The plaintiffs, Patrick Roedler et al, are ratepaying customers for electric power produced from nuclear fuel by Northern States Power Company. The rates paid by these customers include charges that, according to the complaint, are intended to pay for the storage and disposal of spent nuclear fuel and other nuclear waste, pursuant to federal statute and implementing contracts between the United States Department of Energy (DOE) and Northern States Power. The plaintiffs, proposing class action certification, seek recovery from the United States of all or part of the amounts that they paid in accordance with the statute and contracts, based on the established breach of the contracts by the United States. The United States District
BACKGROUND
The Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq., was enacted “to establish the Federal responsibility, and a definite Federal policy, for the disposal of such waste and spent fuel.” 42 U.S.C. § 10131(b)(2). The Act requires the producers of nuclear-generated power to enter into contractual arrangements with the Department of Energy in accordance with the terms of a Standard Contract, 10 C.F.R. § 961.11, whereby statutory fees are paid by the producers to the Nuclear Waste Fund of the United Stаtes Treasury, and the DOE will dispose of their accumulated and future nuclear waste. By statute, and as implemented by the Standard Contract, the DOE agreed to accept this nuclear waste for disposal within fifteen years, that is, by January 31, 1998.
In 1994 the DOE announced that it would not meet the statutory and contractual deadline of January 31, 1998. Notice of Inquiry, 59 Fed.Reg. 27,7007 (1994). This announcement, which has been followed by further delay, led to litigation wherein various power companies sought relief based on the government’s non-performance of its contractual obligations. In Indiana Michigan Power Co. v. Department of Energy,
The plaintiffs herein seek to recover from the United States the fees that Northеrn States Power paid into the Nuclear Waste Fund in accordance with the statute and the contracts between DOE and Northern States Power. The plaintiffs contend that these fee payments should be restored directly to them, lest any recovery by Northern States Power be diverted to benefit the utility’s shareholders instead of the ratepayers. The plaintiffs state that with the adjudication by the D.C. Circuit that DOE breached the contracts “the only issue that remains with respect to this breach is who (Northern States Power’s shareholders or its customers) is entitled to recover the customers’ money.”
The fee was set at the rate of 1.0 mil per kilowatt-hour of nuclear-generated power produced starting in 1983, plus a fee for accumulated pre-1983 waste. Northern States Power has paid and apparently continues to pay the fee, as a condition of the continuing operation of its nuсlear-fueled electricity generating facilities. The plaintiffs also seek relief from this continuing charge, in view of the government’s breach of contract.
The district court held that the plaintiffs do not have an implied-in-fact contract-based claim against the United States, and that they are not third party beneficiaries of the contracts between the Department
JURISDICTION
The government and Northern States Power challenge the jurisdiction of both the district court and this court. We conclude that both courts have the requisite jurisdiction.
The plaintiffs’ suit was brought in the district court on grounds that included сlaims under 28 U.S.C. § 1346(a)(2), the “Little Tucker Act,” which assigns concurrent jurisdiction to the district courts and the Court of Federal Claims for Tucker Act claims that do not exceed $10,000. The plaintiffs represented to the district court that their individual recoveries would be limited to the jurisdictional amount, and on this basis the case proceeded. The district court did not reach how the $10,000 cap would be calculated should the plaintiffs prevail, although this aspect was not frеe of dispute.
We discern no flaw in this procedure, which accords with precedent. A district court may permit multi-plaintiff Little Tucker Act cases to proceed when each plaintiff waives recovery in excess of $10,000, even when potential liability exceeds $10,000. Saraco v. United States,
The appeal of cases based in whole or in part on the Little Tucker Act, together with any related claims, is assigned exclusively to the Federal Circuit; bifurcation of the appeal, whether based on issues or applicable law, is improper. See United States v. Hohri,
THE CONTRACT-DERIVED CLAIMS
The plаintiffs argue that they are third party beneficiaries of the contracts between DOE and Northern States Power, and that the district court erred in its contrary ruling.
Third party beneficiaries of a contract to which the United States is a party may assert a claim against the United States, in accordance with the law governing third party claims. Applying the federal common law that governs the contracts of the United States, see United States v. County of Allegheny,
To establish a right of action by a third person who is not a party to or identified in the contract as a beneficiary of its performance, the contract must show the intention of the contracting parties to provide a benefit to that person. See German Alliance Insurance Co. v. Home Water Supply Co.,
When the intent to benefit the third party is not expressly stated in the contract, evidence thereof may be adduced. For determination of contractual and beneficial intent when, as here, the contract implements a statutory enactment, it is appropriate to inquire into the governing statute and its purpose. See, e.g., Rendleman v. Bowen,
The district court observed that neither the Standard Contract nor the Nuclear Waste Policy Act mentions the customer/users of nuclear-generated power as intended direct beneficiaries of thеse nuclear waste disposal arrangements. The Act describes its purpose as to “provide a reasonable assurance that the public and the environment will be adequately protected” from the hazards of nuclear waste. 42 U.S.C. § 10131(b)(1). The preamble of the Standard Contract repeats that the purpose is to protect public health and safety and the environment. 10 C.F.R. § 961.11. The district court, reviewing these statements of policy, found that they manifest no intent, either express or implied, to benefit the customer/users of nu-elear-generated power other than as members of the general public. The district court reasoned that since the public at large has no right of action under this contract and no entitlement to compensation for its breach by the United States, neither do these plaintiffs.
The plaintiffs do not dispute that there is an important public benefit to nuclear waste disposal. However, the plaintiffs assert that they are not acting as members of the general public. They state that they directly benefit from disposal of the waste produced from the nuclear power generated by Northern States Power, and that their direct interest arises because they, as consumers of this nuclear-generated power, paid the charges assessed against Northern States Power under the DOE contract. They state that this places them in the position of direct and intended beneficiaries of the contract between Northern States Power and the government. The plaintiffs distinguish this action from a suit by members of the public against a private party who contracted with the government to provide services to
The plaintiffs point to the legislative history of the Nuclear Waste Policy Act as showing the understanding of the government and the power companies that the waste disposal fees would be borne by thе customer/users of the power. The legislative record supports the position that Congress intended that the nuclear waste disposal costs would be borne by the “beneficiaries” of nuclear power. See, e.g., 128 Cong. Rec. 32,556 (1982) (statement of Senator McClure, floor manager, that “this bill for the" first time would provide, a direct financial linkage between the beneficiaries of nuclear power and the cost for interim management and ultimate disposаl for nuclear wastes”). However, the district court did not accept the plaintiffs’ position that these relationships converted the nuclear power users into third party beneficiaries of the contracts between DOE and Northern States Power. The district court distinguished between the contractual obligation of. the utility company to pay the United States for the disposal of its nuclear-generated waste, and the utility’s charges to its customеrs as users of the power. The court held that the charges to the users did not convert the users into third party beneficiaries, with rights of remedy upon breach by the government.
We agree that the plaintiffs’ status as customers and users of the nuclear-generated power does not give them third party beneficiary rights under the utility’s contract with the government. The statute places responsibility for payment of the waste disposal fees on “the generatоrs and owners of such waste and spent fuel, that will ensure that the costs of [disposal] will be borne by the persons responsible for generating such waste and spent fuel.” 42 U.S.C. § 10131(b)(4). The Standard Contract recites that the “costs associated with the ... disposal of SNF [spent nuclear fuel] will be borne by the owners and generators under contract with DOE for disposal services.” 10 C.F.R. § 961.11. These provisions do not evidence a contractual intent to confer a direct bеnefit upon the consumers of the power. Although the plaintiffs argue that they directly benefit from continued receipt of riuclear-fueled electric power, whose generation is conditioned on payment of the disposal fees by Northern States Power, that benefit did not cease with the government’s breách. We agree with the district court that the plaintiffs have not established a direct and intended benefit sufficient to create a third pаrty right of action against the government.
The plaintiffs also raised before the district court an implied-in-fact contract theory of recovery. An implied-in-fact contract requires a mutual intent to contract including an offer, acceptance, and consideration. See Sommers Oil Co. v. United States,
We affirm that these plaintiffs do not have a Tucker Act claim against the United States.
THE TAKINGS CLAIM
Alternatively, the plaintiffs press the theory that the United States took their property for public use without just compensation, in contravention of the Takings Clause of the Fifth Amendment of the Constitution. The plaintiffs argue that the government’s “collection of fees from plaintiffs for a storage facility that was not constructed” constitutes a taking of their property (that is, their money), in that the failure of performance by the government is a failure of just compensation. The plaintiffs refer to the legislative purpose of the Nuclear Waste Policy Act to assess the cost of nuclear waste disposal upon the users of the nuclear-generated power, and state that “Congress created property rights in Plaintiffs by contracting with NSP [Northern States Power] to use Plaintiffs’ money to fund the NWF [Nuclear Waste Fund].”
The district court dismissed this claim, ruling that the plaintiffs did not possess a compensable property interest in the payments to the Nuclear Waste Fund for disposal of the utility’s nuclear waste and spent fuel. The court concluded that the charge by the utility to the customer/user of the nuclear-generated power, even if the charge served to fund the utility’s payment obligation to the United States, was not a taking of property from the customer/user by the United States. For the purpose of reviewing the dismissal under Fed. R.Civ.P. 12(b)(6) wе accept-the plaintiffs’ premise that their utility charges included the amount of the disposal fee, for the Minnesota Public Utilities Commission authorized the charge. See Leatherman v. Tarrant County,
To support a takings claim under the Fifth Amendment, there must be a legally cognizable property interest. Skip Kirchdorfer, Inc. v. United States,
It is artificial to view deductions of a percentage of a monetary award as*1355 physical appropriations of property. Unlike real or personal property, money is fungible.... If the deduction in this case were a physical occupation requiring just compensation, so would be any fee for services, including a filing fee that must be paid in advance. Such a rule would be an extravagant extension of Loretto.
Id. at 62,
The parties debate the nature of the plaintiffs’ property interest. The government argues that the plaintiffs did not have an “ownership interest” in the money paid into the Nuclear Waste Fund, citing Cavin v. United States,
The district court held that the facts and relationships of this ease do not establish a taking of property from these plaintiffs by the United States. The governmental exaction, insofar as these plaintiffs are affected by it, is the assessment (by pass-through from the utility) of the fees to pay for disposal by the United States of the utility’s nuclear waste. It is neither a physical invasion of plaintiffs’ real or personal property nor an appropriation of the plaintiffs’ assets for a use unrelated to the levy. See Sperry,
Plaintiffs do not contest the reasonableness of the assessment; they argue only that it is the government’s failure of performance that produced a failure of just compensation. However, constitutional principles are not violated by requiring those benefitting from nuclear-generated power to pay for the disposal of its waste; and it must be recognized that the waste must ultimately be disposed of. The rate of one mil per kilowatt-hour, paid by the consumers for power they actually consumed, is a reasonable economic burden. See Dolan v. City of Tigard,
In addition, the plaintiffs’ assertion that injury is derived from the government’s failure to meet the statutory and contractual deadline does not satisfy the particularized “injury in fact” required to assert a constitutional violation. On somewhat similar faсts, the court in Ben Oehrleins v. Hennepin County,
The plaintiffs also argue that since the promised nuclear waste disposal was not provided, the assessment of the fee was a confiscation in terms of Branch v. United States,
The plaintiffs also argue that their contract rights were “taken” without just compensation. It is correct that “Mon-tract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.” United States Trust Co. v. New Jersey,
The plaintiffs also argue that the collection from them of the statutory/contractual disposal fee by Northern States Power is tantamount to a government imposed payment from one private entity to another without just compensation, also asserted to be barred by the Fifth Amendment. In Eastern Enterprises v. Apfel,
On review of the district cоurt’s ruling in light of all of the arguments offered,
Conclusion
The plaintiffs do not have legally cognizable grounds for recovering from the United States the fees that Northern States Power paid into the Nuclear Waste Fund. The dismissal for failure to state a claim on which relief can be granted is affirmed.
AFFIRMED.
Notes
. Roedler v. Dep't of Energy, No. 98-1843 (D.Minn. Dec.23, 1999).
. In view of our decision, we do not reaсh the question of whether the plaintiffs' action is an impermissible challenge to the electric rates approved by the Minnesota Public Utilities Commission in violation of the filed rate doctrine, an issue presented by Northern States Power on this appeal. Nor is it before us to decide whether these plaintiffs have any rights with respect to any recovery from the United States by Northern States Power deriving from the government's breach of contract.