# Appendices — Sacramento Municipal Utility District v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1606%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendices - **Published:** January 1, 2002 - **Citation:** 535 U.S. 1095 ## Text la APPENDIX A UNITED STATES COURT OF APPEALS FEDERAL CIRCUIT Nos. 99-5156, 99-5158 and 99-5160. MAINE YANKEE ATOMIC POWER COMPANY, Plaintiff-Appellant, Vv. UNITED STATES, Defendant-Appellee, SACRAMENTO MUNICIPAL UTILITY DISTRICT, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, OMAHA PUBLIC POWER DISTRICT, Plaintiff-Appellant, Vv. UNITED STATES, Defendant-Appellee. Nov. 20, 2001 Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and GAJARSA, Circuit Judge. PER CURIAM. In the Energy Policy Act of 1992, Congress imposed liability upon nuclear electric power companies that had purchased enriched uranium from the United States—the 2a purchases having been made as far back as 1969—for a substantial portion of the government’s costs of decon- taminating the plants in which it had enriched the uranium. The three appellants—electric utilities that had purchased enriched uranium from the government for their nuclear power plants and who were subject to, and had paid part of, the statutory liability—sued the United States in the Court of Federal Claims, challenging the assessments as a taking of their property for which they sought just compensation and as an unconstitutional retroactive statutory application that denied them due process and equal protection. On the government’s motion, the Court of Federal Claims dismissed the complaints, holding that they did not set forth valid constitutional claims. In Commonwealth Edison Co. v. United States, No. 00-5069, also decided today, this court en banc has upheld the constitutionality of that statutory assessment against similar challenges, namely that it takes the property of another utility and denies that utility due process. That decision binds this panel, and requires us to reject the utilities’ taking and due process arguments in the instant case. Two of the utilities in this case, Maine Yankee Atomic Power Company and Sacramento Municipal Utility District, also argue that the statute denies them equal protection—a contention not made in Commonwealth Edison. As the Court of Federal Claims stated, the utilities argued that “the fact that foreign utilities were exempted from the assessment imper- missibly differentiates between similarly—situated entities— i.e., all those that had consumed government-enriched ura- nium. In addition, plaintiffs contend, the Act draws an illegitimate distinction between purchasers who resold the uranium, and those who kept it for their own purposes, as well as between pre 1992 consumers (who are subject to the fee) and post 1992 consumers (who are exempt).” Maine Yankee Atomic Power Co. v. United States, 44 Fed.Cl. 372, 383 (1999). ee ee ae ee ee ee re hei i a 3a The Court of Federal Claims correctly rejected those contentions. We rely upon and accept that court’s reasoning: With regard to Congress’s decision to exempt foreign utilities from liability, we refer to the Supreme Court’s observation in Barclay & Co. v. Edwards, 267 U.S. 442, 451, 45 S.Ct. 348, 69 L.Ed. 703 (1924) that “[cJon- siderations of policy toward foreign countries may very well justify an exemption of the foreign corporations from taxes that might legitimately be imposed on them, but which Congress does not think it wise to exact.” In addition, we think it significant that, as defendant points out in its motion to dismiss, the exclusion of foreign utilities from the liability equation in no way increases or otherwise affects plaintiffs’ portion of domestic utility usage. Similarly, legislatures need not burden the most respons- ible party to survive rational basis review. Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1255-56 (D.C.Cir.1998). While the original purchasers of uranium (those who resold it and were therefore exempt from assessment) may seem, to plaintiffs, equally to have benefited from the enrichment services, we cannot conclude that Congress’s decision to target end-users was without rational basis. And although plaintiffs may have preferred a system under which USEC’s post 1992 customers likewise picked up the tab, Congress’s assignment of liability for a past prob- lem to past consumers does not stretch the limits of the reasonable. Id. The judgments of the Court of Federal Claims dismissing the complaints are AFFIRMED. 4a * * * * K € Concurring opinion of FRIEDMAN, Senior Circuit Judge, in which MAYER, Chief Judge, joins. Since I agree that we are bound by Commonwealth Edison and also agree with the court’s rejection of the equal protection contention, I join in the opinion and judgment of the court. If I were not bound by Commonwealth Edison, however, I would hold that the retroactive assessment denies the appellants due process.. My reasons for that conclusion follow. I A. During World War II, the United States began enriching uranium, first for military purposes and, starting in the mid 1960s, as nuclear fuel for commercial generation of electricity, which it sold to domestic and foreign utilities. Maine Yankee Atomic Power Co. v. United States, 44 Fed.Cl. 372, 374 (1999). The government sold the enriched uranium under fixed price contracts, which did not authorize the government to collect any additional amounts. Jd. The decontamination and decommissioning of these polluted facilities is expected to take 40 years and to cost up to $20 billion. Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 1572 (Fed.Cir.1997). Congress dealt with this problem in the Energy Policy Act of 1992 (“the Act” or “the Energy Act”). See generally id. That was comprehensive legislation designed to implement a “national energy policy,” a reaction, at least in part, to the adverse economic effects of an oil embargo associated with the military conflict in the Persian Gulf. H.R.Rep. No. -102-474(1), at 132 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1955. In this legislation, Congress sought to “reform the current uranium enrichment program of the [government] so that it will be operated in a more business-like fashion.” — Sa H.R.Rep. No. 102-474(1), at 142 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1965. The Act established the United States Enrichment Corporation (“Enrichment Corporation’) as a government corporation .v assume the operation of the government’s uranium enrichment services, 42 U.S.C. § 2297, and “which eventually could be sold to the pri- vate sector.” H.R.Rep. No. 102-474(I), at 142-43 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1965-66. The Act required that the Enrichment Corporation “[w]ithin 2 years prepare a strategic plan for transferring ownership of the Corporation to private investors.” 42 U.S.C. § 2297d(a). The “key purposes of the Corporation includ[ed] providing enrichment services in a business-like fashion, maximizing the economic return to the [government].” H.R.Rep. No. 102-474(I), at 198 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2021. The Act provided that the Enrichment Corporation would not be liable for the costs of cleaning up and closing the government’s uranium enrichment facilities. 42 U.S.C. § 2297c-2(d). Instead, the Act established the Uranium Enrichment Decontamination and Decommissioning Fund (“Fund”) for that purpose. § 2297g. The Fund is financed through both Congressional appropriations and an assessment on those domestic utilities that purchased and used government enriched uranium. § 2297g-1(b). The Fund is instructed to obtain up to $480 million per year (to be adjusted annually for inflation), with at most $150 million from a special assessment on the domestic utilities. § 2297g-1(a), (c).. That assessment is based on each utility’s share of the government’s enriched uranium sales (whether purchased directly from the government or from another source), which were made prior to October 24, 1992 and that it did not resell. § 2297g l(c). The special assessment terminates after 15 years or after $2.25 billion has been collected. § 2297g-1(e). 6a The Act also provided that the special assessments “shall be deemed a necessary and reasonable current cost of fuel and shall be fully recoverable in rates in all jurisdictions in the same manner as the utility’s other fuel cost.” 42 U.S.C. § 2297g-1(g). B. The three appellants filed separate complaints in the Court of Federal Claims, as did a number of other sim- ilarly-situated electric utilities. They contend that the special assessment constituted a breach of the fixed-price contract under which they had purchased enriched uranium from the government. The complaints included the following factual allegations, which we accept for purposes of the govern- ment’s motions to dismiss. Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1169-70 (Fed.Cir.1995) (“[W]e assume that all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the movant.”). The appellants—Maine Yankee Atomic Power Company (“Maine Yankee”), Sacramento Municipal Utility District (“Sacramento District”), and Omaha Public Power District (“Omaha District”) (collectively “the Utilities”)—all operated nuclear power plants and purchased government-produced enriched uranium before 1992. Thus, as domestic utilities that purchased and used government provided enriched uranium, each is liable for a portion of the Act’s special assessment, and each has paid millions of dollars.’ The Utilities also allege that the government completely contaminated its enrichment facilities (buildings, equipment, property, and surrounding property) prior to 1969, at a time when they were used almost exclusively for defense purposes. Little, if any, additional contamination occurred after 1969, when these facilities were used to enrich uranium for sale to commercial utilities. ee ee ee a Ta Maine Yankee is a domestic utility that operated a single nuclear power plant, which was permanently closed in 1996. It purchased enriched uranium from the government from 1970 to 1986 under two contracts, one executed on October a 1970 and the other on November 4, 1982. On its purchases of government enriched uranium, Maine Yankee is subject to a $25 million special assessment, of which it has paid more than $9.8 million. Sacramento District is a municipal utility district in California that generates electricity and operated a nuclear generating facility, which it closed in 1989. During the operation of that facility, the Sacramento District purchased enriched uranium from the government, beginning in 1969” and ending in 1981. In 1990, the Sacramento District terminated its contract for purchasing enriched uranium. Because of those purchases, Sacramento District has paid $5.8 million in special assessments and expects its total liability to reach $8 million. Omaha District is a domestic utility that generates and supplies electricity in Nebraska. It purchased enriched ura- nium from the government between 1969 and 1992 under two contracts. Omaha District has paid special assessments of more than $7.4 million, and estimates its total liability to be nearly $20 million. One of the other utilities that filed such a suit in the Court of Federal Claims was Yankee Atomic Electric Company. That court granted Yankee Atomic summary judgment, holding that “the assessment imposed upon Yankee Atomic to fund clean-up costs constitutes an unlawful exaction because it violates the Government’s earlier contractual agreements to supply enriched uranium at fixed prices.” Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569, 1571 (Fed. Cir.1997). On the government’s appeal, we reversed. Id. We held that the special assessment did not constitute a retroactive increase of the contract price, id. at 1575, but 8a instead “constitutes a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services,” id. at 1577. After our decision in Yankee Atomic, the Utilities amended their complaints to assert claims not addressed in Yankee Atomic; namely, that the assessment was a taking of their property and denied them due process in violation of the Fifth Amendment. Maine Yankee and the Sacramento District also asserted that the assessment denied them equal protection. On the government’s motion, the Court of Federal Claims granted summary judgment dismissing the complaints for failure to state a claim upon which relief could be granted. Maine Yankee Atomic Power Co. v. United States, 44 Fed. Cl. 372 (1999); Omaha Pub. Power Dist. v. United States, 44 Fed. Cl. 383 (1999); Sacramento Mun. Util. Dist., 44 Fed.Cl. 395 (1999). In an opinion dealing with the three cases (but issued separately for each case), the court first held that Yankee Atomic was not stare decisis on the constitutional issues the Utilities raised. Maine Yankee, 44 Fed.Cl. at 376-77. In holding that the complaints did not state a valid takings claim, the court concluded that none of the factors in “‘a traditional takings analysis . ..—the economic impact of the legislation, the reasonableness of plaintiffs’ investment-backed expec- tations and the character of the government action—support the finding of a taking of property.” /d. at 381. The court rejected the Utilities’ due process claim based on the retroactivity of the assessment. /d. at 379-80. The court concluded its discussion of these issues with the following statement: Whether we analyze the assessment under the Due Process Clause, under the Takings Clause, or under some amalgam of the two, we are, in the end, faced with a 9a single, basic question: Is it inherently unfair, unjust, or irrational for Congress, when faced with costs resulting from the enrichment of uranium, to ask those parties who received the uranium to contribute to the solution? The answer, quite clearly, is no. Plaintiffs’ assessments are directly proportional to their usage of uranium enrichment services the very services which created the contamination. Congress itself took responsibility for more than two thirds of the clean-up costs and assigned the rest, as a general tax, to the rate-payers in districts which had previously benefited from nuclear power. Such a scheme can hardly be construed as beyond the reach of fairness or rationality. Id. at 382-83. Finally, the court rejected the claim that the special assessment denied Maine Yankee and the Omaha District equal protection because it did not cover (1) foreign utilities or (2) utilities that purchased but resold government-enriched uranium. The court denied this claim since “legislatures need not burden the most responsible party to survive rational basis review.” Id. at 383 (citing Ass’n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1255-56 (D.C.Cir.1998)). II A. The Supreme Court has noted that “the presumption against retroactive legislation is deeply rooted in our juris- prudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (footnotes omitted). When the retro- activity is severe, the legislation may violate the Due Process Clause. See United States v. Carlton, 512 U.S. 26, 32, 114 10a S.Ct. 2018, 129 L.Ed.2d 22 (1994) (concluding that the application of a 1987 federal tax statute to a 1986 transaction did not violate due process in part because “Congress acted promptly and established only a modest period of retro- activity.”); see also id. at 38, 114 S.Ct. 2018 (O’Connor, J., concurring) (“A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, im my view, serious constitutional questions.”’). In exceptional circumstances not involving tax law, however, longer retroactivity has been held not to deny due process. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), discussed in Part III B below. Another pertinent principie is that economic legislation has a presumption of constitutionality, which may be overcome by demonstrating that the legislation is arbitrary or irrational. Turner Elkhorn, 428 U.S. at 15, 96 S.Ct. 2882 (noting that “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way’’) (citing, for example, Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Optical Inc., 348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed. 563 (1955)). Thus, to prevail here, the Utilities must demonstrate that the Act is arbitrary and irrational as applied to them. They have carried that burden. The special assessment was wholly retroactive: it covered only purchases of enriched uranium before the effective date of the Act. The retroactivity was severe. It reached back to the Utilities’ enriched uranium purchases that occurred up to twenty-two years (or twenty-three years, in the case of Omaha District) before the Act was passed, six years after Maine Yankee had stopped purchasing government enriched ura- nium, and three years after Sacramento District closed its lla plant. It also was substantial, subjecting the Utilities to additional charges which they assert would tota! $25 million, $8 million and almost $20 million for the three companies. The Utilities did not cause or contribute to the contam- ination of the government’s plants, which the special assess- ment was designed to cure, and did not benefit from it. The Utilities allege that the contamination occurred prior to the beginning of their purchases, when the plants were producing enriched uranium “almost exclusively” for the military, and that “[little, if any additional contamination” occurred there- after. Moreover, when the Utilities entered into the purchase contracts at a fixed price, they had no reason to believe, or even suspect, that years later the government would seek to make them pay for a substantial portion of its cleanup costs. They may well have understood and expected that the government would incur substantial expenses in making that cleanup, but they reasonably would have believed that the charges the government made for the enriched uranium included the cleanup cost. They certainly had no basis to expect that they would be subject to the additional large amounts of the assessments. To be sure, the Utilities benefited from their participation in the government’s uranium enrichment program, but the plant contamination and the cost of cleaning it up arose from an earlier stage of that program (when the Utilities were not participants). For the reasons just given, however, the Utilities’ participation is not a sufficient basis under the Due Process Clause to subject the Utilities to such a substantial portion of the costs of cleaning up the contamination, which they did not cause and from which they did not benefit. B. The government contends that Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 24, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), supports the retroactive assessment against the Utilities. Turner Elkhorn involved a provision of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 792, as 12a amended by the Black Lung Benefits Act of 1972, 86 Stat. 150, 30 U.S.C. § 901 et seq., that required mining companies to pay death or total disability benefits to employee miners suffering from pneumoconiosis (black lung disease), as applied to miners who had stopped so working before the effective date of the Act. The disease, whose symptoms may “become apparent only after a miner has left the coal mines,” id. at 8, 96 S.Ct. 2882, “is caused by long-term inhalation of coal dust,” id. at 6, 96 S.Ct. 2882. The mining companies challenged this retroactive application of the Act as violating due process. The Supreme Court upheld the Act against this challenge. The Court recognized that the legislation imposed new liability for disabilities developed prior to enactment, but concluded that such retroactivity was “justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor.” /d. at 18, 96 S.Ct. 2882. It reflected the “interlocking economic rights and duties of employers and employees,” and “ad- just[ed] the burdens and benefits of economic life.” /d. at 15, 96 S.Ct. 2882. Thus, Turner Elkhorn held that it was not a due process violation for legislation “to satisfy a specific need created by the dangerous conditions under which the former employee labored—to allocate to the mine operator an actual, measurable cost of his business.” /d. at 19, 96 S.Ct. 2882. The Court, however, in sustaining the presumptions of the Coal Act relating to total disability, which were also at issue in the case, stated: “To the extent that the presumption of death due to pneumoconiosis is viewed as requiring com- pensation for damages resulting-from death unrelated to the operator’s conduct, its application to employees who terminated their employment before the Act was passed would present difficulties not encountered in our prior discussion of retroactivity. The justification we found for the retrospective application of the Act is that it serves to spread 13a costs in a rational manner—by allocating to the operator an actual cost of his business, the avoidance of which might be thought to have enlarged the operator’s profits. The damage resulting from a miner’s death that is due to causes other than the operator’s conduct can hardly be termed a ‘cost’ of the operator’s business.” /d. at 24, 96 S.Ct. 2882: see also Con- crete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 641, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993): United States v. Carlton, 512 U.S. 26, 31, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994). Thus, in Turner Elkhorn, the Supreme Court recognized culpability as an important factor supporting the imposition of retroactive liability. There is a critical difference between Turner Elkhorn and the present case that precludes the application of Turner Elkhorn here. In Turner Elkhorn the miners’ illness was caused by conditions that existed when they were working for the company, for which it was responsible and which “profited from the fruits of their labor.” The company, therefore, could fairly be charged with responsibility for its former employees’ condition. In the present case, however, the contamination occurred before the government sold enriched uranium to the Utilities, which neither were responsible for nor benefited from the contamination. In these circumstances, as shown, it would be unfair and unreasonable to subject the Utilities to a substantial additional charge to cure the contamination they neither caused nor benefited from. In many (if not most) of the cases in which the Supreme Court rejected Due Process challenges to retroactive legis- lation, the statute dealt with the relationships, financial and otherwise, among private parties; the government’s role was only the regulation of those relationships. In the present case, however, the statute deals with the relationship between the government and private parties; it seeks to transfer to those parties a substantial portion of the government’s costs of rectifying the contamination of its plants used to produce the product it sold to those parties. It is by no means clear that those Supreme Court cases may be automatically and uncritically applied to the significantly different situation here involved. C. The government contends that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“Environmental Response Act”), 42 U.S.C. § 9601 et seq. (1994), supports the validity under the Due Process Clause of the retroactive assessment of clean-up costs on the Utilities. Among other things, that Act provides for the clean-up of inactive hazardous waste disposal sites and established a Hazardous Substances Response Trust Fund (“Superfund”) to pay for it. The Superfund was funded initially, and in large part, by special taxes on certain petroleum products and chemicals and was to be replenished by assessments on persons responsible for the waste. Hazardous Substance Response Revenue Act of 1980, Title II, Subtitle A §§ 4611, 4661, Title Il, Subtitle B, § 221, 26 U.S.C. §§ 4611, 4661, 42 U.S.C. § 9631. The government used the Superfund to fund the clean-up and replenished the cost by charging the persons responsible for the hazardous waste. 42 U.S.C. §§ 9604(a)(1), 9607. Such responsible persons include those involved in the cleanup work, including “the owner and operator of . . . a facility,” anyone who at the time of disposal “owned or operated any facility at which such hazardous substances were disposed of,” anyone who arranged for or participated in the “transport for disposal or treatment, of hazardous substances” and anyone who “accepted any hazardous substances for transport to disposal treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.” 42 U.S.C. § 9607(a). 15a The Environmental Response Act thus retroactively imposes liability on numerous persons for cleanup of pre-enactment contamination. The government cites two Court of Appeals cases that upheld the retroactive application of the Environmental Response Act against Due Process challenges to its constitutionality, as support for the constitutionality of the retroactive assessment against the Utilities. United States vy. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir.1986), held liable for cleanup costs individuals who arranged for the transportation and dumping of hazardous waste before the effective date of the Act. In United States v. Monsanto Co., 858 F.2d 160, 174 (4th Cir.1988), the court ruled that retroactive application of the Environmental Response Act did not violate due process as applied to (1) landowners who leased their property to a company that stored hazardous waste on the land and (2) the companies that generated the waste but which contracted with another waste-handling business, which provided transportation, recycling and disposal of chemical waste. Noting that the companies that generated the waste profited from inexpensive waste disposal methods that may have been technically legal prior to the [Environmental Response Act]’s enactment, it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment. [The Environmental Response Act] operates remedially to spread the costs of responding to improper waste disposal among all parties that played a role in creating the hazardous condi- tions. . . . [T}he retroactive application of [the Environmental Response Act] does not violate due process. /d. at 174 (citations omitted). - In the present case, however, the Utilities did not participate in any way, directly or indirectly, or play any role in, the creation of the hazardous conditions at the gov- ermment’s uranium facilities. The Utilities merely purchased enriched uranium after the contamination had occurred, long 16a before the passage of the Energy Act. The Utilities’ tangential connection with the contamination of the government’s uranium enrichment facilities is quite different from the relationships to the hazardous waste disposal of the persons held constitutionally liable under the Environmental Response Act. D. The government also contends that because 42 U.S.C. § 2297g-1(g) provides that the assessments “shall be deemed a necessary and reasonable current cost of fuel and shall be fully recoverable in rates in all jurisdictions in the same manner as the utility’s other fuel cost,” the Utilities will be able to pass the assessments on to their customers, and that the assessments, therefore, will not have any substantial economic impact on them. It is impossible to predict, however, to what extent (if any) state and local regulatory agencies and courts would per- mit the Utilities to treat the assessments as a “current cost of fuel” in determining their rates. The question whether § 2297g-1(g) preempts state regulatory authority in this area appears difficult. The power of Congress to require that particular items be included in the Utilities’ costs for rate making purposes is uncertain. Regulation of retail electric power rates is a traditional function of state government. The likelihood of the state action that the government envisions is far too speculative and conjectural to constitute a valid basis for upholding the assessments. In any event, the question whether, and to what extent, the State regulatory agencies and courts will recognize the assessment as part of the Utilities’ costs for rate making purposes appears more appropriately an issue for the damages phase of these cases than for the liability phase. E. In sum, I conclude that the Utilities’ complaints have stated a valid claim under the Due Process Clause, and that the Court of Federal Claims erred in dismissing the complaints for failure to state a claim upon which relief could be granted. te ie & uu Be 17a APPENDIX B UNITED STATES COURT OF FEDERAL CLAIMS (Filed: July 26, 1999] No. 96-616 C OMAHA PUBLIC POWER DISTRICT, Plaintiff, - V. THE UNITED STATES, Defendant. OPINION WIESE, Judge. In the Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776 (codified as amended in various sections of 42 U.S.C.), Congress directed the collection of a special fee from all domestic electric utility companies that previously had purchased enriched uranium from the Government for the generation of electrical energy. The fee, which is to remain in effect for fifteen years following the Act’s enactment or until $2.5 billion has been collected, is deposited into a special fund, the Uranium Decontamination and Decommissioning Fund (the “D & D Fund”), to be used to meet the Clean-up costs of the Government facilities where the uranium enrichment activities were carried out. The lawfulness of this fee was the subject of a legal challenge in Yankee Atomic Elec. Co. v. United States. 112 F.3d 1569 (Fed.Cir.1997), rev’g 33 Fed.Cl. 580 (1995). cert. denied 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). In that case, a similarly-situated plaintiff argued that the Government’s imposition of the fee violated the 18a fixed-price character of the contracts under which the enriched uranium had been sold to the utility companies. While the trial court initially accepted the plaintiff's argument, the Federal Circuit reversed, holding that the fee constituted “a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” /d. at 1577. . The same fee is once again brought under attack in this case. The arguments we encounter now are that the impo- sition of the fee amounts to an unconstitutional taking of property, a violation of substantive due process and a denial of equal protection. The Government has moved to dismiss for failure to state a claim on which relief can be granted. Plaintiffs oppose.’ The parties have filed extensive briefs and oral argument was heard on May 18, 1999. We now decide in defendant’s favor. FACTS Beginning in the 1940s, the Government, acting originally through the Atomic Energy Commission and later through the Department of Energy (DOE), owned and operated a number of uranium enrichment facilities as part of the national defense program. For almost 25 years, most of the uranium produced at these plants—approximately 96%—was used solely for national defense purposes. In the mid-1960s, however, the Government decided to make its enrichment services available to commercial customers, a decision that ' Although their cases have not been formally consolidated, the actions filed by Maine Yankee Atomic Power Company, docket number 97-28C, Sacramento Municipal Utility District, docket number 95-823C, and Omaha Public Power District, docket number 96-616C, present nearly identical issues that were briefed and argued together. Accordingly, this opinion speaks to all three claims. 19a was implemented by entering into a series of contracts with various public utilities permitting their purchase of enriched uranium for the generation of electricity. In the main, these contracts provided for the sale of uranium at a fixed price, determined according to prevailing rates established by the Commission at the time the service was provided. In the early 1990s, following nearly fifty years of uranium enrichment activity, Congress decided to privatize its enrich- ment facilities by creating a new, for-profit, governmental corporation called the United States Enrichment Corporation (“USEC”). Under the Energy Policy Act of 1992, USEC was to assume operational control of the enrichment facilities, with the goal of ultimately selling the facilities to private investors. DOE, concerned that the cost of decontaminating the plants would stand as an obstacle to attracting private investment, lobbied Congress to exempt USEC from all clean-up-cost liability. Congress agreed, specifying that all pre-enactment liabilities—including the cost of decontami- nating and decommissioning the plants—would remain the responsibility of DOE. As part of the Energy Policy Act, then, Congress estab- lished the Uranium Enrichment Decontamination and De- commissioning Fund to pay for the clean-up of the government-owned enrichment facilities. The Act specified that a portion of the clean-up costs—specifically $330 million annually, or 68% of the required amount—would be contributed by Congress from appropriated funds. The remaining third, a figure not to exceed $2.5 billion, would be collected in up to $150 million annual installments over a fifteen-year period from those domestic utility companies that had earlier used government-enriched uranium in the generation of electricity. 42 U.S.C.A. § 2297g-1 (West 1994 & Supp.1999). The utilities’ portion was subject to annual and aggregate caps, with Congress, by statute, obligated to make up the difference. 20a Three aspects of the D & D Fund are, from plaintiffs’ perspective, worthy of note. First, the fee imposed by the Energy Policy Act applies only to the end-users of the uranium. Thus, a utility that had contracted with the Gov- ernment for the purchase of uranium but then had resold the uranium to another utility would not be subject to the fee. As a result, the list of utilities responsible for the fee is strikingly similar to, but not entirely coincident with, the list of utilities that had contracted with the Government. Second, the special assessments are imposed only on those utilities that purchased government-enriched uranium prior to the Energy Policy Act’s 1992 enactment, and thus do not apply to domestic customers who purchased USEC services any time after 1992. Finally, the Act specifies that foreign utilities, despite having represented 25% of DOE’s pre-1992 commercial customer base, are not subject to the fee. Under the Act, the fee itself is based on the percentage of uranium enrichment work units each utility had previously purchased from the Department of Energy, relative to the total number of work units produced by DOE over the life of the enrichment facilities. That contribution scheme— apportion-ing liability for the fee on the basis of pro-rata consumption of uranium—was first challenged in Yankee Atomic, 112 F.3d 1569 as a violation of the utilities’ fixed-price contracts for the purchase of uranium. The Federal Circuit, as we earlier noted, rejected Yankee Atomic’s claim that the Energy Policy Act impermissibly raised the price of uranium in breach of the parties’ fixed- price contracts with the Government. Characterizing the fee as a “general exercise of Congress’s taxing power,” the Federal Circuit concluded that the assessment was “not a deliberate retroactive increase in the price of those contracts,” but was instead “the Government’s way of spreading the costs of the later discovered decontamination and decommissioning problem on all utilities that benefited from the Government's service.” /d. at 1577, 1580. 2la The plaintiffs now before this court—Maine Yankee Atomic Power Company, Sacramento Municipal Utility Dis- trict and Omaha Public Power District—each signed enrich- ment contracts with the Government which, in their original form, were largely identical to the contracts between Yankee Atomic and the Government.’ As a result of the uranium purchases made under those contracts, plaintiffs, like Yankee Atomic, have been subject to the assessment outlined in the Energy Policy Act. As of the date of suit in this court, Omaha Public Power District had paid approx-imately $7.4 million of the $19 million it is projected to owe under the Energy Policy Act for purchases of uranium made from 1969 until 1992; Maine Yankee Atomic Power Company had paid $9,815,718.57 of its estimated $25 million liability on uranium purchases from 1970 until 1986; and Sacramento Municipal Utility District had paid more than $5.8 million of its projected $8 million liability for uranium purchased from 1969 until 1981. Of the three utilities, only one—Maine Yankee—has abandoned the electricity gener-ating business entirely, closing down its sole electricity generating facility permanently in 1996. DISCUSSION In the first count of their amended complaints, * plaintiffs assert that the imposition of a monetary liability which is both ? Omaha Public Power maintains that the Utility Services Contract and the Supplemental Agreement of Settlement it signed in 1984 (terminating all existing uranium contracts and providing that “all obligations arising under [its then existing} contract shall be deemed to be concluded”’) differentiates its contract from the contracts at issue in Yankee Atomic. We address this contention later in this opinion. * The claims now before us were pending, but stayed, while the parallel claim in Yankee Atomic was proceeding before the trial and appellate courts. In light of the decision in Yankee Atomic, plaintiffs filed amended complaints in which they essentially have distanced themselves from their earlier contract-based theories. Plaintiffs attempt now to move forward under the theories set forth in Eastern Enterprises v. Apfel, 524 U.S. 498, 22a retroactive and unconnected to their past conduct deprives them of property rights in violation of the Takings Clause of the Fifth Amendment. The second count sets forth a due process claim based on similar contentions—that the assessment is unconstitutional to the extent that it imposes on plaintiffs a severe, disproportionate and extremely retroactive liability. Plaintiffs’ third and final count alleges a taking and/or breach of plaintiffs’ contract- based rights. Defendant, in turn, has moved to dismiss plaintiffs’ claims. It contends first that plaintiffs’ takings and due process arguments were considered and rejected by the Federal Circuit in Yankee Atomic and, under the principle of stare decisis, should not be revisited. Second, defendant argues that the holding in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), striking down as unconstitutional the imposition of a severely retroactive liability on a party that had no reason to anticipate the liability and whose experience was not commensurate with the burden later imposed, is not dispositive of the issues before us. Finally, defendant maintains that even under the traditional tenets of due process and takings law, plaintiffs’ claims must fail. We address those arguments in turn. I. Stare Decisis In urging us to apply the doctrine of stare decisis, defendant argues that the Yankee Atomic ruling, upholding the assessment on the grounds that it constitutes a general tax falling proportionally on those utilities that had benefited from the Government’s services, disposes of the issues now before us. While we agree that the Yankee Atomic decision goes a long way in addressing plaintiffs’ present arguments, we are unconvinced, however, that the decision forecloses 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), specifically that a retroactive imposition of liability may, in certain circumstances, constitute a vio- lation either of the Takings Clause or Due Process Clause of the Fifth Amendment. PR PN Re ee ee ae oye ae OEE REET RE yy an ee oe 23a plaintiffs’ takings and due process claims. Only to the extent that plaintiffs now attempt to maintain contract-based claims —an issue argued before, and rejected by, the Federal Circuit in Yankee Atomic—do we find the doctrine of stare decisis to be applicable. In reaching this conclusion, we begin with a fundamental principle of stare decisis: in order for an issue of law to be seen as settled, and hence binding, it must have been both heard and decided by an earlier court. 18 James Wm. Moore et al., Moore’s Federal Practice § 134.04 [2] (3d ed.1998). Stare decisis applies “only to legal issues that were actually decided in a prior action” and not to those which were neither “litigated [nJor resolved.” Beacon Oil Co. v. O’ Leary, 71 F.3d 391, 395 (Fed.Cir.1995). In addition, a case will not be treated as binding precedent on a point of law where the holding is only implicit or assumed in the decision but is not announced. United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Two obstacles prevent us from invoking the doctrine of stare decisis. As an initial matter, we do not believe the Yankee Atomic decision explicitly rules on, nor even squarely addresses, plaintiffs’ takings or due process arguments. As we discuss below, the takings and due process claims put forth by Yankee Atomic differ in crucial respects from the takings and due process claims now before this court. In addition, the Supreme Court’s opinion in Eastern Enterprises —issued after the Yankee Atomic decision—adds a new perspective to the issues at hand. To the extent that the decision must guide our own thinking, we are not prepared to conclude that the decision would in no way have shaped the Federal Circuit’s thinking in Yankee Atomic as well. And it is this subtle shift in legal thought we are now bound to explore. Considering first the scope of the Yankee Atomic decision, we note that while the Government is correct in asserting that the Yankee Atomic court considered both due process and 24a takings challenges to the Energy Policy Act assessment, it considered only a single aspect of those challenges: whether the contract rights, establishing a fixed price for govern- ment-provided enrichment services, had been taken or otherwise violated. The court was not asked to address, nor did it consider, whether the assessment; properly treated as a tax, met the standards of takings and due process law as applied simply to governmental demands for money. Indeed, the takings claim that was presented and briefed in Yankee Atomic was the taking of a contract right. The trial court explicitly characterized the assessment as a revision in contract price, and held the assessment unconstitutional on the grounds that it deprived Yankee Atomic of the economic benefit provided by the contract. To the extent that a taking or, in the words of the trial court, an illegal exaction, had occurred, the illegality was specifically predicated on a violation of contract-based rights. The contract-based approach to the problem continued at the appellate level: “The decision of the Court of Federal Claims is driven by its characterization of the special assess- ment as a retroactive price increase rather than an exercise of the sovereign’s taxing power, and the parties’ dispute over this characterization frames the dispositive issue of this appeal.” Yankee Atomic, 112 F.3d at 1573. However, in focusing on what the assessment was not—an impermissible infringement on contract rights—the Federal Circuit was not required to explore the full_dimensions of what it concluded the assessment in fact was—the imposition of a tax. Accordingly, the court made no explicit findings with regard to whether money, rather than contract rights, had indeed been taken. Similarly, while the alleged retroactivity of the fee was a feature of the Yankee Atomic case, it was not, either in the arguments before the court or in the court’s decision,_treated as a true factor in assessing the fee’s constitutionality. To the 25a extent that due process or takings issues were addressed, the focus remained on the Government’s action as it affected contract rights, not as a limitation on the Government’s power to tax. “Regardless of whether the situation is characterized as a breach of contract, an unlawful taking, or an unlawful exaction, the arguments stem from Yankee Atomic’s prior contracts with the Government.” /d. at 1574 n. 2. Yankee Atomic thus offers us no guidance as to what restrictions on the Government’s taxing power takings law or due process may in fact impose. In assessing the applicability of stare decisis, then, we must ask ourselves whether we can be assured that Yankee Atomic answered, in a deliberate fashion, the questions plaintiffs raise here: whether, independent of any contract right, the special assessment imposed by the Energy Policy Act amounted to a taking of plaintiffs’ money; whether the liability itself was so retroactive, so divorced from plaintiffs’ experiences and so contrary to their expectations that it violated due process. These questions, we believe, were not answered. With regard to plaintiffs’ contract-based claims,* however, we find Yankee Atomic to be dispositive. In determining that the assessment constituted an exercise of general taxation apart from, and wholly independent of, the parties’ earlier contractual relationship, the Federal Circuit rejected the contention that the assessment amounted to an impermissible infringement on the plaintiff’s contract-based rights. This court, in-turn, is bound by that ruling. Nor do the additional contract documents put forth by Omaha Public Power District change that result. We see nothing in the Utility Services Contract or the 1984 Supplemental Agreement to differentiate it from the contract that was at issue in Yankee Atomic. And to the extent that the * With the exception of Omaha Public Power District, plaintiffs con- cede the preclusive effect of Yankee Atomic and reiterate their contract claims merely to preserve the issue for appeal. 26a fixed-price terms of the contract were held by the Federal Circuit not to constitute an unmistakable promise, no addi- tional terms in the Supplemental Agreement satisfy that unmistakability requirement. The unmistakability doctrine— a principle which dictates that immunity from future legis- lation (here, a tax) be clearly, unmistakably incorporated into a contract with the Government in order to be enforced— requires more than the generic statements embodied in the Supplemental Agreement or the extra-contractual assurances by Government officials allegedly made to Omaha. II. The Eastern Enterprises Decision A. The Essential Ruling Moving forward, then, with plaintiffs’ due process and takings claims, we begin with the contentions that the Energy Policy Act assessment impermissibly imposes financial liability on parties not responsible for the problem that the legislation addresses, and is based on conduct excessively far in the past. As evidence of those two propositions, plaintiffs point first to testimony offered before a congressional sub- committee to the effect that it was the use of the enrichment facilities by the U.S. military that alone contaminated the plants, and that the subsequent enrichment of uranium for commercial purposes added no additional contamination. Plaintiffs additionally point to the fact that the fees levied are based, in some instances, on purchases of uranium that occurred some twenty-three years before the passage of the Energy Policy Act. ° See, for instance, Department of Energy Budget Request for Fiscal Year 1993: Oversight Hearing before the Subcommittee on Energy and the Environment of the Committee on Interior and Insular Affairs, 102d Cong., 2d Sess. at 79 (Feb. 28, 1992) (statement of William H. Young, Assistant Secretary for Nuclear Energy, United States Department of Energy) (acknowledging that “the contamination that was placed on the systems and structures occurred during that 20-year peried that it was operated for the government”). 27a Plaintiffs’ orientation to the present problem is shaped in large part by the holding in Eastern Enterprises, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451—a decision defendant maintains is inapplicable to the facts at hand. In Eastern Enterprises, a coal mining company challenged the Coal Industry Retiree Health Benefit Act of 1992 (the Coal Act), charging that the act was unconstitutional as applied to it. The Coal Act obligated Eastern to pay premiums, beginning in 1992, to cover health care benefits for former employees who had worked for Eastern prior to 1966, despite the fact that Eastern itself had ceased its mining operations in 1965. Central to the Supreme Court’s analysis was the fact that, of the various bargaining agreements signed by the coal industry throughout the years, only those agreements reached after 1965—i.e., those in which Eastern Enterprises had not participated—contained explicit reference to, or fostered expectations of, lifetime health benefits. A four-justice plurality held that the assessment, reaching back more than thirty years and unrelated to the company’s experience with the health-care plans, violated the Takings Clause. One justice, concurring in the result, rejected the applicability of the Takings Clause, but reached his con- clusion based on due process grounds. In contrast, a four- justice dissent concluded that the Takings Clause was inap- plicable, and that due process had not been violated. It is the fractured nature of that decision which defendant believes limits its holding. This court need not apply a takings analysis, defendant maintains, since a majority of the Court—the four dissenters along with Justice Kennedy in his concurrence °_explicitly rejects the applicability of the ° The dissent rejected the plurality’s takings analysis on the ground that the case involved “not an interest in physical or intellectual property, but an ordinary liability to pay money, and not to the Government, but to third parties.” Eastern Enterprises, 524 U.S. at___, 118 S.Ct. at 2162 (Breyer, J., dissenting). Justice Kennedy, writing in concurrence, further cautioned 28a Takings Clause to “an ordinary liability to pay money.” Eastern Enterprises, 524 U.S. at __, 118 S.Ct. at 2162 (Breyer, J., dissenting). And in the absence of Eastern Enterprises, defendant contends, prevailing case law would only require the act to meet a standard of rationality in order to withstand a constitutional challenge. While we recognize that the takings analysis employed by the plurality in Eastern Enterprises does not necessarily reflect the approach advocated by the remaining members of the Court, we are nonetheless mindful of the D.C. Circuit’s observation that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court must be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.”” King v. Palmer, 950 F.2d 771, 783 (D.C.Cir.1991) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)) (emphasis omitted). If Eastern Enterprises does not stand for a single, distinct approach to the problem before it, it nonetheless stands for a clear principle: a liability that is severely retroactive, dis- ruptive of settled expectations and wholly divorced from a party’s experience may not constitutionally be imposed. We draw that conclusion from the language offered both by the plurality and by the concurrence. The plurality pointed out that Supreme Court decisions “have left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is that “[t]he plurality’s opinion disregards this requirement [that a specific property right or interest be at stake] and, by removing this constant characteristic from takings analysis, would expand an already difficult and ; uncertain rule to a vast category of cases not deemed, in our law, to implicate the Takings Clause.” /d. at__, 118 S.Ct. at 2155 (Kennedy, J., concurring). - 29a substantially disproportionate to the parties’ experience.” Eastern Enterprises, 524 U.S. at__, 118 S.Ct. at 2149. The plurality then went on to criticize the assessment as “not calibrated either to Eastern’s past actions or to any agree- ment—implicit or otherwise—by the company,” rejecting the liability on the grounds that it was “substantial in amount, based on the employer’s conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused.” Jd. at___, 118 S.Ct. at 2153. Similarly, Justice Kennedy, in his concurrence, looked to the “degree of retro- active effect” as a “significant determinant” in assessing a statute’s constitutionality. Eastern Enterprises, 524 U.S. at __, 118 S.Ct. at 2159 (Kennedy, J., concurring). Noting that the retroactivity in Eastern was of “unprecedented scope,” he concluded that, to the extent that Eastern was responsible neither for the miners’ expectations of life-long health benefits nor for the benefit plan’s fiscal instability, it could not constitutionally be made to bear the burden imposed by the Coal Act. /d. The Eastern Enterprises test thus asks us to look more broadly—whether through the lens of takings or due process—at the equity of imposing retroactive liability if the length of the retroactivity is great and the party’s experience with the underlying problem inconsequential. B. The Ruling Applied In examining the factors which unified the plurality and the concurrence in Eastern Enterprises, we begin first with the magnitude of the retroactivity. Plaintiffs urge us to measure the length of retroactivity from the time the utilities first purchased uranium from the Government, on the grounds that the assessment changes the consequences of transactions dating back to those years. By plaintiffs’ calculations, the assessment taxes Omaha and Sacramento on purchases made twenty-three years before the statute’s enactment, and Maine— Yankee on purchases made twenty-two years before that date. 30a i. Retroactivity While at first glance the length of time appear’ to rival the thirty to fifty-year period found objectionable in Eastern Enterprises, those numbers belie an important distinction: Eastern Enterprises had left the coal business almost thirty years before the Coal Act’s passage, and was no longer a member of the industry either at the time the expectation of lifetime benefits was fostered or at the time the existing benefit fund became unstable. Plaintiffs, in contrast, con- tinued to participate in the uranium enrichment field, in at least one instance, up until the date of the Energy Policy Act’s passage ’ and had, by definition, contemporaneous exposure to the process (i.e., the enrichment) which created the problem. While the import of that distinction may not be immediately obvious, it goes to the heart of the case against retroactive law-making. The objection to retroactivity is not simply that a transaction is “reopened,” but that legitimate, long-settled expectations are themselves disrupted. Put sim- ply, retroactivity most offends when dealings an individual reasonably views as both completed and long-past are, without legitimate justification, again called into account. We explain further. To the extent that Eastern had left the coal business entirely and had done so at a time when the driving forces behind the Coal Act—the miner’s expectations of lifetime benefits and the instability of the benefit fund—had yet to come into existence, it could reasonably have concluded that its dealings in the coal industry were complete. The Eastern Enterprises decision taught in part that such thirty-year-old expectations ’ Omaha Public Power District continued to purchase government- enriched uranium until 1992; Maine Yankee until 1986 and Sacramento Municipal Utility District until 1981. In the case of Sacramento, however, its contracts with the Government continued until 1990 even though it had exercised opt-out provisions to permit its purchase of uranium from other sources. t 3la should not be lightly undone. Plaintiffs’ situation offers no parallel: unlike Eastern, they did not leave the industry decades before the imposition of liability, nor were they charged with remedying a problem that was still to be recognized at the time they completed the conduct on which their liability was later to be based. Plaintiffs, still purchasing uranium well into the 1980s and 1990s (and presumably aware, at Jeast in a general sense, of the problem of contamination), could not reasonably have harbored the same sense of closure with regard to those transactions as did the plaintiff in Eastern Enterprises. The Energy Policy Act’s retroactive effect extends, at most, for less than a decade, though we see no need actually to quantify that period. As intimated above, what concerns us is not the length of the period per se--one could hardly maintain, for instance, that an eleven-year reach-back is unacceptable while a nine-year reach-back passes muster—but the reasons for the retroactivity and the retroactivity’s effect. Eastern Enterprises teaches that, even in the face of severe retro- activity (not, we believe, the present situation), the extent of a Statute’s retroactivity is not the only factor to be considered in determining the legislation’s constitutionality. We turn then to the other factors. ii. Proportionality—Present Burden and Past Conduct Significant also to the Eastern Enterprises analysis was the fact that Eastern had no reason to anticipate the liability imposed on it, and its burden was substantially dispro- portionate to its experience. Focusing on the proportionality of the current plaintiffs’ burden to their experience, we make two general but crucial observations: the plaintiffs’ burden, ultimately, was small, and its experience—at least for the purposes of assigning liability—was great. We explore those conclusions further. 32a With regard to the magnitude of the liability, we begin with the point that a lion’s share of the expense for the clean-up— some 68%—is to be funded by Congress through public appropriations. The utilities, from the beginning, were slated only to shoulder less than a third of the total costs. In addition, the Energy Policy Act contains a specific pass- through mechanism, designed to ensure that the utilities’ present customers, rather than the utilities themselves, bear the ultimate expense of the assessment.” That amount, spread over a wide customer base and included as a present cost of fuel, is a far less substantial burden—either on the utili- ties or on its customers—than the one challenged in Eastern Enterprises. . Turning next to the experience criterion, we note first that the calculation of liability was not, in the words of the Supreme Court “made in a vacuum.” Eastern Enterprises, 524 U.S. at __, 118 S.Ct. at 2150 (quoting Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986)). The assessments are based on each utility’s pro rata consumption of uranium—a method which explicitly allocates liability in direct proportion to the amount of uranium received and used. In that respect, then, the assessment is exactly as the Federal Circuit described it in Yankee Atomic: “a general tax that falls proportionally on all utilities that benefited from the DOE’s uranium enrichment services.” Yankee Atomic, 112 F.3d at 1575. And as the Federal Circuit there recognized, “the costs of large, unrecognized societal problems are frequently spread among those who benefited from the source of the problem.” Id. at 1576 n. 6. 8 42 U.S.C. § 2297g-1(g), titled “Treatment of assessment” provides that “{aJny special assessment levied under this section . . . shall be deemed a necessary and reasonable current cost of fuel and shall be fully recoverable in rates in all jurisdictions in the same manner as the utility’s other fuel costs.” © 33a Plaintiffs object to that justification on the grounds that it = _ was the U.S. military—rather than they—who allegedly caused the contamination of the enrichment facilities. Yet even if we were to accept plaintiffs’ contention that the uranium sold to plaintiffs caused no additional contamination (as indeed we must for the purposes of this motion), we nonetheless conclude that plaintiffs received a benefit—i.e., the enriched uranium—made possible only through the prior contamination of the plants. Thus, plaintiffs’ situation readily accommodates itself to the observation noted by the Supreme Court in United States v. Sperry Corp., 493 U.S. 52, 65, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989) that “i]t is surely proper for Congress to legislate retrospectively to ensure that costs of a program are borne by the entire class of persons that Congress rationa!ly believes should bear them.” Plaintiffs respond that, to the extent that the enrichment Services represented a benefit, it was a benefit for which they had already paid in full through their contract price. Yet, as discussed in Yankee Atomic, the assessment does not repre- sent an increase in contract price, but rather the imposition of liability to remedy a social ill. Yankee Atomic, 112 F.3d at 1575. And the fact that the contamination—a partial legacy of plaintiffs’ dealings with the Government—exists, neces- sarily means that there remain unpaid social costs of those transactions. That plaintiffs could have purchased their uranium elsewhere (and, as with Sacramento, did-in fact do so) ’ is beside the point. The contamination clean-up is an “actual, measurable cost of [the] business” in which plaintiffs ” As a result of competition from foreign uranium suppliers, including facilities in France, Canada, Italy, Russia, China, India and England, the Government’s share of the enrichment market declined from almost 100% in the 1960s and 1970s to less than 50% in 1983. When foreign suppliers offered lower prices—specifically in 1984, 1985, 1987, 1988 and 1990 Sacramento elected not to exercise its contract right to purchase uranium from the Government in those years. 34a chose to participate. Eastern Enterprises, 524 U.S. at __., i18 S.Ct. at 2159 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)). The question wheiher plaintiffs could have anticipated the liability is an inquiry closely related, if not identical, to the considerations which underpin our concerns about retroac- tivity and experience. Retroactivity is largely objectionable, for instance, to the extent it cannot be anticipated (with all the concomitant issues such lack of notice engenders), and a close experiential connection between the burdened party and the fee imposed necessarily means that the liability should have been anticipated. While we discuss below—in our assessment of the reasonableness of their investment-backed expectations—the extent to which plaintiffs might have anticipated their Energy Policy Act liability, we note only that plaintiffs’ participation in so highly regulated a field and their receipt of benefit from that field should each have served as notice of a possible future obligation. Heavy industry regulation of the sort seen in the nuclear industry means that few legislative changes can truly be seen as_ wholly unanticipated. Atlas Corp. v. United States, 895 F.2d 745, 758 (Fed.Cir.1990). And, as a more general matter, those who create a burden for society or who benefit from a burden’s creation must be seen as implicitly accepting responsibility and possessing constructive knowledge that they may one day be called to account. - Thus, none of the factors found crucial in Eastern Enterprises—the length of the retroactivity, the unforeseen nature of the assessment or the disconnect between Eastern’s conduct and its resulting liability, militate against a finding of constitutionality in the present case. In short, the assessment is not an unlawful exaction. 35a Ill. The Energy Policy Act as a Taking In spite of the divided nature of the Eastern Enterprises decision, however, plaintiffs nonetheless urge us to apply the plurality’s takings analysis to find that the Energy Policy assessment constitutes a compensable taking of plaintiffs’ property. Yet, despite our reservations about that approach, we conclude that even when viewed through a traditional takings analysis, plaintiffs’ claim must fail. None of the factors cited in Eastern Enterprises—the economic impact of the legislation, the reasonableness of plaintiffs’ investment- backed expectations and the character of the government action—support the finding of a taking of property. We explain further. As discussed above, the magnitude of the liability im- posed on plaintiffs is sharply diminished by their ability to pass through the costs to their customers. 42 U.S.C. § 2297g-1(g).'” The fact that the tax burden falls, as Sacramento acknowledges, on Sacramento’s “current and future ratepayers,” necessarily means that the economic im- pact on Sacramento—limited perhaps to incidental costs of collection—is slight. Thus, plaintiffs cannot show “any deprivation significant enough to satisfy the heavy burden placed upon one alleging a regulatory taking.” Keystone Bituminous Coal Assn. v. De Benedictis, 480 U.S. 470, 493, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).!! Ge: Hughes Communications Galaxy, Inc. v. United States, 38 Fed.Cl. 578 (1997), a case provided to us by plaintiffs, does not reach a contrary result. There, the court concluded in a breach of contract action that the contractor’s ability to receive indemnification from third parties in no way affected the measure of the damages resulting from the Government’s breach. Such reasoning has no application in the takings context, where the ability to pass on a cost speaks not to the measure of damages, but to the economic impact of the challenged action. ''The fact that Maine Yankee ceased its operations in 1996 and presumably can no longer pass on the fee to its customers does not change 36a As to their investment-backed expectations, plaintiffs offer a host of reasons why they reasonably did not expect to be subject to the fee in question: the fixed-price nature of their original contracts; the supplemental agreements of settlement signed by Sacramento & Omaha purporting to settle all claims; the statutory requirement that the prices as originally set be sufficient to recover all costs; the settled expectations of twenty-two year’s time; and the Government’s sole possession and control of the enrichment facilities. What that assessment overlooks, however, is the benefit conferred on plaintiffs as a byproduct of the contamination’s creation. Retroactive legislation is most suspect when it deprives citizens of legitimate expectations. But legitimate expectations cannot include an expectation of immunity from legislation that imposes additional costs on activities from which the plaintiff derived a prior benefit. As the Federal Circuit has pointed out, a commercial expectation, harbored in a field as regulated as the nuclear industry, that a company will not have to “spend its own money to remediate health and environmental hazards created by its own production of uranium” is simply unreasonable. Atlas, 895 F.2d at 758. In assessing the nature of the government action, the court in Eastern Enterprises concluded that the liability was “quite unusual” as it “singles out certain employers to bear a burden that is substantial in amount, based on the employer’s conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused... .” Eastern Enterprises, 524 U.S. at ___, 118 S.Ct. at 2153. But while the analysis. Maine Yankee was in business at the time of the Energy Policy Act’s passage, meaning that it, like the other domestic utilities to which the act applied, was intended—and able—to pass on those costs. That Maine Yankee later chgse to leave the industry, fully aware of its existing obligations, cannot transform either the character of the government action or the economic impact of the Act as it was originally imposed. 37a plaintiffs make much of the fact that, according to the Gov- ermment’s own account, the contamination occurred during the twenty years the facilities were operated: solely for governmental purposes, we do not find that factor dispositive. All indicators point to the fact that Congress, confronted with a hazard created by uranium enrichment, looked for partial contribution from those who created the demand for the uranium. Ultimately, it is that determination which most Sways us. Whether we analyze the assessment under the Due Process Clause, under the Takings Clause, or under some amalgam of the two, we are, in the end, faced with a single, basic question: Is it inherently unfair, unjust, or irrational for Con- gress, when faced with costs resulting from the enrichment of : uranium, to ask those parties who received the uranium to contribute to the solution? The answer, quite Clearly, is no. Plaintiffs’ assessments are directly proportional to their usage of uranium enrichment services—the very services which created the contamination. Congress itself took responsibility for more than two thirds of the clean-up costs and assigned the rest, as a general tax, to the rate- payers in districts which had previously benefited from nuclear power. Such a scheme can hardly be construed as beyond the reach of fairness or rationality. Accordingly, we are bound to conclude there has been no taking here. IV. Equal Protection Although the Energy Policy assessment comports, in our view, with both takings law and due process, plaintiffs nonetheless argue that the fee constitutes a violation of equal protection. According to plaintiffs, the fact that foreign utilities were exempted from the assessment impermissibly differentiates between similarly-situated entities—i.e., all those that had consumed government-enriched uranium. In addition, plaintiffs contend, the Act draws an illegitimate 38a distinction between purchasers who resold the uranium, and those who kept it for their own purposes, as well as between pre-1992 consumers (who are subject to the fee) and post-1992 consumers (who are exempt). The short answer to plaintiffs’ objection is that the drawing of such categories neither implicates nor violates the 14th Amendment. With regard to Congress’s decision to exempt foreign utilities from liability, we refer to the Supreme Court’s observation in Barclay & Co. v. Edwards, 267 U.S. 442, 451, 45 S.Ct. 135, 69 L.Ed. 703 (1924) that “[cJonsid- erations of policy toward foreign countries may very well justify an exemption of the foreign corporations from taxes that might legitimately be imposed on them, but which Congress does not think it wise to exact.” In addition, we think it significant that, as defendant points out in its motion to dismiss, the exclusion of foreign utilities from the liability equation in no way increases or otherwise affects plaintiffs’ portion of domestic utility usage. Similarly, legislatures need not burden the most respon- sible party to survive rational basis review. Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1255-56 (D.C.Cir.1998). While the original purchasers of uranium (those who resold it and were therefore exempt from assessment) may seem, to plaintiffs, equally to have benefited from the enrichment services, we cannot conclude that Congress s decision to target end-users was without rational basis. And although plaintiffs may have preferred a system under which USEC’s post-1992 customers likewise picked up the tab, Congress’s assignment of liability for a past problem to past consumers does not. stretch the limits of the reasonable. Accordingly, plaintiffs’ equal protection challenge, like its takings and due process claims, must fail. 39a CONCLUSION In apportioning the costs of modern life, Congress must often determine which expenses should properly be seen as liabilities belonging to society as a whole, and which should instead be treated as obligations of a smaller subset of the population. Congress could reasonably have determined that plaintiffs, along with other recipients of government-enriched uranium, were the beneficiaries of the pracess through which the uranium plants became contaminated. The fact that plaintiffs may not have caused the contamination, and indeed may simply have received a benefit from uranium plants long- contaminated before plaintiffs’ arrival on the scene, does not diminish their accountability. The burden imposed on plaintiffs by the Energy Policy Act is not impermissibly substantial, nor unduly retroactive, nor unacceptably divorced from plaintiffs’ experience with the program so as to violate any constitutional mandate. Plaintif’s have suffered no unconstitutional taking nor other unlawful exaction of their funds. We therefore grant defendant’s motion to dismiss and direct the entry of judgment accordingly. 40a APPENDIX C UNITED STATES COURT OF APPEALS FEDERAL CIRCUIT No. 00-5069 COMMONWEALTH EDISON COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Nov. 20, 2001 Before MAYER, Chief Judge, NEWMAN, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, and DYK, Circuit Judges.” DYK, Circuit Judge. This case is one of a large number of cases brought in the Court of Federal Claims challenging the constitutionality of the Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776 (codified as amended in various sections of 42 U.S.C.) (“EPACT” or “the Act’), which imposes special monetary assessments on domestic utilities for the remediation of environmentally contaminated uranium processing facilities owned by the United States. See 42 U.S.C. § 2297g 1. After argument before a panel on April 4, 2001, we sua sponte ordered that the case be heard in banc without additional briefing. The case was heard in banc on October 3, 2001. * Circuit Judge Prost, who entered on duty on October 3, 2001, has not participated in the disposition of this case. weet i 4la In light of our decision in Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed.Cir.2001),! Edison’s request for a stay of the proceedings in the Court of Federal Claims has become moot. On the merits, we conclude that requiring plaintiff Commonwealth Edison Company (“Edison”) and the other domestic utilities that benefited from the uranium processing services to contribute to the remediation costs does not constitute a Fifth Amendment taking because the Takings Clause does not apply to legislation requiring the payment of money. We also conclude that the Act does not violate the Due Process Clause of the Fifth Amendment. The retroactive application of the Act rationally furthers a legitimate legislative objective—the remediation of contaminated facili- ties used by the United States to process uranium for domestic utilities. Congress reasonably concluded that the utilities received benefits from the processing and that the utility processing contributed to the contamination. Liability was imposed on those utilities for only a portion of the cleanup costs. As a matter of law, Edison and other similarly situated utilities could have reasonably expected to be liable for a share of the remediation costs arising from the contamination of the processing facilities. Edison’s other arguments on the merits are foreclosed by our decision in Yankee Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), cert. denied, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). We therefore dismiss as moot the appeal from the denial of the stay request and affirm the decision of the Court of Federal Claims dismissing the complaint. ' This opinion replaced our previous decision in that case, reported at 234 F.3d 642 (Fed.Cir.2000). 42a This case arises against the background of our earlier decision in Yankee Atomic where we rejected contentions that EPACT breached uranium processing contracts between Yankee Atomic Electric Co. (“Yankee Atomic’) and the United States and constituted a taking of those contract rights. Some of the claims asserted by Edison are the same as those asserted in Yankee Atomic. Edison also claims that the statutory obligation to pay money to the government constitutes a taking of that money, and that the retroactivity of the Act renders it unconstitutional under the Due Process Clause. Resolution of this appeal requires a brief overview of the history of the United States government’s involvement in the enrichment of low-grade uranium for Edison and other domestic utilities, as well as the provisions of EPACT. The uranium processing facilities involved here were originally constructed and operated by the United States government for national defense purposes. Between 1945 and 1970, approximately 96% of the enriched uranium produced by the government was used for weapons production. These facilities were also capable of producing enriched uranium for nuclear power reactors. Before 1954, United States law permitted only the United States government to own nuclear power reactors. In 1954, however, Congress enacted amendments to the Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919, which for the first time authorized private ownership of nuclear power reactors. The government extensively regulated these reactors, inter alia, “to protect the health and safety of the public” from the possible environmental hazards. /d. at § 2 (codified as amended at 42 U.S.C. § 2210). Plaintiff Edison is a domestic utility company with its principal place of business in Illinois. Beginning in 1960, Edison owned and operated nuclear reactors, which it used to Ee ee os 43a customers in lilinois. ‘Thosé nuclear reactors, in turn,” required enriched uranium. Edison alleges that in 1960 it began to “purchase or lease” enrichment services from the government. However, we note that until 1964 the government retained strict control over the technology used to enrich low-grade uranium for use in nuclear reactors, and barred private ownership of enriched uranium. In that year, Congress passed the Private Ownership of Special Nuclear Materials Act, Pub.L. No. 88- 489, 78 Stat. 602 (1964), which authorized the private ownership of enriched uranium. After the passage of that act, the government began to offer uranium enrichment services to commercial customers like Edison. Beginning in 1969, Edison entered into a series of multi-year contracts with the United States government in which Edison agreed to purchase uranium enrichment services from the United States. Those enrichment services were provided at enrichment plants operated first by the Atomic Energy Commission and later (beginning in 1974) by the Energy Research and Development Administration and, ultimately (beginning in 1977) by the Department of Energy (collectively, “DOE”). Under those contracts, Edison delivered low-grade uranium to the government-owned facilities for enrichment. The government took title to the low-grade uranium, processed the uranium, and returned enriched uranium to Edision. The enrichment services were measured in terms of “separative work units” (“SWUs”). The plaintiff here, like other domestic utilities, paid for the services by multiplying the number of SWUs provided by the unit price set forth in its contracts with the government. Although the utilities’ contracts varied somewhat, each stated that the price paid by the utility for the enrichment services would be based on an “established Commission pricing policy,” defined under the 44a owe i AM. A the time the cervice WAS rendered. A ‘mae of these contracts also capped the maximum per unit charge for the enrichment services. Edison alleges in its complaint that it purchased a portion of its uranium enrichment services “with the Government’s knowledge and consent, from other sources.” First Amended Complaint of Plaintiff-Appellant Commonwealth Edison Company (hereinafter “Complaint’”) at ¥ 50. Edison alleges that “[b]y the late 1970s and early 1980s, foreign suppliers of uranium enrichment services emerged, threatening the Government’s monopoly power and creating Significant competition for the Government.” /d. at ¥ 41. Edison further alleges that the Government’s share of the uranium processing market “declined substantially, from nearly 100% in the 1960s and 1970s, to below 50% in 1983.” Id. Edison elected, however, to continue to use government processing facilities even though those foreign alternatives became available. In January 1984, the government developed a standard requirements-type contract for uranium enrichment services, referred to as a Utility Services Contract. In July 1984, Edison entered into a Utility Services Contract after terminating all of its existing uranium enrichment services contracts with the government through a Supplemental Agreement of Settlement (“Setthement Agreement”). This Utility Services Contract, like the previous contracts, charged the utilities for the services according to the “established pricing policy,” and likewise capped the maximum unit charge. It appears that the government developed this Utility Services Contract, at least in part, at the request of Edison and the other domestic utilities. As a result of the government’s use of the processing facilities for national defense purposes, they had become contaminated, even before the utilities’ uranium processing commenced. Although Edison alleges that the facilities were » PEST EMO ~ recipe a oe S Po ae Pp See eae AW AT, FA HE 4, | fawen 2 as Cle Pee ee, i are Oe # =a: + i : 45a “fully contaminated with radioactive and other hazardous materials” before they began to be used for the processing of the utilities’ uranium, Complaint at 4 23, there is no question that the processing of the utilities’ uranium caused the same type of contamination as the government’s earlier use of the facilities to enrich uranium for weapons purposes. Indeed, Edison at oral argument specifically conceded that that was the case, and agreed that contamination cleanup costs are incurred any time uranium is enriched, including when it is enriched for the benefit of the utilities. Edison alleged, however, that the cleanup costs were not “materially” increased by the later contamination resulting from the utility uranium processing.” ? At oral argument, counsel for Edison explained Edison’s contribution to the contamination as follows: COUNSEL FOR EDISON: If it can be demonstrated—in our cases there’s nothing in the record—but if it can be demonstrated that there was additional cost associated with the enrichment being— services provided to the commercial utilities, then perhaps there would be an argument that we have a certain responsibility. . . . THE COURT: Well, of course there are. You can’t run a nuclear enrichment program without creating contamination, so of course- we can quarrel about exactly how to measure them or how big they are, but of course there are contamination cleanup costs. COUNSEL FOR EDISON: There are. Let me try to make an analogy. . . . I know in terms of nuclear utilities, when they have boiling water, nuclear generated, and they periodically are required to decontaminate, what they do is they have these very large deep swimming pool type reactors. What they do is paint the well of the reactor with a rubberized paint that the contamination adheres to. Then they peel that paint off and the—. . . The contamination adheres to that paint. So regardless of whether there is a half inch of contamination or a full inch of contamination, all the contamination adheres to that rubberized paint and you just peel it off, and the cost is no more. THE COURT: Well, that’s basically your point, that the processing of the utilities’ uranium caused pollution, but it didn’t cost any more 46a Edison also admits in its complaint that the obligation to decontaminate and decommission the facilities “was an obligation well understood by operators of nuclear facilities throughout the industry.” Complaint at J 31. Although the contracts provided for recovery of the government’s costs of operating the plants and fixed the price as of the time of delivery, the original contracts, the Utility Services Contract, and the Settlement Agreement did not expressly preclude (or even address) the government’s future assignment to Edison of any remediation costs for the decontamination of the government’s uranium enrichment facilities.’ These remediation costs were addressed by Congress in 1992. Faced with its declining share of the uranium processing market, Congress decided to restructure the government’s uranium processing services in order to remain competitive with its overseas providers. Congress created a new, for-profit, governmental corporation called the United States Enrichment Corporation (“USEC”) to provide those services to Edison and other domestic utilities. to clean it up than it would have cost to clean up the weapons pollution, right? COUNSEL FOR EDISON: Exactly. Yes, Sir. * The Utility Services Contract merely stated, in pertinent part, that: [T]he Customer and DOE desire to terminate all previous long-term contracts between the Customer and DOE for the furnishing of uranium enrichment services in order to accommodate the Customer’ s desire to obtain such services under the Utility Services form of uranium enrichment services contract... . (Emphasis added.). That contract further provided that “the unit charge for enrichment services under this contract shall not exceed a ceiling charge of $135.00 per separative work unit through September 30, 1985.” The Settlement Agreement provided that “the Government agrees that all obligations arising under the [previous] contracts or by reason of their termination shall be deemed to be concluded.” 47a At the same time that it created the USEC, Congress in EPACT addressed the need to decontaminate and decom- mission the government’s uranium enrichment facilities. The DOE “estimated that the total cost of this clean up could exceed $20 billion over 40 years, which amounted to about $500 million per year, indexed to inflation.” Yankee Atomic, 112 F.3d at 1572. As this court noted in Yankee Atomic, “[b]ecause [the magnitude of] this decontamination and decommissioning fiscal problem was not [fully] recognized until the 1980s, the prices charged in the Government’s past uranium enrichment contracts had not accounted for the problem.” /d. EPACT established a Uranium Enrichment Deconta- mination and Decommissioning Fund (the “Fund”) to accumulate over a fifteen-year period the funds necessary to remediate the uranium enrichment facilities. 42 U.S.C. §§ 2297g, 2297g 1. The Act provided that the costs were to be shared by the government and those domestic utilities that benefited from processing at government facilities. The Act accordingly provided that the annual deposits of $480 million (adjusted for inflation) would come from two sources: (1) up to $150 million (or up to approximately 32% of the total amount) was to be collected as a special assessment from domestic utilities* that purchased (on the primary or secondary markets) the uranium enriched at these facilities: and (2) the balance of at least $330 million-the lion’s share of the costs, amounting to at least 68%-was to be paid by the goverment. The Act further provided that the imposition of these special assessments on Edison and the other utilities would cease after the earlier of 15 years after October 24, 1992 (the date of EPACT’s enactment) or the collection of * The implementing regulations for the Fund defined “domestic utility” as any utility in the United States that purchased SWUs from the government between 1945 and October 23, 1992. See 10 CER. § 766.3. It is undisputed that Edison meets this definition. 48a $2.25 billion (again adjusted for inflation) from the domestic utilities. See 42 U.S.C. § 2297g-1. Under the Act, the special assessment imposed on each domestic utility was based on the percentage of SWUs purchased from the DOE relative to the total number of SWUs produced by the DOE. 42 U.S.C. § 2297g-1(c). As noted above, the Aci provided that a domestic utility was considered to have purchased a SWU from the DOE if the SWU was originally produced by the DOE, even if the utility actually purchased it from another source. Similarly, a utility was not considered to have purchased a SWU from the DOE if it subsequently resold that SWU to another utility. As this court noted in Yankee Atomic, “[iJn sum, the Act impose[d] the assessment upon whichever utility company eventually use [d] the enrichment services.” 112 F.3d at 1572. Two groups of purchasers of uranium enrichment services were exempt from the special assessment: (1) domestic utilities that purchased USEC services any time after 1992; and (2) foreign utilities, which represented 25% of DOE’s pre-1992 customer base. See Commonwealth Edison Co. v. United State:, 46 Fed. Cl. 29, 33 n. 1 (2000); see also Complaint at ¥ 25 (alleging that sales to foreign utilities historically ‘accounted for approximately 25% of the Government’s commercial uranium enrichment market’). EPACT also provided the utilities with a “pass-through” provision, providing in pertinent part that the special assessment “shall be deemed a necessary and reasonable current cost of fuel and shall be fully recoverable in rates in all jurisdictions in the same’ manner as the utility’s other fuel cost.” 42 U.S.C. § 2297g-1(g). This statutorily mandated pass-through provision was binding on state regulatory agencies. See Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 369-72, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988); Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 962-65, 106 S.Ct. 2349, 90 L.Ed.2d 943 (1986). At 49a oral argument, counsel for Edison conceded that Edison sought to recover the costs of the special assessment by passing the costs through to Edison’s customers, though counsel expressed some doubt whether Edison recovered those costs in light of deregulation of the market and the competitive rates that deregulation produced. The cost-sharing provisions were enacted after “much congressional debate over the issue of how these costs should be recovered, especially to what extent DOE’s nuclear utility customers should be expected to share in paying for these costs.” 138 Cong. Rec. H11,399, H1 1,401 (1992) (statement of Rep. Phillip Sharp on Conference Report), reprinted in Senate Comm. On Energy & Natural Res., 103d Congress 2d. Sess., 6 Legislative History of the Energy Policy Act of 1992, ~ at 4519, 4553 (Comm. Print 1994). Ultimately, the utilities’ share was limited to 32% even though the House Report concluded that “[h]istorical production from these plants ha[d] been divided almost evenly between the government and commercial sectors.” H.R.Rep. No. 102-474(I), at 144 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1967. Indeed, Edison and other utilities participated actively in shaping the legislation that became EPACT and approved the concept of cost sharing. See Comprehensive National Energy Policy Act: Hearings on H.R. 776 Before the House Comm. on Ways & Means, 102d Cong. 170-83 (1992) (“Committee Hearings I”). During the course of EPACT’s consideration, the House Committee on Energy and Commerce proposed to impose “a $419 million annual liability, or a $9 billion [liability] over 20 years,” on the utility industry for remediation of the enrichment facilities. Jd. at 181. In Edison’s case the company estimated that this funding Proposal, if enacted, would increase its uranium enrichment costs by “one third” over the amount it had already agreed to pay. Id. 50a In the hearings on EPACT, Edison’s President complained that the industry was being asked to pay a “disproportionate share” of the costs, and, as in the present Complaint, stated that “virtually all the contamination at [the government enrichment] facilities occurred during the first 20 years of operations, when operations were strictly for the defense program.” Jd. at 180-81 (statement of Bide L. Thomas, President, Commonwealth Edison Co., et al.).° Edison offered no independent study of the industry’s relative contribution to the contamination and relied entirely on the testimony of the Department of Energy. That testimony, by Assistant Secretary for Nuclear Energy William Young, was that “there is additional pollution in the area of the sites [of _the enrichment facilities] because of commercial operations subsequent to the exclusive operation [of the facilities] for the government.” Department of Energy Budget Request for Fiscal Year 1993: Oversight Hearing Before the Subcomm. On Energy and the Env’ t of the House Comm. on Interior and Insular Affairs, 102d Cong. 80 (1992) (“Committee Hearings II’). He estimated the remediation costs for that portion of the pollution attributable to the enrichment of the utilities’ uranium amounted to approximately $1.6 billion, out of a total cost of approximately $18.5 billion. He concluded that “[i]f you look at it from a polluter-pays basis, about $1.6 billion of that $18.5 billion would be properly allocated to commercial customers” of the enrichment facilities. Id. at 79.° * This testimony was a joint statement of Bide L. Thomas; Michael R. Peevey, President, Southern California Edison Co.; and Joseph M. Farley, Chairman and Chief Executive Officer, Southern Nuclear Operating Co. See id. at 178. ° Assistant Secretary Young further explained this proposed allocation when questioned by Representative Kostmayer during his testimony: MR. KOSTMAYER: Who else did the polluting besides the government? Sla Based on Edison’s view of the industry’s responsibility for the contamination, Edison reaffirmed its and other utilities’ “willingness to pay a fair share of the [decontamination and decommissioning costs] for these [enrichment] facilities.” Committee Hearings I at 182; see also id. at 172 (“[T]he industry is willing to participate in the cleanup program ....') (testimony of Bide L. Thomas, President, Common- MR. YOUNG: In some cases, there is additional pollution in the area of the sites because of [the] commercial operations subsequent to the exclusive operation for the government. Some of the tailings are there as a result of commercial operations, for example. MR. KOSTMAYER: Commercial operations conducted by some party other than the government? MR. YOUNG: No, no. We have run the diffusion plants. A certain amount of the tails are there because of [the] SWUs produced for the government. Another certain amount of the tails are there because of SWUs produced for commercial customers. MR. YOUNG: ... The largest piece of [the estimated total cleanup cost] is $14 billion which is [decontamination and decommissioning] of the buildings and systems themselves. Of that, because of the government operation having led to the contamination, we are saying the government would pay 100 percent of that. There are two other elements of the cleanup that has got to take place. One is on the grounds around the facilities and we are saying that some of the contamination that occurred in the ground resulted not solely from the 20 years of government operation, but a measurable amount more resulted from the commercial-or operation to the benefit of commercial customers. And since we did not pass those costs on in the past, we feel it is equitable to pass those costs on in the future. Further, with the tails, some of the tails were created for the benefit of commercial customers, and the portion that was, and again, not passed on in the past, we feel it is equitable to pass it on to commercial customers at this time. Committee Hearings II at 80-81. 52a wealth Edison Company). But Edison and other utilities objected that their share should not exceed the $1.6 billion estimated by the Department of Energy, and sought “a cap to protect ratepayers from being assessed more than their fair share of costs.” /d. at 181. Edison and other utilities urged Congress to adopt a compromise funding proposal-one adopted by the House Committee on Science, Space and Technology (the “Science Committee”)—that would have capped the utilities’ liability for the remediation costs at $2.5 billion. Edison and two other utilities stated, on behalf of themselves and two industry interest groups,” that: While $2.5 billion is significantly more than the $1.6 billion that DOE estimates the civilian sector should contribute [to the remediation of the enrichment facilities], the industry is willing to accept this compromise in the interest of providing certain liability levels and to move forward with this restructuring legislation and [decontamination and decommissioning] program. Id. at 182. (Emphasis added.). The liability cap proposed by the Science Committee, which Edison viewed as protecting its ratepayers from paying more than “their fair share of [remediation] ccsts,” essentially became the cap in the legislation that Edison now challenges, though the ultimate liability of the atilities under the enacted legislation was more certain than under the Science Committee proposal. See 42 U.S.C. § 2297-1. ’ These interest sroups were the American Nuclear Energy Council (“ANEC”) and the Edison Electric Institute (“EET”). ANEC “represents over 100 domestic aid international organizations that have an interest in nuclear energy.” E3I, in turn, “is the national association of investor- owned electric companies” and represents “approximately three-quarters of all American electricity customers.” Committee Hearings I at 178. 53a Following the enactment of EPACT in 1992, as well as corresponding DOE regulations implementing EPACT, the government assessed Edison and similarly situated domestic utilities on an annual basis for each utility’s share of the special assessment. Edison alleges that as of the date of the complaint, it had paid the government approximately $95.5 million in seven special assessments for the decontam- ination and decommissioning of the enrichment facilities. These special assessments covered the period from 1969, when Edison first began to purchase uranium processing services from the government, until 1992, the year of EPACT’s enactment. PROCEEDINGS BELOW On April 9, 1997, Edison commenced an action in the Court of Federal Claims challenging the legality of the special assessments authorized by the Act. Edison’s original complaint alleged that the special assessment breached its . contracts with the government by retroactively increasing the cost of the uranium enrichment services and constituted an impermissible taking of those contracts in violation of the Fifth Amendment. See, e.g., Original Complaint of Plaintiff Appellant Commonwealth Edison Company at §§ 53, 68-69. On May 6, 1997, during the pendency of Edison’s action, this court issued its decision in Yankee Atomic rejecting identical claims made by another utility. Following our decision in Yankee Atomic, Edison filed a new and separate action for declaratory and injunctive relief in the United States District Court for the Southern District of New York seeking to invalidate EPACT and to bar the government from attempting to compel future payments under the Act (the “New York action”). The district court subsequently denied a motion by the United States to transfer the case to the Court of Federal Claims. Consol. Edison Co. - v. United States, 45 F.Supp.2d 331 (S.D.N.Y.1999). In 54a Consol. Edison Co. v. United States, Dept. of Energy, 247 F.3d 1378 (Fed.Cir.2001), we reversed that decision and instructed the district court to transfer the New York action to the Court of Federal Claims for adjudication. On November 6, 1998, Edison also filed a motion in the Court of Federal Claims to stay proceedings in that court pending resolution of the New York action. On February 2, 1999, Edison amended its original complaint in the Court of Federal Claims to state new and additional theories for recovery. The amended complaint stated essentially three theories for recovery. Edison alleged that the special assessments imposed by EPACT: (1) constituted an unlawful taking of money undef the Takings Clause of the Fifth Amendment; (2) constituted a breach of contract, inasmuch as “[t]he fixed price nature of [Edison’s] enrichment contracts, coupled with the additional release granted by the Government pursuant to the termination of certain of those contracts, provided [Edison] with an unmistakable promise that it would not be subject to future liability to the Government based upon its contractual purchases of enrichment services”; and (3) constituted an illegal exaction in violation of the Due Process Clause of that amendment. The government moved to dismiss the amended complaint for failure to state a claim. On February 3, 2000, the Court of Federal Claims denied Edison’s motion for a stay, noting, in part, that the original action in the Court of Federal Claims was the first filed action and that it “has the jurisdiction to rule on each of the counts in the amended complaint and thus need not defer to the district court’s broader jurisdiction.” Commonwealth Edison, 46 Fed. Cl. at 34. In a well-reasoned opinion, the Court of Federal Claims also granted the government’s motion to dismiss, concluding that neither the old nor new theories of recovery stated a claim. That court rejected Edison’s first claim—that EPACT constituted an impermissible taking of 55a 2 Edison’s property without just compensation—on the ground that “a government-imposed payment of money cannot result in a compensable taking.” /d. at 41. The court dismissed the utility’s claim that the imposition of the special assessments constituted a taking of its contract rights with the government, finding that “this issue. was squarely addressed” in this court’s decision in Yankee Atomic. Id. at 46. In reaching this conclusion, the court rejected Edison’s arguments that its contracts with the government were significantly different from those contracts at issue in Yankee Atomic. Id. 5 Finally, the court rejected Edison’s claim that the special assessment constituted an illegal exaction barred under the Due Process Clause. Recognizing the~ well-established principle that “an economic statute, such as the Energy Policy Act, comes to the court with a presumption of validity,” id. at 43, the Court of Federal Claims determined that although the Act is indeed retroactive, “it cannot be said that the retroactivity of the Act is irrational or that that retroactivity unfairly impacted on the plaintiff.” Jd. at 44 (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 18, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)). The court further held that “the liability imposed by the special assessment is neither disproportional nor excessive,” as EPACT imposed “liability only on those utilities that benefited from the government’s uranium enrichment services.” /d. at 45. This timely appeal followed. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(3).* * Amicus Curiae briefs in support of Edison were filed in this case by Sacramento Municipal Utility District and Maine Yankee Atomic Power Co. 56a DISCUSSION I As an initial matter, we note that the decision of the Court of Federal Claims to deny Edison’s request for a stay of those proceedings pending resolution of the New York action is now moot, in light of our decision in Consolidated Edison, 247 F.3d 1378, in which we instructed the United States District Court for the Southern District of New York to transfer that action to the Court of Federal Claims. Accordingly, the only question before us is whether the Court of Federal Claims erred in dismissing this action for failure to state a claim upon which relief may be granted. We review that decision without deference. First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1286- 87 (Fed.Cir.1999). In so doing, we also “assume that all well-pled factual assertions are true and make all reasonable inferences in favor of’ Commonwealth Edison, New Valley Corp. v. United States, 119 F.3d 1576, 1580 (Fed.Cir.1997), to the extent that such allegations are relevant to the constitutional issues. 7 II Ever since the New Deal Supreme Court’s discarding of the Lochner ” line of substantive due process cases, the Court has repeatedly held that economic legislation “adjusting the burdens and benefits of economic life” is to be judged under a deferential standard. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). There remain, however, at least three areas in which judicial review of federal legislation imposing regulatory burdens still bites. Not surprisingly, Edison relies on each of these three theories. * Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). 57a First, there are the takings cases, in which the government is alleged to have taken property without just compensation under the Fifth Amendment. The Supreme Court has made Clear that government regulation can constitute a taking of property requiring compensation. See, e.g., Lucas v. So. Carolina Coastal Council, 505 U.S. 1003, 1027-28, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). It is also clear that a fund of money can be property protected under the Takings Clause. See Phillips v. Washington Legal Found., 524 U.S. 156, 160, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (holding that interest income generated by funds held in IOLTA accounts is private property of the owner of the principal for purposes of the Takings Clause); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164-65, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (holding that the Takings Clause can apply to monetary interest generated from the operation of a specific, separately identifiable fund of money). However, although a minority of the Supreme Court has urged that a taking can occur when Congress has imposed an obligation to pay money, see Eastern Enterprises v. Apfel, 524 U.S. 498, 537, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), we are bound to follow the views of a majority of the Supreme Court. In United States v. Sperry Corp., 493 U.S. 52, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989), the Supreme Court held that a federal statute that required the payment of a portion of an arbitral award from the Iran-United States Claim Tribunal to the United States government did not violate the Takings Clause because, in part, “[i]t is artificial to view deductions of a percentage of a monetary award as physical appropriations of property. Unlike real or personal property, money is fungible.” /d. at 62 n. 9, 110 S.Ct. 387. In Eastern Enterprises, five justices of the Court rejected the theory that an obligation to pay money constitutes a taking. There, the Supreme Court confronted a constitutional challenge to the retroactive liability provisions of the Coal 58a Industry Retiree Health Benefit Act of 1992, codified at 26 U.S.C. §§ 9701-9722 (the “Coal Act”). The Coal Acct required coal operators such as petitioner Eastern Enterprises (“Eastern”) to fund future health benefits of current and former coal mine employees. There was no majority opinion of the Supreme Court. Writing for the plurality, Justice O’Connor, joined by three other justices, concluded that the retroactive impact of the Coal Act as applied to Eastern Enterprises resulted in an unconstitutional taking of property because it placed a “severe, disproportionate and extremely retroactive burden on Eastern.” Eastern Enters., 524 U.S. at 538, 118 S.Ct. 2131. Justice Kennedy in his concurrence, however, disagreed with the plurality’s conclusion that the Coal Act resulted in an unconstitutional taking of property: Our cases do not support the plurality’s conclusion that the Coal Act takes property. The Coal Act imposes a staggering financial burden on the petitioner, Eastern Enterprises, but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest. The Coal Act does not appropriate, transfer, or encumber an estate in land (e.g., a lien on a particular piece of property), a valuable interest in an intangible (e.g., intellectual property), or even a bank account or accrued interest. The law simply imposes an obligation to perform an act, the payment of benefits. —- Id. at 540, 118 S.Ct. 2131. The four dissenters in Eastern Enterprises (Justices Stevens, Souter, Ginbsurg, and Breyer) agreed that the Takings Clause was not implicated because “(t]he ‘private property’ upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property. . . . This case involves not an interest in 59a physical or intellectual property, but an ordinary liability to pay money... .” /d. at 554, 118 S.Ct. 2131 (Citations omitted.). Thus five justices of the Supreme Court in Eastern Enterprises agreed that regulatory actions requiring the payment of money are not takings.'? We agree with the prevailing view that we are obligated to follow the views of that majority. This court has similarly concluded that the imposition of an obligation to pay money does not constitute an unconstitu- tional taking of property. In Atlas Corp. v. United States, 895 F.2d 745 (Fed.Cir.), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990), for example, we considered the constitutionality of the Uranium Mill Tailings Radiation '° See Parella v. Ret. Bd. of the R.I. Employees’ Retirement Sys., 173 F.3d 46, 58 (ist Cir.1999) (upholding state statute temporarily with- holding excess retirement benefits against a Takings Clause challenge because “a majority of justices found that the Takings Clause did not apply under the facts of Eastern Enterprises, because they concluded that a Takings Clause issue can arise only after a plaintiff’s property right has been independently established”); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 659 (3d Cir.) (“[W]e are bound to follow the five-four vote against the takings claim in Eastern.”), cert. denied, 528 U.S. 963, 120 S.Ct. 396, 145 L.Ed.2d 309 (1999); Holland v. Big River Minerals Corp., 181 F.3d 597, 606 (4th Cir.1999) (following Supreme Court in holding Takings Clause inapplicable to the Coal Act because five Justices in Eastern Enterprises reasoned that “no identifiable property interest was infringed by the legislation”), cert. denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000); but see U.S. Fidelity & Guar. Co. v. McKeithen, 226 F.3d 412, 416 (Sth Cir.2000) (citing Eastern Enterprises but analyzing a Takings Clause challenge to retroactive assessments under the Louisiana Workers’ Compensation Fund under ad hoc, fact-specific factors), cert. denied, __U.S.__, 121 S.Ct. 1360, 149 L.Ed.2d 289 (2001); United States v. Hercules, Inc., 247 F.3d 706, 722 (8th Cir.2001) (stating that “inquiry into the constitutionality of CERCLA . . . would be ‘essentially ad hoc and fact intensive’” (quoting Eastern Enterprises, 524 U.S. at 523, 118 S.Ct. 2131)). 60a Control Act (*“UMTRCA”), Pub.L. No. 95-604, 92 Stat. 3021 (1978), which required that uranium producers spend large sums of money to clean up uranium tailings piles, a by- product of uranium manufacture. We held that the UMTRCA’s imposition of the obligation to pay money to clean up the tailings piles did not constitute an unconstitutional taking of property under the Takings Clause: In this case, [the uranium producer] has not alleged a physical taking of any of its property. Its complaint alleges only that it will be required to spend sums of money for reclamation of tailings and mill decom- missioning. Requiring money to be spent is not a taking of property. Id. at 756 (citing United States v. Sperry Corp., 493 U.S. 52, 62 n. 9, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989)). In short, while a taking may occur when a specific fund of money is involved, the mere imposition of an obligation to pay money, as here, does not give rise to a claim under the Takings Clause of the Fifth Amendment. Ill The second area, represented by the Supreme Court’s decision in United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), involves contracts in which the government has agreed to pay damages if it engages in certain types of regulation. A similar contract claim was made with respect to the present contracts and rejected by this court in Yankee Atomic. In that case, this court was confronted with a claim that the special assessments imposed under EPACT breached the utility’s fixed-price contracts with the government by, “in effect, retroactively increasing the price that it must pay for the previously supphed uranium enrichment services.” 112 F.3d at 1573. Relying on the analysis prescribed by the an Dt Oa tao SEU, 6la Supreme Court’s decision in Winstar, we held that the imposition of the special assessments was a lawful exercise of Congress’s taxing power under the sovereign acts doctrine, and was not designed to retroactively increase the price of the government’s earlier contracts with Yankee Atomic. Id. at 1575. In other words, this court concluded that the special assessments constituted “a general exercise of Congress’s taxing power for the purpose of addressing a societal problem rather than an act that retroactively increases the price charged to contracting parties for uranium enrichment services.” /d. at 1577. We further held that because the contracts between the plaintiff in that case and the government “did not include an unmistakable promise that precluded the Government from later imposing an assessment upon all domestic utilities that employed the DOE’s uranium enrichment services,” id. at 1580, the special assessments imposed by the Act did not constitute a breach of contract. We similarly disposed of the plaintiff's takings claim by concluding that “{b]ecause the contracts did not contain an unmistakable promise against a future assessment, [the utility] had no property right (via a vested contract right) which was subsequently taken by the assessment.” /d. at 1580 n. 8. This court denied Yankee Atomic’s motion to rehear the case in banc, 112 F.3d 1569 (Fed.Cir.1997), and the Supreme Court denied certiorari, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). We reject Edison’s request that we distinguish our decision in Yankee Atomic. There is no meaningful difference between the contract theories asserted here and in Yankee Atomic, and we therefore agree with the Court of Federal Claims’ conclusion that Edison’s claims based on_ its contracts with the government are barred by that decision. This also disposes of Edison’s argument that the Act constitutes a taking of Edison’s supposed contract rights to be free of future government assessments. 62a IV The third area of judicial review occurs where a regulation is retroactive and accordingly implicates the Due Process Clause. The Supreme Court has made clear that federal legislation is to be construed to avoid retroactivity." No such issue is presented here since the statute is clear on its face, and no party urges that a narrowing construction is either possible or appropriate. Accordingly, we must address the Due Process issue. The standard of review in this area is well-settled. As the Supreme Court stated in Turner Elkhorn, 428 U.S. at 15, 96 S.Ct. 2882, “[i]t is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” So too the Supreme Court observed in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984): Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches. Id. at 729, 104 S.Ct. 2709 (citing Turner Elkhorn, 428 U.S. at 15-16, 96 S.Ct. 2882). Where the basis for the challenge is '' See Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent.”); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (“(C]Jongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”). 63a retroactivity, the Supreme Court has held that Due Process is satisfied “simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” /d. at 730, 96 S.Ct. 2882. In judging the rationality of legislation under the Due Process Clause, an evidentiary trial of facts, such as the relative contributions of weapons processing and utility fuel processing to the total contamination at the government plants, is not required. Rather, as the Supreme Court has noted in another context: the question is whether the legislative conclusion [to enact the statute] was reasonable and supported by substantial evidence in the record before Congress. In making that determination, we are not to re-weigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, we are simply to determine if the standard [of review] is satisfied. If it is, summary judgment . . . is appropriate regardless of whether the evidence is in conflict. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Citations omitted.). In short, legislative facts control the analysis. In these Due Process cases the federal courts are not assigned the task of making policy, determining a fair outcome, or determining the actual state of facts. We are charged simply with determining whether the congressional action was rational. Under that rational purpose standard [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1606%3A2. Public record. Not legal advice.