Nebraska Public Power District v. United States , 590 F.3d 1357 ( 2010 )

United States Court of Appeals for the Federal Circuit
2007-5083
NEBRASKA PUBLIC POWER DISTRICT,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Jay E. Silberg, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, argued
for plaintiff-appellant. With him on the brief were Alex D. Tomaszczuk, Daniel S.
Herzfeld, and Jack Y. Chu, of McLean, Virginia.
Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were Tony West, Assistant Attorney General,
Jeanne E. Davidson, Director, Alan J. Lo Re, Assistant Director, and Andrew P.
Averbach and Christopher J. Carney, Trial Attorneys. Of counsel was Jane K. Taylor,
Attorney, United States Department of Energy, of Washington, DC.
Brad Fagg, Morgan, Lewis & Bockius LLP, of Washington, DC, for amici curiae
Arizona Public Service Company, et al. With him on the brief were M. Stanford Blanton,
Balch & Bingham LLP, of Birmingham, Alabama, for Southern Nuclear Operating
Company, et al.; David A. Churchill, Jenner & Block LLP, of Washington, DC, for
Consolidated Edison of New York, Inc.; Richard James Conway, Dickstein Shapiro LLP,
of Washington, DC, for Boston Edison Company; Norman M. Hirsch, Jenner & Block,
LLP, of Chicago, Illinois, for Energy Northwest; Richard W. Oehler, Perkins Coie LLP, of
Seattle, Washington, for Wisconsin Electric Power Company; and Jerry Stouck and
Robert Shapiro, Greenberg Traurig, LLP, of Washington, DC, for Yankee Atomic Energy
Company, et al.
James Bradford Ramsay, National Association of Regulatory Utility
Commissioners, of Washington, DC, for amicus curiae The National Association of
Regulatory Utility Commissioners.
Appealed from: United States Court of Federal Claims
Judge Francis M. Allegra
United States Court of Appeals for the Federal Circuit
2007-5083
NEBRASKA PUBLIC POWER DISTRICT,
Plaintiff- Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims
in 01-CV-116, Judge Francis M. Allegra.
__________________________
DECIDED: January 12, 2010
__________________________
Before MICHEL, Chief Judge, and NEWMAN, MAYER, LOURIE, RADER, SCHALL,
BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON, in which Chief Judge MICHEL and
Circuit Judges NEWMAN, MAYER, LOURIE, RADER, SCHALL, LINN, DYK, PROST,
and MOORE join. Concurring opinion filed by Circuit Judge DYK, in which Circuit Judge
LINN joins. Dissenting opinion filed by Circuit Judge GAJARSA.
BRYSON, Circuit Judge.
This case requires us to address a difficult question involving the allocation of
jurisdiction between regional circuit courts and the Court of Federal Claims. The
dispute in this case centers on the interaction between a provision of the Nuclear Waste
Policy Act (“NWPA”), 42 U.S.C. §§ 10101-10270, and a government contract with a
utility company that operates a nuclear power facility.
The NWPA authorizes the United States Department of Energy (“DOE”) to enter
into contracts with nuclear power producers to dispose of the high-level radioactive
waste and spent nuclear fuel produced by nuclear power plants. The statute requires
the contracts to provide that in return for the payment of fees by the nuclear power
producers, DOE would begin disposing of the spent nuclear fuel and high-level
radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B).
DOE did not begin accepting nuclear waste in 1998. Several years later,
Nebraska Public Power District (“NPPD”), which had entered a nuclear waste disposal
contract with DOE, filed a breach of contract action in the Court of Federal Claims. A
central issue in the breach of contract action was whether prior decisions of the United
States Court of Appeals for the District of Columbia Circuit interpreting DOE’s
obligations under the NWPA were binding on the parties in the action before the Court
of Federal Claims. The Court of Federal Claims held that the D.C. Circuit’s rulings were
void because the D.C. Circuit lacked jurisdiction in the prior statutory review
proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That
issue is now before us on interlocutory review. We hold that the D.C. Circuit had
jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order
issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order
of the Court of Federal Claims and remand to that court for further proceedings.
I
A
Spent nuclear fuel and high-level radioactive waste are by-products of the
operation of nuclear power plants. Because those substances remain dangerously
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radioactive for many years, disposing of them requires a safe, secure, and permanent
disposal facility. In 1983, Congress sought to fashion a comprehensive solution to the
challenge of nuclear waste disposal by enacting the NWPA, which authorized DOE to
construct a suitable permanent storage facility for the nuclear material and made further
provision for the construction of interim storage facilities.
While Congress assigned DOE the task of constructing the permanent storage
facility, it provided that the costs of disposal “should be the responsibility of the
generators and owners of such waste and spent fuel.” 42 U.S.C. § 10131(a)(4).
Accordingly, Congress authorized DOE to enter into contracts with nuclear power
providers to dispose of their nuclear waste in return for the payment of fees. 42 U.S.C.
§ 10222(a)(1). With respect to the contents of the contracts, section 302(a)(5) of the
statute required the following:
(5) Contracts entered into under this section shall provide that—
(A) following commencement of operation of a repository, the Secretary
shall take title to the high-level radioactive waste or spent nuclear fuel
involved as expeditiously as practicable upon the request of the generator
or owner of such waste or spent fuel; and
(B) in return for the payment of fees established by this section, the
Secretary, beginning not later than January 31, 1998, will dispose of the
high-level radioactive waste or spent nuclear fuel involved as provided in
this subchapter.
42 U.S.C. § 10222(a)(5). The NWPA further provided that the Nuclear Regulatory
Commission “shall not issue or renew a license” to any utility using a nuclear power
facility unless the utility has entered into a contract under section 302 or is negotiating
with the Secretary to enter into such a contract. Id. § 10222(b)(1)(A).
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B
Pursuant to its statutory rulemaking authority, DOE promulgated a regulation in
1983 containing what it termed the “Standard Contract for Disposal of Spent Nuclear
Fuel and/or High-Level Radioactive Waste.” 48 Fed. Reg. 16,590 (Apr. 18, 1983)
(codified at 10 C.F.R. § 961.11). In accordance with section 302(a)(5)(B) of the NWPA,
the Standard Contract contained a provision setting January 31, 1998, as the deadline
for DOE’s acceptance of nuclear waste. 48 Fed. Reg. at 16,600 (codified at 10 C.F.R.
§ 961.11, Art. II). In response to questions about the remedies that would be available
to ensure that DOE would perform its contractual obligations in a timely fashion, and in
particular that it would meet the 1998 deadline, DOE stated, “The 1998 date is called for
in the Act, and we believe it to be a realistic date. Our performance will be judged by
meeting this date.” 48 Fed. Reg. at 16,598.
Under the mandatory nuclear waste contracts, the utilities began making
payments to DOE, and they have continued to do so since that time. At present, the
licensed nuclear power utilities make a total of $750 million in payments under the
contracts each year. To date, however, DOE has not accepted any nuclear waste from
any of the utilities.
By 1994, it had become clear that DOE was not going to have a permanent
repository ready to accept nuclear waste by the statutory deadline of January 31, 1998.
In recognition of that reality, DOE conducted a notice-and-comment proceeding to
address the extent of DOE’s obligations under the NWPA. At the outset of that
proceeding, DOE announced its “preliminary view” that, although it “may have created
an expectation that it would begin accepting such spent nuclear fuel in 1998,” it had no
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statutory or contractual obligation to accept nuclear waste beginning in 1998 if it did not
have an operational repository or other facility constructed in accordance with the
NWPA by that time. 59 Fed. Reg. 27,007, 27,008 (May 25, 1994).
After inviting and receiving comments on that issue of statutory construction,
DOE issued what it termed its “Final Interpretation of Nuclear Waste Acceptance
Issues,” 60 Fed. Reg. 21,793 (May 3, 1995) (“Final Interpretation”). In the Final
Interpretation, DOE acknowledged that it would not be able to begin accepting nuclear
waste by the January 31, 1998, deadline and in fact projected that “the earliest possible
date for acceptance of waste for disposal at a repository is 2010.” Id. at 21,794. The
agency took the position, however, that it did not have an unconditional obligation under
the statute or the Standard Contract to accept nuclear waste by 1998. DOE explained
that it interpreted the NWPA to mean that the statutory deadline did not apply if DOE did
not have a facility available to accept nuclear waste by that date. Id. at 21,794-95.
C
A number of utilities, states, and state agencies filed a petition in the D.C. Circuit
for review of the Final Interpretation. Invoking section 119 of the NWPA, 42 U.S.C.
§ 10139, which provides for court of appeals review of certain claims arising under the
Act, the petitioners challenged the portion of the Final Interpretation in which DOE took
the position that it did not have an unconditional statutory obligation to begin accepting
nuclear waste by January 31, 1998. They argued that DOE’s legal position was
contrary to the provision in section 302 of the NWPA that in return for the payment of
fees, “the Secretary, beginning not later than January 31, 1998, will dispose of the high-
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level radioactive waste or spent nuclear fuel involved as provided in this subchapter.”
42 U.S.C. § 10222(a)(5)(B).
The D.C. Circuit reviewed the Final Interpretation to determine whether it
constituted a permissible interpretation of the statute by DOE. After analyzing the
statute and the Final Interpretation, the court concluded that DOE’s interpretation was
contrary to the statutory mandate, and the court therefore rejected DOE’s interpretation.
Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d 1272 (D.C. Cir. 1996).
The court interpreted section 302 of the NWPA as imposing on DOE an
unconditional obligation to accept nuclear waste upon the payment of fees by the
utilities. In particular, the court explained that nothing in the statute suggested that the
obligation to accept nuclear waste was conditioned on the commencement of repository
operations. Under the “plain language of the statute,” the court held, the utilities
undertook to pay fees “‘in return for [which] the Secretary’ had a commensurate duty” to
begin disposing of the spent nuclear fuel and high-level radioactive waste by a date
certain. 88 F.3d at 1276. While acknowledging that Congress had expected that a
permanent facility would be available by 1998, the court ruled that even though
Congress anticipated that a facility would be available, that “does not mean that
Congress conditioned DOE’s obligation to begin acceptance of [nuclear waste] on the
availability of a facility.” Id. at 1277. The court thus concluded that section 302(a)(5)(B)
“creates an obligation in DOE, reciprocal to the utilities’ obligation to pay, to start
disposing of [nuclear waste] no later than January 31, 1998.” Id.Notwithstanding the court’s ruling, DOE subsequently advised the utilities with
which it had section 302 contracts that it would not begin accepting nuclear waste by
2007-5083 6
the 1998 statutory deadline. The utilities then returned to the court of appeals seeking a
writ of mandamus to force DOE to comply with its statutory obligations as previously
announced by the court. While that action was pending in the court of appeals, DOE
asserted that under the “Unavoidable Delays” clause in the Standard Contract, 10
C.F.R. § 961.11, Art. IX(A), it was not obligated to provide a financial remedy for the
delay in accepting the nuclear waste.
The court of appeals denied the utilities’ request for a writ of mandamus requiring
DOE to begin accepting nuclear waste as of the statutory deadline. N. States Power
Co. v. U.S. Dep’t of Energy, 128 F.3d 754 (D.C. Cir. 1997). The court acknowledged
that “DOE’s current approach toward contractual remedies is inconsistent with the
NWPA” and with the court’s prior decision on the matter. Id. at 756. Nonetheless, the
court held that ordering DOE to comply with its statutory obligations was unnecessary
because the Standard Contract “provides a potentially adequate remedy if DOE fails to
fulfill its obligations by the deadline.” Id. at 756. The court explained that the
unconditional statutory duty to begin accepting nuclear waste as of January 31, 1998,
left “no room for DOE to argue that it does not have a clear duty to take the [nuclear
waste] from the owners and generators by the deadline imposed by Congress.” Id. at
758-59. Moreover, the court held that there was no reason to believe that the expenses
the utilities incurred in dealing with the nuclear waste that DOE failed to remove would
not be taken into account “if the contractual processes operate as Congress intended.”
Id. at 759.
Although the court of appeals declined to order DOE to begin accepting nuclear
waste as of 1998, it entered a more limited mandamus order. Holding that the NWPA
2007-5083 7
“imposes an unconditional obligation” to begin accepting nuclear waste by January 31,
1998, the court issued a writ of mandamus “precluding DOE from excusing its own
delay on the grounds that it has not yet prepared a permanent repository or interim
storage facility.” Northern States, 128 F.3d at 761. The court held that in light of DOE’s
unconditional duty under the statute, the petitioners’ ability to enforce the contract
“would be frustrated if DOE were allowed to operate under a construction of the contract
inconsistent with our prior conclusion that the NWPA imposes an obligation on DOE
‘without qualification or condition.’” Id. at 759.
In particular, the court of appeals rejected DOE’s argument that it was not
obligated to accept nuclear waste because its failure to do so was “unavoidable” within
the meaning of the “Unavoidable Delays” clause in Article IX of the Standard Contract.
128 F.3d at 757. The court held that DOE’s contention that its delayed performance
was excusable because it did not have a permanent repository, or congressional
authority to provide storage in an interim facility, was “simply recycling the arguments
rejected by this court in Indiana Michigan.” Id. at 759-60. The court therefore ordered
DOE “to proceed with contractual remedies in a manner consistent with NWPA’s
command that it undertake an unconditional obligation to begin disposal of the [nuclear
waste] by January 31, 1998.” Id. at 760.
DOE petitioned for rehearing, arguing that the court’s mandamus order had
improperly intruded upon the jurisdiction of the Court of Federal Claims with regard to
claims arising under government contracts. In response to the rehearing petition, the
court issued a supplemental opinion in which it clarified the scope of its order. N. States
Power Co. v. Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C. Cir. May 5, 1998).
2007-5083 8
The court explained that it had barred DOE from interpreting the Standard Contract “as
imposing only a contingent disposal obligation; such an interpretation, we ruled, would
place the DOE in violation of its statutory duties . . . which required it to undertake an
unconditional obligation.” Id. at *1. Beyond that clarification of the statute’s
requirements, the court “remitted the utilities to their remedies under the Standard
Contract.” Id. at *2. The statutory duty to include such an unconditional obligation in
the contract, the court added, “is independent of any rights under the contract.” Id.DOE petitioned for a writ of certiorari, which was denied. Dep’t of Energy v. N. States
Power Co., 525 U.S. 1016 (1998).
D
In its complaint in the Court of Federal Claims, NPPD sought damages for
breach of contract on account of DOE’s failure to accept nuclear waste as of January
31, 1998, and thereafter. The government proposed to defend in part on the ground
that its failure to meet the 1998 deadline was excused under the “Unavoidable Delays”
clause of the contract. NPPD sought to bar the government from asserting that defense
on the ground that it conflicted with the D.C. Circuit’s mandamus order. The
government responded that the D.C. Circuit lacked jurisdiction to enter the mandamus
order and that the order was therefore void.
The Court of Federal Claims agreed with the government and held that the D.C.
Circuit lacked jurisdiction to issue the mandamus order based on the absence of an
applicable waiver of sovereign immunity. The court therefore ruled that the order was
void and had no effect on the litigation over the contract. The court then certified that
order for interlocutory review by this court, and this court granted interlocutory review.
2007-5083 9
Following briefing and argument before a panel of this court, we granted rehearing en
banc before judgment by the panel. We now reverse.
II
The issue in this case is whether the D.C. Circuit’s decisions in Indiana Michigan
and Northern States are entitled to res judicata effect in the proceedings before the
Court of Federal Claims. Normally, a final judgment in one court is binding on the same
parties in a subsequent action before another court as a matter of res judicata; in such a
setting the first judgment ordinarily cannot be collaterally challenged in the second
proceeding, even on the ground that the first tribunal lacked subject matter jurisdiction.
See Christopher Village, L.P. v. United States, 360 F.3d 1319, 1329-30 (Fed. Cir. 2004).
However, we have recognized an exception to that principle if the first court acted in
derogation of principles of sovereign immunity and its judgment was void on that
ground. Id. at 1333. The Court of Federal Claims ruled that the D.C. Circuit’s
mandamus order was void because it was not supported by a waiver of sovereign
immunity.
The trial court based its decision on three grounds. First, the court held that
section 119 of the NWPA, 42 U.S.C. § 10139, did not give the D.C. Circuit jurisdiction to
review DOE’s Final Interpretation for inconsistency with section 302 of the Act. In that
respect, the court disagreed with a series of decisions of the D.C. Circuit beginning with
that court’s decision in General Electric Uranium Management Corp. v. United States
Department of Energy, 764 F.2d 896 (D.C. Cir. 1985) (General Electric).
Second, the court held that there was no valid waiver of sovereign immunity for
the review action undertaken and the mandamus order entered by the D.C. Circuit in
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the Indiana Michigan and Northern States cases, respectively. The court ruled that the
only possible source of a waiver of sovereign immunity enabling the D.C. Circuit to act
in those cases would be section 10(a) of the Administrative Procedure Act (“APA”), 5
U.S.C. § 702. However, the court held that section 10(a) did not waive sovereign
immunity for the review proceedings in the D.C. Circuit because the plaintiffs did not
satisfy the requirement in section 10(c) of the APA, 5 U.S.C. § 704, that there be “no
other adequate remedy in a court” before an APA judicial review action can be brought.
The court held that an action before the Court of Federal Claims for contract breach
would provide an adequate remedy for the injury asserted by the utilities in the litigation
before the D.C. Circuit. For that reason, the court held that the “no adequate remedy”
requirement of section 10(c) was not satisfied, and that section 10(a) therefore did not
effect the required waiver of sovereign immunity. Absent a waiver of sovereign
immunity, the court held, the D.C. Circuit did not have jurisdiction over the utilities’
action in the Indiana Michigan case, and it did not have jurisdiction to issue the
mandamus order that it issued in the Northern States case.
Third, and relatedly, the trial court held that the D.C. Circuit had improperly
addressed contract interpretation issues that were within the exclusive jurisdiction of the
Court of Federal Claims. The court viewed the dispute before the D.C. Circuit as
“entirely contained within the terms of the contract” between DOE and the utilities.
While acknowledging that the Standard Contract had to be construed in light of the
NWPA, the court held that the effect of the NWPA on DOE’s obligations under the
contract was a contract interpretation issue that fell outside the jurisdiction of the D.C.
Circuit.
2007-5083 11
For the reasons set out in detail below, we disagree with each of the trial court’s
reasons for concluding that the D.C. Circuit’s mandamus order is void. First, based on
the analysis of the D.C. Circuit in General Electric and the decision of this court in
PSEG Nuclear, L.L.C. v. United States, 465 F.3d 1343 (Fed. Cir. 2006), we hold that
section 119 of the NWPA authorized the D.C. Circuit to review the utilities’ statutory
claim arising under section 302 of the Act. Second, we hold that the “no adequate
remedy” requirement in section 10(c) of the APA does not apply to special statutory
review provisions such as section 119 of the NWPA. Section 10(c) of the APA therefore
did not bar the D.C. Circuit from exercising its jurisdiction to determine the scope of the
government’s obligations under section 302 of the NWPA and to order appropriate relief
to enforce those obligations. Finally, we hold that the D.C. Circuit’s decision construing
section 302 of the NWPA, and its order directing the government to act in accordance
with the utilities’ rights under that provision, did not improperly intrude on the jurisdiction
of the Court of Federal Claims to address NPPD’s breach of contract claim. The D.C.
Circuit’s order prohibited the government from using contract interpretation as a means
of avoiding its statutory obligations under section 302, which the D.C. Circuit was
authorized to do as a means of enforcing the statutory claim that was brought before it
in the Indiana Michigan case. Beyond that implementation of its statutory ruling, the
D.C. Circuit properly left all issues of contract breach, enforcement, and remedy to be
determined in the litigation before the Court of Federal Claims.
A
Section 119(a)(1)(A) of the NWPA, 42 U.S.C. § 10139(a)(1)(A), provides that the
courts of appeals shall have original and exclusive jurisdiction over any civil action “for
2007-5083 12
review of any final decision or action of the Secretary, the President, or the [Nuclear
Regulatory] Commission under this part.” The term “this part” refers to part A of
subchapter I of the NWPA, which is entitled “Repositories for Disposal of High-Level
Radioactive Waste and Spent Nuclear Fuel.” Subchapter II of the Act deals with
research and development relating to the disposal of high-level radioactive waste and
spent nuclear fuel. Subchapter III contains “Other Provisions Relating to Radioactive
Waste,” including section 302(a)(5) of the Act, 42 U.S.C. § 10222(a)(5), which
designates those provisions that must be included in nuclear waste disposal contracts
entered into by DOE and nuclear power providers. The Court of Federal Claims held
that the D.C. Circuit lacked jurisdiction to review the Final Interpretation because the
challenge to the Final Interpretation arose under section 302(a)(5), which is found in
Subchapter III of the Act, not in Part A of Subchapter I.
In General Electric, the D.C. Circuit rejected the argument that section 119
applies only to actions arising from Part A of Subchapter I of the NWPA. 764 F.2d at
901-04. The court first noted that section 119 provides for review of matters such as the
choice, characterization, approval of, and authorization for construction of disposal
sites, and that section 221 of the Act, 42 U.S.C. § 10201, applies the judicial review
provisions of section 119 to Subchapter II of the Act. In light of the broad scope of the
review provisions, the court concluded that it would be “inconceivable that Congress
intended to have review of all actions concerning waste disposal in the court of appeals
. . . except for questions concerning the composition of the Nuclear Waste Fund and a
few other matters located in Subchapter III.” 764 F.2d at 901-02.
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The matters addressed in Subchapter III are closely related to those addressed
in Part A of Subchapter I. Thus, section 111(b) of the NWPA, 42 U.S.C. § 10131(b),
which is in Part A of Subchapter I, states that the purposes of Part A include
establishing a schedule for the construction and operation of repositories, establishing
federal responsibility for nuclear waste disposal, and creating a Nuclear Waste Fund to
ensure that the costs of disposal are borne by the persons responsible for creating the
nuclear waste. Section 302 fills in the details for creating and operating the Nuclear
Waste Fund established in section 111(b). Thus, while the civil action before the D.C.
Circuit addressed DOE’s specific responsibilities under section 302, the action could
also be regarded as arising under section 111(b). See Natural Res. Def. Council, Inc. v.
Abraham, 244 F.3d 742, 747 (9th Cir. 2001) (section 119 grants jurisdiction to review
decisions “under the [NWPA] when the decision is pursuant to a part of the Act and
relates to the purposes of the part in which the judicial review provision is placed”).
In addition, as the D.C. Circuit observed in General Electric, “the evolution of the
placement of section 302 in the [NWPA] strongly suggests that its physical separation
from the judicial review provision in section 119 is pure happenstance and in no way
indicates a congressional intent that review under the different subchapters be
governed by different standards.” 764 F.2d at 903. A close examination of the
legislative history of the NWPA provides strong support for that conclusion.
The principal bill on which the NWPA was based, H.R. 3809 (1982), contained a
judicial review provision similar to the enacted version of section 119. See H.R. Rep.
No. 97-491, pt. I, at 14, 56-57 (1982) (section 119). That bill also contained a
substantive provision corresponding to section 302 of the enacted statute. See id. at
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15-16, 58-59 (section 124(a)(4)(B)). A second House bill, H.R. 6598 (1982), produced
by a different committee, also had a judicial review provision corresponding to section
119 and a substantive provision equivalent to section 302. See H.R. Rep. No. 97-785,
pt. I, at 16-17, 18-19 (1982). Significantly, in both of those predecessor bills the section
that became section 302 of the NWPA was located in subtitle A of Title I, thus clearly
providing court of appeals review for issues arising under that section. When the House
bills were reconciled on the floor of the House, the predecessor provision to section 302
was moved to Title III of the Act, but no change was made in section 119, the judicial
review provision. See 128 Cong. Rec. 26,305, 26,306-42 (1982). While there was no
explanation for moving section 302 out of Title I, there was no suggestion that Congress
intended, as part of the process of reconciling the House bills, to withdraw court of
appeals review with respect to matters arising under section 302 that had been covered
in both of the predecessor bills. 1 The Senate adopted the House bill in substance
without material change to sections 119 and 302.
Even if the statute is regarded as ambiguous as to whether section 119 places
review of matters arising from section 302 in a court of appeals, or leaves such matters
to district courts under the default judicial review provision of section 10(c) of the APA, 5
U.S.C. § 704, any such ambiguity must be resolved in favor of court of appeals review.
1
The third of the three House predecessor bills, H.R. 5016 (1981), contained
no provision equivalent to section 302, but it contained a judicial review provision that
provided court of appeals review for all matters arising under the Act. See Nuclear
Waste Disposal Policy, Hearings on H.R. 1993, H.R. 2881, H.R. 3809, and H.R. 5016
Before the Subcomm. on Energy Conservation and Power of the H. Comm. on Energy
& Commerce, 97th Cong. 2d Sess. 209-10 (1982). Accordingly, nothing in that bill
suggests any reason that the House, in the course of reconciling the predecessor bills,
would have intended to restrict court of appeals review of matters arising under the
provision that ultimately became section 302.
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When there is a question whether judicial review was meant to be in district courts or
courts of appeals, that ambiguity is resolved in favor of court of appeals review.
General Electric, 764 F.2d at 903; see generally Clark v. Commodity Futures Trading
Comm’n, 170 F.3d 110, 114 (2d Cir. 1999); Tennessee v. Herrington, 806 F.2d 642, 650
(6th Cir. 1986); Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192-93 (7th Cir.
1986). Because review in a district court would be subject to the appellate jurisdiction of
the court of appeals in any event, resolving jurisdictional ambiguity in favor of direct
review in the court of appeals “avoids duplicative review and the attendant delay and
expense involved.” General Electric, 764 F.2d at 903; see also Harrison v. PPG Indus.,
Inc., 446 U.S. 578, 593 (1980); Natural Res. Def. Council v. Abraham, 355 F.3d 179,
193-94 (2d Cir. 2004); Ind. & Mich. Elec. Co. v. U.S. Envtl. Prot. Agency, 733 F.2d 489,
491 (7th Cir. 1984). That is particularly true in the case of a review proceeding involving
a pure legal issue, such as the review of DOE’s Final Interpretation for consistency with
section 302 of the NWPA. In that context, as the General Electric court concluded, “we
cannot assume that Congress intended both the District Court and this court to perform
the identical review function” of reviewing DOE’s interpretation of the NWPA. 764 F.2d
at 904.
In the aftermath of the General Electric decision, other circuits likewise rejected
the argument that section 119 applies only to matters arising under Part A of
Subchapter I of the NWPA. See Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d
1300, 1312-13 (11th Cir. 2002); County of Esmeralda v. U.S. Dep’t of Energy, 925 F.2d
2007-5083 16
1216, 1218-19 (9th Cir. 1991); Tennessee v. Herrington, 806 F.2d at 647-51. No circuit
court has taken the opposite position. 2
More recently, in the PSEG case, this court agreed with General Electric and the
other circuit decisions holding that the reviewing authority conferred by section 119 of
the NWPA is not limited to matters arising under Part A of Subchapter I of the Act. See
465 F.3d at 1349 (“We agree with . . . the D.C. Circuit that agency actions mandated
under [Subchapter] III which relate to the creation of repositories for spent nuclear fuel
fall within the class of actions subject to review by the courts of appeals under section
119.”). The court further held that the January 31, 1998, deadline for beginning nuclear
waste collection “was clearly statutorily mandated” by section 302 of the NWPA, and it
recognized that judicial review under section 119 of the NWPA “as to whether the DOE
properly incorporated these obligations within its contracts may fall within the jurisdiction
conferred to the courts of appeals in section 119.” Id. at 1350.
2
The Court of Federal Claims interpreted several circuit court decisions as
rejecting the General Electric court’s interpretation of section 119, but we do not read
those decisions in that manner. The Ninth Circuit in Natural Resources Defense
Council, Inc. v. Abraham, 244 F.3d 742 (9th Cir. 2001), did not reject the analysis in
General Electric, but held that “NWPA’s provision for judicial review is limited to
decisions ‘under’ the part or at least under the Act when the decision is pursuant to a
part of the Act and relates to the purposes of the part in which the judicial review
provision is placed.” Id. at 747 (emphases in original). In both General Electric and
Indiana Michigan, as we discussed above, the agency action at issue “relates to the
purposes” of subchapter I, part A, of the Act. In Nevada v. Herrington, 827 F.2d 1394,
1399-1400 (9th Cir. 1987), the court did not address whether section 119 applies to
activities arising under section 302. Public Citizen v. Nuclear Regulatory Commission,
845 F.2d 1105, 1106 (D.C. Cir. 1988), is inapposite. In that case, the D.C. Circuit stated
that it was not necessary to decide whether the rationale of General Electric applied to a
proceeding to review a claim arising under section 306 of the Act; nothing in the court’s
opinion in that case reflects a repudiation of the court’s earlier decision in General
Electric.
2007-5083 17
The court in PSEG held that section 119 does not have the effect of transferring
all contract breach issues to the courts of appeals. As the court explained, “issues of
whether the DOE breached its contractual obligations, and if so, to what damages, if
any, PSEG is entitled for the breach” did not arise under the NWPA, but were for the
Court of Federal Claims to address. PSEG, 465 F.3d at 1350. That was because those
issues are “not within the DOE’s statutory obligations under the NWPA.” Id. However,
with respect to claims arising from the statutory mandates in section 302, PSEG
supports NPPD’s position that courts of appeals have jurisdiction to review such claims
pursuant to section 119 of the Act.
The government makes the further argument that even if, as PSEG held, section
119 applies to at least some issues arising under section 302, section 119 review is
limited to actions relating to the creation of nuclear waste repositories. Because the
government characterizes this case as involving the date for accepting nuclear waste,
but not “the development of or date for opening a repository,” the government argues
that section 119 does not vest judicial review jurisdiction in the courts of appeals. The
government notes that subparagraph (A) of section 302(a)(5) refers to the
commencement of repository operations and DOE’s responsibility to take title to nuclear
waste, but does not refer to the date the repository operations are to begin, while
subparagraph (B) of section 302(a)(5) identifies the date by which disposal must begin,
but does not mention a repository. Accordingly, the government contends that even if
issues arising under section 302(a)(5)(A) of the NWPA are subject to review in a court
of appeals, issues arising under section 302(a)(5)(B) are subject to review, if at all, only
in a district court under the default review provisions of the APA.
2007-5083 18
The government’s argument is not based on the statutory text, the legislative
history, or any discernible policy, but instead appears tailored simply to accommodate
the specific holding of PSEG while still maintaining that section 119 did not provide the
D.C. Circuit with jurisdiction to review DOE’s Final Interpretation in the Indiana Michigan
case. The divided review regime contemplated by the government’s argument would be
exceptionally cumbersome, and it is difficult to think of any reason why Congress would
have wanted to create such a scheme. We reject the government’s proffered distinction
of PSEG and hold that the D.C. Circuit did not lack jurisdiction to review the consistency
of DOE’s Final Interpretation with section 302 of the NWPA based on the purported
inapplicability of section 119 of the Act. 3
B
Apart from ruling that section 119 of the NWPA did not authorize court of appeals
review of a claim arising under section 302, the trial court held that the D.C. Circuit
lacked jurisdiction to review the Final Interpretation because there was no statutory
3
The government argues that the utilities’ action in the D.C. Circuit was
barred by the 180-day statute of limitations in section 119(c), 42 U.S.C. § 10139(c), and
that the D.C. Circuit’s order should not be given res judicata effect in the present
proceedings for that reason as well. Setting aside whether the statute of limitations for
a judicial review proceeding under section 119(c) is jurisdictional in nature, there is no
merit to the government’s argument. In 1983, the utilities had no reason to believe DOE
would interpret the Standard Contract as it did in the Final Interpretation, because at
that time DOE assured the utilities that it regarded itself as bound by the 1998 deadline.
In 1994, when DOE announced its preliminary view that the NWPA did not require it to
begin accepting nuclear waste in 1998 if it did not have a facility ready at that time, the
utilities immediately sought judicial review. However, the D.C. Circuit dismissed the
petition for review on the ground that it was premature. N. States Power Co. v. Dep’t of
Energy, Nos. 94-1457 & 95-1321 (D.C. Cir. July 28, 1995). Only with the promulgation
of the Final Interpretation did DOE’s position with regard to its statutory responsibilities
become sufficiently clear and final for judicial review. The petition was filed within 180
days of the issuance of the Final Interpretation and was thus timely.
2007-5083 19
waiver of sovereign immunity for that review proceeding. Accordingly, the trial court
concluded that the D.C. Circuit’s mandamus order was void on that ground as well.
Section 10(a) of the APA is the source typically invoked for waiver of sovereign
immunity in a case involving judicial review of administrative action by federal agencies
or officials. It provides, in pertinent part, that an action seeking relief other than money
damages and stating a claim challenging an action by an agency or officer of the United
States “shall not be dismissed nor relief therein be denied on the ground that it is
against the United States.” 5 U.S.C. § 702. The Court of Federal Claims held that
section 10(a) did not waive sovereign immunity with respect to the review conducted by
the D.C. Circuit in the Indiana Michigan and Northern States cases because section
10(c) of the APA, 5 U.S.C. § 704, requires that there be “no other adequate remedy in a
court.” The court explained that an adequate remedy was available through an action
for breach of contract in the Court of Federal Claims, and it was therefore improper for
the D.C. Circuit to conduct judicial review of DOE’s Final Interpretation. See 73 Fed. Cl.
at 672-73 (“[B]ecause an adequate remedy was and is available in this court, section
704 precluded the D.C. Circuit in Indiana Michigan from relying on the section 702
waiver in issuing the judgment that, in turn, led it to issue in Northern States the
mandamus at issue.”).
We disagree with the trial court’s interpretation of section 10(c) of the APA. That
statute provides, in pertinent part: “Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court are subject to
judicial review.” 5 U.S.C. § 704. The most natural reading of that sentence is that it
relates to two categories of agency action: agency action that is made reviewable by a
2007-5083 20
specific review-authorizing statute, such as section 119 of the NWPA (referred to as
“special statutory review”), and final agency action for which there is no adequate
remedy at law (referred to as “nonstatutory review” or, sometimes, “general statutory
review”). Under that reading, the “adequate remedy at law” proviso applies only to
nonstatutory review and not to special statutory review, such as the review at issue in
this case. For that reason, even if the plaintiffs would have been entitled, in a contract
breach action in the Court of Federal Claims, to invoke section 302 of the NWPA to
overcome DOE’s reliance on the “Unavoidable Delays” clause, the fact that they could
have invoked section 302 in the contract breach litigation would not bar them from
seeking relief in a statutory APA review proceeding.
Although the statutory language can be interpreted, with some effort, to apply the
“adequate remedy” proviso to both statutory and nonstatutory review, the courts have
not interpreted section 10(c) in that manner. In Abbott Laboratories v. Gardner, 387
U.S. 136 (1967), the Supreme Court characterized section 10(c) of the APA as
providing “specifically not only for review of ‘[a]gency action made reviewable by statute’
but also for review of ‘final agency action for which there is no other adequate remedy in
a court.’” Id. at 140; see also Bowen v. Massachusetts, 487 U.S. 879, 904 (1988)
(quoting the pertinent language in Abbott Laboratories approvingly); id. at 926 & n.4
(Scalia, J., dissenting) (distinguishing between agency action specifically made
reviewable by another statute and nonstatutory review in which review of final agency
action is permitted under the APA if there is no “other adequate remedy”). 4
4
The legislative history of the APA underscores the point. As originally
enacted, the pertinent language of section 10(c) read as follows: “Every agency action
2007-5083 21
This court and others have characterized section 10(c) in the same way. On
several occasions, we have noted that the “no other adequate remedy in a court”
formulation is associated with “nonstatutory review.” See Doe v. United States, 372
F.3d 1308, 1312 (Fed. Cir. 2004) (stating that in a “nonstatutory review action” there
must be “no other adequate remedy in a court”); Brazos Elec. Power Coop., Inc. v.
United States, 144 F.3d 784, 786 (Fed. Cir. 1998) (same); Nat’l Ctr. for Mfg. Scis. v.
United States, 114 F.3d 196, 200 (Fed. Cir. 1997) (same). Other circuits have uniformly
characterized section 10(c) in the same fashion. 5 We concur with those
characterizations and accord section 10(c) its natural meaning, under which the “no
made reviewable by statute and every final agency action for which there is no other
adequate remedy in any court shall be subject to judicial review.” Pub. L. No. 404,
§ 10(c), 60 Stat. 237, 243 (1946). That formulation makes it inescapably clear that the
“no other adequate remedy” proviso does not apply to “agency action made reviewable
by statute.” The language of section 10(c) was changed to the present form when Title
5 of the U.S. Code was recodified in 1966, Pub. L. No. 89-554, 80 Stat. 378, 392-93
(1966), but the accompanying revision notes explain that no substantive change was
intended. See 5 U.S.C. p. 766 (2006 ed.) (Historical and Revision Notes).
5
See, e.g., Turner v. Sec’y of the U.S. Dep’t of Housing & Urban Dev., 449
F.3d 536, 539 (3d Cir. 2006) (agency actions are reviewable if they are “made
reviewable by statute” or if there was a “final agency action for which there is no other
adequate remedy in a court”); Pennaco Energy, Inc. v. U.S. Dep’t of the Interior, 377
F.3d 1147, 1155 (10th Cir. 2004) (agency action is subject to judicial review “when it is
either: (1) ‘made reviewable by statute,’ or (2) a ‘final agency action for which there is no
other adequate remedy in a court’”); Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 638
(6th Cir. 2004) (federal courts may review two types of agency actions: “[1] Agency
action made reviewable by statute and [2] final agency action for which there is no other
adequate remedy in a court”); Niagara Mohawk Power Corp. v. FERC, 306 F.3d 1264,
1268 (2d Cir. 2002) (“Niagara must show that either (1) the FERC action of which
Niagara seeks judicial review is ‘made reviewable by statute’ or (2) ‘there is no other
adequate remedy in a court.’”); Carter/Mondale Presidential Comm., Inc. v. Fed.
Election Comm’n, 711 F.2d 279, 284 n.9 (D.C. Cir. 1983) (section 704 “makes judicial
review available for two categories of agency action: ‘[a]gency action made reviewable
by statute’ and ‘final agency action for which there is no other adequate remedy in a
court’”).
2007-5083 22
adequate remedy” requirement does not apply to special statutory review provisions
such as section 119.
Consideration of Congress’s objectives in enacting section 10(a) shows why this
construction makes sense. Congress was, of course, aware of the pre-existing statutes
that provided for special review of particular agency action, including review in the
courts of appeals for actions of agencies such as the Interstate Commerce Commission,
the National Labor Relations Board, and the Federal Trade Commission. See Bowen,
487 U.S. at 903. It was to fill in the gaps in that patchwork of special review provisions
that Congress created the right to general review of agency action in the district courts
through section 10(a). Congress provided that the new default review created by
section 10(a) would not be available if there were already an adequate remedy available
in a court, because it “did not intend that general grant of jurisdiction to duplicate the
previously established special statutory procedures relating to specific agencies.” Id.By the same token, however, Congress plainly did not intend section 10(a) to narrow
the scope of the pre-existing special statutory review provisions, which would be the
effect if the “no adequate remedy” requirement were deemed applicable to those
provisions. Accordingly, we reject the rationale of the Court of Federal Claims to the
extent that it relies on the “no other adequate remedy in a court” provision of section
10(c) to hold that the D.C. Circuit was foreclosed from conducting the review proceeding
in this case. 6
6
Because we hold that section 10(a) of the APA waives sovereign immunity
for a judicial review action under section 119 of the NWPA, we need not decide
whether, as NPPD argues, section 119 itself waives sovereign immunity for such an
action.
2007-5083 23
The Court of Federal Claims relied heavily on this court’s decision in Christopher
Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004), in support of its decision.
In that case, the Fifth Circuit directed the issuance of a declaratory judgment in favor of
government contractors that had filed a nonstatutory APA action in district court. We
held that the Fifth Circuit’s order was void because the contractors had an adequate
remedy in a court of law, namely, an action in the Court of Federal Claims for breach of
contract. Significantly, the judicial review at issue in that case was nonstatutory review,
not review pursuant to a special statutory review provision permitting review in a
regional court of appeals, such as section 119 of the NWPA. The court’s analysis in
Christopher Village with respect to the “no other adequate remedy” clause of section
10(c) of the APA is therefore inapplicable here. That is also true of another case the
trial court cited, Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed. Cir.
2001), which similarly relied on the “no other adequate remedy” clause in section 10(c)
in a nonstatutory review case. Because the availability of review under section 119 of
the NWPA obviates the need to inquire into the availability of other possible judicial
remedies, section 10(c) of the APA is not an impediment to court of appeals review in
this case. Accordingly, we hold that section 10(a) of the APA waived sovereign
immunity for the judicial review of DOE’s Final Interpretation by the D.C. Circuit . 7
7
The government also argues that the D.C. Circuit’s mandamus order is
barred by sovereign immunity because the judicial review action in the D.C. Circuit was
not one “seeking relief other than money damages,” as required by section 10(a) of the
APA. We reject that argument. In their mandamus petition in the D.C. Circuit, the
utilities sought an order requiring DOE to accept their nuclear waste, and thus were not
requesting money damages. The court denied the requested relief, but substituted an
order barring DOE from acting in derogation of its statutory obligation under section
2007-5083 24
C
In addition to holding that Congress did not waive sovereign immunity for the
D.C. Circuit’s review proceeding in Indiana Michigan, the Court of Federal Claims
focused in particular on the mandamus order and held that the order “pretermits a key
aspect of the contractual dispute before this court,” 73 Fed. Cl. at 662, and in so doing
“plainly encroaches upon this court’s jurisdiction.” Id. at 663.
In assessing whether the D.C. Circuit’s mandamus order improperly invaded the
jurisdiction of the Court of Federal Claims over the adjudication of contract rights, it is
important to focus on precisely what agency action was challenged in the D.C. Circuit
and what relief the D.C. Circuit granted. The issue before the D.C. Circuit in Indiana
Michigan was whether section 302(a)(5)(B) of the NWPA imposed an unconditional
obligation on DOE to accept nuclear waste by the statutory deadline. The agency
action challenged in that case was DOE’s announcement in the Final Interpretation that
it had no statutory obligation to accept nuclear waste by 1998 if DOE did not have an
appropriate storage facility at that time. The D.C. Circuit rejected that argument as
clearly contrary to the NWPA.
The issue before the D.C. Circuit in Northern States was what relief was
appropriate in light of what the court characterized as DOE’s effort to circumvent the
302(a)(5)(B). Neither the relief sought, nor the relief granted, was for money damages.
The fact that the relief granted could affect subsequent contract litigation that in turn
could result in an award of damages does not convert the mandamus order into an
award of damages. See Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed. Cir. 1994)
(upholding district court jurisdiction to review a regulation even though “once the
propriety of [the agency’s] interpretation of the regulation has been adjudicated, it will
act accordingly, and any monetary consequences will flow through the contractual
scheme”).
2007-5083 25
court’s statutory ruling by arguing that the Standard Contract relieved it of the
responsibility to accept nuclear waste if it lacked a facility for accepting the waste. The
D.C. Circuit determined that DOE’s interpretation of the Standard Contract would allow
DOE to treat its obligation to accept nuclear waste as a contingent obligation, in
violation of the unconditional statutory obligation announced by the court in Indiana
Michigan. Viewing DOE’s position as simply “recycling the arguments” that the court
had rejected in Indiana Michigan, the court issued an order “precluding DOE from
excusing its own delay on the grounds that it has not yet prepared a permanent
repository or interim storage facility.” Northern States, 128 F.3d at 761.
The D.C. Circuit concluded that it was necessary to bar DOE from doing under
the rubric of contract interpretation what section 302(a)(5)(B) prohibited as a matter of
statutory compulsion. Beyond that, however, the court stated that the utilities would be
required to seek relief for any asserted breach of contract in an action before the Court
of Federal Claims. On rehearing, in response to DOE’s argument that the court had
erroneously “designated itself as the proper forum for adjudication of disputes arising
under the Standard Contract,” the D.C. Circuit stated, “[W]e did not; we merely
prohibited the DOE from implementing an interpretation that would place it in violation of
its duty under the NWPA to assume an unconditional obligation to begin disposal by
January 31, 1998. The statutory duty . . . is independent of any rights under the
contract.” N. States Power Co. v. Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C.
Cir. May 5, 1998), at *2. The court added that its initial decision in Northern States
described “the nature of the DOE’s obligation, which was created by the NWPA and
undertaken by the DOE under the Standard Contract. It does not place the question of
2007-5083 26
contract remedies in this court, nor set up this court as a source of remedies outside the
Standard Contract.” Id.A later opinion by the D.C. Circuit in a different case sheds further light on what
that court regarded as the proper scope of its reviewing authority with respect to the
NWPA and the Standard Contract. In Wisconsin Electric Power Co. v. United States
Department of Energy, 211 F.3d 646 (D.C. Cir. 2000), a nuclear power producer
petitioned for a writ of mandamus from the D.C. Circuit declaring that the Department of
Energy must provide both monetary and non-monetary relief for having failed to begin
disposing of the company’s nuclear waste by January 31, 1998. The court denied the
petition. The court explained that it had held in Indiana Michigan that DOE had an
unconditional statutory obligation to begin disposing of nuclear waste by January 31,
1998, but that DOE had “acted to frustrate that decision by holding that its failure to
perform was ‘unavoidable’ and therefore, under the terms of the [Standard] Contract,
did not render the Department liable for damages of any kind.” Id. at 647. For that
reason, the court noted, it had issued a writ of mandamus “forbidding the DOE from
claiming, in proceedings under its contracts, that its failure to perform was ‘unavoidable’
because a repository was not available.” Id. The court stated that it had “expressed no
opinion about the relief the DOE would have to provide for breach of that obligation,”
and that “[t]he Court of Federal Claims, not this court, is the proper forum for
adjudicating contract disputes.” Id. at 648. Thus, in Wisconsin Electric, as in Northern
States, the D.C. Circuit characterized its authority as limited to prohibiting the
government from acting in derogation of its statutory obligations under the NWPA. The
2007-5083 27
court disclaimed that its authority otherwise extended to any issue of contract
interpretation, enforcement, or remedies.
The trial court in this case characterized the D.C. Circuit’s mandamus order as
being at odds with the analysis in this court’s recent decision in PSEG Nuclear, L.L.C. v.
United States, 465 F.3d 1343 (Fed. Cir. 2006), but we disagree. Like this case, PSEG
was a case brought by a nuclear power producer alleging a breach of contract because
of DOE’s failure to begin accepting nuclear waste as of January 31, 1998. In PSEG,
however, the Court of Federal Claims held that it lacked jurisdiction over the plaintiff’s
breach of contract claim because section 119 of the NWPA gave the courts of appeals
exclusive jurisdiction over all actions relating to the contract term requiring performance
by January 31, 1998. On appeal, this court rejected the Court of Federal Claims’
conclusion that section 119 divested it of jurisdiction over the underlying breach of
contract action. We held that section 119 gave the regional courts of appeals
jurisdiction to decide whether the Standard Contract complied with the requirements of
section 302, but that it did not strip the Court of Federal Claims of its Tucker Act
jurisdiction over the breach of contract suit. 465 F.3d at 1349-50.
In the course of its analysis, the PSEG court distinguished between “judicial
review as to whether the DOE properly incorporated [its statutory] obligations within its
contracts,” an issue that the court said could fall within the jurisdiction of the courts of
appeals under sections 119 and 302 of the NWPA, and “the performance of and any
damages for failure to meet those obligations. 465 F.3d at 1350. The latter issues, the
court held, “are not within the DOE’s statutory obligations under the NWPA,” but fall
within the jurisdiction of the Court of Federal Claims. Id.
2007-5083 28
Because the issue in PSEG was whether the NWPA wholly stripped the Court of
Federal Claims of its jurisdiction over PSEG’s breach of contract claim, the PSEG court
did not find it necessary to decide “whether the courts of appeals continue to have
jurisdiction to decide the propriety of agency actions under section 302 once the
government includes the required language in the Standard Contract.” 465 F.3d at
1348. That unresolved question is presented in this case. Yet, while PSEG does not
decide that question, it provides guidance as to the proper analytical approach for
deciding it.
First, the PSEG court recognized that section 119 of the NWPA authorizes court
of appeals review of DOE actions taken under section 302. Second, the court made
clear that the breadth of the reviewing court’s mandate under that authority depends on
whether the agency action in question “involve[s] the agency’s authority under that
statutory mandate,” that is “whether the DOE properly incorporated [the statutory]
obligations within its contracts.” PSEG, 465 F.3d at 1350. Finally, the court explained
that answering that question does not involve the reviewing court in “issues of whether
the DOE breached its contractual obligations, and if so, to what damages, if any, PSEG
is entitled for the breach.” Id.
That is the same line the D.C. Circuit drew in the Indiana Michigan, Northern
States, and Wisconsin Electric decisions, and we reaffirm that distinction here. It was
within the authority of the D.C. Circuit to say what section 302(a)(5) of the NWPA
means; and, except to the extent that the D.C. Circuit’s ruling on the statutory question
controls as a matter of res judicata, it is within the authority of the Court of Federal
Claims to interpret, apply, and enforce the provisions of the Standard Contract.
2007-5083 29
Notwithstanding the disclaimers by the D.C. Circuit, the Court of Federal Claims
in this case concluded that the D.C. Circuit’s mandamus order was void because that
court had exceeded its jurisdiction by “enforcing the terms of the Standard Contract,” a
task that Congress committed to the Court of Federal Claims through the Tucker Act.
73 Fed. Cl. at 662. The trial court viewed the D.C. Circuit’s mandamus order as
dictating the resolution of an important dispute over contract interpretation, a dispute
that the court regarded as “squarely within this court’s Tucker Act jurisdiction.” Id. The
court added that “the fact that a contract is underlain by a statute or regulation does not
turn a contract interpretation question into one involving statutory or regulatory
construction to be controlled by the administrative law decisions of other courts.” Id. at
664. We disagree with that analysis.
Section 302(a)(5)(B) of the NWPA directs that DOE’s contracts with nuclear
power producers must provide that DOE will begin disposing of nuclear waste by
January 31, 1998. As a matter of statutory construction, the D.C. Circuit interpreted
DOE’s obligation to begin accepting nuclear waste in 1998 as unconditional. If DOE
had omitted the clause required by section 302(a)(5)(B) from its contracts, it is clear that
a court order directing the inclusion of that clause in its contracts would constitute a
straightforward enforcement of DOE’s statutory responsibilities and would not intrude on
the Tucker Act jurisdiction of the Court of Federal Claims. See PSEG, 465 F.3d at
1348.
What the D.C. Circuit did in the Indiana Michigan and Northern States cases is
not meaningfully different. As the D.C. Circuit viewed the matter, DOE included a
provision in the Standard Contract pertaining to its obligation to begin accepting nuclear
2007-5083 30
waste by 1998, but then nullified the statutory requirement by interpreting the
“Unavoidable Delays” clause to make that obligation conditional. DOE’s conduct, as the
D.C. Circuit viewed it, was equivalent to having omitted the clause required by section
302(a)(5)(B) from the Standard Contract in the first place. Once the D.C. Circuit
construed the NWPA to require DOE to begin accepting nuclear waste by 1998, it was
not a significant further step to conclude that Congress did not intend for DOE to avoid
that statutory obligation by adopting a contrary interpretation of the Standard Contract.
Thus, based on its interpretation of the NWPA, the D.C. Circuit held that the
government’s failure to have a repository ready by January 31, 1998, could not be
excused as unavoidable delay.
The government argues—with a passing endorsement from the trial court, 73
Fed. Cl. at 672 n.30—that the D.C. Circuit’s mandamus order fell outside the waiver of
sovereign immunity in section 10(a) of the APA because it ran afoul of the proviso in
that section barring review “if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Citing Sharp v.
Weinberger, 798 F.2d 1521 (D.C. Cir. 1986), the government contends that the D.C.
Circuit’s order was impliedly forbidden by the Tucker Act.
Sharp and the other cases on which the government relies stand for the
proposition that “[t]he sole remedy for an alleged breach of contract by the federal
government is a claim for money damages, either in the United States Claims Court
under the Tucker Act or, if damages of no more than $10,000 are sought, in the district
court under the Little Tucker Act.” Sharp, 798 F.2d at 1523 (citations omitted). But the
cases cited by the government involve actions for relief based on rights conferred by a
2007-5083 31
contract. In Sharp, for example, the plaintiff sought “a declaration that he had a valid
contract with appellees and an injunction requiring appellees to perform that contract.”
Id.The D.C. Circuit subsequently explained that a case is not a “contract case” that
is subject to the “impliedly forbids” limitation in section 10(a) simply because it involves
contractual issues. Instead, the question whether the Tucker Act impliedly forbids a
district court from acting in a case depends on “whether, despite the presence of a
contract, plaintiffs’ claims are founded only on a contract, or whether they stem from a
statute or the Constitution.” Transohio Sav. Bank v. Dir., Office of Thrift Supervision,
967 F.2d 598, 609 (D.C. Cir. 1992). The court drew the following lesson from Sharp:
that under section 10(a) and the Tucker Act, “litigants may bring common-law contract
claims only as actions for money damages in the Claims Court, but they may bring
statutory and constitutional claims for specific relief in federal district court even when
the claims depend on the existence and terms of a contract with the government.” Id. at
610; see also Roberts v. United States, 242 F.3d 1065, 1068-69 (Fed. Cir. 2001)
(quoting with approval the standard articulated in Transohio); Katz v. Cisneros, 16 F.3d
1204, 1209 (Fed. Cir. 1994) (same).
In Indiana Michigan, unlike in Sharp, the utilities sought relief based on a statute.
Even though it was clear that the D.C. Circuit’s remedial order would affect later
litigation over contract-based rights, it remains the case that the D.C. Circuit was
interpreting statutory rights, not rights under a contract. For that reason, the D.C.
Circuit’s action was not impliedly forbidden by the Tucker Act.
2007-5083 32
The government’s position in this case is fueled in large measure by its
conviction that the D.C. Circuit was wrong when it interpreted section 302 as imposing
an unconditional obligation to begin accepting nuclear waste in 1998, and its hope that
the Court of Federal Claims or this court will interpret the statute differently. It is
important to emphasize, however, that the merits of that issue of statutory construction
are not before us. The D.C. Circuit resolved that issue, and its resolution became final
when the government’s petition for certiorari in the Northern States case was denied.
The question before us is whether the D.C. Circuit had jurisdiction to decide that issue
of statutory construction, or whether the doctrine of sovereign immunity barred it from
reviewing the government’s compliance with section 302 and enforcing its decision by
prohibiting the government from taking actions inconsistent with the D.C. Circuit’s
interpretation of the government’s statutory obligations.
The mandamus order was issued pursuant to the D.C. Circuit’s authority to
construe the NWPA and to direct DOE to comply with its obligations under the statute.
The order did not address any issue of contract breach, direct the implementation of any
remedy, or construe any contract defense, except to the extent that the proposed
interpretation of the contract would conflict with the statutory directive in section
302(a)(5). Those issues are all left to the Court of Federal Claims to decide in the
contract breach action before it. We are satisfied that the D.C. Circuit’s order was
confined to the issue of statutory interpretation and did not impermissibly invade the
jurisdiction of the Court of Federal Claims to adjudicate the parties’ rights and remedies
under the contract between them.
2007-5083 33
In sum, the D.C. Circuit’s decisions in the Indiana Michigan and Northern States
cases were not barred by sovereign immunity and should not have been denied res
judicata effect on that ground. We therefore reverse the order of the Court of Federal
Claims under review and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
2007-5083 34
United States Court of Appeals for the Federal Circuit
2007-5083
NEBRASKA PUBLIC POWER DISTRICT,
Plaintiff- Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 01-CV-116, Judge Francis M.
Allegra.
DYK, Circuit Judge, with whom LINN, Circuit Judge, joins, concurring.
While I join the majority, I write separately to address what I view as the dissent’s
overreading of the majority opinion.
The court appears to be unanimous in agreeing that the District of Columbia
Circuit had jurisdiction to interpret the statute, and that the D.C. Circuit did not (and
could not) address purely remedial questions. I read the majority opinion here as
holding that as a matter of res judicata, the D.C. Circuit’s statutory interpretation bars
interpreting the Unavoidable Delays clause as creating a defense to liability. However,
contrary to the dissent, I do not read either the D.C. Circuit or the majority here as
ordering the government to pay money damages (expectancy damages) for breach of
the agreement. 1 Although I read the majority as establishing government liability, it
1
See Dissent at 14 (“[T]he D.C. Circuit ordered what is, in effect,
compensatory relief. . . . The D.C. Circuit exceeded its jurisdiction in [precluding the
remains open for the government to argue that the Unavoidable Delays clause bars a
damages award (as opposed to some other contractual remedy such as restitution).
Indeed, on its face the Unavoidable Delays clause appears only to deal with the
availability of a particular remedy—money damages—and, of course, the D.C. Circuit
has no jurisdiction to determine questions concerning damages remedies. Section 702
of the APA precludes the D.C. Circuit from making such determinations, whether in the
form of a declaratory determination or mandamus. See 5 U.S.C. § 702 (waiving
sovereign immunity only where the plaintiff is “seeking relief other than money
damages”). As the Supreme Court noted in Great-West Life & Annuity Insurance Co. v.
Knudson, 534 U.S. 204, 210 (2002), “[a]lmost invariably . . . suits seeking (whether by
judgment, injunction, or declaration) to compel the defendant to pay a sum of money to
the plaintiff are suits for ‘money damages,’ as that phrase has traditionally been applied,
since they seek no more than compensation for loss resulting from the defendant’s
breach of legal duty.” See also Consol. Edison Co. of N.Y., Inc. v. U.S., Dep’t of
Energy, 247 F.3d 1378, 1382–83 (Fed. Cir. 2001) (“Section 702 [of the APA], however,
denies this sovereign immunity waiver to claims for money damages . . . .”).
Department of Energy from relying on the Unavoidable Delays provision] and by its writ
thus obligated the DOE to pay compensatory damages in a subsequent breach of
contract action.”).
2007-5083 2
United States Court of Appeals for the Federal Circuit
2007-5083
NEBRASKA PUBLIC POWER DISTRICT,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 01-CV-116, Judge Francis M.
Allegra.
GAJARSA, Circuit Judge, dissenting.
The issue before the court is a fundamental question of jurisdiction between this
court and the D.C. Circuit. If the order in mandamus issued by the D.C. Circuit had
interpreted the statutory requirements of the Nuclear Waste Policy Act (NWPA), then it
would have been within that court’s jurisdiction. Instead, the D.C. Circuit actually forbids
the United States from defending itself in a contract action in the Court of Federal
Claims. In my judgment, the order in mandamus is clearly directed to the interpretation
of the Standard Contract (not the NWPA) and is thus not only outside the jurisdiction of
the D.C. Circuit, but also infringes upon the Court of Federal Claims’s exclusive Tucker
Act jurisdiction over the administration of contract disputes, thereby impacting the
sovereign immunity of the United States and undermining this court’s duty to review the
contract decisions of the Court of Federal Claims. I must therefore dissent from the
majority’s judgment.
I.
As an initial matter, I am compelled to highlight the procedural posture of this
case. Nebraska Public Power District appeals an interlocutory decision of the Court of
Federal Claims (the “trial court”), Nebraska Public Power District v. United States,
73 Fed. Cl. 650 (2006), that sustained the United States’ collateral attack on the D.C.
Circuit’s decisions in Indiana Michigan Power Company v. Department of Energy
(“Indiana Michigan Power”), 88 F.3d 1272 (D.C. Cir. 1996), and Northern States Power
Company v Department of Energy (“Northern States I”), 128 F.3d 754 (D.C. Cir. 1997).
The trial court certified its decision for immediate review by this court, and we accepted
the appeal.
The appeal was argued before a panel of this court. Thereafter, a poll of the
judges in regular active service was conducted to determine whether the appeal should
be heard en banc. An en banc hearing was subsequently granted. The en banc court
requested supplemental briefing relating to the interpretation and preclusive effects of
the D.C. Circuit’s Northern States I decision and heard further argument.
At no time during this process has the trial court issued any decision on the
merits of this case. Accordingly, this court’s review is limited solely to the trial court’s
decision before us on interlocutory appeal. The question presented is simple: whether
the D.C. Circuit’s order in mandamus in Northern States I precludes the Department of
Energy (“DOE”) from relying on a clause of the Standard Contract—the Unavoidable
Delays clause—in a breach of contract action brought by several nuclear power
companies in the Court of Federal Claims. Importantly, it is not for this court to
determine in the first instance whether the DOE should be estopped from relying on the
2
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Unavoidable Delays clause or what impact the Unavoidable Delays clause may have on
the availability of various contract remedies in light of the DOE’s ongoing failure to
accept Spent Nuclear Fuel (“SNF”).
II.
Turning, then, to the limited question at hand, it is undisputed that traditional
notions of res judicata and comity 1 require that the valid judgments of other courts be
given preclusive effect in the Court of Federal Claims. But it is similarly beyond dispute
that only valid judgments are deserving of preclusive effect. See, e.g., Restatement
(Second) of Judgments § 17 (1982). And to be valid, a judgment must be within the
issuing court’s subject matter jurisdiction. See, e.g., Restatement (Second) of
Judgments § 11 (1982) (“A judgment may properly be rendered against a party only if
the court has authority to adjudicate the type of controversy involved in the action.”).
This does not mean, of course, that a judgment of questionable validity is always
susceptible to collateral attack. See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 n.9 (1982); Christopher Village v. United States, 360 F.3d
1319, 1329-30 (Fed Cir. 2004). Rather, “[w]hen a court has rendered a judgment in a
contested action, the judgment precludes the parties from litigating the question of the
court’s subject matter jurisdiction in subsequent litigation except if: (1) [t]he subject
matter of the action was so plainly beyond the court's jurisdiction that its entertaining the
action was a manifest abuse of authority; or (2) [a]llowing the judgment to stand would
1
Comity, both in the notional sense of courteous respect and in the more
legalistic sense of the federal full faith and credit statute, 28 U.S.C. § 1738. See Davis
v. Davis, 305 U.S. 32, 40 (1938) (establishing that the federal full faith and credit statute
extended the Full Faith and Credit Clause to federal courts).
3
2007-5083
substantially infringe the authority of another tribunal or agency of government.”
Restatement (Second) of Judgments § 12 (1982).
On several occasions, the Supreme Court has taken the opportunity to address
the circumstances under which a collateral attack to an extra-jurisdictional judgment
may be maintained. For example, in United States v. United States Fidelity &
Guarantee Co., the Court considered whether “a former judgment against the United
States on a cross-claim, which was entered without statutory authority, fixing a balance
of indebtedness to be collected as provided by law, [is] res judicata in [a subsequent]
litigation for collection of the balance.” 309 U.S. 506, 507 (1940). The Court decided
that such a judgment was without res judicata effect, explaining: “It has heretofore been
shown that the suability of the United States . . . depends on affirmative statutory
authority. Consent alone gives jurisdiction to adjudge against a sovereign. Absent that
consent, the attempted exercise of judicial power is void.” Id. at 514. See also Kalb v.
Feuerstein, 308 U.S. 433, 438–39 (1940) (permitting collateral attack on judgment
where Congress had limited the issuing court’s jurisdiction); Durfee v. Duke, 375 U.S.
106, 114 (1963) (“To be sure, the general rule of finality of jurisdictional determinations
is not without exceptions. Doctrines of federal pre-emption or sovereign immunity may
in some contexts be controlling.”).
Relying on this precedent, this court has established a framework for determining
when we will sustain a collateral attack. In Christopher Village v. United States, we
considered whether a decision of the Fifth Circuit, holding that the Department of
Housing and Urban Development (“HUD”) had violated its statutory and contractual
duties, should be given res judicata effect by the Court of Federal Claims. 360 F.3d
4
2007-5083
1319, 1324-26 (Fed. Cir. 2004). The Fifth Circuit had explained that its ruling was a
“predicate for a damages action against HUD in the Court of Federal Claims.”
Christopher Village v. Restinas, 190 F.3d 310, 315 (5th Cir. 1999). Ultimately, we held
that if the prior decision was (a) issued without subject matter jurisdiction and (b) the
court’s lack of jurisdiction “directly implicates issues of sovereign immunity,” then the
prior decision should be considered void and without res judicata effect. Christopher
Village, 360 F.3d at 1332 (quoting Int’l Air Response v. United States, 324 F.3d 1376,
1380 (Fed. Cir. 2003). 2 These requirements are met when a district court or one of the
circuit courts of appeals decides an issue that is properly within the exclusive jurisdiction
of the Court of Federal Claims. Id. at 1332-33. Applying this framework, we determined
that the Fifth Circuit’s decision was void and should not be given preclusive effect. Id. at
1333.
The majority here does not disagree that the Christopher Village framework
should guide our decision in the present appeal. Instead, applying that framework, the
majority somehow finds that the D.C. Circuit’s writ of mandamus in Northern States I
was within that court’s jurisdiction. I cannot agree. In my judgment, the D.C. Circuit
established a clear predicate to a damages action and exceeded its jurisdiction when it
issued the writ of mandamus in Northern States I; that extra-jurisdictional act implicates
issues of sovereign immunity by interfering with the exclusive jurisdiction of the Court of
Federal Claims.
2
The D.C. Circuit has similarly held: “[I]t is axiomatic that, before a
judgment can have issue preclusive effect under the doctrines of either res judicata or
collateral estoppel, that judgment must be valid.” Davis v. Chevy Chase Fin. Ltd., 667
F.2d 160, 172 (D.C. Cir. 1981).
5
2007-5083
III.
The D.C. Circuit’s jurisdiction is defined by the NWPA, which provides in relevant
part: “Except for review in the Supreme Court of the United States, the United States
courts of appeals shall have original and exclusive jurisdiction over any civil action . . .
for review of any final decision or action of the Secretary [of Energy], the President, or
the Commission under this part.” NWPA, § 119 (codified at 42 U.S.C.
§ 10139(a)(1)(A)). In PSEG Nuclear, LLC v. United States, this court acknowledged
“that agency actions mandated under Title III [of the NWPA] which relate to the creation
of repositories for spent nuclear fuel fall within the class of actions subject to review by
the courts of appeals under section 119.” 465 F.3d 1343, 1349 (Fed. Cir. 2006). We
explained, however, that the courts of appeals’ section 119 jurisdiction is limited:
[S]ection 302 of the NWPA only required that the DOE
include certain obligations in its contracts. Therefore, judicial
review as to whether the DOE properly incorporated these
obligations within its contracts may fall within the jurisdiction
conferred to the courts of appeals in section 119. However,
the performance of and any damages for failure to meet
those obligations were not provided for by statute. The
claims at issue here involve only issues of whether the DOE
breached its contractual obligations, and if so, to what
damages, if any, PSEG is entitled for the breach. Because
these are not within the DOE’s statutory obligations under
the NWPA, City of Burbank [v. United States, 273 F.3d 1370(Fed. Cir. 2001),] does not compel us to conclude that
section 119 of the NWPA strips the Claims Court of its
Tucker Act jurisdiction over PSEG’s claim merely because
the claim involves a statutorily mandated provision.
Id. at 1350. Similarly, in Wisconsin Electric Power v. Department of Energy, the D.C.
Circuit decided that, although the NWPA “grants the court jurisdiction over cases
seeking review of: (1) final action taken by the agency pursuant to the NWPA, and (2)
the agency’s failure to take any action required by the NWPA[,] . . . a contract breach by
6
2007-5083
the DOE does not violate a statutory duty. The Court of Federal Claims, not this court,
is the proper forum for adjudicating contract disputes.” 211 F.3d 646, 648 (D.C. Cir.
2000) (internal quotation marks and citation omitted). The D.C. Circuit’s jurisdiction—
and the full extent to which the United States waived its sovereign immunity to suit in
the regional courts of appeals—is thus limited to review of agency action or inaction
under the statute itself. 3 Accordingly, the disagreement here boils down simply to
whether the D.C. Circuit’s Northern States I order is directed to agency action under the
NWPA or to agency action in a contract dispute. In my view, it is unquestionably
directed to and aimed at the contract dispute. By doing so, the D.C. Circuit acted
beyond its statutory jurisdiction. The majority parses this issue by concluding that the
mandamus order “did not address any issue of contract breach, direct the
implementation of any remedy, or construe any contract defense” but rather only
directed the DOE to comply with its statutory obligations. Maj. Op. at 33.
Notwithstanding their cleverly worded interstitial attempt in limiting the interpretation of
liability by the D.C. Circuit, the majority cannot avoid the obvious legal conclusion that
this affects the damages imposed upon the United States. The majority’s position is
clearly erroneous.
Beginning in the opening paragraph of the Northern States I decision, the D.C.
Circuit condemns the “DOE’s current approach toward contractual remedies” and
“preclud[es] DOE from advancing any construction of the Standard Contract that would
3
It is undisputed that the D.C. Circuit’s authority to issue writs under the All
Writs Act, 28 U.S.C. § 1651(a), does not exceed the boundaries of the court’s
jurisdiction. See Clinton v. Goldsmith, 526 U.S. 529, 535 (1999); In re Princo Corp., 478
F.3d 1345, 1351 (Fed. Cir. 2007) (“The authority of the courts of appeals to issue the
writ ‘is restricted by statute to those cases in which the writ is in aid of their respective
jurisdiction.’”) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1945)).
7
2007-5083
excuse its delinquency on [certain grounds].” 128 F.3d at 756. Elsewhere in its opinion,
the D.C. Circuit states: “Petitioners’ ability to enforce the contract would be frustrated if
DOE were allowed to operate under a construction of the contract inconsistent with our
prior conclusion that the NWPA imposes an obligation on DOE without qualification or
condition.” Id. at 759 (internal quotation marks omitted). Indeed, the court explained
that its writ “necessarily means, of course, that DOE not implement any interpretation of
the Standard Contract that excuses its failure to perform on the grounds of acts of
Government in either its sovereign or contractual capacity.” Id at 760 (internal quotation
marks omitted). There is no question that throughout its Northern States I opinion, the
D.C. Circuit targets the interpretation of the Standard Contract and the way in which a
contract action may proceed. Under our decision in PSEG, this is unquestionably
outside the D.C. Circuit’s jurisdiction and is a direct encroachment on the jurisdiction of
our court and that of the Court of Federal Claims. PSEG, 465 F.3d at 1350 (explaining
that the D.C. Circuit does not have jurisdiction over questions concerning “whether the
DOE breached its contractual obligations, and if so, to what damages, if any [the utility]
is entitled for the breach” because these issues are not “within the DOE’s statutory
obligations” but exist entirely by way of the contract). 4
Indeed, even the D.C. Circuit recognized that “breach by the DOE [of the
Standard Contract] does not violate a statutory duty.” Northern States Power Co. v.
Dep’t of Energy, No. 97-1064, 1998 WL 276581, at *2 (D.C. Cir. May 5, 1998) (per
curiam). But the D.C. Circuit’s mandamus is directed precisely and explicitly to the
4
And, of course, if the D.C. Circuit does not have jurisdiction under §119, it
does not have any jurisdiction at all, since actions not brought under the NWPA’s review
provision, even if properly brought under the general provisions of the Administrative
Procedure Act, would have to be filed in the district courts.
8
2007-5083
issue of “remedies” for a breach. According to the D.C. Circuit, because the statute
required an unconditional acceptance of SNF by January 31, 1998, the DOE could not
defeat the utilities’ claims for damages by arguing that the Standard Contract’s
Unavoidable Delays clause applied. But an inquiry into whether a contract contains a
certain term is separate from an inquiry into what circumstances entitle a party to a
remedy for breach of that term. The NWPA permits the D.C. Circuit to perform the
former inquiry, but not the latter. See PSEG, 465 F.3d at 1350.
The text of the Unavoidable Delays clause demonstrates that the inquiries are
separate. It states that “[n]either the Government nor the Purchaser shall be liable
under this contract for damages caused by failure to perform its obligations hereunder, if
such failure arises out of causes beyond the control and without the fault or negligence
of the party failing to perform.” 10 C.F.R. § 961.11 at Article IX.A. (emphasis added)
(1983). In other words, the issue of remedy, and specifically whether there should be
no remedy because of “unavoidable delay,” only applies if a party has failed to perform
its obligations under the contract. Therefore, contrary to the premise of the D.C.
Circuit’s mandamus, whether the DOE uses the Unavoidable Delays clause to minimize
or prevent having to pay damages for failing to meet the “unconditional obligation” to
begin disposing of SNF by January 31, 1998, is a separate inquiry from whether the
contract properly incorporates the statutorily mandated unconditional deadline into its
terms. Moreover, the statute is entirely silent on the issue of contractual remedies (or
even whether the contract has to provide any monetary damages at all). Therefore,
there is no reasonable argument here that the D.C. Circuit’s jurisdiction could extend to
any reliance by the DOE on the Standard Contract’s Unavoidable Delays clause.
9
2007-5083
Additionally, the D.C. Circuit’s writ of mandamus prohibits the DOE from
construing the Unavoidable Delays clause to excuse its failure to dispose of SNF by
January 31, 1998. See Northern States I, 128 F.3d at 756 (“We . . . issue a writ of
mandamus precluding DOE from advancing any construction of the Standard Contract
that would excuse its delinquency on the ground [of Unavoidable Delay].”). This order is
no different than a declaratory judgment construing the Unavoidable Delays clause as
excluding delay caused by the government’s failure to prepare a permanent repository
or storage facility for the SNF by January 31, 1998. A declaratory judgment as to the
proper construction of a contractual term is a quintessential adjudication of a contract
dispute and can only be adjudicated in the Court of Federal Claims. Wisconsin Elec.
Power Co., 211 F.3d at 648 (“The Court of Federal Claims, not this court, is the proper
forum for adjudicating contract disputes.”).
The majority concedes that the D.C. Circuit interpreted the Unavoidable Delays
clause. 5 Maj. Op. at 33 (“[The mandamus order] did not . . . construe any contract
defense except to the extent that the government’s proposed interpretation of the
contract would conflict with the statutory directive of section 302(a)(5).”) (emphasis
added). Yet, inexplicably, the majority considers the D.C. Circuit’s action “not
meaningfully different” from the D.C. Circuit’s statutory construction of the NWPA in
Indiana Michigan Power. Maj. Op. at 30. The NWPA, as construed by the D.C. Circuit,
5
Even the concurring opinion agrees that the D.C. Circuit interpreted the
Standard Contract by establishing government liability. See Concur. Op. at 1 (“I read
the majority as establishing government liability . . . “). But it then attempts to cabin the
scope of the majority’s opinion by arguing that “it remains open for the government to
argue that the Unavoidable Delays clause bars a damages award (as opposed to some
other contractual remedy such as restitution).” Id. at 2. This argument, however, is in
the same league as the interstitial argument made by the majority and has no more legs
to stand upon than the majority’s opinion.
10
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obligates the DOE to accept SNF by January 31, 1998, and to include such an
unconditional obligation in its Standard Contracts. Indiana Michigan Power, 88 F.3d at
1277. No one disputes that the Standard Contract contains such an unconditional
obligation. Whether the DOE then nullified this provision by interpreting the
Unavoidable Delays clause to excuse its non-performance is an entirely different issue
that involves contract interpretation, not statutory construction. While the D.C. Circuit’s
holding in Indiana Michigan Power will undoubtedly inform a court’s interpretation of
whether or not having a repository or facility constitutes Unavoidable Delay under the
contract, relying on statutory provisions to interpret contractual ones does not make the
interpretive task any less grounded in an issue of contract interpretation. The majority
fails to recognize this distinction when it approvingly notes that “based on its
interpretation of the NWPA, the D.C. Circuit held that the government's failure to have a
repository ready by January 31, 1998, could not be excused as unavoidable delay.”
Maj. Op. at 31. This is another failure of the majority to recognize that the D.C. Circuit
interpreted the Standard Contract.
The majority’s attempt to maintain comity with the D.C. Circuit by distinguishing
between liability qua breach and liability qua damages is, in my view, not intellectually
defensible. First, it is unclear to me how this supposed distinction is functional in the
context of the Unavoidable Delays clause, which is directed to “liab[ility] for damages.”
And second, even if the clause was amenable to linguistic parsing of this sort, I fail to
see how such a distinction would place the D.C. Circuit’s Northern States I decision
within that court’s jurisdiction. Specifically, the question of breach is every bit as much
within the exclusive jurisdiction of the Court of Federal Claims as is the question of
11
2007-5083
damages. Indeed, the predicate decision in Christopher Village, which this court
determined was void and without res judicata effect, was directed solely and explicitly to
the question of breach, not damages. 360 F.3d at 1324. Accordingly, in my judgment
the D.C. Circuit’s Northern States I decision exceeded that court’s jurisdiction; it is not
amenable to interpretation so as to give it validity.
IV.
Because the majority holds simply that the D.C. Circuit’s Northern States I
decision did not exceed that court’s jurisdiction, it does not need to reach the second
prong of the Christopher Village analysis—whether the extra-jurisdictional act implicates
the United States’ sovereign immunity. My disagreement over the issue of jurisdiction,
however, requires me to continue the analysis. The D.C. Circuit’s extra-jurisdictional
writ interferes with the exclusive jurisdiction of the Court of Federal Claims, thereby
implicating the United States’ sovereign immunity. As we explained in PSEG:
The Tucker Act generally vests the Court of Federal Claims
with jurisdiction to render judgment in government contract
disputes. This jurisdiction is supplanted only if, in a specific
jurisdictional statute, Congress grants exclusive jurisdiction
over a contract dispute to another court. The NWPA did not
strip the Court of Federal Claims of its jurisdiction over
[breach of contract] claims because it did not vest that
jurisdiction in another court.
465 F.3d at 1349 (citations omitted). The APA affects a limited waiver of the United
States’ sovereign immunity from suit. In particular, 5 U.S.C. § 702 states in relevant
part:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking
relief other than money damages . . . shall not be dismissed
nor relief therein be denied on the ground that it is against
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the United States . . . . The United States may be named as
a defendant in any such action, and a judgment or decree
may be entered against the United States . . . . Nothing
herein
...
(2) confers authority to grant relief if any other statute that
grants consent to suit expressly or impliedly forbids the relief
which is sought.
See Consol. Edison Co. of New York, Inc. v. Dep’t of Energy, 247 F.3d 1378, 1382–83
(Fed. Cir. 2001) (“Under specified circumstances, the APA waives sovereign immunity
for actions challenging agency actions in district court . . . . Section 702 [of the APA]
denies this sovereign immunity waiver to claims for money damages or for claims that
seek remedies ‘expressly or impliedly’ precluded by other statutes.”). Section 704 adds
a further limitation: “Agency action made reviewable by statute and final agency action
for which there is no other adequate remedy in a court are subject to judicial review.”
5 U.S.C. § 704. The APA’s waiver is thus tempered by no fewer than three restrictions
on suit: (1) the action cannot be for money damages; (2) the action cannot be expressly
or impliedly forbidden by another statute; and (3) the action cannot be one for which
adequate remedy is available elsewhere.
A.
In Bowen v. Massachusetts, the Supreme Court considered the first restriction on
the APA’s waiver of sovereign immunity—that the action may not be for “money
damages.” Explaining that not all monetary relief is necessarily “money damages,” the
Court held that “money damages” in Section 702 is properly understood as
compensatory rather than specific relief. 487 U.S. at 895–97. The Court then held that
the Commonwealth of Massachusetts’s suit was not one “seeking money in
13
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compensation for the damage sustained by the failure of the Federal Government to
pay as mandated; rather, it [was] a suit seeking to enforce the statutory mandate itself,
which happens to be one for the payment of money.” Id. at 900 (emphasis removed).
The D.C. Circuit’s writ of mandamus in Northern States I presents a scenario that
is the converse of Bowen. The D.C. Circuit did not offer specific relief; indeed, it
acknowledged that it has no authority to do so. Rather, the D.C. Circuit ordered what is,
in effect, compensatory relief. Specifically, the D.C. Circuit interpreted contractual terms
by distinguishing between the treatment of avoidable and unavoidable delays under
Article IX of the Standard Contract, Northern States I, 128 F.3d at 759 (explaining that
avoidable delays result in money damages whereas unavoidable delays create no
liability), and precluded the DOE from relying on the unavoidable delays provision, id. at
760. The D.C. Circuit exceeded its jurisdiction in doing so and by its writ thus obligated
the DOE to pay compensatory damages in a subsequent breach of contract action.
Therefore, even under Bowen’s broad view of Section 702, the D.C. Circuit’s writ of
mandamus exceeds the “other than money damages” limitation on the APA’s waiver of
sovereign immunity.
Since Bowen, the Supreme Court has adopted a narrower and clearer position
on the issue:
Almost invariably . . . suits seeking (whether by judgment, injunction, or
declaration) to compel the defendant to pay a sum of money to the plaintiff
are suits for ‘money damages,’ as that phrase has traditionally been
applied, since they seek no more than compensation for loss resulting
from the defendant’s breach of legal duty.
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (internal
quotation marks and citation omitted). Certainly, the D.C. Circuit’s writ is addressed to
nothing more than compensation for loss resulting from the DOE’s alleged breach of its
14
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contractual obligations. It would thus appear to be beyond question that the writ runs
afoul of the Supreme Court’s most recent view of “money damages” and is, therefore,
beyond the scope of the APA’s waiver of sovereign immunity.
The precedents of this court require the same result. For example and as
acknowledged by the majority, in Christopher Village we held that “[a] party may not
circumvent the Claims Court’s [now the Court of Federal Claims’s] exclusive jurisdiction
by framing a complaint in the district court as one seeking injunctive, declaratory or
mandatory relief where the thrust of the suit is to obtain money from the United States.”
360 F.3d at 1328 (quoting Consolidated Edison Co. of New York, Inc. v. Dep’t of
Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001)). But the majority fails to recognize that
the D.C. Circuit did exactly that in Northern States I—it circumvented the Court of
Federal Claims’s exclusive jurisdiction by crafting its order as a writ of mandamus that
interprets the Standard Contract thereby removing the contractual shield of protection
held by the United States. This is a subterfuge to provide the power companies with a
means to obtain money damages from a now-defenseless United States in a later
breach of contract action. This clearly is tantamount to a money mandate infringing
upon our jurisdiction, the jurisdiction of the Court of Federal Claims, and the sovereign
immunity of the United States.
B.
Moreover, as explained above, contract claims are within the exclusive
jurisdiction of the Court of Federal Claims. See Roberts v. United States, 242 F.3d
1065, 1068 (Fed. Cir. 2001). Therefore, the Tucker Act, which waives sovereign
immunity and confers jurisdiction on the Court of Federal Claims in cases sounding in
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contract, “impliedly forbids relief other than the remedy provided by the Court of Federal
Claims.” Presidential Gardens Assocs. v. United States, 175 F.3d 132, 143 (2d Cir.
1999) (quotation marks omitted).
There is little room for debate that Nebraska Power’s rights are contractual. But
for the existence of the contract, there would be no right at all. Nor can it be contested
that the relief sought in Northern States I was contractual—Nebraska Power requested
a writ of mandamus ordering the United States to perform on its contract. 6 Moreover,
the relief granted by the D.C. Circuit was contractual—a writ of mandamus precluding
the DOE from relying on a contract defense in a future breach-of-contract action. The
action before the D.C. Circuit in this case neither presented an independent statutory
claim, nor would a breach of contract by the DOE be contrary to statute. See N. States
Power Co., 1998 WL 276581, at *2 (D.C. Cir. May 5, 1998) (per curiam) (“While the
statute requires the DOE to include an unconditional obligation in the Standard
Contract, it does not itself require performance. Breach by the DOE does not violate a
statutory duty . . . .”). The D.C. Circuit’s writ is thus properly viewed as contractual
relief, cf. Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed. Cir. 1994) (distinguishing between
“declaratory relief in the performance of a contract” and “judicial interpretation of a
federal regulation”), and is impliedly forbidden by the Tucker Act. For this additional
reason, the D.C. Circuit’s action exceeded the APA’s waiver of sovereign immunity.
C.
Finally, the APA’s waiver of sovereign immunity does not apply if an adequate
remedy is available elsewhere. 5 U.S.C. § 704. The availability of monetary damages
6
The power companies came to court dressed in sheep’s clothing but in
fact obtained a result that would be the envy of any pack of wolves.
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in the Court of Federal Claims is an adequate remedy under Section 704. See Telecare
Corp. v. Leavitt, 409 F.3d 1345, 1349 (Fed. Cir. 2005); Christopher Village, 360 F.3d at
1327 (“[A] litigant's ability to sue the government for money damages in the Court of
Federal Claims is an adequate remedy that precludes an APA waiver of sovereign
immunity in other courts.”) (internal quotation marks omitted). Here, as the D.C. Circuit
recognized, monetary damages are available to the utilities in the Court of Federal
Claims. See Northern Power I, 128 F.3d at 756 (“[T]he Standard Contract between
DOE and the utilities provides a potentially adequate remedy . . . .”). Accordingly, an
adequate remedy is available, and the APA does not waive the United States’ sovereign
immunity in the D.C. Circuit.
--o0o--
Notwithstanding the protective fervor with which the majority persists in
defending the jurisdiction of the D.C. Circuit by interstitially parsing liability and
damages, I believe that the D.C. Circuit exceeded the limits of its jurisdiction under
section 119 of the NWPA when it granted the writ of mandamus ordering a contractual
remedy. It trespasses upon and limits the jurisdiction of our Court and the Court of
Federal Claims. This essentially emasculates our law established by Christopher
Village. Without a basis of jurisdiction under section 119, the D.C. Circuit’s opinion
directly interfered with the government’s sovereign immunity. Unlike its decision in
Indiana Michigan Power, the D.C. Circuit’s writ of mandamus in Northern States I
directly impacts the ability of the government to defend itself against having to pay
money damages (and indirectly, will also result in the payment of damages), is
forbidden by the Tucker Act, and thus falls outside the limits of Section 702’s waiver of
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sovereign immunity. I can appreciate the majority’s attempt to avoid criticism of a sister
court, but the sheer mushy applesauce consistency of the majority opinion in avoiding a
jurisdictional confrontation with the D.C. Circuit should be obvious. 7 On this basis, the
trial court’s ultimate holding to void the mandamus was correct and should be affirmed.
7
See Zuni Public School Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 113
(2007) (Scalia, J., dissenting).
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