Bell brings its claims pursuant to the TCA, 42 U.S.C. § 1983,
and 22 U.S.C. § 2201(a), and seeks declaratory and injunctive
relief. AT & T and Worldcom bring their claims pursuant to the
TCA and seek declaratory and equitable relief.
C. Other Proceedings
Two other proceedings are relevant to this action. The first is
a challenge by Bell to the Global Order in state court. That
action includes the federal claims asserted here, as well as
state law claims regarding other aspects of the Global Order.
Numerous parties, including most of the intervenors in this
action, are participating in the state action. Bell contends that
it raised the federal claims in the state court solely as a
protective measure; in its petition for review before the
Commonwealth Court, it reserved the federal claims pursuant
to England v. Louisiana State Board of Medical Examiners,
375 U.S. 411 (1964).*fn9
The second proceeding was a case in the Middle District
of Pennsylvania, MCI Telecommunications Corp. v. Bell
Atlantic-Pennsylvania, Inc., No. 1:CV-97-1857. Worldcom
brought that action, pursuant to the TCA, to challenge an
interconnection agreement with Bell that had been approved by
the PUC. That agreement incorporated the UNE rates set by the
MFS-Phase III Order. See id., Report and Recommendation, at
3 (M.D. Pa. Aug. 10, 1998) (Worldcom's Brief in Opp. to Mot.
to Dismiss, Ex. 8).*fn10 The Middle District court held that
the PUC was not immune under the Eleventh Amendment see id., Order
(M.D. Pa. Nov. 5, 1998) (Worldcom's Brief in Opp. to Mot. to
Dismiss, Ex. 9), and, on June 30, 2000, it denied both the PUC's
motion to certify its decision on immunity for interlocutory
appeal,*fn11 see id., Mem. and Order (M.D. Pa. June 30, 2000)
(PUC's Reply Brief, Ex. 1), and decided the action on the merits,
see id., J. and Mem. (M.D. Pa. June 30, 2000) (Worldcom's Resp.
in Opp. to the Mot. for J. on the Pleadings, Ex. 1). On July 20,
2000, Bell filed a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60 in light of a recently issued
decision by the Eighth Circuit that vacated portions of the FCC
regulations upon which the Middle District Court relied. See
Bell's Mot. for Relief from J. Pursuant to Fed. R. Civ. P. 60 and
Request for Expedited Consideration (attached to this court's
Order of July 24, 2000); see also Iowa Utils. Bd. v. FCC, No.
96-3321, 2000 WL 979117 (8th Cir. July 18, 2000). That motion was
denied. See MCI Telecomm., Civ. No. 1:CV-97-1857, Mem. and Order
(M.D. Pa. July 25, 2000).
A. Standard of Review
Because this action is brought pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, the court's
standard of review varies. In evaluating a motion to dismiss for
failure to state a claim under Rule 12(b)(6), a court generally
considers only the allegations in the pleadings. See. e.g.,
Halstead v. Motorcycle
Safety Found., Inc., 71 F. Supp.2d 464,
467 (E.D. Pa. 1999). However, matters of public record, orders,
and exhibits attached to the complaint may also be considered.
See id. The court must accept as true all factual allegations in
the complaint, as well as all reasonable inferences that can be
drawn therefrom, and construe them in the light most favorable to
the plaintiff. See Markowitz v. Northeast Land Co., 906 F.2d 100,
103 (3d Cir. 1990). Dismissal under Rule 12(b)(6) is only
appropriate where there is no set of facts that could be proved
upon which relief could be granted. See id.
On the other hand, the standard to be applied to a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) depends on whether the defendant makes a facial or
factual challenge. See Halstead, 71 F. Supp.2d at 468. Under
either approach, it is generally the plaintiff's burden to prove
that jurisdiction exists. See id. However, in a facial challenge,
where the allegations of jurisdiction in the complaint are
disputed, "the factual allegations of the complaint are presumed
to be true and the complaint is reviewed to ensure that each
element necessary for jurisdiction is present." Id. Where the
challenge is factual, "any evidence may be reviewed and any
factual disputes resolved regarding the allegations giving rise
to jurisdiction[.]" Id.
The Eleventh Amendment is a jurisdictional bar and may be
raised by a motion to dismiss. See Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir. 1996). The
doctrine of abstention allows a court to decline to exercise
its jurisdiction, see, e.g., Kentucky W. Va. Gas Co. v.
Pennsylvania PUC, 791 F.2d 1111, 1114 (3d Cir. 1986), and may
also be raised by a motion to dismiss. The court concludes that
invocation of the Eleventh Amendment constitutes a facial
challenge to its jurisdiction, requiring the court to accept as
true the factual allegations in the complaint, while invocation
of abstention doctrines constitutes a factual challenge, allowing
the court to conduct a wider inquiry.
B. Eleventh Amendment
The PUC*fn12 first seeks dismissal of this action on Eleventh
Amendment grounds. That amendment provides: "The Judicial power
of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const. amend. XI. Although
by its literal terms the Eleventh Amendment only prohibits suits
against a state by citizens of another state or of a foreign
state, the Supreme Court has held that the amendment applies to
suits brought against a state by its own citizens, see. e.g.,
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974), and to suits
involving state agencies. See. e.g., Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, 506 U.S. 139, 144 (1993).
State sovereign immunity under the Eleventh Amendment is not,
however, absolute, as the Tenth Circuit explained:
First, a state may not assert an Eleventh Amendment
defense where Congress has properly abrogated its
immunity. Second, a state may waive its sovereign
immunity by consenting to suit in federal court.
Third, a private party may sue a state officer for
prospective injunctive or declaratory relief from an
ongoing violation of the Constitution or federal laws.
Public Serv. Comm'n, ___ F.3d at ___, 2000 WL 783382, at *4
(citing Seminole Tribe of Fla. v. Florida,