Pacific Gas and Electric Company v. the United States 07-157c, 07-167c

In the United States Court of Federal Claims

No. 07-157C, No. 07-167C,

No. 07-184C

Filed: December 20, 2013

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PACIFIC GAS AND ELECTRIC *

COMPANY and SOUTHERN *

CALIFORNIA EDISON COMPANY, *

*

Plaintiffs, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

SAN DIEGO GAS & ELECTRIC *

COMPANY, *

RCFC 54(b) (judgment on multiple claims or

*

involving multiple parties);

Plaintiff, *

RCFC 59(a) (grounds for reconsideration);

*

RCFC 59(e) (motions to alter or amend a

v. *

judgment).

*

THE UNITED STATES, *

*

Defendant. *

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THE PEOPLE OF THE STATE OF *

CALIFORNIA EX REL., EDMUND G. *

BROWN JR., ATTORNEY GENERAL *

OF THE STATE OF CALIFORNIA, *

and the CALIFORNIA DEPARTMENT *

OF WATER RESOURCES BY AND *

THROUGH ITS CALIFORNIA *

ENERGY RESOURCES SCHEDULING *

DIVISION, *

*

Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

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Marie L. Fiala, Sidley Austin L.L.P, San Francisco, CA, for Plaintiff, Pacific Gas & Electric

Company. Jane I. Ryan, Steptoe & Johnson L.L.P., Washington, D.C., for Plaintiff, Southern

California Edison Company. Mark Fogelman, Friedman & Springwater L.L.P., San Francisco,

CA, for Plaintiff, San Diego Gas & Electric Company. Gary Alexander, Deputy Attorney

General, for Plaintiff The People of the State of California, Office of the Attorney General, San

Francisco, CA.

Timothy P. McIlmail, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,

Department of Justice, Washington, D.C., for the Government.

MEMORANDUM OPINION AND ORDER TO VACATE

I. PROCEDURAL HISTORY.

The Complaints in the above-captioned cases were filed on: March 12, 2007; March 13,

2007; and March 16, 2007.1 Following a trial from July 12, 2010 to August 2, 2010, former

Senior Judge Loren A. Smith issued May 2, 2012 Opinions determining that Defendant (“the

Government”) was liable for a breach of contract, because the Government failed to refund

electricity overcharges paid by Plaintiffs in their capacity as participants in the ISO and PX

markets during the Energy Crisis of 2000–2001 in the State of California. See California ex rel.

Brown v. United States, 105 Fed. Cl. 18 (2012); Pac. Gas & Elec. Co. v. United States, 105 Fed.

Cl. 420 (2012) (collectively the “May 2, 2012 Opinions”).

On April 15, 2013, former Chief Judge Emily C. Hewitt issued an Order transferring

these cases to the undersigned judge, pursuant to RCFC 40.1(c).

On May 9, 2013, a telephone conference was convened to discuss the May 2, 2012

Opinions, during which the court expressed concern about the lack of citations to the record

supporting the factual findings contained therein. The court requested that the parties provide

citations to the record that supported the factual findings. On June 21, 2013, the Government

submitted a Status Report “respectfully declin[ing] to furnish annotations or citations for the

[c]ourt’s May 2, 2012 interlocutory decision[s].” Gov’t Status Report at 2, Pac. Gas & Elec.

Co. v. United States (No. 07-157), Dkt. No. 303. Instead, the Government proposed five

alternatives, including, inter alia, that the court vacate the May 2, 2012 Opinions or allow the

parties to file proposed findings of fact and conclusions of law to assist the court in issuing new

opinions. Id. at 3.

On July 3, 2013, Plaintiffs submitted a Status Report that included a copy of the May 2,

2012 Opinions, annotated with record citations and responding to the Government’s June 21,

2013 Status Report. On July 17, 2013, the Government filed a Response. On July 26, 2013,

1

Case number 07-157C was filed on March 12, 2007; Case number 07-167C was filed on

March 13, 2007; and Case number 07-184C was filed on March 16, 2007. On May 23, 2007 the

court granted the Government’s Motion To Consolidate case number 07-157C with 07-167C.

Case number 07-157C was designated the lead case. Pursuant to the court’s July 21, 2010 Order,

all evidence presented in the above-captioned proceedings was made part of the record in all

three actions. Case number 07-184C, however, was not consolidated with the other related

cases.

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Plaintiffs requested to file a Reply. On September 24, 2013, the court convened a telephone

conference and granted Plaintiffs leave to file a Reply. On September 27, 2013, Plaintiffs re-

filed the July 26, 2013 Reply.

On or about October 9, 2013, the court began an independent examination of each

sentence of the May 2, 2012 Opinions, together with the record citations provided by Plaintiffs.

In addition, the court reviewed the substantive analysis of the May 2, 2012 Opinions.

II. DISCUSSION.

The May 2, 2012 Opinions are interlocutory. It has long been recognized that courts

have the inherent power to modify interlocutory orders before entering a final judgment. See

Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47–48 (1943) (stating that a court

has power “at any time prior to entry of its final judgment . . . to reconsider any portion of its

decision and reopen any part of the case”); see also John Simmons Co. v. Grier Bros. Co., 258

U.S. 82, 88 (1922) (“If [the order is] only interlocutory, the court at any time before final decree

may modify or rescind it.”). In other words, at “an interlocutory stage, the common law provides

that the court has power to reconsider its prior decision on any ground consonant with

application of the law of the case doctrine.” Wolfchild v. United States, 68 Fed. Cl. 779, 784–85

(2005) (citing Fla. Power & Light Co. v. United States, 66 Fed. Cl. 93, 95 (2005) (when an

opinion and order is not a final judgment, “the strict rules governing motions to amend and alter

final judgments under Rule 59 do not apply.”)). In sum, the trial court is not required to “adhere

to . . . previous rulings if they have not been adopted, explicitly or implicitly, by the appellate

court’s judgment.” Exxon Corp. v. United States, 931 F.2d 874, 877 (Fed. Cir. 1991). Instead,

the court “has the power to reconsider its decisions until a judgment is entered.” Id.

Pursuant to RCFC 54(b), “any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does

not end the action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” RCFC

54(b) (emphasis added). Therefore, the court may reconsider all or some of the issues, for any

reason sufficient to justify rehearing in a suit at law or in equity in federal court. See RCFC

59(a)(1)(A)–(B); see also Wolfchild, 68 Fed. Cl. at 784 (“Correlatively, RCFC 59(a)(1) provides

that ‘reconsideration may be granted to all or any of the parties and on all or part of the issues,

for any of the reasons established by the rules of common law or equity applicable as between

private parties in the courts of the United States’”) (quoting RCFC 59(a)(1)).

Where, as here, one judge “has rendered an order or judgment and the case is then

transferred to another judge,” the “successor judge has the same discretion to reconsider an order

as . . . the first judge, but should not overrule the earlier judge’s order or judgment merely

because the later judge might have decided matters differently.” United States v. O’Keefe, 128

F.3d 885, 891 (5th Cir. 1997). “To the extent that a trial judge can alter a previous ruling, so too

can a successor judge.” Exxon Corp., 931 F.2d at 878. And, of course, “[t]he decision whether

to grant reconsideration lies largely within the discretion of the [trial] court.” Yuba Natural Res.,

Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990); see also Precision Pine & Timber,

Inc. v. United States, 596 F.3d 817, 833 (Fed. Cir. 2010) (The “trial court ‘may’ reopen a

judgment after a bench trial to take additional evidence or amend its findings, [and] the decision

to do so rests within the sound discretion of the trial court.” (quoting Fed. R. Civ. P. 59(a)(2))).

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With the foregoing authorities in mind, the court has determined that the interests of

justice require that the May 2, 2012 Opinions be vacated2 and both the factual and legal rulings

therein be reconsidered, particularly jurisdictional issues that previously were raised, but

summarily rejected without a formal opinion. See Order, Pac. Gas & Elec. Co. v. United States,

(No. 07-157C), Dkt. No. 47; and Order, California ex rel. Brown v. United States, (No. 07-

184C), Dkt. No. 55.

The court has not reached this decision without a careful consideration of the prior

briefing and record developed by the parties. In that regard, neither party should make any

assumption about the court’s decision to reconsider, other than it intends to issue a memorandum

opinion and order that provides revised factual findings and a more detailed legal analysis of

issues that likely will arise on appeal. To date, the court has done a considerable amount of work

toward that end and will endeavor to complete this process, by the end of February 2014. At

present, the court requires no further briefing or argument by the parties.

IT IS SO ORDERED.

s/Susan G. Braden

SUSAN G. BRADEN

Judge

2

Specifically, the court vacates: Published Opinion, Pac. Gas & Elec. Co. v. United

States, (No. 07-157C), Dkt. No. 259, 105 Fed. Cl. 420 (2012) and Published Opinion, California

ex rel. Brown v. United States, (No. 07-184C), Dkt. No. 228, 105 Fed. Cl. 18 (2012).

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