318 F.

3d 32

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.
No. 01-2286.

United States Court of Appeals, First Circuit.

Heard March 4, 2002.
Decided January 28, 2003.

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.
Before LYNCH, Circuit Judge, CAMPBELL and MAGILL,* Senior
Circuit Judges.
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 dismissal with prejudice of the 1983
claim for prospective injunctive relief in order to proceed with this appeal.
I.
2

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. 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, 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.
5

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 agreement 12 and
discriminatory and contrary to the 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

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.
8

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.
9

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 capacities. We disagree with Destek and for the
reasons discussed below affirm the judgment of the district court.

10

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.

11

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

12

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.

13

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).

14

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

15

(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....

16

Id. 252(e)(2)(A).

17

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.

18

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, 98 S.Ct. 2396, 57 L.Ed.2d 274 (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.

19

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,

20

[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.

21

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.

22

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) (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.

23

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, 73 S.Ct. 67, 97 L.Ed. 54 (1952);
see also Pepperell Assocs. v. EPA, 246 F.3d 15, 27 (1st Cir.2001) (holding 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))).

24

Accordingly, the district court correctly dismissed this claim because it was not
properly before the court for judicial review. 15

B.
25

Second, the district court found that Destek's claims against Verizon, under 42
U.S.C. 1983, were without merit. We agree.16

26

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,
102 S.Ct. 2744, 73 L.Ed.2d 482 (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, 102 S.Ct. 2744;
Gonzalez-Morales, 221 F.3d at 49.

27

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.
C.
28

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

29

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.

30

"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, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989)). Thus, Destek's claims against the State Commission and
the Commissioners in their official capacity for damages are contrary to
established law.

D.
31

Finally, the district court held that Destek's claims for damages against the
Commissioners in their individual capacities, pursuant to 1983, were barred
by the doctrine of "quasi-judicial" immunity. We agree.20

32

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, 108 S.Ct. 538, 98 L.Ed.2d 555 (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, 98 S.Ct. 2894, 57 L.Ed.2d 895

(1977)) (emphasis in original). This is the doctrine of "quasi-judicial" immunity

for members of adjudicatory bodies.
33

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.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:

34

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?

35

Bettencourt, 904 F.2d at 783.

36

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 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).

37

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.
38

For the aforementioned reasons, we affirm the judgment of the district court.

Notes:
*

Of the Eighth Circuit, sitting by designation

The members of the Commission are Douglas Patch, Susan S. Geiger, and
Nancy Brockway

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

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).

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.

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.

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

Destek provides telecommunications services throughout New Hampshire and

New England

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

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

13

If the parties are unable to voluntarily negotiate an interconnection agreement,

252 provides for compulsory arbitration. 47 U.S.C. 252(b)

14

Section 251, entitled "Interconnection," imposes the general duty on

telecommunications providers to interconnect by,inter 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.
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

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

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 inNat'l
Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192-93, 109 S.Ct. 454,
102 L.Ed.2d 469 (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, 109 S.Ct. 454. 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.

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.

20

See supra note 16.

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