Nebraska Public Power District v. U.S.

Jan 12: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5083. In this en banc decision, which included concurring opinion and a lone dissenting opinion, the Appeals Court addresses what it called "a difficult question involving the allocation of jurisdiction between regional circuit courts and the Court of Federal Claims." The dispute in 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.

As explained by the Federal Circuit, 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, 73 Fed. Cl. 650 (2006). That issue is now before us on interlocutory review. We hold that the D.C. Circuit had jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order of the Court of Federal Claims and remand to that court for further proceedings."

The 11-1 majority ruled, "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."

In a lone dissenting opinion, one Justice indicated, "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 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 be obvious. On this basis, the trial court’s ultimate holding to void the mandamus was correct and should be affirmed."

According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. On December 2, the Government Accountability Office (GAO) released a report entitled, Nuclear Waste Management: Key Attributes, Challenges, and Costs for the Yucca Mountain Repository and Two Potential Alternatives (GAO-10-48, November 04, 2009). The report discusses the options of dealing with the nation's most hazardous substances -- which is accumulating at 80 sites in 35 states. The United States has generated 70,000 metric tons of nuclear waste and is expected to generate 153,000 metric tons by 2055 [See WIMS 12/3/09].

Access the complete opinion (click here). Access a Law.com article (click here).