Truconnect Communications, Inc. v. Peterson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2025
• Docket: 24-3297
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 25 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRUCONNECT COMMUNICATIONS, No. 24-3297 INC., a California corporation, D.C. No. Plaintiff - Appellant, 2:23-cv-01933-AB-AS

v. MEMORANDUM*

RACHEL PETERSON, in her official capacity as Executive Director of the Public Utilities Commission of the State of California and in her individual capacity,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California André Birotte Jr., District Judge, Presiding

Submitted February 14, 2025** Pasadena, California

Before: PAEZ, IKUTA, and R. NELSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). TruConnect Communications, Inc., appeals the district court’s order granting

Rachel Peterson’s motion to dismiss its operative Second Amended Complaint

(SAC) under Rule 12(b)(6) of the Federal Rules of Civil Procedure without leave

to amend. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

TruConnect’s Fifth Amendment Takings Clause claims fail because

TruConnect has not plausibly alleged that it has a property interest in the federal

funds for which it seeks reimbursement in the form of Lifeline activation fees or

Emergency Broadband Benefit (EBB) monthly service fees. An eligible

telecommunications carrier, as defined in the regulations, is entitled to funds under

the state-administered Lifeline program if it meets specified criteria. See 47 C.F.R.

§ 54.403(a)(1). A participating provider, as defined in the regulations, is entitled to

EBB reimbursement funds if it meets specified criteria. See id.

§§ 54.1602(a), 54.1601(a)–(c), 54.1600(e); 47 U.S.C. § 214(e)(2). TruConnect

does not allege that it has met all the criteria for either program, and the SAC and

judicially noticeable documents are to the contrary. The SAC alleges that the state

commission notified TruConnect that its EBB plan required additional approval

but does not allege that TruConnect received such approval during the relevant

time period. Additionally, commission decisions and filings, which we may

consider, Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998–99 (9th Cir.

2 2018), make clear that TruConnect did not have the required state commission

approval for the 2015 Lifeline activation fees or the 2021 EBB reimbursements.

Because the SAC does not allege that TruConnect meets the criteria for entitlement

to federal funds, the SAC does not plausibly allege that TruConnect has a Fifth

Amendment property interest in such funds. See Engquist v. Or. Dep’t of Agric.,

478 F.3d 985, 1002–04 (9th Cir. 2007) (the Takings Clause does not protect

contingent interests), aff’d, 553 U.S. 591 (2008). Absent a property interest,

TruConnect has no Fifth Amendment claims. Peterson v. U.S. Dep’t of Interior,

899 F.2d 799, 813 (9th Cir. 1990).

TruConnect’s First Amendment retaliation claim fails because Peterson is

entitled to qualified immunity. TruConnect fails to identify clearly established law

holding that in 2020 and 2022, when Peterson issued data requests to TruConnect,

a public utilities commissioner could not send such data requests to a regulated

carrier in retaliation for the carrier filing lawsuits against the state commission and

lobbying the Legislature to restrain the commission’s power. See Riley’s Am.

Heritage Farms v. Elsasser, 32 F.4th 707, 729 (9th Cir. 2022) (the right to be free

from First Amendment retaliation “must be defined at a more specific level tied to

the factual and legal context of a given case”); see also Moore v. Garnand, 83

3 F.4th 743, 752–53 (9th Cir. 2023) (holding in 2023 that it was not clearly

established that a retaliatory criminal investigation violated the First Amendment).

The district court did not abuse its broad discretion in denying leave to

amend. Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

TruConnect had previously amended its complaint twice, and though the district

court did not state its reasons, it is “fairly obvious that denial was based on the

futility of amendment” given the district court’s reasoned analysis and given the

legal flaws in the SAC which are not remediable through better pleading. Roth v.

Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991).

AFFIRMED.