Consolidated Edison Co. of New York v. U.S
| Decision Date | 05 December 2000 |
| Citation | 234 F.3d 642 |
| Parties | (Fed. Cir. 2000) CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NEW YORK POWER AUTHORITY, NIAGARA MOHAWK POWER CORPORATION, ROCHESTER GAS AND ELECTRIC CORPORATION, ARIZONA PUBLIC SERVICE CORPORATION, COMMONWEALTH EDISON COMPANY, DUKE ENERGY CORPORATION, ENTERGY GULF STATES, INC., FLORIDA POWER CORPORATION, FLORIDA POWER AND LIGHT COMPANY, GPU NUCLEAR, INC. (on behalf of Jersey Central Power & Light Company, Metropolitan Edison Company, and Pennsylvania Electric Company), INDIANA MICHIGAN POWER COMPANY, NEBRASKA PUBLIC POWER DISTRICT, PECO ENERGY COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, SOUTHERN NUCLEAR OPERATING COMPANY, INC., SYSTEM FUELS, INC., TEXAS UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC & POWER COMPANY, WASHINGTON PUBLIC POWER SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE CORPORATION, and WOLF CREEK NUCLEAR OPERATING CORPORATION (on behalf of Kansas City Power & Light Company, Kansas Electric Power Cooperative, Inc., and Kansas Gas and Electric Company), Plaintiffs-Appellees, v. UNITED STATES, DEPARTMENT OF ENERGY, DEPARTMENT OF ENERGY AS SUCCESSOR TO THE UNITED STATES ATOMIC ENERGY COMMISSION, and ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION, Defendants-Appellants. 99-1464 DECIDED: |
| Court | U.S. Court of Appeals — Federal Circuit |
Daniel R. Murdock, Winston & Strawn, of New York, New York, argued for plaintiffs-appellees.
Mark W. Pennak, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, argued for defendants-appellants. With him on the brief wereDavid W. Ogden, Assistant Attorney General; and Barbara C. Biddle, Attorney.
Melvin C. Garbow, Arnold & Porter, of Washington, DC, for amicus curiae Sacramento Municipal Utility District. With him on the brief was Howard N. Cayne.
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge,* and GAJARSA, Circuit Judge.
Opinion for the court filed by Circuit Judge RADER. Dissenting opinion filed by Circuit Judge GAJARSA.
Consolidated Edison Company of New York and twenty-one other nuclear utilities (collectively, Con Ed) sued the United States, the Department of Energy, and the Energy Research and Development Administration (collectively, the Government) in the United States District Court for the Southern District of New York seeking declaratory judgments and injunctive relief. Consolidated Edison Co. v. United States, 45 F. Supp 2d 331 (S.D.N.Y. 1999). Con Ed's suit challenged the constitutionality of the Energy Policy Act of 1992 (EPACT), 42 U.S.C. § 2297(g) (1994), on due process and takings grounds. The district court denied the Government's motion to transfer the case to the United States Court of Federal Claims, or alternatively to dismiss. Because the district court correctly denied the Government's motion, this court affirms.
Con Ed sued the Government, challenging the constitutionality of EPACT. Before enactment of EPACT, Con Ed contracted with the Government for uranium enrichment services under a series of fixed-price agreements. After enactment of EPACT in 1992, the Government began decontaminating and decommissioning several of its uranium processing facilities. EPACT stipulated that the Government would pay sixty-eight percent of the decontamination and decommissioning costs and that annual assessments on domestic nuclear utilities would supply the remaining thirty-two percent. EPACT made the Department of Energy responsible for computing each utility's share of the assessment in proportion to that utility's use of Government enrichment services in the past. See 42 U.S.C. § 2297g-1(c).
After making initial payments under EPACT, Con Ed, and other nuclear utilities not parties to this suit, sued the Government in the Court of Federal Claims seeking refunds of those payments. The Court of Federal Claims lawsuits asserted many of the same constitutional grounds as this lawsuit. In one such case, this court reversed the Court of Federal Claims' grant of summary judgment in favor of a nuclear utility, concluding that collection of the assessments under EPACT was not unconstitutional as applied. Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 1571 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2365 (1998).
After several subsequent nuclear utility losses in the Court of Federal Claims, Con Ed filed this suit in the district court. Instead of seeking refunds of assessments paid, however, Con Ed sought declaratory judgment that EPACT is unconstitutional on several grounds and an injunction on enforcement of the EPACT assessments. By taking this procedural posture, Con Ed sought a hearing in another forum. To achieve this objective, Con Ed carefully drew its complaint to avoid prayers for relief actionable in the Court of Federal Claims, such as claims against the United States for money damages. See 5 U.S.C. § 702 (1994).
The Government moved the district court to transfer this case to the Court of Federal Claims, where other nuclear utility cases await disposition. The district court denied that motion. The district court noted that the United States Court of Appeals for the Second Circuit and the United States Supreme Court have confirmed that the Administrative Procedure Act (APA) waives the sovereign immunity of the United States for suits that properly invoke equitable relief from agency action. Bowen v. Mass., 487 U.S. 879, 904 (1988); In re Chateaugay Corp., 53 F.3d 478, 493 (2d Cir. 1995). After denying the Government's motion, the district court certified the jurisdictional question for interlocutory review.
The sole question in this case is whether the APA waives sovereign immunity for an action in a district court on the merits of Con Ed's claim because its complaint seeks equitable relief outside the Court of Federal Claims' statutory grant of authority. This court reviews legal questions, such as jurisdiction and authority of the Court of Federal Claims and the district court, without deference. Terran v. Sec'y of Health & Human Servs., 195 F.3d 1302, 1309 (Fed. Cir. 1999).
The Government contends that Con Ed's suit in the district court under the APA amounts to impermissible forum shopping. The APA, according to the Government, does not waive sovereign immunity for this suit in the district court because Con Ed can obtain full legal relief, if successful, in the Court of Federal Claims. Specifically, the Government notes that the Court of Federal Claims has, on occasion, asserted power under the Tucker Act to order a full refund of illegally exacted funds. See 28 U.S.C. § 1491(a)(1) (1994); New York Life Ins. Co. v. United States, 118 F.3d 1553, 1554 (Fed. Cir. 1997). Thus, if Con Ed can show illegal exaction of EPACT assessments, the Government maintains, the Court of Federal Claims may have authority to order a refund. Indeed, the Government explains that such suits are already pending in the Court of Federal Claims.
Predicting and attempting to preempt Con Ed's response, the Government discounts the Court of Federal Claim's lack of power to order injunctive or other prospective relief. If the EPACT assessments in fact violate constitutional guarantees, the Government asserts, injunctive relief would not be necessary. Rather, res judicata would implicitly bar the Government from assessing Con Ed under EPACT in the future in the face of a Court of Federal Claims illegal exaction judgment. Alternatively, the Government makes a "trust me" argument, explaining that it "would not be so unwise as to require" Con Ed to assert res judicata by making future assessments after a loss in the Court of Federal Claims.
This district court case does warrant the Government's "forum shopping" characterization. However, while forum shopping is generally disfavored, see Hanna v. Plumer, 380 U.S. 460, 468 (1965), jurisdictional anomalies may permit forum shopping,see In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1157 (5th Cir. 1987) () ("After all, the purpose of diversity jurisdiction is toallow a certain kind of forum-shopping."). This case presents such an instance, where the federal code tolerates a variety of forum shopping. Although the operative facts of Con Ed's case in the Court of Federal Claims are nearly the same as in its case in the district court, the Supreme Court has explained that a litigant may invoke the APA as a waiver of sovereign immunity for prospective equitable relief because such relief is not within the jurisdiction of the Court of Federal Claims. Bowen, 487 U.S. at 904. Thus, depending on the relief sought - a refund of illegal exactions under the Tucker Act or an injunction under the APA - jurisdiction may lie either in the Court of Federal Claims, seeTransohio Sav. Bank v. Director, OTS, 967 F.2d 598, 606 (D.C. Cir. 1992), or in the district courts, see Bowen, 487 U.S. at 904.
The APA waives sovereign immunity for actions challenging agency actions in district court. Section 702 provides:
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 and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. . . . Nothing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702. In Bowen, the Supreme Court explains that section 702 "eliminat[es] the defense of sovereign...
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