224 F.3d 1361 (Fed. Cir. 2000), 99-5096, Northern States Power Co. v. US

Docket Nº:99-5096
Citation:224 F.3d 1361
Party Name:NORTHERN STATES POWER COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:August 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1361

224 F.3d 1361 (Fed. Cir. 2000)

NORTHERN STATES POWER COMPANY, Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

99-5096

United States Court of Appeals, Federal Circuit

August 31, 2000

Appealed from: United States Court of Federal Claims, Judge John P. Wiese

Alexander D. Tomaszczuk, Shaw Pittman, of McLean, Virginia, argued for plaintiff-appellant. Of counsel on the brief were Jay E. Silberg, and Devon E. Hewitt, Shaw Pittman, of Washington, DC; and

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Michael C. Connelly, Northern States Power Company, of Minneapolis, Minnesota.

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were David W. Ogden, Assistant Attorney General; David M. Cohen, Director; and Doris S. Finnerman, Trial Attorney. Of counsel on the brief were Marc Johnston, L. Dow Davis, IV, and Jane K. Taylor, Attorneys, Office of General Counsel, Department of Energy, of Washington, DC.

Steven L. Schooner, Associate Professor of Government, Contract Law, George Washington University Law School, of Washington, DC for Amici Curiae, Alabama Power Company, et al. Of counsel on the brief was Ralph C. Nash, Jr., Professor Emeritus.

Henry J. Boynton, Assistant Attorney General of Michigan, Public Service Division, Lansing, Michigan, for Amici Curiae State of Michigan, et al. With him on the brief were Jennifer M. Granholm, Attorney General of Michigan; Thomas L. Casey, Solicitor General; and David A. Voges, Assistant Attorney General. Of counsel on the brief were the following:

Lester M. Bridgeman, Special Deputy Attorney General, Miller, Hamilton, Snider, Odom, L.L.C., of Mobile, Alabama, for Alabama Public Service Commission.

Richard Blumenthal, Attorney General; Robert S. Golden, Jr. and Mark F. Kohler, Assistant Attorneys General, of New Britain, Connecticut for the State of Connecticut, et al.

Kevin P. Maloney, Deputy Attorney General, Department of Justice, of Wilmington, Delaware, for the State of Delaware.

Robert E. VanDiver, General Counsel; Richard C. Bellak, Associate General Counsel, of Tallahassee, Florida, for the Florida Public Service Commission.

Thurbert E. Baker, Attorney General; Robert Bomar, Deputy Attorney General; and Harold Melton, Senior Assistant Attorney General; and Daniel S. Walsh, Assistant Attorney General, of Atlanta, Georgia, for the Georgia Public Service Commission.

James E. Ryan, Attorney General; Carol R. Doris, Chief Deputy Attorney General; and Edward Washington, II, Chief, Public Interest Division, of Chicago, Illinois, for the State of Illinois.

Myra L. Karegianes, General Counsel and Special Assistant Attorney General; and John P. Kelliher, Special Assistant Attorney General, of Chicago, Illinois, for the Illinois Commerce Commission.

Jeffrey A. Modisett, Attorney General of Indiana; and Jon Laramore, Deputy Attorney General, Indiana Government Center South, of Indianapolis, Indiana, for the State of Indiana.

Ben Stead, Attorney, of Des Moines, Iowa, for the Iowa Department of Justice, Office of Consumer Advocate. Allan Kniep, Acting General Counsel, of Des Moines, Iowa, for Iowa Utilities Board.

Carla J. Stovall, Attorney General; John W. Campbell, Senior Deputy Attorney General, Kansas Judicial Center, of Topeka, Kansas, for the State of Kansas.

Michael R. Fontham, and Noel J. Darce, Stone, Pigman, Walther, Wittmann & Hutchinson, L.L.P., of New Orleans, Louisiana, for the Louisiana Public Service Commission.

Andrew Ketterer, Attorney General, of Augusta, Maine, for the State of Maine.

J. Joseph Curran, Jr., Attorney General; and M. Brent Hare, Assistant Attorney General, of Annapolis, Maryland, for the State of Maryland.

Susan Stevens Miller, Acting General Counsel, of Baltimore, Maryland, for the Maryland Public Service Commission.

Thomas F. Reilly, Attorney General; and Charles M. Wyzanski, Assistant Attorney General, of Boston, Massachusetts, for the Commonwealth of Massachusetts.

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Mike Hatch, Attorney General; and J. Jeffery Oxley, Assistant Attorney General; of St. Paul, Minnesota, for the Minnesota Department of Public Service and State of Minnesota.

Mike Hatch, Attorney General; and Thomas Eric Bailey, Assistant Attorney General, of St. Paul, Minnesota, for the Minnesota Public Utilities Commission.

Mike Moore, Attorney General; and Frank Spencer, Special Assistant Attorney General, of Jackson, Mississippi, for the State of Mississippi.

George M. Fleming, and Patricia L. Trantham, Public Utilities Staff, of Jackson, Mississippi, for the Mississippi Public Service Commission.

Don Stenberg, Attorney General; and Linda L. Willard, Assistant Attorney General, of Lincoln, Nebraska, for the State of Nebraska.

Philip T. McLaughlin, Attorney General; and Wynn E. Arnold, Assistant Attorney General, Civil Bureau, of Concord, New Hampshire, for the State of New Hampshire.

John J. Farmer, Jr., Attorney General; Caroline Vachier and Elise Goldblat, Deputy Attorneys General, of Newark, New Jersey, for the New Jersey Board of Public Utilities.

Lawrence G. Malone, General Counsel, of Albany, New York, for the New York State Department of Public Service.

Sammy R. Kirby, Deputy General Counsel, of Raleigh, North Carolina, for the North Carolina Public Utilities Commission.

Heidi Heitkamp, Attorney General; and William W. Binek, Special Assistant Attorney General, of Bismarck, North Dakota, for the North Dakota Public Service Commission.

Lawrence C. Barth, Assistant Counsel; and Karen O. Moury, Deputy Chief Counsel, of Harrisburg, Pennsylvania, for the Pennsylvania Public Utility Commission.

Sheldon Whitehouse, Attorney General; and Paul J. Roberti, Assistant Attorney General, Chief, Regulatory Unit, of Providence, Rhode Island, for the State of Rhode Island and Providence Plantations.

F. David Butler, General Counsel, of Columbia, South Carolina, for the South Carolina Public Service Commission.

Rolayne Ailts Wiest, Commission Counsel, of Pierre, South Dakota, for the South Dakota Public Utilities Commission.

William H. Chambliss, Deputy General Counsel; and C. Meade Browder Jr., Attorney, Office of General Counsel, of Richmond, Virginia, for the Virginia State Corporation Commission.

David A. Ludwig, Legal Counsel, of Madison, Wisconsin, for the Wisconsin Public Service Commission.

Gary J. Newell; Spiegel & McDiarmid, of Washington, DC; and Richard B. Geltman, Corporate Counsel, American Public Power Association, of Washington, DC, for the American Public Power Association.

Charles D. Gray, General Counsel; and J. Bradford Ramsay, Assistant General Counsel, National Association of Regulatory Utility Commissioners, of Washington, DC, for the National Association of Regulatory Utility Commission.

Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and NEWMAN, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

This appeal presents the same basic issue as Maine Yankee Atomic Power Company v. United States, Nos. 99-5138, 39, 40, decided simultaneously herewith: Whether an electric utility may maintain a damage suit based on the government's alleged breach of a 1983 contract with it by which the government agreed, beginning no later than January 1, 1998, to dispose of the nuclear waste that the utility had generated, or was required first to file an administrative claim with the contracting officer under the contract's disputes provision. In Maine Yankee, the United States Court

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of Federal Claims denied the government's motion to dismiss the complaint, holding that the utility could maintain the suit, a decision we today affirm.

In the present case another judge of that court held that the utility was required first to proceed administratively under the disputes clause of the contract, and dismissed the complaint on the government's motion. We reverse.

I

The background facts are set forth in our opinion in Maine Yankee, and need not be repeated in detail here.

Because of concerns over the disposal of nuclear waste accumulating at nuclear power plants, Congress in the Nuclear Waste Policy Act of 1982 ("the Act"), 42 U.S.C. §§ 10101-10270 (1994), authorized the Secretary of the Department of Energy ("the Department") to enter into contracts with utilities for the disposal of spent nuclear fuel ("SNF") and high-level radioactive waste. See 42 U.S.C. § 10222(a)(1) (1994). The Act required that all such contracts "shall provide that"...

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