order to

raise issues reviewable by the courts." United States v. L.A.

Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); see also

Pepperell Assocs. v. EPA, 246 F.3d 15, 27 (1st Cir. 2001) (holding

alia, not imposing unreasonable conditions on resale of
telecommunications services. 47 U.S.C. § 251. Here, Destek argued
that the approval of the special contract between the University of
New Hampshire and Verizon (or for that matter any special contract)
violated this duty to interconnect with Destek by imposing
discriminatory conditions, in favor of the University of New
Hampshire, on the resale of Verizon's telecommunications services.
Destek did not argue to the State Commission that the Agreement was
an interconnection agreement between the University of New
Hampshire and Verizon.

-14-
that a claim not timely raised before an administrative agency

could not be subject to judicial review). The record indicates

that Destek raised this issue for the first time before the

district court. In other words, Destek failed to timely present

this issue before the State Commission, and thus deprived the State

Commission of the opportunity to address the issue. Subjecting

the State Commission to federal court jurisdiction, in this case,

would violate the State Commission's autonomy. See, e.g., id.

(noting that "this rule preserves judicial economy, agency

autonomy, and accuracy of result by requiring full development of

the issues in the administrative setting to obtain judicial review"

(quoting N. Wind, Inc. v. Daley, 200 F.3d 13, 18 (1st Cir. 1999)

(citations omitted) (internal quotation marks omitted))).

Accordingly, the district court correctly dismissed this

claim because it was not properly before the court for judicial

review.15

15
Destek finds this result troubling because Destek believes
this result means that "if the state commission approves such an
agreement under State law, and fails to affirmatively find that it
is, or is not, an interconnection agreement, that decision cannot
be reviewed under the provisions of § 252(e)(6)." Br. for the
Appellant at 12. This court does not share Destek's concerns
because we do not believe that § 252(e)(6) is a mechanism to compel
a state commission's application of the Telecommunications Act. A
claim that the State Commission violated federal law is distinct
from a claim that the State Commission acted under federal-law
authority, and only the latter claim is relevant to this case.

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 B.

Second, the district court found that Destek's claims

against Verizon, under 42 U.S.C. § 1983, were without merit. We

agree.16

Section 1983 allows plaintiffs to seek redress for

"deprivation of any rights, privileges, and immunities secured by

the Constitution and laws." 42 U.S.C. § 1983. A critical element

of any § 1983 claim is that the plaintiff show deprivation caused

by a person acting "under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory or the

District of Columbia." Id.; Gonzalez-Morales v. Hernandez-

Arencibia, 221 F.3d 45, 49 (1st Cir. 2000). As a result of this

"color of state law" requirement, § 1983 rarely provides a cause of

action against a private individual, "restrict[ing] § 1983 to

'state action.'" Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922, 935 (1982)). Only when a private individual's conduct can be

deemed "fairly attributable to the State" will a § 1983 cause of

action exist against that individual. Lugar, 457 U.S. at 937;

Gonzalez-Morales, 221 F.3d at 49.

16
Because we hold that Destek's claims are barred on other
grounds, we need not resolve whether Destek's allegations amount to
a § 1983 claim.

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 Destek failed to show any conduct by Verizon that was

fairly attributable to the State.17 See Gerena v. P.R. Legal

Servs., Inc., 697 F.2d 447, 449 (1st Cir. 1983) ("The mere fact of

government regulation does not convert the regulated entity into

the government . . . ."). Accordingly, the district court properly

granted summary judgment for Verizon on these claims.

17
In fact, Destek fails to challenge any actions taken by
Verizon and instead only contests the State Commission's decision
to approve the Agreement between Verizon and the University of New
Hampshire, not Verizon's decision to contract with the University
of New Hampshire. The implication is that Destek would like us to
attribute the actions of the State to a private actor for the
purposes of § 1983 liability. This situation requires us to step
through a similar "analytical looking glass" as the Supreme Court
stepped through in Nat'l Collegiate Athletic Ass'n v. Tarkanian,
488 U.S. 179, 192-93 (1988) ("In the typical case raising a state-
action issue, a private party has taken the decisive step that
caused the harm to the plaintiff, and the question is whether the
State was sufficiently involved to treat that decisive conduct as
state action."). In Tarkanian, the Court concluded that a state
university's adoption of the National Collegiate Athletic
Association's ("NCAA") disciplinary procedures did not turn the
NCAA's promulgation of those procedures into state action. Id. at
193-94. Similarly, here, a state commission's approval of an
agreement cannot turn a private individual's act of contracting
into state action for the purposes of § 1983.

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 C.

Third, the district court held that the State Commission and the

Commissioners in their official capacities were immune from suit

for damages under § 1983.18 We agree.19

Destek argues that the State Commission and the

Commissioners waived their immunity by voluntarily participating in

the regulatory scheme established by the Telecommunications Act.

Whether a state waives its sovereign immunity by participating in

the Act's regime is irrelevant to this issue because Destek seeks

to impose liability pursuant to § 1983, not the Act.

"It is well settled beyond peradventure . . . that

neither a state agency nor a state official acting in his official

capacity may be sued for damages in a § 1983 action." See Johnson

v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991) (citing Will v.

Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). Thus,

Destek's claims against the State Commission and the Commissioners

in their official capacity for damages are contrary to established

law.

D.

Finally, the district court held that Destek's claims for

damages against the Commissioners in their individual capacities,

18
As mentioned above, Destek voluntarily stipulated to the
dismissal with prejudice of its § 1983 claim for prospective
injunctive relief in order to appeal the district court's decision.
19
See supra note 16.

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pursuant to § 1983, were barred by the doctrine of "quasi-judicial"

immunity. We agree.20

This court must take a functional approach to determining

whether absolute immunity is appropriate for the Commissioners.

See Forrester v. White, 484 U.S. 219, 224 (1988); Bettencourt, 904

F.2d at 782 (citing Scott v. Centr. Me. Power Co., 709 F. Supp.

1176, 1187 (D. Me. 1989) ("Even though by statute a state agency

official at various times may perform legislative, executive and

judicial functions, each of which may entitle the official to a

different level of immunity, the functional approach to immunity

requires that actions taken in the performance of a particular

function are to be accorded the level of immunity appropriate to

that function." (emphasis in original))). Absolute immunity is

available to "certain 'quasi judicial' agency officials who,

irrespective of their title, perform functions essentially similar

to those of judges . . . in a setting similar to that of a court."

Id. (citing Butz v. Economou, 438 U.S. 478, 511-17 (1977))

(emphasis in original). This is the doctrine of "quasi-judicial"

immunity for members of adjudicatory bodies.

Accordingly, we must decide here whether the

Commissioners have shown that while executing the activities which

gave rise to this claim, namely denying Destek's motions for a

hearing in the course of the evaluation of a contract under N.H.

20
See supra note 16.

-19-
Rev. Stat. Ann. § 378:18, they were acting in an adjudicatory

capacity such that the Commissioners are entitled to absolute

immunity. This court laid out a three-part test to determine

whether "quasi-judicial" immunity should attach to agency

officials:

First, [do the Commissioners], like . . . judge[s],
perform a traditional "adjudicatory" function, in that
[they] decide[] facts, appl[y] law, and otherwise
resolve[] disputes on the merits (free from direct
political influence)? Second, [do the Commissioners],
like . . . judge[s], decide cases sufficiently
controversial that, in the absence of absolute immunity,
[they] would be subject to numerous damages actions?
Third, [do the Commissioners], like . . . judge[s],
adjudicate disputes against a backdrop of multiple
safeguards designed to protect a [party's] constitutional
rights?

Bettencourt, 904 F.2d at 783.

First, in determining whether a contract constitutes a

special contract, pursuant to N.H. Rev. Stat. Ann. § 378:18, and

denying an intervenor's motion for a hearing, the Commissioners

perform tasks functionally comparable to judges: they review and

decide facts, apply relevant law to those facts, resolve disputes,

and issue written orders explaining their decisions. Second, the

decisions whether to approve a special contract and whether to deny

a competitor the right to a hearing regarding that contract are

sufficiently controversial that, in the absence of absolute

immunity, the Commissioners would be subject to numerous damages

actions. Third, the rights of parties involved in approval of

special contracts and requests for hearings regarding those

-20-
approvals are sufficiently protected by the extensive procedures

set out for State Commission decisions. See N.H. Rev. Stat. Ann.

§§ 365:1-35 (describing the State Commission's purpose, duties, and

procedures); see also N.H. Code Admin. R. PUC 201.01-205.10 (2002).

We, therefore, conclude that under these circumstances,

the Commissioners are entitled to absolute immunity in their

"quasi-judicial" function and cannot be subjected to Destek's claim

for damages in their individual capacity.21

III.

For the aforementioned reasons, we affirm the judgment of

the district court.

21
This holding is limited to the Commissioners' role as
adjudicators; to the extent that they perform legislative or
executive functions, the level of immunity, if any, will vary.

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