State of South Carolina v. United States

In the United States Court of Federal Claims

No. 18-38C

(Filed: August 20, 2019)

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STATE OF SOUTH CAROLINA, *

*

Plaintiff, * 50 U.S.C. § 2566; Appropriations;

* Cross-Motions for Summary Judgment;

v. * Economic and Impact Assistance Payments;

* Judgment Fund; RCFC 56

THE UNITED STATES, *

*

Defendant. *

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Randolph R. Lowell, Columbia, SC, for plaintiff.

Tara K. Hogan, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

Plaintiff, the State of South Carolina, seeks an award of economic and impact assistance

payments for 2016 and 2017 pursuant to 50 U.S.C. § 2566, which directs such payments if the

United States Department of Energy (“DOE”) fails to meet certain deadlines related to the

processing and disposition of surplus defense plutonium stored at the DOE’s Savannah River

Site (“SRS”).1 Specifically, plaintiff contends that 50 U.S.C. § 2566(d) requires the DOE to pay

it $1 million per day, up to a statutory cap of $100 million per year, for a total of $200 million.

Both plaintiff and defendant move for summary judgment. For the reasons set forth below, the

court grants defendant’s motion and denies plaintiff’s motion.

I. BACKGROUND

A. Facts

Following the end of the Cold War, the United States was challenged with finding a safe,

secure method to dispose of large amounts of weapons-grade nuclear material, including

weapons-grade plutonium, from both foreign and domestic nuclear weapons production

1

The SRS is a federally owned and operated facility that processes and stores nuclear

material in support of national defense, nonproliferation, research, and environmental missions.

Pl.’s Mot. App. 145.

facilities. Am. Compl. Ex. 3 at 2. The need to securely store these materials in a safe

environment was paramount; however, there was also great promise in reprocessing this material

into fuel for nuclear reactors. Id. at 3. If possible, enriched nuclear material would be

repurposed into lower-grade fuel, and if the material was not suitable for conversion into fuel, it

would be “immobilized” to render it difficult to use as a weapon.2 Pl.’s Mot. App. 10. To

comply with the terms of an agreement with the Russian Federation, which required irradiation

to dispose of the material, the DOE determined that the best option would be irradiating the

material in a nuclear reactor to degrade it. Id. at 9-10, 13, 19. See generally Am. Compl. Ex. 7.

In early 2000, the DOE selected the SRS to reprocess the material. Pl.’s Mot. App. 68,

77. Simultaneously, the DOE, interested in cost savings through facility closures, wanted to

move the plutonium from the Rocky Flats DOE facility near Denver, Colorado, to the SRS. Id.

at 82-86. While legislation for these activities was being considered, the governor of South

Carolina expressed concern to the DOE regarding the storage of large amounts of weapons-grade

nuclear material within the state’s borders. Id. at 93-94 (letter from South Carolina Governor

Jim Hodges to DOE Secretary Spencer Abraham, dated April 10, 2002). The governor’s primary

concern was that an agreement brokered between the state and the DOE to remove or reprocess

the material would not be legally enforceable:

I must insist on an ironclad agreement that is fully enforceable in a court

of law. The stakes are too high to accept mere political assurances. I will not risk

the health and welfare of South Carolina by allowing the enforceability of any

agreement to be bound only by federal departmental policy that changes

according to political considerations beyond our control.

Id. at 93; see also id. at 103-09 (agreement enclosed in April 11, 2002 letter from DOE Secretary

Spencer Abraham to South Carolina Governor Jim Hodges).

Ultimately, on December 2, 2002, Congress enacted a statute, later codified at 50 U.S.C.

§ 2566, addressing the disposition of weapons-grade plutonium stored at the SRS. See Bob

Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 3182,

116 Stat. 2458, 2747-50 (2002) (codified at 50 U.S.C. § 2566 (Supp. III 2004)). The statute

provided for the construction and operation of a mixed oxide (“MOX”) fuel fabrication facility

(“MOX facility”) at the SRS to mix the highly enriched nuclear material with depleted uranium

oxide to produce fuel for nuclear reactors, id.; the MOX facility was designed to be capable of

refining 3.5 metric tons of weapons-grade plutonium annually, Pl.’s Mot. App. 146. The statute

further required the DOE to establish a plan to achieve the MOX production objective of “not

less than one metric ton of [MOX] fuel per year” by December 31, 2009, and to process thirty-

four metric tons of weapons-grade plutonium into MOX fuel by January 1, 2019. § 3182(a)(1)-

(2), (g)(1), 116 Stat. at 2747-50. If the DOE did not meet the MOX production objective by

2

Immobilization is a process of encasing fissile material in glass or ceramics, making it

stable for storage and difficult to recover for use in a nuclear weapon. Pl.’s Mot. App. 16.

Defense plutonium that was converted into fuel would be “irradiated” in a nuclear reactor. Id.

Both methods render nuclear material difficult to transport, conceal, and process into a nuclear

weapon. Id.

2

January 1, 2011, it would be required to remove from South Carolina (1) at least one metric ton

of unprocessed plutonium by January 1, 2011, and (2) an amount of plutonium equal to the

amount of all unprocessed plutonium shipped to the site between April 15, 2002 and January 1,

2017, by January 2017. Id. § 3182(c)(1)-(2), 116 Stat. at 2749. The DOE would also be required

to remit economic and impact assistance payments to plaintiff in the amount of $1 million per

day for each day that certain milestones went unmet, up to a maximum of $100 million per year.

Id. § 3182(d)(1), 116 Stat. at 2749. These payments would come “from funds available to the

Secretary [of the DOE] . . . .” Id.

In subsequent enactments of the statute, Congress changed deadlines for both MOX

processing and material removal, and also changed the funding source for payment of economic

and impact assistance. In 2005, Congress amended 50 U.S.C. § 2566 to make payment of

economic and impact assistance “subject to the availability of appropriations.” See Energy and

Water Development Appropriations Act, 2006, Pub. L. No. 109-103, § 313(4)(A)(ii), 119 Stat.

2247, 2280-81 (2005). This language was retained in the versions of the statute reenacted in

2013 and 2014. See National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-

239, § 3116, 126 Stat. 1632, 2172-73; Carl Levin and Howard P. “Buck” McKeon National

Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 3142(f), 128 Stat. 3292,

3900 (2014). The current version of 50 U.S.C. § 2566 provides that if the MOX production

objective was not met, the DOE would be required to remove from South Carolina at least one

metric ton of plutonium by January 1, 2016, and an amount of plutonium equal to all

unprocessed plutonium shipped to the site from April 15, 2002, to January 1, 2022, no later than

January 1, 2022. See 50 U.S.C. § 2566(c) (2012 & Supp. II 2015). It further provides that if the

DOE missed the January 1, 2016 deadline, the DOE would be required to make economic and

impact assistance payments to plaintiff beginning in 2016. Id. § 2566(d)(1).

In 2002, the DOE began shipping plutonium to the SRS. Am. Compl. ¶ 41; Answer ¶ 41.

In 2016 and 2017, the DOE failed to achieve the MOX production objective, did not remove one

ton of plutonium from South Carolina, and did not provide economic and impact assistance

payments to plaintiff as specified in 50 U.S.C. § 2566(d)(1). Am. Compl. ¶ 45; Answer ¶ 45.

B. Procedural History

On January 8, 2018, plaintiff filed a complaint in the United States Court of Federal

Claims, seeking $100 million in economic and impact assistance payments it alleges it is owed

for 2016, prejudgment and postjudgment interest, costs and attorneys’ fees, and any further relief

deemed proper. On March 6, 2018, plaintiff amended its complaint to add a claim for the $100

million of economic and impact assistance payments it alleges is owed for 2017.

Ten days after defendant filed its answer, plaintiff moved for summary judgment.

Defendant then cross-moved for summary judgment. Briefing is now complete and, deeming

oral argument unnecessary, the court is prepared to rule.

3

II. STANDARD OF REVIEW

Both plaintiff and defendant move for summary judgment pursuant to Rule 56 of the

Rules of the United States Court of Federal Claims (“RCFC”). Summary judgment is

appropriate when there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A fact is material if it “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if it “may

reasonably be resolved in favor of either party.” Id. at 250.

The moving party bears the initial burden of demonstrating the absence of any genuine

issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party then bears the

burden of showing that there are genuine issues of material fact for trial. Id. at 324. Both parties

may carry their burden by “citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory answers, or

other materials” or by “showing that the materials cited do not establish the absence or presence

of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” RCFC 56(c)(1).

The court must view the inferences to be drawn from the underlying facts in the light

most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). However, the court must not weigh the evidence or make findings of fact.

See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not

himself to weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.”); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,

1376 (Fed. Cir. 2002) (“On summary judgment, the question is not the ‘weight’ of the evidence,

but instead the presence of a genuine issue of material fact . . . .”) (abrogated on other grounds by

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc)); Ford Motor Co.

v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts

do not make findings of fact on summary judgment.”); Mansfield v. United States, 71 Fed. Cl.

687, 693 (2006) (“[T]he Court may neither make credibility determinations nor weigh the

evidence and seek to determine the truth of the matter. Further, summary judgment is

inappropriate if the factual record is insufficient to allow the Court to determine the salient legal

issues.”). Entry of summary judgment is mandated against a party who fails to establish “an

element essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp., 477 U.S. at 322. However, if neither party satisfies this burden on the

filing of cross-motions for summary judgment, then the court must deny both motions. See First

Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“When both parties

move for summary judgment, the court must evaluate each motion on its own merits, resolving

reasonable inferences against the party whose motion is under consideration.”); Bubble Room,

Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have

moved for summary judgment does not mean that the court must grant summary judgment to one

party or the other.”).

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III. DISCUSSION

The parties have differing views concerning the issue now pending before the court.

Plaintiff states that the issue is whether the United States is liable to make economic and impact

assistance payments for 2016 and 2017 under 50 U.S.C. § 2566(d)(1), and suggests that the

funds to satisfy the liability may come from appropriations already authorized or the Judgment

Fund. Pl.’s Mot. Summ. J. 12, 15-16. Defendant argues that the issue is whether the United

States is liable to make economic and impact assistance payments if Congress did not

appropriate funds for the payments. Def.’s Cross-Mot. Summ. J. 7-8.

The parties agree that the DOE has not met critical milestones to process or dispose of

plutonium as required by 50 U.S.C. § 2566(d)(1). Am. Compl. ¶ 45; Answer ¶ 45. Defendant

also agrees that had Congress appropriated funds for economic and impact assistance payments,

the DOE would be required to remit those funds to plaintiff in accordance with the statute. See

Def.’s Cross-Mot. Summ. J. 8. However, the parties disagree as to whether economic and

impact assistance payments may be made from: (1) certain appropriated funds for activities

already authorized or funds reprogrammed from those activities; or (2) the Judgment Fund. See

id. at 11-22; Pl.’s Mot. Summ. J. 12, 15-16. Because these questions turn on the interpretation of

law rather than findings of fact, this case is properly before the court on summary judgment.

A. Relevant Legal Standards

Central to the parties’ competing contentions is the meaning of 50 U.S.C. § 2566(d)(1).

Thus, the court turns to the text of that statute to ascertain how it should be construed. As

originally enacted, this section provided:

(d) Economic and impact assistance

(1) If the MOX production objective is not achieved as of January 1,

2011, the Secretary shall, from funds available to the Secretary, pay to the

State of South Carolina each year beginning on or after that date through

2016 for economic and impact assistance an amount equal to $1,000,000

per day, not to exceed $100,000,000 per year, until the later of--

(A) the date on which the MOX production objective is achieved

in such year; or

(B) the date on which the Secretary has removed from the State of

South Carolina in such year at least 1 metric ton of defense

plutonium or defense plutonium materials.

50 U.S.C. § 2566(d) (Supp. III 2004) (emphasis added).

In 2005, the background of 50 U.S.C. § 2566 and the purpose of the economic and impact

assistance payments in 50 U.S.C. § 2566(d)(1) was discussed in the United States Senate:

5

In a sign of good faith to the State of South Carolina, language was

negotiated . . . that required the [DOE] to convert one metric ton of defense

plutonium into fuel for commercial nuclear reactors by 2011 or face penalties of

$1 million per day up to $100 million per year until the plutonium is either

converted into the fuel or removed from the State. It has never been the intention

of South Carolina to receive penalty payments; the residents . . . simply sought

reassurances that weapons-grade plutonium would not remain at [the] SRS

indefinitely. South Carolina would not have accepted [the defense] plutonium

without this statute.

151 Cong. Rec. S12,745 (daily ed. Nov. 14, 2005) (statement of Sen. Graham). Later in that

session, a “technical correction” to 50 U.S.C. § 2566(d)(1) was proposed:

It is also my intention to make a technical correction, in the future, to language

contained in the conference report to the Fiscal Year 2006 Energy and Water

Appropriations Act. This conference report contains a change to important authorizing

language that would make these penalty payments “subject to the availability of

appropriations.”

Id. (statement of Sen. Graham).

The technical correction was made to the version of 50 U.S.C. § 2566 enacted in 2005;

subsection (d) of that statute provided:

(d) Economic and impact assistance

(1) If the MOX production objective is not achieved as of January 1,

2014, the Secretary shall, subject to the availability of appropriations, pay

to the State of South Carolina each year beginning on or after that date

through 2019 for economic and impact assistance an amount equal to

$1,000,000 per day, not to exceed $100,000,000 per year, until the later

of–

(A) the date on which the MOX production objective is achieved

in such year; or

(B) the date on which the Secretary has removed from the State of

South Carolina in such year at least 1 metric ton of defense

plutonium or defense plutonium materials.

50 U.S.C. § 2566(d) (Supp. V 2006) (emphasis added).

Subsequent versions of 50 U.S.C. § 2566 enacted on January 2, 2013, and December 19,

2014, retained the phrase “subject to the availability of appropriations” in subsection (d)(1). See

50 U.S.C. § 2566(d)(1) (2012); 50 U.S.C. § 2566(d)(1) (2012 & Supp. II 2015). Notably, other

6

parts of the statute remained essentially unchanged from the version originally enacted, with the

exception of the deadlines. For example, 50 U.S.C. § 2566(d)(2)(A) has consistently provided:

(A) If, as of January 1, 2022, the MOX facility has not processed mixed-oxide

fuel from defense plutonium and defense plutonium materials in the amount of

not less than—

(i) one metric ton, in each of any two consecutive calendar years; and

(ii) three metric tons total,

the Secretary shall, from funds available to the Secretary, pay to the State

of South Carolina for economic and impact assistance an amount equal to

$1,000,000 per day, not to exceed $100,000,000 per year, until the

removal by the Secretary from the State of South Carolina of an amount of

defense plutonium or defense plutonium materials equal to the amount of

defense plutonium or defense plutonium materials transferred to the

Savannah River Site between April 15, 2002, and January 1, 2022, but not

processed by the MOX facility.

50 U.S.C. § 2566(d)(2)(A) (2012 & Supp. II 2015) (emphasis added).

If defendant is liable to plaintiff under 50 U.S.C. § 2566(d)(1), funds to satisfy the

obligation in the statute must come from a congressionally sanctioned source because, pursuant

to the Appropriations Clause of the United States Constitution, the federal government may only

spend money that Congress has appropriated. See U.S. Const. art. I, § 9 cl. 7 (“No Money shall

be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .”).

Congress may also require that funds only be used for specific programs or purposes. See Nutt

v. United States, 837 F.3d 1292, 1295 (Fed. Cir. 2016) (“According to the Constitution’s

Appropriations Clause, ‘funds may be paid out [by the Treasury] only on . . . the express terms of

a specific statute.’” (quoting Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 432 (1990)

(alteration in original))). If Congress specifies a purpose for appropriated funds,

“[a]ppropriations shall be applied only to the objects for which the appropriations were made

except as otherwise provided by law.” 31 U.S.C. § 1301(a) (2012).

If Congress elects to provide unrestricted, or “lump-sum,” appropriations to an agency,

those appropriations are normally allocated at the agency’s discretion. See Lincoln v. Vigil, 508

U.S. 182, 192 (1993) (“The allocation of funds from a lump-sum appropriation is another

administrative decision traditionally regarded as committed to agency discretion. After all, the

very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing

circumstances and meet its statutory responsibilities in what it sees as the most effective or

desirable way.”); see also U.S. Government Accountability Office, Principles of Appropriations

Law—Vol. II (“GAO Redbook”) 6-5 (3d ed. 2006) (“A lump-sum appropriation is one that is

made to cover a number of specific programs, projects, or items. (The number may be as small

as two.) In contrast, a line-item appropriation is available only for the specific object

7

described.”).3 The normally broad agency discretion to direct lump-sum appropriations may be

limited when an agency is bound by a contract; in such circumstances, an agency may not avoid

contractually obligated payments if unrestricted, i.e., lump-sum, funds are available. Cherokee

Nation of Okla. v. Leavitt, 543 U.S. 631, 636-38 (2005). Agency discretion is also limited by

line-item appropriations, in which Congress places conditions on how an appropriation may be

spent. To determine whether an expenditure is permitted for a particular line item, agencies

perform a “necessary expense” analysis. See GAO Redbook, supra, at 3-14 to 3-15. “Under the

necessary expense doctrine, ‘[a]n appropriation made for a specific object is available for

expenses necessarily incident to accomplishing that object unless prohibited by law or otherwise

provided for.’” U.S. Dep’t of the Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1349

(D.C. Cir. 2012) (quoting GAO Redbook, supra, at 4-20). For an expense to be found necessary,

(1) there must be a logical relationship between the expenditure and the appropriation; (2) the

expenditure must not be prohibited; and (3) the expenditure must not be provided for in another

appropriation. GAO Redbook, supra at 3-14 to 3-17.

B. Plaintiff May Not Receive Economic and Impact Assistance Absent a Congressional

Appropriation for That Purpose

Although plaintiff and defendant agree that the DOE did not comply with the statute, they

disagree as to whether any funds are available to satisfy the DOE’s statutory obligation. See

Pl.’s Mot. Summ. J. 12, 15-16; Def.’s Cross-Mot. Summ. J. 11-22. Defendant argues that, absent

an appropriation, the DOE is not liable to plaintiff for any payments and, alternatively, that any

liability that flows from the statute is limited to the amount Congress appropriated for economic

and impact assistance. Def.’s Reply 1-2, 12. Plaintiff appears to concede that no funds were

specifically appropriated for economic and impact assistance. See Pl.’s Reply 3. However, the

lack of a specific appropriation does not per se remove the DOE’s liability for economic and

impact assistance payments. Rather, defendant’s obligation to make economic and impact

assistance payments manifested when it failed to comply with the terms of 50 U.S.C. § 2566.

See Greenlee Cty. v. United States, 487 F.3d 871, 880 (Fed. Cir. 2007) (“We conclude that

defendant’s liability for . . . payments was limited to the amounts appropriated by Congress.”

(emphasis added)). The question remaining is the extent of defendant’s liability, a question that

is purely legal in nature.

Plaintiff advances two theories under which the DOE could remit economic and impact

assistance payments without an additional congressional appropriation to the DOE: (1) the DOE

could use existing lump-sum appropriations or (2) the DOE could reprogram funds Congress

appropriated for other purposes. Pl.’s Mot. Summ. J. 15-25. The court examines them in turn.

3

The first three chapters of the GAO Redbook are in the GAO Redbook’s fourth edition,

while the remaining chapters are in the third edition. Citations to the GAO Redbook are to the

most recent version.

8

1. Congress Did Not Provide Lump-Sum Appropriations in the Consolidated

Appropriations Acts of 2016 and 2017

Under its first theory, plaintiff initially contends that there are lump-sum appropriations

available to made the economic and impact assistance payments for 2016 and 2017. Pl.’s Mot.

Summ. J. 15, 22. It primarily relies on the observation in Greenlee County that the United States

Supreme Court (“Supreme Court”) addressed the question of “what appropriation amounts are

available?” in Cherokee Nation–in the context of a contract case–“that the presence of sufficient

unrestricted lump-sum appropriations (not specifically appropriated for the program at issue) to

meet the government’s contractual obligation qualified as available appropriations.” 487 F.3d at

880 & n.3, quoted in Pl.’s Mot. Summ. J. 15. In essence, plaintiff is suggesting that the principle

espoused in Cherokee Nation–that a court can order an agency to use its lump-sum

appropriations to satisfy a contractual obligation–should be extended to situations in which the

government’s obligation is only statutory in nature. See Pl.’s Reply 6.

Both Greenlee County and a related case, Prairie County, concern a government benefits

program enacted to reimburse local governments for lost property tax revenues caused by the

federal government’s ownership of large amounts of land in their communities. See Prairie Cty.

v. United States, 782 F.3d 685 (Fed. Cir. 2015); Greenlee Cty., 487 F.3d at 871. Because the

federal government does not pay property taxes to local communities, Congress created a

“Payment in Lieu of Taxes” (“PILT”) program to compensate local governments for lost tax

revenue. Prairie Cty., 782 F.3d at 686; Greenlee Cty., 487 F.3d at 873-74. Although Congress

designated a formula for reimbursing local governments, appropriations for the PILT program

were insufficient to reimburse all qualifying communities to the amount yielded by the formula.

Prairie Cty., 782 F.3d at 686; Greenlee Cty., 487 F.3d at 874. Greenlee County and Prairie

County, whose compensation fell short when appropriations for PILT were exhausted, separately

filed suits in the United States Court of Federal Claims, followed by appeals to the United States

Court of Appeals for the Federal Circuit (“Federal Circuit”). Prairie Cty., 782 F.3d at 687-88;

Greenlee Cty., 487 F.3d at 874-75.

In Greenlee County, the Federal Circuit observed that obligations in contractual

relationships were distinguishable from obligations flowing from benefits programs. 487 F.3d at

878-79. While contractual obligations could not be avoided if unrestricted appropriations were

available for payment, noncontractual statutory obligations, i.e., benefits, could be avoided if

Congress circumscribed its liability in the statute itself. See id. at 879 (“The conclusion that [the

statute] limits defendant’s liability to the amount appropriated is particularly appropriate because

[the statute] . . . involves a benefits program not a contract, and ‘there is greater room’ in benefits

programs to find the government’s liability limited to the amount appropriated.” (emphasis

added)). Eight years later, the Federal Circuit in Prairie County again focused on the plain

language of the statute: “Absent a contractual obligation, the question here is whether the statute

reflects congressional intent to limit the government’s liability . . . or whether [the statute]

imposes a statutory obligation to pay the full amount . . . regardless of appropriations by

Congress.” 782 F.3d at 690 (quoting Star-Glo Assocs., LP v. United States, 414 F.3d 1349, 1355

(Fed. Cir. 2005)). Even in a contractual relationship, however, payment requires an

appropriation. See Greenlee Cty., 487 F.3d at 878 (“The Supreme Court has noted that, even in

the contract context, the ‘subject to the availability of appropriations’ language means that the

government is not contractually bound except to the extent that appropriations are available.”

9

(citing Cherokee Nation, 543 U.S. at 643)); see also id. (“[A] statute creating the right to

compensation . . . may restrict the government’s liability . . . to the amount appropriated by

Congress. . . . [I]t is undisputed that if [a statute] use[s] the phrase ‘subject to the availability of

appropriations,’ [plaintiff’s] right to recover would be limited to the amount appropriated.”).

The Federal Circuit has also distinguished between the analysis of language limiting

liability in contractual relationships from the analysis of similar language in benefit payment

statutes, concluding in the latter that congressional intent plays a larger role:

[When] the government is not seeking to limit contractual liability, but to limit

benefit payments, . . . considerations of predictability are far less significant, and .

. . there is greater room to rely on other indicia of Congressional intent, such as

legislative history, to ascertain the congressional purpose.

Star-Glo Assocs., LP, 414 F.3d at 1355.

The relationship between the plaintiff and the government in Cherokee Nation was

contractual, unlike the relationship between the plaintiff and the government here. Compare

Cherokee Nation, 543 U.S. at 639, with 28 U.S.C § 2566 (2012 & Supp. II 2015). Plaintiff

concedes that defendant’s liability in this case is based upon a statute and not a contract. See

Pl.’s Reply 6-7 (“The State has not (yet) asserted a contract claim against the United States. . . .

[T]his case is only about DOE’s failure to meet its statutory obligation to provide the economic

and impact assistance payments. . . .”). In the absence of any binding precedent or other legal

support for extending the holding of Cherokee Nation to a purely statutory obligation, the court

declines to do so. Nevertheless, it is necessary to examine whether 50 U.S.C. § 2566 allows for

the use of lump-sum appropriations for economic and impact assistance and, if so, whether

Congress made such appropriations in the pertinent Consolidated Appropriations Acts.

When a statute creates a right to compensation, but also limits the government’s liability

to the amount appropriated, the court must determine “whether there are appropriations available

to satisfy the government’s liability by considering whether the statute in fact limits the

government’s liability to the amount appropriated,” and “what appropriations are available . . . to

satisfy that liability.” Greenlee Cty., 487 F.3d at 878. In this case, the statute conditions

defendant’s payments to plaintiff as “subject to the availability of appropriations.” 50 U.S.C.

§ 2566(d)(1) (2012 & Supp. II 2015). This language was first enacted in 2005, well before the

DOE’s violation of the statute in 2016. See § 313, 119 Stat. at 2280-81. Moreover, this specific

language is directly addressed in Greenlee County: “‘[S]ubject to the availability of

appropriations’ is commonly used to restrict the government’s liability to the amounts

appropriated by Congress for the purpose.” 487 F.3d at 878. Also important is the fact that the

less restrictive “from funds available to the Secretary” in the originally enacted version of 50

U.S.C. § 2566(d)(1) was later changed to the more restrictive “subject to the availability of

appropriations.” Compare 50 U.S.C. § 2566(d)(1) (Supp. V 2006), with 50 U.S.C. § 2566(d)(1)

(Supp. III 2004).

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“Congress is presumed to be aware of an administrative or judicial interpretation of a

statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v.

Pons, 434 U.S. 575, 580 (1978) (collecting cases). Here, Congress twice reenacted 50 U.S.C.

§ 2566 following the 2005 addition of the “subject to the availability of appropriations” language

and the Federal Circuit’s 2007 explanation of that language in Greenlee County, retaining that

verbiage each time. See 50 U.S.C. § 2566(d)(1) (2012); 50 U.S.C. § 2566(d)(1) (2012 & Supp.

II 2015). The court therefore may presume that Congress was aware that courts interpreted the

phrase “subject to the availability of appropriations” as limiting the government’s liability to the

amount appropriated, and purposely retained this more restrictive language in subsequent

reenactments.

Given the above, a plain reading of 50 U.S.C. § 2566(d)(1) evidences Congress’s intent

that payments for economic and impact assistance can only be made if (1) there is a specific

appropriation for that purpose, or (2) there is a lump-sum appropriation that the DOE could use

for that purpose. The parties do not dispute that Congress did not appropriate funds for the

specific purpose of economic and impact assistance payments. Pl.’s Reply 9; Def.’s Reply 2.

Plaintiff argues, however, that funds were available through lump-sum appropriations “legally

available” to satisfy statutory obligations. Pl.’s Reply 3.

As plaintiff notes, “Congress appropriated approximately $18.59 billion and $19.69

billion to DOE for its ‘Atomic Energy Defense Activities’ for fiscal years 2016 and 2017,

respectively.” Pl.’s Mot. Summ. J. 19; accord Pl.’s Mot. App. 196 (fiscal year 2016), 248-50

(fiscal year 2017). Of those amounts, “Congress directed that approximately $1.9 billion would

be for ‘Defense Nuclear Nonproliferation’ each year.” Pl.’s Mot. Summ. J. 19; accord Pl.’s Mot.

App. 196 (fiscal year 2016), 250-51 (fiscal year 2017). Congress further directed that the $1.9

billion be allocated to certain, specified programs, including:

▪ Global Material Security

▪ Material Management and Minimization

• Nuclear Material Removal

• Material Disposition

▪ Nonproliferation and Arms Control

▪ Defense Nuclear Nonproliferation R&D

▪ Nonproliferation Construction

Pl.’s Mot. Summ. J. 19-20; Pl.’s Mot. App. 195. Plaintiff asserts that the funds Congress

allocated to these programs were lump-sum appropriations that the DOE could use to make

economic and impact assistance payments. Pl.’s Mot. Summ. J. 19-20.

Defendant contends that the funds Congress provided for these programs were not lump

sums. See Def.’s Cross-Mot. Summ. J. 13-14. In support of its argument, defendant relies on

the 2016 and 2017 Consolidated Appropriations Acts, id., which incorporate, by reference, tables

allocating funds for specific programs (as plaintiff recognizes). See Consolidated Appropriations

Act, 2016, Pub. L. No. 114-113, § 301(d), 129 Stat. 2242, 2417 (2015); Consolidated

Appropriations Act, 2017, Pub. L. No. 115-31, § 301(d), 131 Stat. 135, 320; Pl.’s Mot. App. 166;

see also Pl.’s Mot. App. 166, 186-201 (containing the tables). Defendant contends that the

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“DOE’s appropriated funds are limited to the specific purposes and amounts provided in the

tables contained within the explanatory statements accompanying the relevant [Consolidated

Appropriations Acts].” Def.’s Cross-Mot. Summ. J. 14; see also id. at 15 (“‘When an

appropriation specifies the purpose for which funds are to be used, 31 U.S.C. § 1301(a) applies

in its purest form to restrict the use of the funds for the specified purpose.’” (quoting GAO

Redbook, supra, at 4-11)).

Defendant is correct. The tables incorporated by reference into the Consolidated

Appropriations Acts specify funding for specific programs, evidencing that the appropriations for

Defense Nuclear Nonproliferation and its constituent programs were not lump-sum

appropriations, which, by definition, fund multiple programs. GAO Redbook, supra, at 6-5.

Plaintiff fails to acknowledge the import of the tables. See Pl.’s Reply 12 (“[T]hese subprogram

appropriations are ‘lump-sum’ appropriations because they ‘cover a number of specific

programs, projects, or items.’”). Because of Congress’s level of precision, the court is not

persuaded that these appropriations were in fact “lump-sum appropriations.” Consequently, the

appropriations could not be used for economic and impact assistance payments.

2. Reprogramming Is Not Available for Economic and Impact Assistance Payments

Plaintiff alternatively argues that the economic and impact assistance payments could be

provided from other funds that Congress appropriated to the DOE via a discretionary reallocation

known as “reprogramming.” Id. at 16-17. “Reprogramming” refers to “the shifting of funds

within an appropriation to purposes other than those contemplated at the time of appropriation.”

GAO Redbook, supra, at 2-44. Reprogramming, however, is subject to guidelines to prevent

abuse or the allocation of funds to activities that are too far removed from Congress’s intended

purpose in providing the funds. See id. at 2-44 (“[A]gencies generally are free to reprogram,

even if doing so is inconsistent with the budget estimates presented to the Congress, as long as

the resulting obligations and expenditures are consistent with the purpose restrictions applicable

to the appropriation.”); see also id. at 2-45 (“Though agencies generally have authority to

reprogram funds, Congress may limit this authority.”). These limitations accord with the

principle that funds appropriated for a particular purpose may not be used for any other purpose.

See 31 U.S.C. § 1301(a)-(b).

Defendant argues that reprogramming funds for economic and impact assistance would

effectively create a new program or activity because the purpose of economic and impact

assistance is substantially different from the purposes of programs identified in the 2016 and

2017 Consolidated Appropriations Acts. Def.’s Reply 11. Defendant notes that those Acts

“prohibit DOE from reprogramming funds to create, initiate, or eliminate a ‘program, project, or

activity.’” Id. (quoting § 301(f)(1), 129 Stat. at 2417; § 301(f)(1), 131 Stat. at 320). Defendant

also observes that § 301(d) of each of these Acts incorporates, by reference, a table that

specifically allocates appropriations to individual programs, projects, and activities. Def.’s

Cross-Mot. Summ. J. 15. Defendant argues that because the purpose of economic and impact

assistance payments are not reasonably related to the purposes for which Congress made

appropriations in the 2016 and 2017 Consolidated Appropriations Acts, the funds appropriated in

those Acts are not available to pay plaintiff or to be reprogrammed to pay plaintiff. Id. at 15-17.

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As an initial matter, plaintiff provides no legal support for the proposition that this court

has the authority to direct an agency to reprogram funds appropriate for one purpose to another

purpose. Nor is the court aware of any.4 Moreover, even if the court could review an agency’s

decision to reprogram, or not to reprogram, appropriated funds, the record lacks any evidence

indicating whether the DOE considered reprogramming funds or conducted an analysis to

determine the feasibility of reprogramming funds. In other words, the court lacks the necessary

administrative record to review the propriety of the DOE’s decision.

Plaintiff also argues that a “necessary expense” analysis supports its contention that

economic and impact assistance payments may be made from appropriations in the 2016 and

2017 Consolidated Appropriations Acts. See Pl.’s Reply at 13-14 (“The determinative issue in

this case is whether the statutorily-mandated economic and impact assistance payments have a

‘logical,’ ‘reasonable,’ or ‘sufficient’ relationship to, and therefore constitute a necessary

expense of, any of DOE’s appropriations.”). Id. But plaintiff gets ahead of itself. As noted

above, an agency performs a “necessary expense” analysis to determine whether a prospective

expenditure comports with appropriations Congress has provided. GAO Redbook, supra, at 3-

17. As with its request that the court direct the DOE to reprogram funds to make economic and

impact assistance payments, plaintiff provides no legal support for the proposition that the court

has the authority to conduct a “necessary expense” analysis, and the court is unable to locate any.

Moreover, even if the court could conduct such an analysis, the record lacks evidence that would

be necessary for the court to proceed. Thus, the court declines to conduct the analysis.

Ultimately, to the extent that the DOE could exercise its discretion to make economic and

impact assistance payments, the payments would need to be consistent with the purpose

restrictions in the appropriation to be charged because the DOE is required to obey the

restrictions Congress places on appropriations. See Salazar v. Ramah Navajo Chapter, 567 U.S.

182, 200 (2012) (“An agency’s discretion to spend appropriated funds is cabined only by the

‘text of the appropriation . . . .’” (quoting UAW v. Donovan, 746 F.2d 855, 861 (D.C. Cir.

1984))). In the 2016 and 2017 Consolidated Appropriations Acts, the DOE was restricted from

using appropriations to create or initiate a program, project, or activity. Thus, the DOE’s

reprogramming authority was limited to shifting funds within programs, projects, or activities

that already existed. And both parties admit that no appropriations for economic and impact

assistance were made in the 2016 and 2017 Appropriations Acts. Consequently, Congress

provided the DOE with no mechanism through which it could reprogram funds to make

economic and impact assistance payments.

Congress could have appropriated money for economic and impact assistance, or it could

have broadened the DOE’s discretion to reprogram funds. But it did neither. The court cannot

ignore the limiting language in the statute–“subject to the availability of appropriations”–which

courts have consistently held to limit government liability. The unique mention of economic and

impact assistance payments in 50 U.S.C. § 2566, as well as the detail in the appropriations

4

To the extent that reprogramming decisions are subject to judicial review, they would

be reviewable under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 702 (2012), but

this court lacks jurisdiction to adjudicate APA claims, see Crocker v. United States, 125 F.3d

1475, 1476 (Fed. Cir. 1997).

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Congress provided in 2016 and 2017, persuade the court that had Congress intended to

appropriate funds for these payments, it would have made a specific appropriation. There is also

evidence in the record that the purpose of the economic and impact assistance payments was to

assure plaintiff that weapons-grade plutonium would not be stored at the SRS indefinitely. See

Pl.’s Mot. App. 93, 100; see also 51 Cong. Rec. S12,745 (daily ed. Nov. 14, 2005) (statement of

Sen. Graham). These facts support the DOE’s failure to use existing appropriations to satisfy the

obligation resulting from its failure to meet the MOX production objective.

Agencies must comply with the law and, where Congress has given direction on how to

do so, agencies are not free to improvise. Although Congress originally provided that the DOE

was required to make economic and impact assistance payments “from funds available to the

Secretary [of the DOE],” 50 U.S.C. § 2566(d)(1) (Supp. III 2004), it subsequently narrowed the

DOE’s discretion, providing that economic and impact assistance payments were “subject to the

availability of appropriations.” 50 U.S.C. § 2566(d)(1) (Supp. IV 2006); 50 U.S.C. § 2566(d)(1)

(2012); 50 U.S.C. § 2566(d)(1) (2012 & Supp. II 2015). When Congress originally enacted 50

U.S.C. § 2566, the DOE arguably could have had discretion to reprogram funds to make

economic and impact assistance payments, but the court cannot ignore that Congress has since

intentionally and consistently restricted the DOE’s discretion.

C. The Judgment Fund Is Not Available for Economic and Impact Assistance Payments

Finally, plaintiff argues that the economic and impact assistance payments could be paid

from the Judgment Fund if there are no legally available appropriations. Pl.’s Mot. Summ. J. 12.

Plaintiff is incorrect. Pursuant to the Appropriations Clause, “no money can be paid out of the

Treasury unless it has been appropriated by Congress.” Cincinnati Soap Co. v. United States,

301 U.S. 308, 321 (1937). “The Judgment Fund is a permanent, indefinite appropriation which

is available to pay many judicially and administratively ordered monetary awards against the

United States.” 31 C.F.R. § 256.1(a) (2015); accord 31 U.S.C. § 1304 (providing that the

Judgment Fund can be used “to pay final judgments, award compromise settlements, and interest

and costs specified in the judgments or otherwise authorized by law”). Significantly, the

Judgment Fund may only be used when “payment is not otherwise provided for . . . .” 31 U.S.C.

§ 1304(a)(1). “Payment is otherwise provided for when another appropriation or fund is legally

available to satisfy the judgment.” GAO Redbook, supra, at 14-39.

The Judgment Fund was designed to expedite the administration of justice by enabling

courts to issue awards without the need to obtain separate appropriations. Slattery v. United

States, 635 F.3d 1298, 1316-17 (Fed. Cir. 2011) (en banc); see also United States v. Maryland ex

rel. Meyer, 349 F.2d 693, 695 (D.C. Cir. 1965) (“The obvious purposes of the [Judgment Fund]

are (1) to enable . . . prompt payment without awaiting a special appropriation, and (2) to relieve

the United States of the obligation of paying interest, or of a bad conscience as it were for not

doing so, while the principal remains unpaid.”).

Plaintiff effectively seeks to exploit the flexibility of the Judgment Fund to circumvent

Congress’s failure to appropriate funds for economic and impact assistance. But, “[t]he general

appropriation for payment of judgments, in any event, does not create an all-purpose fund for

judicial disbursement.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 432 (1990).

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Two facts are fatal to plaintiff’s argument: First, there is clear statutory language limiting

the DOE’s liability to the amount appropriated, and no funds were subsequently appropriated.

Second, there is no contractual relationship available to complement the statutory language and

thereby overcome the lack of an appropriation and that limiting language. Given these facts, to

resort to the Judgment Fund would ignore the apparent Congressional intent not to appropriate

for economic and impact assistance payments.

Congress created a benefit of economic and impact assistance in 50 U.S.C. § 2566 and

outlined the circumstances under which plaintiff could receive payment. Congress then did not

appropriate funds to make payments, choosing instead to fund other priorities. The record

indicates that Congress did make restricted appropriations to the DOE that not only reserved

funds for particular purposes, but also prohibited those funds from being used for other,

unrelated purposes.

The Judgment Fund is a separate appropriation which is available to furnish awards when

other appropriations are not legally available. But plaintiff is not merely asking for a damages

award. Plaintiff is effectively asking for the Judgment Fund to be used to create an appropriation

where none was made by Congress. Resorting to the Judgment Fund, however, bypasses the

case’s central question, answered above: Did Congress make any appropriations available to pay

economic and impact assistance? The answer is clearly “no.” The Judgment Fund cannot be

manipulated to change the answer to this question from “no” to “yes.” To hold otherwise would

enable courts to circumvent congressional decisions not to act. Most importantly, allowing

resort to the Judgment Fund in a case where Congress has also clearly limited the government’s

liability entangles the court in decisions reserved to Congress by the United States Constitution.

The court declines to become so entangled.

Under the circumstances of this case, plaintiff’s proper course to obtain economic and

impact assistance is to request an appropriation from Congress.

IV. CONCLUSION

As set forth in more detail above, the court DENIES plaintiff’s motion for summary

judgment and GRANTS defendant’s cross-motion for summary judgment. Plaintiff’s complaint

is DISMISSED. Each party shall bear its own costs. The clerk of court shall enter judgment

accordingly.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Chief Judge

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