WISCONSIN ELECTRIC P. CO. v. U.S. DEPT., E

Citation Codes

Equivalent Citations

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Docket Number

No. 99-1342.

Attorney(S)

Martin P. Willard was on the briefs for petitioner. Jerry Stouck and Robert L. Shapiro were on the brief for amicus curiae. Lois J. Schiffer, Assistant Attorney General, U.S. Department of Justice, John T. Stahr, and John A. Bryson, attorneys, and Marc Johnston, attorney, Department of Energy, were on the brief for respondents.

Judges

Stephen Fain Williams
David Bryan Sentelle

Acts

The Public Health And Welfare — Nuclear Waste Policy — Disposal And Storage Of High-Level Radioactive Waste, Spent Nuclear Fuel, And Low-Level Radioactive Waste — Repositories For Disposal Of High-Level Radioactive Waste And Spent NuClear Fuel — Judicial Review Of Agency Actions

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Smart Summary

Factual and Procedural Background

Wisconsin Electric Power Company filed a petition for review and a writ of mandamus against the United States Department of Energy (DOE), seeking a declaration that the DOE must provide both monetary and non-monetary relief for failing to begin disposing of Wisconsin Electric's spent nuclear fuel (SNF) on January 31, 1998, as required by their contract. Wisconsin Electric also sought an order directing the DOE to comply with this court’s prior mandates in Northern States Power Co. v. DOE (Northern I and Northern II). The DOE responded by filing a motion to dismiss for lack of subject matter jurisdiction.

The background includes prior decisions where the court held that under the Nuclear Waste Policy Act (NWPA), the DOE had an unconditional obligation to begin SNF disposal by January 31, 1998, regardless of repository availability. The DOE attempted to avoid liability by claiming its failure was "unavoidable." This court issued a writ of mandamus forbidding the DOE from asserting the "unavoidable" defense but declined to grant further relief, directing utilities to pursue contractual remedies instead.

Legal Issues Presented

Whether this court has jurisdiction to enforce its prior mandates requiring the DOE to begin SNF disposal and to provide relief for failure to do so.
Whether the court has jurisdiction under the NWPA, 42 U.S.C. § 10139(a)(1), to review the DOE’s alleged failure to provide non-monetary relief as required by the contract.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Indiana Michigan Power Co. v. DOE, 88 F.3d 1272 (1996)	DOE’s unconditional obligation under NWPA to begin SNF disposal by Jan 31, 1998, regardless of repository availability.	Established the DOE’s duty which the court reaffirmed and found DOE could not avoid by claiming "unavoidable" failure.
Northern States Power Co. v. DOE (Northern I), 128 F.3d 754 (D.C. Cir. 1997)	Retention of jurisdiction pending compliance with mandate; prohibition of DOE’s "unavoidable" defense.	Mandated DOE to comply with disposal obligations and forbade DOE from claiming non-liability due to repository unavailability.
Northern States Power Co. v. DOE (Northern II), 1998 U.S. App. LEXIS 12919 (D.C. Cir. May 5, 1998)	Clarification that the court does not provide contract remedies; possible equitable adjustments may trigger jurisdiction.	Limited court’s role to enforcing obligations without providing contract remedies; emphasized contract remedies lie elsewhere.
Transohio Sav. Bank v. OTS, 967 F.2d 598 (D.C. Cir. 1992)	Proper forum for contract disputes is the Court of Federal Claims, not this court.	Supported dismissal for lack of jurisdiction over contract claims in this case.
Yankee Atomic Electric Co. v. United States, 42 Fed. Cl. 223 (1998)	Ongoing litigation regarding contract disputes with DOE.	Indicated that contract disputes are being litigated in appropriate forums, reinforcing dismissal here.

Court's Reasoning and Analysis

The court analyzed Wisconsin Electric’s petition through two jurisdictional lenses: enforcement of prior mandates and jurisdiction under the NWPA. It held that the mandates in Northern I and II only prevent the DOE from excusing nonperformance by claiming "unavoidable" failure but do not address the form of relief to be provided for breach. Therefore, jurisdiction does not extend to enforcing a demand for monetary or non-monetary relief under those mandates.

Regarding jurisdiction under the NWPA, the court recognized that it has authority to review final agency actions or failures to act under the statute. However, it found that a contract breach by the DOE does not constitute a violation of a statutory duty under the NWPA. Contractual disputes must be resolved in the Court of Federal Claims or the Federal Circuit, which are the proper forums for such claims. Wisconsin Electric’s claims for relief are thus outside this court’s jurisdiction and are already being litigated in the appropriate venues.

Holding and Implications

Holding: The court dismissed Wisconsin Electric’s petition for lack of jurisdiction.

Implications: This decision confines this court’s role to enforcing its prior mandates prohibiting the DOE’s "unavoidable" defense and confirms that contract remedies for DOE’s breach must be pursued in the Court of Federal Claims or Federal Circuit. The ruling does not establish new precedent on relief for breach but clarifies the limits of this court’s jurisdiction in disputes arising under the NWPA and related contracts.

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WISCONSIN ELECTRIC POWER COMPANY, Petitioner v. UNITED STATES DEPARTMENT OF ENERGY, ET AL., Respondents.

PER CURIAM:

Wisconsin Electric petitions for review and for a writ of mandamus, seeking: (1) a declaration that the Department of Energy must provide both monetary and non-monetary relief for having failed to begin disposing of Wisconsin Electric's spent nuclear fuel (SNF) on January 31, 1998, as required by the parties' Contract; and (2) an order directing the DOE to comply with this court's mandates in Northern States Power Co. v. DOE, 128 F.3d 754 (D.C. Cir. 1997) (Northern I), and Northern States Power Co. v. DOE, Nos. 97-1064 et al., 1998 U.S. App. LEXIS 12919 (D.C. Cir. May 5, 1998) (Northern II). The DOE filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction.

Wisconsin Electric claims this court has jurisdiction to entertain its petition pursuant either to our continuing jurisdiction to enforce our mandates in Northern I and II, see Northern I, 128 F.3d at 761 ("We retain jurisdiction over this case pending compliance with the mandate issued herewith"); Northern II, 1998 U.S. App. LEXIS 12919, at *3-4 ("[P]ossibly the award of some forms of equitable adjustment would place the DOE in violation of the NWPA and again properly trigger our jurisdiction"), or to the Nuclear Waste Policy Act of 1982, § 42 U.S.C. § 10139(a)(1).

I. Background

In Indiana Michigan Power Co. v. DOE, 88 F.3d 1272 (1996), we held that, under the NWPA, the DOE had an unconditional obligation — an obligation, that is, without regard to whether a repository was available — to begin disposing of SNF on January 31, 1998. See 88 F.3d at 1273, 1275-76. The DOE acted to frustrate that decision by holding that its failure to perform was "unavoidable" and therefore, under the terms of the Contract, did not render the Department liable for damages of any kind. See Northern I, 128 F.3d at 759-60. At the instance of several state public utility commissions and of certain utilities, including Wisconsin Electric, we issued a writ of mandamus forbidding the DOE from claiming, in proceedings under its contracts, that its failure to perform was "unavoidable" because a repository was not available. See id. at 760-61. We declined to grant further relief to the utilities, however, because they have potentially adequate remedies under their contracts with the Department.

See id. at 759. Accordingly, they were remitted to their contractual remedies. See id.

In a post-judgment order, we expressly reiterated the limited reach of our decision: "[Northern I] describes the nature of the DOE's obligation, which was created by the NWPA and undertaken by the DOE under the Standard Contract. It does not place the question of contract remedies in this court, nor set up this court as a source of remedies outside the Standard Contract." Northern II, 1998 U.S. App. LEXIS 12919, at *4.

II. Analysis

In its present petition Wisconsin Electric claims that the position the DOE has taken during the negotiations over the utility's proposed amendments to the Contract, namely that the Department "only will consider monetary relief as a remedy for [its] delay," violates the mandates in Northern I and II. That is not correct. Those mandates prohibit the DOE from interpreting the NWPA and its contracts with utilities in a manner that would relieve the Department of its unconditional obligation to begin disposing of SNF on January 31, 1998; we expressed no opinion about the relief the DOE would have to provide for breach of that obligation. Cf. Northern II, 1998 U.S. App. LEXIS 12919, at *5 ("While the [NWPA] requires the DOE to include an unconditional obligation in the Standard Contract, it does not itself require performance"). Therefore, we do not have jurisdiction of Wisconsin Electric's petition incident to the enforcement of our mandates.

Nor do we have jurisdiction to consider Wisconsin Electric's petition pursuant to the NWPA, 42 U.S.C. § 10139(a)(1). Insofar as it is relevant to the case at bar, that provision 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. Wisconsin Electric contends that under the terms of its Contract the DOE has an obligation to provide it with non-monetary relief. Although Wisconsin Electric may be correct about that, a contract "[b]reach by the DOE does not violate a statutory duty." Northern II, 1998 U.S. App. LEXIS 12919 at *5. The Court of Federal Claims, not this court, is the proper forum for adjudicating contract disputes. See id. at *4; Transohio Sav. Bank v. OTS, 967 F.2d 598, 610 (D.C. Cir. 1992). Indeed, Wisconsin Electric's petition raises issues that are currently being litigated before the Court of Federal Claims and the Federal Circuit. See Yankee Atomic Electric Co. v. United States, 42 Fed. Cl. 223 (1998), appeal docketed, No. 99-5140 (Fed. Cir.).

III. Conclusion

Accordingly, Wisconsin Electric's petition is

Dismissed for want of jurisdiction.