*1 ATOMIC ELECTRIC YANKEE
COMPANY, Plaintiff/Cross-
Appellant,
v. STATES, Defendant-
The UNITED
Appellant. 96-5021, 96-5025.
Nos. Appeals, States Court
Federal Circuit.
6,May *3 Stouck,
Jerry Spriggs Hollingsworth, & D.C., Washington, argued plaintifi/cross- for appellant. on Of counsel the brief were Cath- Lipson. erine R. and David Baumer R. Letter, Staff, Douglas Attorney, Appellate Division, Justice, Department Civil Wash- ington, D.C., argued defendant-appellant. With him the brief Hun- were Frank W. ger, Attorney General, Assistant and Allen Lear, Attorney, Litigation L. Commercial Branch. MAYER, LOURIE,
Before CLEVENGER, Judges. Circuit Opinion Judge of the court filed Circuit Dissenting opinion CLEVENGER. filed Judge Circuit MAYER.
CLEVENGER, Judge. Circuit whether, requires us to in case decide light prior specifying services, paid enrichment may impose upon utili- domestic funding ties a in assessment to aid clean-up the facili- costs associated with services. provided ties those enrichment appeals the decision United States Claims, Court of Federal United States Electric Co. v. United Atomic (1995), summary granting 33 Fed. Cl. judgment Compa- to Yankee Atomic Electric Atomic). (Yankee decision, ny im- court determined the assessment upon clean-up posed Yankee Atomic to fund costs an exaction be- constitutes unlawful earlier cause violates the Government’s agreements supply enriched prices. uranium fixed conclude at We re- was lawful and therefore verse.
I Department estimated that the total cost of up this clean could exceed parties acknowledge, As both the salient years, billion over 40 $20 which amounted to dispute. facts are not in Yankee Atomic was per year, about million $500 indexed to infla- organized existing in 1954 a number of H.R.Rep. VIII, tion. pt. No. companies participate in an effort to in (1992), reprinted in energy the use of atomic as an alternative- 1992 U.S.C.C.A.N. génerating electricity. source fuel for Yan- 2295. Because this decontamination and de- electricity produced using kee Atomic nucle- commissioning problem fiscal recog- was not resulting ar fuels and electricity sold the 1980s, nized until the prices charged which, organizing utilities, turn, sold it past Government’s uranium enrichment to retail customers. contracts had problem. not accounted for the operations required Yankee Atomic’s *4 clean-up problem many was one of uranium, pro- enriched form of which was energy-related Congress issues that ad- by separating isotopes duced useful of urani- Energy Policy dressed Act of 1992 um from isotopes. Beginning other Act). (Energy Policy Act or The Act estab- purchased Yankee Atomic the uranium en- lishes an account to be known as the Urani- (or separation) richment services from the um Enrichment Decontamination and De- through a series of contracts. commissioning (Fund), which, Fund over a provided Those services were at enrichment 15-year period, would accumulate the plants monies operated by first Energy the Atomic (AEC Commission) required up to clean Commission old uranium enrich- and later by plants. ment Development provides Research and The Act that the an- Department Administration and the deposits Ener- nual (adjusted million $480 for (all DOE). gy collectively Although inflation), (i) these will come from up two sources: contracts varied somewhat from one to an- million is to special $150 be collected as a other, they each price paid by stated that the assessment from utility companies; domestic Yankee Atomic for the enrichment services (ii) balance, million, at least is $330 would be based on “established Commission to public come from appropriated by funds pricing policy,” which was defined as the Congress. price in effect at the time the service was The Act provides further utility that each
provided. dispute There is no that the Gov- responsible is a pro-rata for share of the total ernment fulfilled its obligation annual assessment based on provide services, percentage the enrichment and that of uranium previ Yankee Atomic enrichment work units it obligation pay fulfilled its price ously purchased in effect at that time. from the DOE relative to the total number of work previously units 1980s, In the late determined produced by the DOE. The Act states that a that it had to restructure the Government’s utility purchased is considered to have a uranium enrichment services in order to re- work unit from the if DOE the work unit was competitive main with enrichment services originally produced DOE, even if utili provided by parties. other It did so ty actually purchased it from another source. new, creating for-profit, a governmental cor- Similarly, is not considered to poration have called the United Enrich- States purchased a work unit from Corporation. ment the DOE if it time, At the same Con- gress resold that work unit utility.1 realized that to another large there would be costs sum, imposes associated with Act decontaminating upon and decom- missioning the previously utility company facilities that had whichever eventually uses provide been used to enrichment services. the enrichment services. provisions designed
1. These were to take into its uranium through enrichment services this sec- secondary account the market, market that existed for ondary but does not assert breach of services, uranium enrichment wherein some util- contract, taking, or unlawful exaction claim con- purchased ities uranium enrichment work units cerning monetary liability the Act under from the Government and resold them to other purchases. purchased portion utilities. Yankee Atomic addressing Act in ment without Yankee Atomic’s Following passage of the Octo- argument exempt sought to assess Yankee that was from the as- the DOE ber special assess- sessment because its facilities had closed be- share of the annual Atomic’s passage responded by arguing fore of the Act. We review the Yankee Atomic ment. appeal, exempted from Government’s and Yankee Atomic’s the DOE that should cross-appeal, judgment from the because its facilities had shut Court the assessment pursuant of Federal Claims to 28 passage of the Act. When the U.S.C. down before 1295(a)(3)(1994). § rejected argument, this Yankee Atomic DOE approximately pursuant million -to paid $8 assessments,
three and filed lawsuit annual Ill seeking of Federal Claims re- The decision of the Court of Federal covery payments. of those Claims is driven its characterization of the special assessment as a retroactive in-
II crease rather than an exercise of the sover- Upon summary judg- cross-motions eign’s taxing power, parties’ dispute and the ment, the Court of Federal Claims ruled in disposi- over this characterization frames the rejected favor of Yankee Atomic. The court appeal. tive issue of this contention Government’s assessment was a lawful exercise of Con- principal argument The Government’s *5 gress’s taxing power sovereign under the special entirely that the assessment is dis- explained court that al- acts doctrine. The prior tinct from the contracts between though sovereign acts doctrine would utility companies DOE and such as Yankee gener- force if ease involved a have some Atomic. The Government notes that those alike, al tax that fell on all utilities it had no earlier contracts concerned uranium enrich- impact present case which involves an ment, whereas this assessment concerns de- only that assessment “reaches decommissioning. contamination and As a companies previously that had contracted result, the Government asserts that the as- purchase with the for the Government sessment cannot constitute a breach of those Accordingly, uranium enrichment services.” earlier contracts unless those contracts con- special the court viewed the assessment as a express provision precluded tained an price in unilateral retroactive increase imposing the Government from an assess- previously charged by the Government for its ment to fund decontamination and decommis- uranium enrichment services. sioning costs. explained The court that such a retroactive disagrees Yankee Atomic with the Govern price increase would constitute an unlawful of the ment’s characterization assessment exaction in view of the contracts be- prior directly and to the contends that related tween the and Yankee Atomic. Government Yankee Atomic contends earlier contracts. specified prior Because those contracts fixed-price nature of those contracts price fixed for the uranium enrichment ser- obligation expressly limited its to the
vices, the “economic
which [Yankee
benefit
any
already paid, and
the risk of
shifted
gained by
Atomic]
virtue of the Govern-
(including
additional costs
decontamination
promise, being
ment’s
a benefit enforceable
costs)
decommissioning
and
onto the Govern
law,
property
thus became a
interest that
argues
Atomic
the as
ment. Yankee
beyond
fell
the reach of the Government’s
by, in ef
breaches those contracts
sessment
power
away.”
to take
IV
adopted
reasoning
of the Court of
sovereign
acts doctrine stems from a Claims:
Claims,
series of decisions
the Court of
government
two
characters which the
recognized by
and was first
the United
possesses as a contractor and as a sover-
Supreme
States
Court in Horowitz v. United
fused;
eign cannot be thus
nor can the
344,
267 U.S.
45 S.Ct.
69 L.Ed.
United States while sued in the one char-
case,
In that
Horowitz submitted
damages
acter be made liable in
for their
buy
a bid to
certain Habutai silk offered for
acts done in the other. Whatever acts the
sale
the Government.
do,
government may
they legislative
be
agreed
given
that Horowitz would be
executive,
long
they
public
so
as
and
opportunity
paying
to re-sell the silk before
general,
specially
cannot be deemed
to al-
purchase price,
agreed
ship
ter, modify,
particu-
obstruct or violate the
day
silk within a
shipping
or two after
in-
lar contracts into which it enters with
given.
structions were
Id. at
45 S.Ct. at
private persons.
...
In this court
344. Horowitz sold
compa-
the silk to a silk
appear simply
United States
as contrac-
ny, paid
purchase price,
the balance of the
tors;
they
only
are to be held liable
requested
shipped
that the silk be
to the
any
within the same limits that
other de-
company
govern-
silk
at once. Because of a
fendant
would be
other court.
placed
shipment
mental
embargo
Though
performed
their
acts
however,
by freight,
silk
the silk was not
some,
general good may
injury
work
*6
shipped
By
for several weeks.
the
it
time
contractors,
private
parties gain
such
noth-
arrived,
dropped signifi-
the
of silk had
ing by having the United States as their
cantly,
consignee
accept
and the
refused
defendants.
result,
delivery. As a
Horowitz was forced
States,
(quoting
Id.
Jones v. United
1 Ct.Cl.
460,
to sell the silk at a loss. Id. at
45 S.Ct.
383;
(1865))
added).3
(emphasis
384
at 344.
States,
Supreme
recently
Horowitz sued the United
contend-
Court
dis
Horowitz,
ing
embargo
that
the
cussed
sovereign
breached the valid
and the
acts doc
shipment
contract he had for
in general,
sale and
of
trine
the
United States v. Winstar
-,
silk.
Supreme
2432,
The United States
Corp.,
Court re-
116 S.Ct.
135
jected
(1996).4
argument
this
long
“[i]t
because
has
L.Ed.2d 964
In
plurali-
the
opinion
any
absence
by
governing
in its
of
reference to breach
hurt
such
action could not claim
of
compensation
contract. This distinction does not
party
gov-
affect our
from the other
the
for
decision,
Regardless
erning
however.
of
large
whether
the
action. Given the
number of con-
contract,
enters,
situation is characterized as a breach of
tracts the Government
its contracts will
exaction,
taking,
by
governing
unlawful
or an unlawful
sometimes be affected
those
the
same
arguments
policy
prior
underlying
sovereign
acts.
stem from Yankee Atomic’s
the
circumstances,
act[s] doctrine is
tracts
the Government.
that in those
with
role,
the
contracting
Government in its
like its
private counterpart,
liability
should not incur
expressed
phi-
The Court of Claims
this same
governing
its act done in the
role.
States,
for
losophy in
v. United
O'Neill
231 Ct.Cl.
823,
(1982),
826
as follows:
sovereign
4. The
acts doctrine has also been cited
days
application
From its earliest
...
See, e.g.,
in several other cases since Horowitz.
sovereign
proceeded
doctrine
act[s]
has
from
Tribe,
130,
Apache
Merrion v. Jicarilla
455 U.S.
recognition
governing
country,
145-46,
894,
the
that in
905-06,
the
S.Ct.
102
1575 (ii) designed to or acting purpose solving that the doctrine is the of ty explained the twin distinguish problem between the Government’s of decontamination and decommis- sovereign. (i.e., Id. at sioning as contractor roles of uranium enrichment facilities 116 at 2463. the Govern- legislation passed When the was the benefit contract, rights and enters into a “its ment public). the We conclude it was the latter. by governed generally the therein are duties above, explained As begin we must private applicable to law contracts between examining scope Policy at---, Id. 116 S.Ct. individuals.” Act; only can then we determine whether 2464-65. The Government-as-contractor designed purpose the Act is with the af- twin, power cannot exercise its fecting altering or prior Government’s purpose Government-as-sovereign, for Energy Policy contracts. The requires Act altering, modifying, violating obstructing contribution to Fund from domestic particular contracts into which had utility purchased separative work units private parties. with action Such entered passage. from the before the 42 DOE Act’s give would the Government-as-contractor 2297g-l(c) § Importantly, U.S.C. powers private contracting parties lack. however, scope of the Act is not coinci- hand, plurality On the other dent with domestic utilities that had Government-as-sovereign explained, previously into entered contracts with the powers. remain free to must exercise services, DOE for uranium enrichment be- reason, early this of Claims For require cause Act does not contribution “thought ‘grave to suppose error’ cases utility from a that contracted with the DOE ‘general enactments of are to if that purchased re-sold the services plaintiffs] as [the be construed evasions of utility. 2297g- § 42 another See U.S.C. ” at-, particular contract.’ Id. 116 S.Ct. 1(c)(2). contrast, require the Act does (quoting Deming at 2464 v. United any utility contribution from that did not (1865)). 191, 1865 Ct.Cl. WL have a contract with the DOE but nonethe- attempts acts doctrine “bal less from benefited the DOE’s services freedom to ] Government’s need for ance[ purchasing through secondary market. obligation legislate with its to honor its con Thus, § 2297g-l(e)(l). See U.S.C. some by asking sovereign act tracts whether the is utility/Government are not em- attributable to the as properly Act, purchases braced while 'some at-, Id. at 2465. contractor.”5 private key entities are covered. The rule, Thus, it is not a hard and fast but *7 purchaser whether the was the ultimate ben- ease-specific inquiry a focuses on rather that eficiary of the DOE’s services. scope legislation of the in an effort to the whether, balance, legisla on determine that Act, therefore, reach of the designed target prior governmen tion was makes clear that was focused mot tal contracts. on a in price increase the of the retroactive doctrine, sovereign prior agreements. Under acts there- Government’s fore, targeting utility we must decide whether the Govern- Rather than those compa ment, in enacting provisions prior of the relevant nies that had contracts with the Gov (i) ernment, Energy Policy acting targets Act Act of was whichever purpose increasing retroactively eventually for the of and benefited from the used Congress’s its earlier contracts Yankee DOE’s enrichment services. with (i.e., legislation passed purpose spread Atomic was for main was to the costs of a Government-as-contractor) problem only of the the benefit that realized after the eon- Winstar, IV.A, Tailings the Uranium Mill that Radiation Control der the facts see section infra sovereign public was a only justices congres- Act act undertaken for three concluded that the and, therefore, good (i.e., the basis sovereign could not form not a sional act was one the act claim). party’s breach of contract to -the was attributable Govemment-as-contrac- tor). remaining justices viewed the either concurring agreed dissenting justices and act one or decided on 5. The as a the case general with this statement of the doctrine. Un- another basis. 1576 Corp., object policy.”); Richards v. performed. Atlas and had been
tracts
Cf.
States,
1, 11,
585, 591-92,
369 U.S.
(noting
dangers
that
and
895 F.2d at
(1962)(“We
L.Ed.2d 492
believe it fundamen
with uranium mill
clean-up costs associated
not
tal that a section of a statute should
be
fully recognized until
ing operations
were
read
isolation from the context of the
1970s).
by dividing
It did so
the late
Act.”);
Nantucket, Inc.,
In re
677 F.2d
whole
(i)
Government,
costs between:
(C.C.P.A.1982) (“Each
part
or section
per
million
responsible for at least $330
was
of a
construed in connec
statute should be
through general appropria
year
raised
to be
every
part or
as to
tion with
other
section so
(ii)
tions,
that
those domestic utilities
whole,
produce a
it is not
harmonious
from the DOE’s
enrich
benefited
proper
interpretation
one
to confine
to the
Any impact
ap
that
this
ment services.
(citation omitted)).
construed.”
section to be
may have on those utilities with which
proach
relevant,
Statutory provisions that are
or as
prior
had
the Government
here, controlling,
interpretation cannot
to our
accomplishment
“merely incidental to the
ignored simply
they
because
are not dis-
objective.”
governmental
See
a broader
positive to the facts before us.
at-,
116 S.Ct.
2466.
Similarly,
opinion
of the Court of Fed
characterizing
the essence of the
eral Claims seems to have been mistaken
Act,
only
pro
Yankee Atomic focuses
on the
reasoning:
[sovereign
“The
acts
ar
doctrine]
con
impact
those utilities that
visions
gument would have some force if we were
and that them
tracted with the Government
dealing
general tax
with a
that fell on all
services.
selves used the enrichment
While
That, however,
utilities alike.
is not our
quarrel
Atomic
no
it is true that Yankee
has
Rather,
special
case.
this
assessment reach
liability
over its
on
with the Government
only
utility companies
previ
es
those
consumption
supplied
services
enrichment
ously had contracted with the Government
through the
nongovernmental entities
sec
purchase
for the
of uranium enrichment ser
market,
ondary
that fact cannot render irrel
added).
(emphasis
vices.”
1577 Instead, Policy past Energy pose targeting Act of reach of the contracts. The broad distinguishes present the from two the Act all ease taxes beneficiaries of the DOE’s also and the which Yankee Atomic upon cases enrichment services. Lynch v. of Federal Claims relied: Court provisions Given focus of the the relevant States, 571, 840, 292 U.S. 54 78 S.Ct. United Act, Policy we that conclude (1934), Perry United 1434 v. L.Ed. general Congress’s constitutes a exercise of 330,
States,
432,
55
79 L.Ed.
294 U.S.
S.Ct.
taxing power
purpose
addressing
the
of
912
problem rather
societal
than an act that ret-
plaintiffs
the
had
into
Lynch,
In
entered
roactively increases
price charged
to
agreements with the
for War
United States
contracting parties for uranium enrichment
paid
prescribed
and had
Risk Insurance
This conclusion
services.
does not end our
576,
monthly premiums. 292
at
54 S.Ct.
U.S.
inquiry, however. We must further consider
Congress subsequently
at 842.
enacted
Government, by
whether the
contract with
Act which
stat-
Economy
included a clause
Atomic,
right
has surrendered
year-
granting
laws
ing:
pertaining
“All
sovereign power
exercise this
“in terms
hereby
ly
term insurance
re-
renewable
are
interpre-
which
of no
admit
other reasonable
575,
pealed.” Id. at
54
at 842. The
S.Ct.
Merrion,
148,
tation.”
A
added).
omitted; emphasis
plurali-
note
ty
inapplicable
held that
was
doctrine
plurality
justices in
The.
Winstar decid-
the thrifts did not
because the contracts with
unmistakability
doctrine
not
ed
was
preclude the Government from later exercis-
applicable.
involved the fallout
Winstar
Instead,
ing
sovereign powers.
its
the con-
involving
savings
loan
from the crisis
merely
tracts
shifted the risk of loss onto the
industry
early
in the late 1970s and
1980s.
Government, thereby requiring it to “indem-
healthy
induced
thrifts to
nify
contracting partners against
its
financial
merge
ailing
agreeing
pro-
ones
with
arising
regulatory change.”
losses
from
Id.
treatment,
regulatory
vide favorable
at-,
2461. .
116 S.Ct. at
healthy
allow
thrifts to count to-
would
justices
capitalization requirements
disagreed
plurality’s
with the
wards their
cer-
Five
“supervisory goodwill” generated
conclusion that the
doctrine
tain
at---,
mergers.
simply
was not available
because the con-
scheme, however,
risk-shifting agreements.
at 2442-43. This
tracts were
remaining justices
essentially
promise
in Winstar
that none of its multifarious sover-
7. The
doctrine,
agreed
acts,
eign
public good,
with this formulation of
needful for the
will
although they disagreed
application
with
incidentally
party
disable
or the other
dissenting justices
the facts of that case. The two
performing
promised
one of the
acts....
Gov-
embody the
"a
viewed the doctrine to
notion that
ordinarily agree
ernments do not
to curtail
authority
implied,
sovereign
waiver of
will not be
sovereign
legislative powers, and
their
be surrendered in unmistakable
but instead must
interpreted
tracts must be
in a common-sense
(Rehn-
Id. at
1579 concurring justices pointed mistakability that the doctrine turns on en- out whether three with the approach obligation was inconsistent forcement of would plurality’s availabil- precedent, effectively sovereign which had “not made the the exercise block of a (as opposed sovereign to ity power these defenses the of of Government. merits) validity upon at---, the depend on the their S.Ct. at As 2457-58. -- n , above, at explained the contract at Id. the nature of issue.” assessment at in issue Moreover, “[vjirtually ev- present general, at 2476. is a sovereign 116 S.Ct. the case act. ery operates, guarantee not as a Although money contract Yankee Atomic dam- seeks conduct, assump- ages, future particular argument effectively but as would block its nonperfor- tax, liability in sovereign power tion of the event of the of this exercise to difference, Despite Id. this these mance.” for if Atomic prevail, Yankee were to the they justices be- required concurred because would three Government be to refund the unmistak- that the contracts contained lieved entire amount assessed. This is akin a tax regu- rebate, to continue the favorable promises plurality able which even the seemed at---, latory Id. 116 recognize treatment. a as block the exercise of sover- jus- dissenting eign power. at 2477-78. The two at See id. applied rebate, and (“Granting enjoining concluded the doctrine a tices like en- forcement, contracts an unmis- simply did not contain block would the exercise against regulatory promise taxing power.”). takable future the change. on in reasoning the contained B
Based
opinions,
we conclude
the
the Winstar
Having decided that the unmistaka
unmistakability
pres
the
applies
doctrine
bility-doctrine applies, we next
the
address
respects
This conclusion
the views
ent case.
arguments
merits of
that issue.
justices
appli
five
who stated that the
requires
decide
us to
whether the contracts
the doctrine is unrelated
cation of
Atomic
between Yankee
and the Government
underlying
In
contracts.
addi
nature of
unmistakably precluded the Government
tion,
harmony
conclusion is in
with the
our
subsequently exercising
sure,
justices.
plurality
To be
views of
power
a tax.
to assess
We conclude that no
present
at issue in the
case
the contracts
promise
such
existed
contracts.
may
risk-shifting agreements,
viewed as
plurality
to those that the
similar
Winstar
begin
noting that
We
none of the
implicate
not to
found
expressly
tracts
states that
Atomic
above,
As mentioned
contracts
doctrine.
any
immune from
will be
future assessments
contracts,
fixed-price
are
at issue
industry
upon
made
“[wjhere
Supreme Court has
one
held that
acknowledges
Yankee Atomic
as whole.
do,
sum,
thing possible
agrees to
for a fixed
statement,
express
the lack of
such
but
performed,
to be
he will not be excused
fixed-price
on the
instead
nature of the
relies
compensation,
entitled to
become
additional
argues
Atomic
“[t]he
contract. Yankee
unforeseen difficulties are encoun
because
implicit,
fixed-price
hardly
terms are
contract
Spearin,
United States v.
248 U.S.
tered.”
they
price
a future
Al-
increase.”
forbid
'
132, 136,
59, 61,
39 S.Ct.
Importantly,
plurality
tract executed
entitled
En-
application
“Agreement
Furnishing
of the un-
For
expressly stated that
Uranium
*11
acquired
or not those services were
representative. Article whether
richment Services”
provides,
part:
in
contract from the Government.
agreement
III of that
charges
paid to the Commis-
The
to be
opinion of the Court of Federal Claims
provided
enriching
to
for
services
sion
it
is not clear as to whether or not
discerned
be determined
hereunder shall
Customer
promise that barred the
an unmistakable
the established Com-
in accordance with
subsequent special assessment. On the one
services;
policy for such
pricing
mission
hand,
reciting
after
several
however,
charge
that the unit
for
provided,
cases, the court stated: “But even
doctrine
during the term of this
enriching services
language
a contract does not contain
where
a
in no event exceed ceil-
agreement shall
securing
potentially
dis-
protection from
(subject
possible
to
ing charge of $30.00
ruptive
subsequent legislation, ex-
effects of
power
adjustment
costs]
labor and
[for
sovereign power
pro-
does not
ercise of the
article) per
of this
pursuant
Section
unchecked.”
As a Yankee Atomic asserts that the any contrary Atomic has not cited intention assessment, including entire levied on by Congress. purchase Yankee secondary Atomic’s
market, would constitute an unlawful exac- VII disagree argument. tion. We with this conclusion, provision of the plain language Energy Policy Policy imposes special Act which assess- explains Act which utilities are covered its ment is a designed act because it is scope. clearly The Act spread states that “[t]he the costs associated with the de- Secretary shall collect assessment contamination decommissioning and over all § from 2297g- domestic utilities.” 42 U.S.C. domestic utilities that used the urani- DOE’s 1(e). services, Act further states that a um target- is enrichment rather than responsible for ing only contribution to the Deconta- those utilities that had contracts Decommissioning Moreover, mination and Fund if it with the Government. the con- purchased uranium enrichment services from tracts between Yankee Atomic and the Gov- DOE, directly indirectly, either but ernment did not contain an unmistakable utility company. §§ 2297g-l(e)(l), promise U.S.C. precluded the Government (2). Thus, plain language exercising of the statute sovereign power. this Final- parameters scope. ly, sets the exempt Because Atomic is not from the purchased Yankee Atomic uranium enrich- fact virtue operations passage.
ceased
before the Act’s
Winstar,-U.S.
actively
prices charged.
right
rights.
increase the
vested contractual
See
because,
explained
has not been taken
—:—,
as
(stating
The
im-
directly
sole basis
which
not contract
government.
with the
posed
special
First,
the
which Yankee
assessments
is not the case before us. Yankee
pur-
seeks to recover is that Yankee had
only
seeks to recover
assessments based oii
purchases
chased
enrichment services from
government.
its direct
from the
government.
These assessments were
It
challenge charges
does not
based on sec-
percentage
ondary
which,
calculated based on the
of the
purchases,
market
according
separative
produced by
total
government
work units
to the
argument,
at
constitute
government
purchased
just
which
had
Yankee
di-
15% of the total assessments. More-
rectly.
over,
This is tantamount
to a retroactive
legislation
same
argument,
was
price
charge
targeted
increase.
It levies a
on
solely
not
at those with whom the
solely
previously purchased
it
government
contracted,
because
had
had
was made
government.
government
rejected
enrichment services from the
purchases
But those
“Legislation
were made via fixed- Winstar.
always
can almost
price
effectively
formally
contracts. The assessment
written in
general way,
a
and the
requires
pay
Yankee to
for the additional
target
want of an identified
is not much
government
security
costs the
a
impact
incurred as
result of
a
when measure’s
nonethe-
performing
services;
uranium enrichment
substantially upon
less falls
the Govern-
—
very
govern-
contracting partners.”
same costs for which the
ment’s
U.S. at
Thus,
-,
govern-
ment assumed the risk.
government
It is
no of moment that the reason for the
government
government
assessment is to relieve the
from
invokes the familiar sov-
shouldering entirely
ereign
unmistakability
the unforeseen costs in-
acts and
doctrines in
services,
providing
curred in
support
position
special
of its
that the
assess-
fully
which Yankee had benefited. Yankee
abrogate
ment did not
vested
Yankee’s
benefits,
paid
government
rights.
govern-
for those
tract
Neither shields the
services,
as the seller of the enrichment
the ment.
se,
provides
obligation,” per
tractual
that is at issue.
sovereign acts doctrine
Rather, Yankee seeks reimbursement for the
sued as a contractor
when
“the United States
improper abrogation
property
of its vested
an
to the
liable for
obstruction
cannot be held
rights,
happened
to arise out of the
particular contract result-
performance
is,
money
completed contracts. That
seeks
general
acts as
ing
public
from its
deprivation
damages
government’s
for the
States, 267
v. United
sovereign.” Horowitz
actually
possession”
“of the fruits
reduced to
344, 344,
458, 461,
69 L.Ed.
U.S.
Sinking
of the contracts at issue. See
Fund
point
the doc-
[of
essential
“[T]he
Cases, 99
at 720.
U.S.
in the same
put
trine
the Government
is]
assuming,
argument,
Even
sake
enjoyed as a
position
it would have
applied,
doctrine
it adds
private
contractor.”
agree
contracts,
parties
little.
This doctrine. is
wholly inapplicable.
government
prices
had fixed
and that
of con-
government
defense
breach
might
of unforeseen costs that
bore the risk
gov-
contractor claims that a
tract and other
They merely disagree
legal
arise.
about the
adversely
contract
act
affected
ernmental
interpreta-
consequences that flow from this
performance. But this is not
breach of
But
no more than
tion.
Yankee needed
Congress’
did
enactment
contract case. Nor
fixed-price
contract terms
insulate itself
price
It
perfor-
post-performance
obstruct
from a
hike.
did
additional,
promise
second
not to
need
contracts,
contemplated by
mance of the
as
have the contract
increased after com-
fully
The contracts were
and suc-
Horowitz.
*15
—
Winstar,
at-,
pletion. See
U.S.
116
parties. But
cessfully performed
both
(there
S.Ct. at 2461
is “no need for an unmis-
assuming
applied,
the doctrine
it would
even
”);
at-,
takably
promise’
‘second
id.
clear
liability
government from
not insulate the
(Scalia,
Thomas,
Kennedy,
1585 Argentinas, (quoting F.3d at rights olineas of Yankee’s under the Fifth Amend- ment. Yankee is entitled recover it. 505, 512, Clapp v. 127 Ct.Cl. (1954)). F.Supp. govern- money pocket. ment has Yankee’s in its It
illegally money exacted contravention