48 Fed. Cl. 68 | Fed. Cl. | 2000
OPINION
This matter, before this court on the defendant’s motion to dismiss, involves a power sales contract between Bonneville Power Administration (Bonneville or BPA) and Vanal-co, Inc. (Vanalco). In this litigation, plaintiff Vanalco alleges BPA’s failure to offer it the same amendments as it did to other utilities constitutes a breach of contract and breach of the implied covenant of good faith and fan-dealing. On August 8, 2000, Vanalco moved for expedited proceedings to resolve the issue of subject matter jurisdiction. The court agreed to implement an expedited schedule. On September 6, 2000, the Government filed its 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Vanalco filed its reply on September 15, 2000. Oral argument was held on September 21, 2000. The Government’s motion to dismiss the complaint is granted.
BACKGROUND
The plaintiff, Vanalco, Inc., is an aluminum manufacturer with its plant located in Vancouver, Washington. Vanalco purchased this aluminum-smelting facility in 1987 from Alcoa, Inc. (Alcoa). In conducting its operations, Vanalco utilizes approximately 230 megawatts of power per year.
The Bonneville Power Administration is a federal agency within the Department of Energy created by Congress in 1937 to market low-cost hydroelectric power in the Pacific Northwest. This agency markets hydroelectric power generated by thirty federal facilities, and several non-federal facilities. Bonneville manages approximately eighty percent of the high-voltage transmissions systems in the area and markets approximately forty percent of the hydroelectric power consumed in the Pacific Northwest. Those entities to which Bonneville markets its power include public and private utilities, federal agencies, and direct service industrial (DSI) customers. DSI customers, of which Vanalco is one, are “ ‘[large] industrial companies engaging in power intensive operations who purchase power directly from [Bonneville] for their own use.’ ” Motion to Dismiss at 2 (quoting Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158, 1164 (9th Cir.1997)).
Since its inception, BPA has dominated the power supply market in the Pacific Northwest because of the combination of its ability to generate power at a low-cost and its ownership of the majority of the region’s high-voltage transmission facilities. APAC, 126 F.3d at 1165. In the seventies, however, there were threats that by the end of the decade, BPA would not have sufficient resources to meet the ever-increasing demand for its power. This situation prompted Congress to enact the Pacific Northwest Elec-
Accordingly, in 1981, Bonneville entered into twenty year power sales contracts with the DSIs. One of these DSIs, Alcoa, Inc., is Vanalco’s predecessor in interest. Vanaleo assumed the BPA contract when it purchased the aluminum smelting plant from Alcoa. Vanaleo and BPA memorialized this assumption in a 1987 agreement. This agreement expires June 30, 2001. Under the terms of the 1981 contracts, each DSI could, upon written notice, terminate its contract prior to the contract’s September 30, 2001 termination date.
Historically, Bonneville’s rates for the sale of hydroelectric power were lower than the rates charged by other power suppliers. But as a result of the passage of the Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776 (1992) (codified at 16 U.S.C. §§ 824-824m (2000)) and the ensuing increase in competition, that situation began to change. In this Act, Congress authorized the Federal Energy Regulatory Commission to order transmission line owners like Bonneville to permit utilities and independent power producers to access their transmission facilities for wholesale transactions. Simultaneously, with these increasingly low market prices for power, BPA’s wholesale power rates began to rise. Contributing to this increase was an escalation in Bonneville’s non-owner costs, such as fish and wildlife mitigation. Between 1991 and 1995, Bonneville’s annual investment for fish and wildlife mitigation rose from $150 million to $400 million.
These forces of deregulation and competition began to threaten Bonneville’s stable consumer base, particularly in light of the fact that DSI customers such as Vanaleo had “relatively liberal” termination provisions in their BPA contracts. Competition for the DSI customers’ business was growing increasingly intense, and many of the DSI customers, including Vanaleo, were poised to purchase power elsewhere at a lower cost. On September 29, 1995, Vanaleo formally notified Bonneville of its intention to exercise its contractual right to terminate its 1981 power sales contract with Bonneville, effective March 31, 1996. On March 13, 1996, Vanaleo formally amended the terms of its proposed termination. The effect of this amendment was that BPA would provide Va-naleo with only ten megawatts of power— less than five percent of Vanaleo’s original load.
Since 1996, consistent with the above-referenced amendment to the termination letter, Vanaleo has purchased only ten megawatts of power per year from Bonneville under its 1981 power sales contract at Bonneville’s 1996 industrial firm power rate. Vanaleo has obtained the balance of its power needs from: (1) other suppliers at market rates; or (2) Bonneville’s 1996 surplus
At approximately the same time Vanaleo elected to purchase only ten megawatts of power per year from Bonneville, other DSIs elected to procure much greater amounts of power and entered Block Sale Contracts with BPA (1996 Block Sale Contracts). These contracts, Vanaleo contends, amended the terms and conditions of the 1981 long-term contracts. According to plaintiff, the Record of Decision for the Block Sale Contract clearly states that a DSI’s decision to enter into a Block Sale Contract will not alter its right to receive power in the period commencing on September 30, 2001.
On March 11, 1997, BPA commenced the process of ascertaining the quantities and
Vanalco alleges that BPA’s actions in this regard constitute breaches of the Most Favored Nation Provision of the 1981 contract and the 1987 agreements between Vanalco and BPA. This provision provides:
If Bonneville offers to enter into a written amendment of any other Industrial Purchaser’s power sales contract, other than informal arrangements between the parties referred to in subsection (b) above, Bonneville shall offer to the Purchaser [Vanalco] a corresponding amendment of this contract, to the extent such a corresponding amendment would be applicable to the Purchaser under this contract. Bonneville shall advise and use reasonable efforts to consult with the Purchaser during the development or consideration of any offer to enter into such amendments.
Complaint at U 7 (quoting Ex. 1, 1981 PSC, § 13(c); Ex. 2, 1987 amendment, § 13(c)).
Vanalco states that on July 18, 1999, BPA offered a written settlement to the DSIs that supported using the 1996 Block Sale Contracts as the basis for allocating power in the post-September 30, 2001 period. This proposal was reduced to writing and executed by BPA and the signatory DSIs on or around July 18, 1999. Vanalco alleges these actions constitute a breach of its 1981 contract.
BPA’s long-term contract with Vanalco will expire on or before September 30, 2001. This being so, BPA has opened a “Subscription Window” (Window) for entering into new contracts for the period commencing after September 30, 2001. This Window opened on April 27, 2000 and is scheduled to close on October 31, 2000. On July 19, 2000, Vanalco wrote to BPA and requested that BPA offer Vanalco a Block Sale Contract under which it would receive an amount of power proportionate to that of the DSIs who signed the 1996 Block Sale Contracts. On August 3, 2000, BPA denied this request via letter.
Vanalco filed its Complaint on August 2, 2000, wherein it seeks: (1) judgment against defendant “for breach of contract and breach of the implied covenant of good faith and fair dealing, and for such direct, consequential, and other damages caused by BPA’s conduct as may be proven at trial;” (2) judgment against defendant BPA for damages “directly and proximately caused by Defendant BPA’s tortious breach of the implied covenant of good faith and fair dealing;” and (3) “such other relief as is warranted in law or equity.” Complaint at 13-14.
On August 8, 2000, Vanalco moved for expedited proceedings to resolve, inter alia, the issue of subject matter jurisdiction. On August 11, 2000, the court held a telephone conference in which counsel for the respective parties and the undersigned discussed the foregoing motion. The court agreed to implement an expedited schedule. On September 6, 2000, the Government filed its 12(b)(1) motion to dismiss the complaint for lack of subject matter jurisdiction. Vanalco filed its reply on September 15, 2000. Oral argument was held on September 21, 2000.
DISCUSSION
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction — RCFC 12(b)(1)
A. Standard of Review
The Government argues that this court should dismiss plaintiffs complaint because,
The party asserting jurisdiction “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence ... [and] must be given an opportunity to be heard before dismissal is ordered.” Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). See also Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir. 1993). In ruling on a motion to dismiss for lack of subject matter jurisdiction, this court must construe the allegations of the complaint favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). See also Hamlet v. United States, 873 F.2d 1414, 1416 (Fed. Cir.1989). A decision to dismiss an action for a lack of jurisdiction does not carry res judicata effect, and therefore does not present a bar to a subsequent action on the merits in a court of competent jurisdiction. Do-Well Mach. Shop, Inc. v. United States, 870 F.2d 637, 639 (Fed.Cir.1989); Maniere v. United States, 31 Fed.Cl. 410, 419 (1994). Moreover, if the truth of the alleged jurisdictional facts is challenged in a motion to dismiss, the court may consider relevant evidence to resolve the factual dispute. Reynolds, 846 F.2d at 747; Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991).
B. Injunctive relief
The Tucker Act is the primary statute setting forth this court’s jurisdiction, and it serves as both a grant of jurisdiction and a waiver of sovereign immunity. See United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). This Act provides:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1).
It is well established that “[c]ourts created by statute can have no jurisdiction but such as the statute confers.” Sheldon v. Sill, 49 U.S. 441, 449, 8 How. 441, 12 L.Ed. 1147 (1850). A court “may not in any ease, even in the interest of justice, extend its jurisdiction where none exists....” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2179, 100 L.Ed.2d 811 (1988). An examination of this court’s statutory authority reveals that it lacks jurisdiction to entertain the present suit.
The defendant argues in support of its motion to dismiss that this court lacks jurisdiction to entertain Vanalco’s claims for specific performance and anticipatory relief. Vanalco concedes that the Government has correctly presented the applicable law concerning this court’s general lack of jurisdiction over claims for specific performance and anticipatory damages. The crux of Vanalco’s response to the Government’s argument is that it does not request an order from this court requiring BPA to enter into a contract with Vanalco and that it seeks a judgment against the defendant for such damages as by be proven at trial.
Although plaintiff does not expressly employ terms such as “declaratory judgment” or “specific performance,” it appears that these remedies are central to the relief it seeks from this court. This conclusion is buttressed by the fact that plaintiffs complaint is styled “Vanalco’s Complaint and Request for Injunctive Relief.” Also telling is the fact that Vanalco based its request for expedited review on its belief that “[i]f this motion is not granted it is likely that the federal power subscription window will close before this court can examine the merits of the contract claims.” Memorandum in Support of Vanalco’s Motion to Establish Jurisdiction at 1. Assuming, arguendo, that this
As the defendant correctly points out, this court does not have general equitable jurisdiction over contracts. Logan Canyon Cattle Assoc. v. United States, 34 Fed.Cl. 165, 168 (1995) (quoting Nicholson v. United States, 29 Fed.Cl. 180, 185 (1993)). See also United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Rig Masters, Inc. v. United States, 42 Fed.Cl. 369, 372 (1998) (stating “[i]t is well established that this court does not have jurisdiction over claims for specific performance”); Hoch v. United States, 31 Fed.Cl. 111, 114 (1994) (stating “the Court of Federal Claims was created under Article I of the Constitution and has no equitable powers”); Blackwell v. United States, 23 Cl.Ct. 746, 750 (1991) (stating this court does not have jurisdiction over claims for specific performance); Massachusetts Bay Transp. Auth. v. United States, 21 Cl.Ct. 252, 262, 1990 WL 107736 (1990) (stating this court generally lacks authority to grant requests for declaratory judgments); Edwards v. United States, 19 Cl.Ct. 663, 668 n. 5 (1990) (stating this court has no jurisdiction over equitable matters). Accordingly, this court does not have general equitable jurisdiction to entertain plaintiffs claims insofar as they may seek such relief.
There are certain limited situations, however, in which this court is authorized to grant equitable relief. See 28 U.S.C. §§ 1491(a)(l)-(a)(3). First, this court may grant equitable relief in bid protest cases. See 28 U.S.C. § 1491(a)(3); Landers v. United States, 39 Fed.Cl. 297, 301 (1997). This case is obviously not a bid protest, and plaintiff has not presented it as such. This court may also grant equitable relief when such relief is merely incidental to plaintiffs claim for money damages. 28 U.S.C. § 1491(a)(2); Landers, 39 Fed.Cl. at 301. In this case, however, any equitable relief sought cannot be incidental to plaintiffs claim for money damages because, as discussed infra, plaintiff has not stated a claim for money damages. Moreover, pursuant to the Federal Courts Administration Act this court has jurisdiction over certain non-monetary disputes with a contractor arising under Section 10(a)(1) of the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-13 (1994), including “a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other non-monetary disputes on which a decision of the contracting officer has been issued.” See 28 U.S.C. § 1491(a)(2). See also Emery Worldwide Airlines, Inc. v. United States, 47 Fed.Cl. 461, 467-68 (2000) (stating that plaintiffs requests for declaratory relief were “non-monetary” disputes envisioned by the Federal Courts Administration Act of 1992); Wright and Miller, FEDERAL PRACTICE AND PROCEDURE, § 4101 (Supp.2000).
For purposes of this analysis, the court will assume without deciding that the CDA applies to the sale of electric power and, particularly, the 1981 contract of which plaintiff claims a breach. The CDA sets forth a detailed process that the contractor must comport with prior to instituting suit in this court. 41 U.S.C. §§ 605(a)-(c). See also City of Burbank v. U.S., 47 Fed.Cl. 261, 269-70 (2000). As the court in Witherington Construction Corp. v. United States, 45 Fed. Cl. 208, 211 (1999), stated: “[T]o gain a jurisdictional foothold in this [Cjourt, a plaintiff pursuing a contract claim must satisfy two fundamental jurisdictional requirements — it must submit a claim for money presently due and must obtain a ‘final decision’ on that claim, either actual or deemed.” In this case, as the Government correctly points out, Vanalco failed to submit a certified claim to the contracting officer (CO) and await a final decision prior to instituting the present action and, accordingly, any claims for equitable relief cannot fall within the exception to the general bar on this court’s equitable jurisdiction carved out by the Federal Courts Administration Act of 1992.
Although the CDA does not delineate the requirements of a claim, its implementing regulations in the FAR do. They provide:
*75 Claim, as used in this subpart, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for relief sought by the claimant. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act and 33.207. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer as provided in 33.206(a), if it is disputed either as to liability or amount or is not acted upon in a reasonable time.
48 C.F.R. § 33.201 (2000).
The Federal Circuit has examined this regulatory language and has set forth the elements that must be present to constitute a “claim” for jurisdictional purposes. See Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed.Cir.1995) (en banc). First, because the FAR excepts from the definition of a “claim” those “ ‘routine requests] for payment’ that are not in dispute when submitted to the [Contracting Officer],” the request must be non-routine. Id. at 1575-76. Moreover, this non-routine claim for money must be: “(1) a written demand, (2) seeking, as a matter of right, (3) the payment of money in a sum certain.” Id. at 1575. Further, it must either explicitly or implicitly request the CO to render a final decision. 41 U.S.C. § 605(a); 48 C.F.R. § 33.206. See also James. M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed.Cir.1996).
At issue in the case at bar is whether the letter plaintiff submitted to BPA on July 19, 2000 demanding “that BPA immediately offer it ... a Block Sale Contract [for] its full 238 MW load” constitutes a claim for purposes of the CDA. See Motion to Dismiss, Appendix at 14. An application of this test to the facts at bar reveals that plaintiffs July 19, 2000 letter to BPA does not satisfy the elements of a claim. As discussed above, a claim must be a non-routine request for payment. A request for payment is non-routine when it is a “ ‘demand for compensation for unforeseen or unintended circumstances.’” Scan-Tech Sec., L.P. v. United States, 46 Fed.Cl. 326, 331 (2000) (quoting Reflectone, 60 F.3d at 1577). A request for payment is routine if it “ ‘is made under the contract, not outside of it.’ ” Id. Vanalco’s request was non-routine, as it constitutes a claim for breach of contract. See Reflectone, 60 F.3d at 1577 (citing the Supreme Court’s decision in Crown Coat Front Co. v. United States, 386 U.S. 503, 511, 87 S.Ct. 1177, 1181, 18 L.Ed.2d 256 (1967) for the proposition that the “Supreme Court has confirmed the non-routine nature of a [request for equitable adjustment] by equating it with assertion of a breach of contract”); Kentucky Bridge & Dam, Inc. v. United States, 42 Fed.Cl. 501, 519 (1998). Vanalco’s letter, however, plainly is not a claim for the payment of money in a sum certain. Rather, the demand was for BPA to enter a Block Sale Contract containing Vanalco’s desired allocation of power.
Moreover, Vanalco’s July 19, 2000 letter does not satisfy the jurisdictional requirements of a claim under the CDA for the additional reason that it was not certified in accordance with 41 U.S.C. § 605(c)(1), which mandates a claim in excess of $100,000 be certified. The following language must be included in the certification:
[T]he claim is made in good faith, that the supporting data are accurate and complete to the best of [the contractor’s] knowledge and belief, and the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor.
41 U.S.C. § 605(c); 48 C.F.R. § 33.207(c). A contractor submitting its claim to the CO must “meet the requirements for certification simultaneously in one document, and not in a piecemeal fashion.” City of Burbank, 47 Fed.Cl. 261, 271 (2000) (citing D.L. Braugh-
If an action is to be maintained pursuant to the CDA, one of two additional requirements must be satisfied prior to instituting suit in this court. Either: (1) the contracting officer must have rendered its final decision on the claim, 41 U.S.C. § 605(b); Alaska Pulp Corp. v. United States, 38 Fed.Cl. 141 (1997) (citing Sharman, 2 F.3d at 1573; Case, Inc. v. United States, 88 F.3d 1004, 1008); or (2) the claim is “deemed denied” because the Contracting Officer did not respond to the claim within sixty days or notify the contractor of the time within which a decision would be issued. 41 U.S.C. § 605(c)(5); Case, Inc., 88 F.3d at 1008-09 (1996) (citing Do-Well Mach. Shop, Inc. v. U.S., 870 F.2d 637, 640 (Fed.Cir. 1989)). In this case, however, there can be no final decision or “deemed denial” because there has been no claim submitted. And, even assuming that Vanalco’s July 19, 2000 letter constitutes a claim, Bonneville’s August 3, 2000 response to that letter does not constitute a final decision because it postdates Vanalco’s complaint by one day. See Ervin & Assocs., Inc. v. United States, 44 Fed.Cl. at 656-57.
For the foregoing reasons and assuming without deciding that the CDA applies to the present case, Vanalco has not complied with the jurisdictional requirements of the CDA. Accordingly, this matter cannot fall within the exception to the general bar on this court’s equitable jurisdiction carved out by the Federal Courts Administration Act of 1992.
C. Vanalco’s August 2, 2000 Complaint
Plaintiffs dispute falls outside the purview of this court’s jurisdiction for the additional reason that the “jurisdiction of [this court] to entertain an action is dependent upon a claim for money presently due.” Com. of Kentucky ex rel. Cabinet for Human Res. v. United States, 16 Cl.Ct. 755, 760, 1989 WL 51160 (1989). See also 28 U.S.C. § 1491(a)(1); United States v. King, 395 U.S. at 2-3, 89 S.Ct. at 1502; Eagle-Picher Indus. v. United States, 901 F.2d 1530, 1532 (10th Cir.1990) (stating “the test for determining if a case belongs in the [Court of Federal Claims] is whether or not the prime objective or essential purpose of the complaining party is to obtain money from the [F]ederal [Government”) (internal quotations omitted); Logan, 34 Fed.Cl. at 168 (stating “the court nevertheless lacks subject matter jurisdiction over this suit because the claim is anticipatory”); L. Addison & Associates, Inc. v. United States, 27 Fed.Cl. 181, 182 (1992).
Plaintiff has failed to demonstrate that it can overcome this jurisdictional hurdle. It is irrelevant that plaintiff may indeed be able to point to particular money damages at the time of trial, because it is axiomatic that “ ‘jurisdiction must be determined under the actual circumstances existing at the time a complaint is filed.’ ” Sharman Co., Inc. v. United States, 2 F.3d 1564, 1569 (Fed.Cir.1993), overruled on other grounds by, Reflectone Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (quoting Sharman Co. v. United States, 24 Cl.Ct. 763, 769, 1991 WL 279402 (1991)). While the complaint may be amended to cure defective allegations of jurisdiction, post-filing events cannot create jurisdiction that did not exist at the outset of the litigation. See Newman-Green v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 2222, 104 L.Ed.2d 893, reh’g denied, 492 U.S. 932, 110 S.Ct. 12, 106 L.Ed.2d 627 (1989); Ervin and Associates, Inc. v. United States, 44 Fed.Cl. 646, 656-57 (1999).
D. Vanalco’s post-Complaint attempts to establish a claim for money damages presently due
1. Amendment to the Complaint
In its reply brief, plaintiff requests that if this court were to hold, as it did above, that Vanalco’s claims fall outside the purview of this court’s jurisdiction because they are not for money damages presently due, the court grant Vanalco permission to amend its complaint.
At oral argument, plaintiff attempted to shift this court’s focus from the allegations in its complaint to a newly formulated argument in an attempt to establish a claim for money presently due. When asked by the court at oral argument whether Vanalco had present money damages, plaintiffs counsel stated:
Your Honor, and whether you believe it or not, this is what’s in our ... complaint ... We have in our contract, our 1981 power sales contract, as well as our 1987 power sales contract, [the Most Favored Nation Clause] that says we don’t get to be treated worse than any other industrial purchaser. And when in 1998 Bonneville announced that it was going to base the allocations in the post-2001 period, it was entitled at that point to make the same offer to us ... In other words, to give us an amended block sales contract. If Bonneville had done that, the divergence between what we were paying for power in the last two years, as opposed to what we would have gotten from Bonneville had we entered into this amended block sales contract, that difference would have been $35 million. That’s as of, I believe last week or two weeks ago ... [I]n 1998, they amended the block sale contract, according to our theory, by saying now it contains a post-2001 right At that point, if they had offered us that same amendment, as they were obliged to do, along with the amended block sale contract, we would have been entitled to buy power at that rod. And the difference between that rod and the rod that we bought on the market between now and then, would have been over $35 million.
Transcript of Oral Argument at 33-34, Vanalco, Inc. v. United States, (Fed.Cl. filed August 2, 2000).
This novel theory alleging money damages presently due was first articulated at oral argument, and is at no point set forth in plaintiffs complaint, despite plaintiffs protests to the contrary. The court reaches this conclusion after examining plaintiffs complaint in detail. The overarching thrust of plaintiffs complaint is that Vanalco seeks an amendment to the 1996 Block Sale Contract whereby it would be entitled to purchase power from BPA in the post-September 30, 2001 period. Although plaintiff does allege that BPA “owes Vanalco for any consequential damages it has suffered that were reasonably within BPA’s contemplation at the time it offered to sell power to the DSIs in the post-September 30, 2001 period based on the amounts taken by each DSI that signed a Block Sales Contract,” such generalized allegations are insufficient to encompass an entirely novel theory of the case. See Complaint 1t 29.
For these reasons, along with those set forth in parts B and C swpra, plaintiff has not sufficiently pled damages presently due in its complaint. Because the court finds that plaintiffs attempt to establish money
Pursuant to Rule 15(a) of this court, a party may amend its pleading:
[Ojnee as a matter of course at any time before a response is served or, if the response is one to which no further pleading is permitted and the action has not been scheduled for trial, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party’s own pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
RCFC 15(a).
This court has previously held that a motion to dismiss constitutes a “response” for purposes of RCFC 15(a). See Devon Energy Corp. v. United States, 45 Fed.Cl. 519, 526 (1999). See also Hopi Tribe v. United States, 20 Cl.Ct. 782, 784 n. 2, 1990 WL 103150 (1990). Although the Federal Circuit has not addressed this issue, it has stated that RCFC 15(a) “is not materially different from Fed.R.Civ.P. 15(a).” Te-Moak Bands of Western Shoshone Indians of Nev. v. United States, 948 F.2d 1258, 1260 n. 4 (Fed. Cir.1991).
Accordingly, it is ordered that Vanalco’s complaint be amended to include the above-referenced argument set forth by plaintiffs counsel at oral argument. This amendment, however, fails to cure plaintiffs Amended Complaint of its failure to state a claim for money damages presently due.
2. Standard of Review
As discussed supra, when evaluating a motion to dismiss this court must construe the allegations of the complaint favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Air Prod. and Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n. 4 (Fed.Cir.1985); cert. dismissed, 473 U.S. 929, 106 S.Ct. 22, 87 L.Ed.2d 700 (1985). Moreover, it is axiomatic that a decision concerning failure to establish subject matter jurisdiction is not a decision on the merits whereas a decision on failure to state a claim is considered as such. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).
Generally, the question of whether the complaint states a cause of action must be decided after and not prior to the establishment of jurisdiction. Id. The Supreme Court has, however, delineated certain situations where it is appropriate for courts to dismiss a suit for want of jurisdiction even if the decision would involve a discussion of the merits. Id. These include cases “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Id. at 682-83, 66 S.Ct. 773. See also Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1328 (Fed.Cir.1998), overturned on other grounds by, Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed.Cir.1999) (dismissing one of the plaintiffs counts on the grounds that it was entirely insubstantial); Amgen v. United States Int’l Trade Comm’n, 902 F.2d 1532, 1537 (Fed.Cir.1990); Crowley Cutlery Co. v. United States, 849 F.2d 273, 276-77 (7th Cir.1988) (stating that a federal district judge can dismiss a frivolous suit on his own initiative, and “whether he calls it a dismissal for failure to state a claim or a dismissal for lack of jurisdiction is a detail”; discussing the jurisprudence of dismissing frivolous suits on the basis of subject matter jurisdiction). Cf. Lewis v. United States, 70 F.3d 597, 603 (Fed.Cir. 1995) (criticizing the line of cases supporting the dismissal of frivolous claims on jurisdictional grounds, but upholding the lower court’s decision to this end on the basis that the court is bound by Supreme Court precedent).
3. Vanalco’s argument
Generally, as discussed supra, when evaluating a motion to dismiss this court construes plaintiffs allegations as true. In the instant case, however, the argument set forth by Vanalco’s counsel at oral argument, and now a part of the complaint, is so patently without
As detailed above, the premises and conclusion of this argument are as follows:
(1) In 1998, BPA announced its intention to base power allocations for the post-September 30, 2001 period on power purchases in the 1996-2001 period;
(2) Pursuant to contractual obligation, BPA was required to offer Vanalco an Amended Block Sale contract at the time it announced this intention;
(3) If, in 1998, BPA had offered Vanalco an Amended Block Sale contract it would have accepted the offer; and
(4) From 1998 to the present, Vanalco has been purchasing power that has cost it $35 million more than the power that it should have had the opportunity to purchase under the Amended Block Sale contract.
(5) Therefore, Vanalco is entitled to $35 million in damages.
An examination of this argument and Va-nalco’s own statement of the facts reveals that this argument is frivolous, as no valid claim for money damages could conceivably exist under the facts present in this case. In 1996, when Vanalco and the other DSIs were negotiating the settlement of their disputes with BPA, Vanalco could have made one of three decisions. It could have:
(1) entered a 1996 Block Sale Contract, (the option most of the DSIs elected) Complaint at 119;
(5) “[gone] to market for approximately 220 MW of its 230 MW load [and] not otherwise amend the terms of the 1981 [contract] ...” Id.; or
(6) ceased all purchase of industrial firm rate power from BPA.
Vanalco elected option number 2. The crux of Vanalco’s argument for present money damages is: (1) the BPA’s decision regarding allocation of power in the post-September 30, 2001 period is an amendment to the 1996 Block Sale Contracts; and (2) because BPA amended the terms of the 1996 Block Sale Contracts, it was contractually obligated to offer Vanalco an entirely new contract.
BPA’s allocation decision is not even ostensibly an amendment to the 1996 Block Sale Contracts.
Even assuming that BPA’s allocation decision could be construed as an amendment to the 1996 Block Sale Contracts, there is no conceivable basis upon which BPA would be required to offer Vanalco an entirely new Block Sale Contract — the very same contract
The circumstances under which Vanalco raises this argument, coupled with the fact that the argument contradicts aspects of plaintiffs August 2, 2000 complaint, support a conclusion that this argument was apparently concocted in an attempt to bring the claims set forth in Vanalco’s original complaint within the purview of this court’s jurisdiction. Vanalco never mentioned any claim for $35 million in damages in its complaint. It was only after the Government filed its motion to dismiss and Vanalco apparently realized that the claims set forth in its August 2, 2000 Complaint did not fall within this court’s jurisdiction, that it set forth its argument alleging money damages.
Another relevant circumstance is the timing of Vanaleo’s suit. Significantly, Vanalco learned on or around July 18, 1999 that BPA would “utilize[] the 1996 Block Sale Contracts with the DSIs as the basis for allocating power in the period” in the post-September 30, 2001 period. Complaint at 1114. Despite this fact, it waited until more than a year later, August 2, 2000, to initiate the present action. This fact illustrates that Vanalco had more than ample time to formulate its theory of the case and include without ambiguity in its complaint any meritorious arguments that may have assisted it in (1) establishing subject matter jurisdiction; and (2) ultimately prevailing on the merits. In view of these circumstances, the theory set forth at oral argument, now a part of the complaint, was clearly devised in order to bring Vanalco’s claims under this court’s jurisdiction.
As the Supreme Court has stated, “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous” a court may dismiss an action for want of jurisdiction even if the decision would involve a discussion of the merits. Bell v. Hood, 327 U.S. at 682-83, 66 S.Ct. 773. Because the theory of money damages set forth at oral argument and amended into the complaint is totally without merit and apparently made solely for the purpose of obtaining jurisdiction, it is dismissed for failure to state a valid claim for money damages.
For the foregoing reasons, the Government’s motion to dismiss is granted and Va-nalco’s complaint is dismissed.
CONCLUSION
For the above-stated reasons, it is ORDERED that:
(1) Vanalco’s complaint is AMENDED to include the above-referenced argument set forth by plaintiffs counsel at oral argument, the premises and conclusion of which are as follows:
(a) In 1998, BPA announced its intention to base power allocations for the post September 30, 2001 period on*81 power purchases in the 1996-2001 period;
(b) Pursuant to contractual obligation, BPA was required to offer Vanaleo an Amended Block Sale contract at the time it announced this intention;
(c) If, in 1998, BPA had offered Vanaleo an Amended Block Sale contract it would have accepted the offer; and
(d) From 1998 to the present, Vanaleo has been purchasing power that has cost it $35 million more than the power that it should have had the opportunity to purchase under the Amended Block Sale contract.
(e) Therefore, Vanaleo is entitled to $35 million in damages.
(2) The Government’s Motion to Dismiss Plaintiffs Complaint is hereby GRANTED based on this court’s lack of jurisdiction to entertain the claims set forth in Plaintiffs Complaint and Amended Complaint.
. The defendant has agreed to accept the plaintiffs well-pled factual allegations as true for purposes of the resolution of its pending motion to dismiss. The court has included certain facts presented by the defendant to clarify specific aspects of the background of this dispute.
. Surplus power is energy generated that transcends the amount necessary for BPA to fulfill its long-term contractual obligations. The rate for surplus power typically coincides with pervading market prices.
. The court notes that at oral argument the Government pointed out the fact that technically speaking, BPA's decision is not absolutely final until it receives the final record of decision back from review by the Federal Regulatory Commission and BPA determines whether to take any further action on the decision. For purposes of this opinion, however, the court will treat BPA’s decision as final.
. Because this court clearly lacks jurisdiction to hear Vanalco's claims, it is unnecessary to consider the issues of (1) whether the 9th circuit has exclusive jurisdiction over this dispute; and (2) whether the CDA applies to the sale of electric power.
