Lead Opinion
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.
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,
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 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).
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
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 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-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.
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 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,
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 “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,
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.
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,
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. 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.
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,
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 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.
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,
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 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. Sub-chapter 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 Sub-chapter 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.
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 dis-
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.”
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), U.S.Code Cong. & Admin.News 1982, pp. 3792, 3822 (section 119). That bill also contained a substantive provision corresponding to section 302 of the enacted statute. See id. at 15-16, 58-59, U.S.Code Cong. & Admin.News 1982, at pp. 3822-3824 (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.
Even if the statute is regarded as ambiguous as to whether section 119
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 Sub-chapter I of the NWPA. See Ala. Power Co. v. U.S. Dep’t of Energy,
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
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,
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 sub-paragraph (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.
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.
B
Apart from ruling that section 119 of the NWPA did not authorize court of
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
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 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 De
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,
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,
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,
The Court of Federal Claims relied heavily on this court’s decision in Christopher Village, L.P. v. United States,
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 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,
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
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,
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,
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.”
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.”
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,
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.
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.
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
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 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,
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,
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,
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.
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 impermissi-bly invade the jurisdiction of the Court of Federal Claims to adjudicate the parties’ rights and remedies under the contract between them.
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.
Notes
. 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.
. 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,
. 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
. 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 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).
. See, e.g., Turner v. Sec’y of the U.S. Dep’t of Housing & Urban Dev.,
. 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.
. The government also argues that the D.C. Circuit's mandamus order is barred by sover
Concurrence Opinion
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,
. See Dissent at 1384 ("[T]he D.C. Circuit ordered what is, in effect, compensatory relief. ... The D.C. Circuit exceeded its jurisdiction in [precluding the 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.”).
Dissenting Opinion
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,
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 ease. 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 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
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,
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.”
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 ju-dicata effect by the Court of Federal Claims.
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
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.”
[S]eetion 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 the DOE does not violate a statutory duty. The Court of Federal Claims, not this court, is the proper forum for adjudicating contract disputes.”
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 excuse its delinquency on [certain grounds].”
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,
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.
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,
The majority concedes that the D.C. Circuit interpreted the Unavoidable Delays clause.
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 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.
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.
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 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,
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.
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,
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,
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.”
B.
Moreover, as explained above, contract claims are within the exclusive jurisdiction of the Court of Federal Claims. See Roberts v. United States,
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.
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 in the Court of Federal Claims is an adequate remedy under Section 704. See Telecare Corp. v. Leavitt,
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 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
. 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,
. 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.,
. 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,
. 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.
. Even the concurring opinion agrees that the D.C. Circuit interpreted the Standard Contract by establishing government liability. See Concur. Op. at 1377 ("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 1377. 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.
. The power companies came to court dressed in sheep’s clothing but in fact ob
. See Zuni Public School Dist. No. 89 v. Dep't of Educ.,