Petition for Writ of Certiorari — Consolidated Edison Co. v. United States

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‘“wreme Court, US

No.o1- 01 205 AUG - 1 2001

OFFICE OF THE CLERK

IN THE

‘iciiiatie Court of the United States

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC., et ai.,

Petitioners,

UNITED STATES OF AMERICA, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

——

PETITION FOR A WRIT OF CERTIORARI

omer

acento

— ——

DANIEL R. MuRDOCK

Counsel of Record

Lori J. VAN AUKEN

Bruce R. BRAUN

Davip A. ZEITLIN

WINSTON & STRAWN

Attorneys for Petitioners

200 Park Avenue

New York, New York 10166

(212) 294-6700

168319 ce)

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

emi aaa a ala,

QUESTIONS PRESENTED

The Energy Policy Act of 1992, 42 U.S.C. § 2297, et

seq. (“EPACT’’), requires domestic utilities to make annual

payments of $150 million to a government-administered fund

through 2007. In 1998, petitioners brought an action against

the United States in the Southern District of New York

(“District Court”) seeking declaratory and injunctive relief

to abate their ongoing payment obligations on the grounds

that EPACT violates the Takings and Due Process Clauses

of the Fifth Amendment. On appeal from the District Court’s

order affirming its own jurisdiction, the Court of Appeals

for the Federal Circuit (“Federal Circuit”) held that the

District Court lacked subject matter jurisdiction over

petitioners’ claims and ordered that they be transferred to

the Court of Federal Claims (“CFC’’).

The questions presented are:

1. Whether the Federal Circuit’s abrogation of this

Court’s decision in Bowen v. Massachusetts, 487 U.S. 879

(1988), should be permitted to stand and, contrary to

this Court’s decision in Eastern Enterprises, Inc. v. Apfel,

524 U.S. 498 (1998), the District Court deprived of subject

matter jurisdiction to hear petitioners’ Fifth Amendment

challenges to EPACT and claims for prospective, equitable

relief.

2. Whether, contrary to this Court’s precedent and

decisions of other circuit courts of appeals, the CFC can

render judgment on petitioners’ Takings and Due Process

Clause challenges to EPACT and provide an “adequate

remedy” under 5 U.S.C. § 704 for their equitable claims,

thereby depriving the District Court of its subject matter

jurisdiction over this case.

PARTIES TO THE PROCEEDING

The following utilities in Consolidated Edison Co. of

New York, Inc., et al. v. United States, et al., No. 99-1464

(Fed. Cir.) are parties to this proceeding:

i 3

13.

14.

Consolidated Edison Company of New York, Inc.

New York Power Authority

Niagara Mohawk Power Corporation

Rochester Gas and Electric Corporation

Arizona Public Service Corporation

Commonwealth Edison Company

Duke Energy Corporation

Entergy Gulf States, Inc.

Florida Power Corporation

Florida Power and Light Company

GPU Nuclear, Inc. (on behalf of Jersey Central

Power & Light Company, Metropolitan Edison

Company, and Pennsylvania Electric Company)

Indiana Michigan Power Company

Nebraska Public Power District

PECO Energy Company

21.

22.

iii

Southern California Edison Company

Southern Nuclear Operating Company, Inc.

System Fuels, Inc.

Texas Utilities Electric Company (now TXU

Electric Company)

Virginia Electric & Power Company

Washington Public Power Supply System

(now Energy Northwest)

Wisconsin Public Service Corporation

Wolf Creek Nuclear Operating Corporation

(on behalf of Kansas City Power & Light Company,

Kansas Electric Power Cooperative, Inc., and

Kansas Gas and Electric Company)

CORPORATE DISCLOSURE STATEMENT

The parent corporations and any publicly held companies

that own 10 percent or more of the stock of each

nongovernmental corporation filing this petition are as

follows:

Consolidated Edison Company of New York, Inc.

Consolidated Edison, Inc. is the parent company of

Consolidated Edison Company of New York, Inc.

and has issued shares to the public. No other publicly

held company owns 10 percent or more of its stock.

New York Power Authority

New York Power Authority has no parent corporation

or other publicly held company that owns 10 percent

or more of its stock.

Niagara Mohawk Power Corporation

Niagara Mohawk Holdings, Inc. is the parent

corporation of Niagara Mohawk Power Corporation.

No other publicly held company owns 10 percent or

more of its stock.

Rochester Gas and Electric Corporation

RGS Energy Group, Inc. is the parent corporation of

Rochester Gas and Electric Corporation. No other

publicly held company owns 10 percent or more of

its stock.

5. Arizona Public Service Company

Pinnacle West Capital Corporation is the parent

corporation of Arizona Public Service Company.

No other publicly held company owns 10 percent or

more of its stock.

6. Commonwealth Edison Company

Exelon Corporation is the parent corporation of

Commonwealth Edison Company. No other publicly

held company owns 10 percent or more of its stock.

7. Duke Energy Corporation

Duke Energy Corporation has no parent corporation

or other publicly held company that owns 10 percent

or more of its stock.

8. Entergy Gulf States, Inc.

Entergy Corporation is the parent corporation of

Entergy Gulf States, Inc. No other publicly held

company owns 10 percent or more of its stock.

9. Florida Power Corporation

Progress Energy Corporation is the parent

corporation of Florida Power Corporation. No other

publicly held company owns 10 percent or more of

its stock.

10. Florida Power and Light Company

FPL Group, Inc. is the parent corporation of Florida

Power and Light Company. No other publicly held

company owns 10 percent or more of its stock.

ll.

12.

13.

14.

15.

GPU Nuclear, Inc. (on behalf of Jersey Central

Power & Light Company, Metropolitan Edison

Company, and Pennsylvania Electric Company)

GPU, Inc. is the parent corporation of GPU Nuclear,

Inc. No other publicly held company owns

10 percent or more of its stock.

Indiana Michigan Power Company

American Electric Power Company, Inc. is the

parent corporation of Indiana Michigan Power

Company. No other publicly held company owns

10 percent or more of its stock.

Nebraska Public Power District

Nebraska Public Power District is a public

corporation and political subdivision of the State of

Nebraska, is not authorized to issue stock, and has

no stock issued or outstanding. Accordingly,

Nebraska Public Power District has no parent

corporation or other publicly held company that

owns 10 percent or more of its stock.

PECO Energy Company

Exelon Corporation is the parent corporation of

PECO Energy Company. No other publicly held

company owns 10 percent or more of its stock.

Southern California Edison Company

Edison International is the parent corporation of

Southern California Edison Company. No other

publicly held company owns 10 percent or more of

its stock.

vil

16. Southern Nuclear Operating Company, Inc.

The Southern Company is the parent corporation of

Southern Nuclear Operating Company, Inc. No other

publicly held company owns 10 percent or more of

its stock.

17. System Fuels, Inc.

Entergy Corporation is the parent company of

Entergy Arkansas, Inc., Entergy Louisiana, Inc.,

Entergy Mississippi, Inc. and Entergy New Orleans,

Inc., each of which are the parent corporations of

System Fuels, Inc. No other publicly held company

owns 10 percent or more of its stock.

18. Texas Utilities Electric Company

TXU Corp. is the parent corporation of Texas

Utilities Electric Company, now TXU Electric

Company. No other publicly held company owns

10 percent or more of its stock.

19. Virginia Electric & Power Company

Dominion Resources, Inc. is the parent corporation

of Virginia Electric & Power Company. No other

: publicly held company owns 10 percent or more of

its stock.

20. Washington Public Power Supply System

Washington Public Power Supply System, now

Energy Northwest, has no parent corporation or

other publicly held company that owns 10 percent

or more of its stock.

21.

22.

viii

Wisconsin Public Service Corporation

WPS Resources is the parent corporation of

Wisconsin Public Service Corporation. No other

publicly held company owns 10 percent or more of

its stock.

Wolf Creek Nuclear Operating Corporation

(on behalf of Kansas City Power & Light Company,

Kansas Electric Power Cooperative, Inc., and

Kansas Gas and Electric Company)

Western Resources, Inc. is the parent corporation

of Kansas Gas & Electric Company which in turn is

the parent corporation of Wolf Creek Nuclear

Operating Corporation. No other publicly held

company owns 10 percent or more of its stock.

= ee —

SR, ge a comma Nia

TABLE OF CONTENTS

I gn kb vd ac oas he endwes

Parties to the Proceeding .................00:.

Corporate Disclosure Statement ................

oot ro 6 ooo or ko he oe de

WOOO OF ABDOMEROUS once ccc ccc cccccniecencs

Opinions and Orders Below ...................

Statement of Jurisdiction .....................

Relevant Constitutional Provisions, Statutes and

I OPT On ee a re eran

PE I sik ooo bos cod 6b own wks

is I ccs ig ewow te het ue an tans

B. District Court Proceedings ..............

C. The Decisions of the Court of Appeals ....

Reasons for Granting the Writ .................

The Federal Circuit’s Opinion “Under-Rules”

Bowen And Conflicts With Decisions Of This

Court And Other Circuit Courts Of Appeals

Contents

Il. The Federal Circuit’s Opinion Is Irreconcilable

With This Court’s Decision In Eastern

cg PPT eer TT reer er 19

III. The Federal Circuit’s Decision Conflicts

With This Court’s Jurisprudence And Creates

A Split Among The Circuits Concerning The

Proper Forum For Due Process Litigation... 23

IV. This Case Is An Excellent Vehicle For

Resolution Of Several Important Issues That

Will Have Nationwide Implications Beyond

The Circumstances Presented In This Case .. 26

RNR ee age age eNE yy? ESC RRA WMe rae 29

TABLE OF CITED AUTHORITIES

Page

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

TULANE TAGE KASE SESE SRE CLAEEL AAO eE OE 18

Aetna Casualty & Surety Co. v. United States, 71

Pi Te CM: COPE) 6 oka etch busaguaniane 15

Army and Air Force Exchange Service v. Sheehan,

SP TROND Sdn ce vin cceabéadenanana 25

Bell v. Hood, 327 U.S. 678 (1946) .............. 18

Bennett v. Spear, 520 U.S. 154 (1997) .......... 18

Blue Diamond Coal Co. v. Trustees of the UMWA

Combined Benefit Fund, 2001 WL 459913

te aS, PS ep Sareea tear or a 22

Bowen v. Massachusetts, 487 U.S. 879 (1988) ... passim

Brazos Electric Power Cooperative Inc. v. United

States, 144 F.3d 784 (Fed. Cir. 1998) ......... 15

Califano v. Sanders, 430 U.S. 99 (1977) ......... 17

Charter Federal Savings Bank v. Office of Thrift

Supervision, 976 F.2d 203 (4th Cir. 1992) ..... 17

In Re Chateaugay Corp., 53 F.3d 478 (2d Cir.), cert.

denied, LTV Steel Co. v. Shalala, 516 U.S. 913

SUE 68k Soe a CREE A EAT STARE CES EER OSS 22

xii

Cited Authorities

Page

Christianson v. Colt Industrial Operating Corp.,

ict Lk Eee EET COT TTT TT ere 19

City of Lakewood vy. Plain Dealer Publishing Co.,

GP Ses TEED 4k 5c eccnn dn eniadensuasa 22

Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. -

BUEN: wacNionans CPT Pee es See oe 24

Commonwealth Edison Co. v. United States, 46 Fed.

Sk oe es OD oun hve od08 bho nape ae 4,23

Consolidated Edison Co. of New York, Inc., et al. v.

United States, et al., 30 F. Supp. 2d 385 (S.D.N.Y.

rrr errr er Ser re rrr aes 5

Creppel v. United States, 41 F.3d 627 (Fed. Cir

er me Pere re re” 5,17

Crocker v. United States, 125 F.3d 1475 (Fed. Cir.

ED 4655 o cad Dad CERRO RE ee 24

Darby v. Cisneros, 509 U.S. 137 (1993) ......... 16

Department of Army v. Blue Fox, Inc., 525 U.S. 255

(1999) ..... pepe rer RNS Prrrna Tr Foo: 16

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 436 U.S. FPUIFTS) occ viaccases 26

Eastern Enterprises, Inc. v. Apfel, 524 U.S. 498

erry eer re ee ee passim

Cited Authorities

Page

Eastport S.S. Corp. v. United States, 372 F.2d 1002

GGUS basa ndenccsescccess 24, 25, 26

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) ... 15

Glidden v. Zdonak, 370 U.S. 530 (1962) ......... 13, 23

Hahn vy. United States, 757 F.2d 581 (3d Cir. 1985)

SE 17

Hamlet v. United States, 63 F.3d 1097 (Fed. Cir.

1995), cert. denied, 517 U.S. 1155 (1996) ..... 24

James v. Caldera, 159 F.3d 573 (Fed. Cir. 1998)

a ea canes ssccccccces 15, 24

Kanemoto v. Reno, 41 F.3d 641 (Fed. Cir. 1994) .. 15

Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) ... 15

Keene Corp. v. United States, 508 U.S. 200 (1993)

ee oes seeseseseccessess 27

Kidwell v. Department of the Army, 56 F.3d 279

TE Ca Gb gee baccersrccssasccces 15

Lake Mohave Boat Owners Ass'n v. National Park

Service, 78 F.3d 1360 (9th Cir. 1996) ......... 23

LeBlanc v. United States, 50 F.3d 1025 (Fed. Cir.

EEG Soe eb60s 60s esses sccece 24

Loveladies Harbor, Inc. v. United States, 27 F.3d

MED ccc wccccsterbcsscceces ew

xiv

Cited Authorities

Page

Mallow v. United States, 161 Ct. Cl. 446 (1963) .. 24

Marks v. United States, 430 U.S. 188 (1977) ..... 22

Marshall Leasing, Inc. v. United States, 893 F.2d

oo ke ere ret err err rer 15, 24

Mary Helen Coal Corp. v. Hudson, 235 F.3d 207

Ce SE Sh accas sea ede tates ean eee dens 21, 22

Mitchell v. United States, 930 F.2d 893 (Fed. Cir.

SNES a cceedaked sk acae ates Teese eas 15

Murray v. United States, 817 F.2d 1580 (Fed. Cir.

gs Oe eo EE re ty a eer ne eee 24

National Center for Mfg. Sciences v. United States,

114 F.3d 196 (Fed. Cir. 1997) ............... 15

New York Life Ins. Co. v. United States, 118 F.3d

1553 (Fed. Cir. 1997), cert. denied, 523 U.S. 1094

CRs 53.24 Och waedesak eee oes 24, 25

New York Power Authority v. United States, 42 Fed.

in By 7. a are rare bra yar eg peer 17, 25

Office of Personnel Mgmt. v. Richmond, 496 U.S.

GEG ETUOGD 65655 baw keres nese i eka eee 25

Pennsylvania R.R. Co. v. United States, 363 U.S.

ee, eT errr eC rr et rE err re 17

Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,

GOT UR. FET CIRO cance hecsdskaduccasaces 26

Cited Authorities

7 Page

Polanco v. U.S. Drug Enforcement Admin., 158 F.3d

ogee ie a, rere ere eae 14, 23, 24

Randall v. United States, 95 F.3d 339 (4th Cir. 1996),

cert. denied, 519 U.S. 1150 (1997) ......:....14, 15

Richardson v. Morris, 409 U.S. 464 (1973) ...... 3,23

Rothe Development Corp. v. United States, 194 F.3d

eg Vee | rere rr er rer Try er rrere 23

Southeast Kansas Community Action Program, Inc.

v. Secretary of Agriculture, 967 F.2d 1452 (10th

ee 5 hae ee wie eeeakanens 15

Student Loan Marketing Ass'n v. Riley, 104 F.3d 397

(D.C. Cir.), cert. denied, 522 U.S. 913 (1997) .. 21

Transohio Savings Bank v. Director, Office of Thrift

Supervision, 967 F.2d 598 (A.. Cae. 190Z) .... 15

Tuscon Airport Authority v. General Dynamics

Corp., 136 F.3d 641 (9th Cir. 1998) .......... 15

United States v. Clark, 445 U.S. 23 (1980) ....... 23

United States v. Hopkins, 427 U.S. 123 (1976) .... 23

United States v. Jones, 131 U.S. 1 (1889) ........ 13, 23

United States v. King, 395 U.S. 1 (1969) ......... 23

United States v. Mitchell, 463 U.S. 206 (1983) .... 23

XVI

Cited Authorities

Page

United States v. Testan, 424 U.S. 392 (1976) ..... 23, 25

United States v. United Foods, Inc., 121 S. Ct. 2334

(2061) .. 4.2055 5 dw dee eae 28

United States v. Vazquez, 145 F.3d 74 (2d Cir. 1998)

Pere et re Meee 18

United States Fidelity & Guar. Co. v. McKeithen,

226 F.34 412 (50s Cat, BOD nce nccovccceces 22

In Re Uranium Decontamination & Decommissioning

Fund Litigation, No. 1330 (J.P.M.L. Feb. 15, 2000)

ETOP Ter er a 7

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

(1976) .. nie dnd eee ee ee ee 26

Veda, JInc. v. United States, 111 F.3d 37 (6th Cir.

1997) asc cscue duane 14

Yankee Atomic Electric Co. v. United States, 33 Fed.

Cl. 580 (1995), reversed, 112 F.3d 1569 (Fed. Cir.

1997), cert. denied, 524 U.S. 951 (1998) ....5, 10, 11

Zellous v. Broadhead Associate, 906 F.2d 94 (3d Cir.

1990) ....%54%sdes pee eee 15

Docketed Cases:

Commonwealth Edison Co. v. United States, No. 00-

5069 (Fed. Cir.) ....... Pg Sey er er ee epee 5

XVIL

Cited Authorities

Page

United States Constitution:

REE NORE oc cc cc ccc cadoncccesscsscess 28

ee awesedenee sue i, 1, 4, 19, 22

Federal Statutes:

S$ U.S.C. § 701, 66 90g. nc cccccccccccscccccces 2

DUR Me FUE ove ccabesricscncresesscerseses 1,6

. leit > | Perr re rrr rrr rrr rer re i £.& 7

Ds 6 PMNS cases sccscicnsszvesascesecese 28

SU MED co ccevescdscccesesesaseeness 28

DMR BP AMMUEED cocsdepreisesissesscesone l

28 U.S.C. §§ 1292(d)(4)(A) ......-.-- 1, 2, 3, 6, 12, 27

28 U.S.C. § 1292(d)(4)(B) ......---- eee eee eee 1,6

/ LE Fed Do) err err rrr a:

/ ih Tout 0) | rere rer rere ree 1

BRUBC. © UGB on cc ccccccccccccccccscsses 1, 6

42 U.S.C. § 2201, ef Seq. ...... 2 cece cee ccceess 3

42 U.S.C. § Z2O1V .. ww. cece ccc ccccccccecces 3

XVili

Cited Authorities

gh St bs Pere rrr Ere rr rere err ee

SE a, Sea. science sec snewces

Be Ws PE 6c dc dbcedsuesavccdaseauees

Ce ULB. OBOE. 6c vin excciseeksakadsavuns

eth oe Pe OR So errr rrr re

42 US.C. § 22979-1le) .........:.000000000e0e-

Ce Un SI hoe dened cueewessoseunn

ee a TD 646s pda daddncadaeeseuns

Ae Se lee hiv sca nahaneccdnaeesneeys

Federal Regulations:

Se ee es Oe PY doce eaeskeewseaceess

ate ee 8 Sy erry TT errr ree

MGR OI 5 Sooo ions cade sasnsecs

Page

3,4

xix

Cited Authorities

Congressional History:

H.R. Rep. No. 102-474, Part 2, reprinted in, 1992

U.S.C.C.A.N., 102nd Cong. 2064 (1992) ......

H.R. 105-424, 105th Congress, 2d Sess. (1998) ...

The Tucker Act Shuffle Relief Act of 1997: Hearings

on H.R. 992 Before the Subcomm. on Immigration

and Claims of the House Comm. of the Judiciary,

105th Cong. (1997) (Statement of Eleanor D.

Acheson, Assistant Attorney General, Office of

Policy Development) ............-.+ ee eees

Page

TABLE OF APPENDICES

Appendix A — Opinion And Order Of The United

States Court Of Appeals For The Federal Circuit

Dated And Decided May 3, 2001-.............

Appendix B — Opinion Of The United States Court

Of Appeals For The Federal Circuit Dated And

Decided December 5, 2000 .................

Appendix C — Opinion And Order Of The United

States District Court For The Southern District

Of New York Dated April 12,1999 ..........

Appendix D — Order Of The United States Court

Of Appeals For The Federal Circuit Granting

Motion To Stay Issuance Of Mandate Dated And

Pee WO 7. BOE 6066 0b06ncbbueeseeaeseee

Appendix E — Relevant Constitutional Provisions,

Statutes And Regulations ...................

Petitioners respectfully petition for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Federal Circuit issued pursuant to the Federal Circuit's

en banc order in this case.

OPINIONS AND ORDERS BELOW

The opinion and order of the District Court (Knapp,

S.D.J.) denying the Government’s motion to dismiss or

alternatively to transfer this action to the CFC (Appendix

(“Pet. App.”) 48a-59a) is published at 45 F. Supp. 2d 331

(S.D.N.Y. 1999). The Federal Circuit’s initial decision

(Rader, C.J., joined by Plager, C.J.; Gajarsa, C.J., dissenting)

affirming the District Court (Pet. App. 19a-47a) is published

at 234 F.3d 642 (Fed. Cir. 2000). The en banc order of the

Federal Circuit granting rehearing, rehearing en banc, and

directing the panel to issue a revised opinion, and the panel’s

decision implementing that order, dated May 3, 2001

(Pet. App. 1a-18a) are published at 247 F.3d 1378 (Fed. Cir.

2001). The Federal Circuit’s June 7, 2001, order staying the

mandate (Gajarsa, C.J., dissenting) (Pet. App. 60a-65a) is

not published.

STATEMENT OF JURISDICTION

The Federal Circuit entered its en banc order and revised

opinion on May 3, 2001. Petitioners invoke this Court’s

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

The following constitutional provisions, statutes

and regulations involved in this case are reprinted in the

Appendix at 66a-77a: United States Constitution, Amendment

V; 5 U.S.C. §§ 702, 704; 28 U.S.C. §§ 1292(d)(4)(A), (B);

28 U.S.C. § 1331; 28 U.S.C. § 1491; 28 U.S.C. § 1631;

42 U.S.C. §§ 2297g, 2297g-1 and 10 C.F.R. §§ 766.103,

766.106.

STATEMENT OF THE CASE

Petitioners are domestic utilities required by EPACT to

pay billions of dollars to a fund created to finance cleanup

of uranium processing plants owned and operated by the

Government. In 1998, petitioners brought an action against

the Government in the District Court challenging the

constitutionality of EPACT on Takings and Due Process

grounds and seeking declaratory and injunctive relief to void

their future payment obligations.' Each of the petitioners also

brought actions in the CFC initially based on contract to

recover their past payments to the fund. The District Court -

held that it had subject matter jurisdiction over petitioners’

claims under 28 U.S.C. § 1331, and that the Government

had waived its sovereign immunity to suit under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701,

et seq. On interlocutory appeal pursuant to 28 U.S.C.

§ 1292(d)(4)(A), the Federal Circuit reversed, holding that

a CFC judgment refunding petitioners’ past payments would

be an entirely adequate remedy for their constitutional

challenges to EPACT’s ongoing payment obligations and

requests for declaratory and injunctive relief.

The Federal Circuit’s decision merits review because it

conflicts with decisions of this Court and other circuit courts

of appeals firmly establishing the jurisdiction of district

courts to determine the constitutionality of federal statutes

and afford appropriate declaratory and injunctive relief.

By depriving the district court of authority under the APA

and conversely expanding the powers of the CFC, the Federal

Circuit’s decision represents a wholesale realignment of the

jurisdiction of these courts and creates substantial confusion

1. Defendants in the District Court are the United States of

America, the United States Department of Energy, individually and

as successor to the United States Atomic Energy Commission and

the Energy Research and Development Administration (collectively,

the “Government”).

as to the proper forum for constitutional challenges to federal

statutes that seek prospective, equitable relief. Moreover,

because the Federal Circuit’s decision sets a rule to govern

litigation against the Government in district courts

nationwide, see 28 U.S.C. § 1292(d)(4)(A), it will present

recurring problems of constitutional significance absent this

Court’s plenary review.

A. Background

Petitioners are twenty-two domestic utilities that own

and/or operate (or previously owned and/or operated) nuclear

reactors for the purpose of generating electricity. To fuel

their reactors, petitioners need uranium processed in a

manner that causes it to become “enriched.” For many

decades, petitioners purchased uranium enrichment services

from the Government pursuant to fixed price contracts and a

federal statute, 42 U.S.C. § 2201v, which required the

Government to set its prices at levels sufficient to recover

all of its costs.’

In 1992, Congress enacted the Energy Policy Act of 1992

(“EPACT”). See 42 U.S.C. § 2297, et seq. EPACT requires

domestic utilities that purchased enrichment services from

the Government between 1945 and 1992 to pay $2.25 billion

into a fund established to defray the cost of decontaminating

and decommissioning the Government’s uranium enrichment

plants.’ See 42 U.S.C. § 2297-1, et seq.; 10 C.F.R. § 766.1,

2. During the 1940s and 1950s, the Government constructed

several uranium enrichment processing facilities that it used for

purposes of national defense. In 1969, the Government began selling

its enrichment services to private parties. See generally 42 U.S.C.

§ 2201, et seq.

3. Decontamination and decommissioning (“D&D”) refer to

the process of removing a nuclear facility from service at the end of

its useful life and reducing the remaining radioactivity at the site to

acceptable levels.

et seq. The Decontamination and Decommissioning Fund

(“D&D Fund”) was created to relieve the Government of its

anticipated D&D liability in order to aid efforts to privatize

the Government’s enrichment business. See generally H.R.

Rep. No. 102-474, Part 2, reprinted in, 1992 U.S.C.C.A.N.,

102nd Cong. 2064 (1992).

EPACT authorizes the Government to collect this money

from the utilities in annual assessments of $150 million per

year, for a period of 15 years, from 1993 through 2007.

42 U.S.C. §§ 2297g-1(c), (d), (e). The amount each utility

must pay into the D&D Fund is based on the quantity

of enrichment services purchased between 1945 and

October 23, 1992, adjusted annually for inflation,

42 U.S.C. § 2297g-1(c), and is reflected in an invoice

sent by the Government in October of each year.

10 C.F.R. § 766.103. If these invoices are not paid within

30 days, late fees and interest penalties are assessed.

10 C.F.R. § 766.106. In 2007, the Government is to report

to Congress with recommendations for reauthorization of

the program and the D&D Fund. 42 U.S.C. § 2297g-4.

In 1998, petitioners commenced the instant action in

the District Court seeking declaratory and injunctive

relief on the grounds that EPACT violates the Takings

and Due Process Clauses of the Fifth Amendment

and unconstitutionally impairs their contractual rights.

Relying on this Court’s decision in Eastern Enterprises, Inc.

v. Apfel, 524 U.S. 498 (1998), which held that a similar statute

requiring payments to a government-created fund violated

the Fifth Amendment, petitioners allege that EPACT unfairly

and unreasonably imposes severely retroactive liability upon

a limited class that had no responsibility for operating the

Government’s enrichment plants and no reasonable

expectation that it would be liable for the Government’s D&D

costs decades later. Petitioners also seek an injunction that

would prevent the Government from continuing to collect

EPACT assessments from them in the future. At the time the

District Court action was commenced, petitioners had

collectively paid into the D&D Fund approximately $560 million

and were obligated to pay in excess of $1 billion more.

Before commencing the District Court action, each

petitioner also brought an action in the CFC seeking a refund of

its past D&D Fund payments. In these actions, petitioners alleged

that EPACT breached their enrichment services contracts and

constituted a “taking” of their property for which just

compensation was due. No challenges to the constitutionality

of EPACT on Takings, Due Process or any other constitutional

ground were asserted. At the Government’s request, petitioners’

CFC cases were immediately stayed pending the outcome of a

related CFC action.*

After the District Court action was commenced, petitioners

offered to dismiss their individual CFC cases if the Government

would agree to pay refunds in the event petitioners were

successful in the District Court. The Government declined.

In accordance with Federal Circuit precedent, petitioners then

amended their CFC complaints to base their refund claims on

the outcome of the constitutional challenges being pursued in

the District Court, so as to preserve their right to refunds on

these grounds. See, e.g., Creppel v. United States, 41 F.3d 627

(Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States,

27 F.3d 1545 (Fed. Cir. 1994). They also sought to extend the

stays of their CFC actions, which stays were granted, in

substance or effect, in all but one case.°

4. See Yankee Atomic Electric Co. v. United States, 33

Fed. Cl. 580 (1995), reversed, 112 F.3d 1569 (Fed. Cir. 1997),

cert. denied, 524 U.S. 951 (1998).

5. See Commonwealth Edison Co. v. United States, 46 Fed. Cl.

29 (Fed. Cl. 2000), appeal docketed, No. 00-5069 (Fed. Cir.). Four

other CFC cases seeking D&D Funds refunds were not stayed and

are presently before the Federal Circuit, sub judice, but they do not

involve any of the petitioners here.

B. District Court Proceedings

Initially, the Government brought a motion to stay the

District Court action pending the outcome of petitioners’

CFC cases. The District Court denied the motion, concluding

that petitioners had substantial claims that could not be heard

in the CFC because that court has no power to award

injunctive relief. Consolidated Edison Co. of New York, Inc.,

et al. v. United States, et al., 30 F. Supp. 2d 385 (S.D.N.Y.

1998). The Court also ruled that interests of judicial economy

weighed heavily in favor of a single, comprehensive

proceeding in the District Court, rather than piecemeal

adjudication of petitioners’ claims in 22 separate actions in

the CFC.

Although the District Court certified the stay issue for

interlocutory appeal to the Second Circuit Court of Appeals,

the Government did not pursue it. Instead, the Government

filed a motion to dismiss the District Court action for lack

of subject matter jurisdiction on the ground that there had

been no waiver of the Government’s sovereign immunity

under the APA. The Government asserted that petitioners’

claims for declaratory and injunctive relief were barred by

5 U.S.C. § 702 because they were, in reality, claims for

“money damages” and “impliedly forbidden” by the Tucker

Act. In addition, the Government asserted, the District Court

lacked jurisdiction under 5 U.S.C. § 704 because the utilities

had an “adequate remedy” for their allegedly ongoing

constitutional violations: a later claim for money damages

under the Tucker Act in the CFC.

Alternatively, the Government asked the District Court

to transfer the action to the CFC pursuant to 28 U.S.C.

§ 1631. This request triggered a statutory stay of all District

Court proceedings under 28 U.S.C. § 1292(d)(4)(B), thereby

allowing the Government to obtain the very relief that

the District Court had days before declined to provide.

The transfer motion also invoked 28 U.S.C. § 1292(d)(4)(A),

which provides a right to interlocutory review of district court

orders granting or denying motions to transfer to the CFC,

and directs all such appeals to the Federal Circuit, rather

than the regional courts of appeals.

_ The District Court denied the Government’s motion to

dismiss or transfer. Pet. App. 48a-59a. Relying upon Supreme

Court and courts of appeals precedent, the court concluded

that it had subject matter jurisdiction to determine the

constitutionality of federal statutes and to award appropriate

declaratory and injunctive relief, without regard to whether

the Government had expressly waived its sovereign

immunity to such a suit. Jd. 50a-54a. Even if an express

waiver of sovereign immunity were required, the District

Court held that the APA clearly provided one, as petitioners

sought purely prospective, equitable relief, not compensatory

damages. Jd. 57a. The court also concluded that petitioners’

claims depend largely on their rights under the United States

Constitution and, therefore, the Tucker Act did not

“impliedly forbid” the relief they seek. Jd. 55a-57a. Finally,

the court held, since the CFC would have no jurisdiction to

hear petitioners’ Due Process Clause claims or grant general

equitable relief, the CFC could not provide an “adequate

remedy” under 5 U.S.C. § 704. Jd. 58a-59a. The Government

filed a notice of appeal with the Federal Circuit.°

C. The Decisions of the Court of Appeals

On December 5, 2000, the Federal Circuit, in a 2-1

decision, affirmed and remanded for further proceedings in

the District Court. Pet. App. 19a-47a. Relying on Bowen v.

Massachusetts, 487 U.S. 879 (1988), which it described as

6. While the Government’s appeal was pending, the petitioners’

action and three other similar actions pending in the District

Court for the District of Columbia were consolidated for pretrial

purposes in the Southern District of New York. See In Re Uranium

Decontamination & Decommissioning Fund Litigation, No. 1330

(J.P.M.L. Feb. 15, 2000).

“similar” to this case, the majority held that the District Court

had subject matter jurisdiction over petitioners’ equitable

claims based on the Takings and Due Process Clauses.

It reyected the Government’s assertion that petitioners’ claims

for declaratory and injunctive relief were really claims for

“money damages” noting that petitioners, in the District

Court, do “not seek the recovery of funds at all, but only an

injunction on future EPACT assessments.” Jd. 27a.

Accordingly, the Federal Circuit concluded, the CFC could

not supply an “adequate remedy” because that court is

without authority to award prospective, equitable relief.

Id. 28a-30a.

The dissent, in contrast, argued that Bowen had no

application beyond its own facts. Pet. App. 33a-47a.

It rejected the Bowen court’s conclusion that claims for

prospective equitable relief should be brought in the district

court and argued that petitioners’ claims could be adequately

remedied in the CFC. Jd. 43a-47a. Believing that Bowen

“has created and continues to generate much mischief,” and

placed “many cases outside the jurisdiction of the CFC,”

the dissent urged this Court to “apply the coup de grace” to

Bowen. Id. 47a. The majority, however, concluded that it

was not free to overrule Bowen and that, under this Court’s

decision in that seminal case, the District Court clearly had

subject matter jurisdiction over petitioners’ claims:

We have been given no brief that entitles us

to unilaterally declare the Supreme Court

misinformed about its view of federal jurisdiction.

Accordingly, this court is bound to follow, as best

it can, the guidance given it by the majority in

Bowen and not that of the [Bowen] dissent, and

to recognize this difference.

Pet. App. 31la-32a.

The Government sought rehearing and rehearing

en banc, and on May 3, 2001, the Federal Circuit granted its

request. Pet. App. 18a. In its en banc order, the court of

appeals vacated the panel’s December 5, 2000 decision and

directed it to issue a “revised” opinion. Jd. In its “revised”

opinion, rendered without further briefing or oral argument,

the Federal Circuit abandoned its earlier deference to this

Court’s teachings in Bowen, and held that the District Court

lacked subject matter jurisdiction over petitioners’ claims

because the CFC had the power to provide a fully adequate

remedy. Jd. 14a. Accordingly, the court reversed the District

Court’s order and remanded with instructions to transfer the

action to the CFC. Jd. In aconcurring opinion, Senior Circuit

Court Judge S. Jay Plager summarized the court’s change of

position: |

This case confronts the court with a choice

between a seemingly illogical Supreme Court

rule, calling for a less-than-sensible result, on the

one hand, or under-ruling the Supreme Court

decision, here Bowen v. Massachusetts, 487 U.S.

879 (1988), on the other. This time the court has

chosen the latter course. I cannot disagree; it

remains to be seen whether the Supreme Court

will.

Id. 16a. (Plager, S.C.J., concurring).

> oe *

In Bowen, this Court rejected the Government's “nove

suggestion that the CFC could provide an adequate remedy

where declaratory and injunctive relief of a prospective

nature is sought to modify the Government’s future practices

and provide complete relief. 487 U.S. at 904. In its revised

opinion, the Federal Circuit concluded that Bowen turned

entirely on the existence of a complex, ongoing relationship

between the federal and state governments involving the

allocation of costs under the Medicaid program. Pet. App.

9a-11a. Moreover, the court explained, because petitioners’

10 |

District Court case does not “involve a state at all,” there are

no issues pertaining to “state governmental activities” that

would be best addressed in district court. Jd. lla. Absent

these special circumstances, the court concluded, it was not

bound to follow Bowen. Id.

The Federal Circuit’s break with precedent did not end

there. Contrary to this Court’s decision in Eastern

Enterprises and other cases establishing the district courts’

jurisdiction over constitutional claims, the Federal Circuit

held that the CFC could resolve petitioners’ Due Process

and Takings Clause challenges to EPACT under the so-called

“* “illegal exaction’ doctrine.” Pet. App. 1 la. Proceeding from

this novel premise, the Federal Circuit concluded that a

judgment in favor of petitioners in their CFC cases would

be an adequate remedy for their prospective, equitable claims

because the res judicata effect of such judgments would

entitle petitioners to immediate refunds of their future

payments. Jd. 12a. Moreover, in the face of such a judgment,

the court could not “imagine that the United States would

[thereafter] continue to require the utility companies to pay

unlawful exactions.” Jd. 12a. Believing, thus, that a series

of refund suits in the CFC would be an adequate remedy for

petitioners’ claims for prospective, equitable relief, the court

concluded that the District Court action should be transferred

to the CFC. /d. 14a.

Underlying the court of appeals’ novel holding and

affront to this Court’s precedent, was its apparent view that

petitioners’ District Court action was brought for the sole

purpose of evading the decision in Yankee Atomic Electric

Co. v. United States, 112 F.3d 1569 (Fed. Cir. 1997), cert.

denied, 524 U.S. 951 (1998). Emphasizing that the procedural

posture of this case “seal[ed]” their conclusion, the court

held that transfer to the CFC was appropriate because “such

blatant forum shopping” should not be tolerated. Pet App.

13a-14a. However, even the Federal Circuit itself recognized

eee

that Yankee Atomic did not involve the same Due Process or

Takings Clause challenges being advanced by petitioners in

-the District Court. Jd. 4a.’

On June 7, 2001, the Federal Circuit issued an order

staying its mandate upon petitioners’ showing that their

certiorari petition would present a substantial question

meriting this Court’s review and that there existed good

grounds for a stay. Pet. App. 60a-65a. This petition for a

writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

The petition should be granted for at least four reasons.

First, the Federal Circuit’s decision completely and

deliberately repudiates this Court’s seminal decision in

Bowen v. Massachusetts, 487 U.S. 879 (1988). Bowen, along

with its progeny, firmly establish that the CFC cannot supply

an adequate remedy and deprive a district court of jurisdiction

where, as here, declaratory and injunctive relief of a purely

prospective nature is sought. This Court’s review is necessary

to eliminate the substantial confusion the Federal Circuit has

created by using the APA to restrict the scope of district

7. Yankee Atomic is not a party to the District Court action or

any other district court case. In 1994, it commenced an action in the

CFC seeking a refund of past paid assessments based on breach of

contract and an asserted taking of its contract rights. On cross-

motions for summary judgment brought in advance of discovery,

the CFC ruled in Yankee Atomic’s favor, Yankee Atomic Electric

Co. v. United States, 33 Fed. Cl. 580 (1995), but the Federal Circuit,

in a 2-1 decision, reversed. Yankee Atomic Electric Co. v. United

States, 112 F.3d 1569 (Fed. Cir. 1997). The Federal Circuit reached

its conclusion, however, without the benefit of a fully developed

factual record and was not asked to and did not determine whether

EPACT violated the Takings or Due Process Clauses. Following

the Federal Circuit’s decision, Yankee Atomic sought rehearing and,

after that was denied, filed a petition for writ of certiorari, which

was denied by this Court. Yankee Atomic Electric Co. v. United

States, 524 U.S. 951 (1998).

court jurisdiction, and to address the conflict now existing

among the circuit courts of appeals as to the proper forum

for claims against the United States for purely prospective,

equitable relief.

Second, the Federal Circuit’s decision cannot be

reconciled with this Court’s ruling in Eastern Enterprises,

Inc. v. Apfel, 524 U.S. 498 (1998), and other circuit court

decisions establishing that Takings Clause challenges to

federal statutes requiring the payment of money to the

Government should be brought in federal district court, not

in the CFC. Without explanation, the court totally ignores

Eastern Enterprises, notwithstanding its striking similarity

to this case.

Third, the Federal Circuit’s holding that the CFC “has

long possessed jurisdiction” to consider Due Process Clause

challenges to federal statutes under the so-called, but

unexplained, “illegal exaction” doctrine is at odds with the

jurisprudence of this Court and conflicts with numerous

appellate court decisions, including those of the Federal

Circuit itself. Prior to the Federal Circuit’s decision in this

case, it was well-settled that the CFC lacked jurisdiction to

entertain damage claims founded on alleged violations of

the Due Process Clause. Review is warranted to address the

unprecedented expansion of CFC authority that the Federal

Circuit accomplishes by roughshod disregard of existing

precedents.

Fourth, the Federal Circuit’s decision merits immediate

review because it sets a rule to govern litigation against the

Government in district courts nationwide. Under 28 U.S.C.

§ 1292(d)(4)(A), the Federal Circuit has exclusive

jurisdiction over district court orders granting or denying

motions to transfer to the CFC for want of jurisdiction in the

district court. The Federal Circuit’s disregard of this Court’s

precedent and effective reordering of the respective

jurisdictions of the district courts and the CFC will present

eee ne ee ee Pe

recurring problems of constitutional significance absent this

Court’s plenary review.

I. THE FEDERAL CIRCUIT’S OPINION “UNDER-

RULES” BOWEN AND CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

CIRCUIT COURTS OF APPEALS

The Federal Circuit reached the conclusion it did here

by severely limiting and unjustifiably “under-ruling” this

Court’s seminal decision in Bowen v. Massachusetts, 487

U.S. 879 (1988). Pet. App. 16a. Bowen has defined the

parameters of federal court jurisdiction under the Tucker Act

and APA for more than a decade, and the principles upon |

which it relies date back more than a century.® In Bowen, the

Commonwealth of Massachusetts brought an action in

federal district court seeking a declaratory judgment and

injunction to prohibit the government from refusing to

reimburse the state for certain Medicaid expenses. On appeal,

the government contended that the action should have been

brought in the CFC because a money judgment from that

court would be an adequate remedy.

This Court, however, disagreed. It first rejected the

notion that the Commonwealth’s claim, because it involved

the payment of money by the Government, was a claim for

“money damages” that could be brought only in the CFC.

487 U.S. at 900-01. Rather, the Court explained, a claim for

“money damages” is one that seeks compensation for a

8. See Bowen, 487 U.S. at 905 (“the [CFC] does not have the

general equitable powers of a district court to grant prospective relief.

Indeed, we have stated categorically that ‘the Court of Claims has

no power to grant equitable relief”) (emphasis added) citing

Richardson v. Morris, 409 U.S. 464 (1973) and Glidden v. Zdonak,

370 U.S. 530, 557 (1962) (opinion of Harlan, J.) (“From the

beginning [the Court of Claims] has been given jurisdiction only to

award damages, not specific relief”). See also United States v. Jones,

131 U.S. 1 (1889).

past loss or injury, not specific relief. Jd. Since the

Commonwealth was not seeking money in the form of

compensation, but specific sums to which it was allegedly

entitled, this Court held that the Commonwealth’s claim was

properly brought in the district court.

The Court also rejected what it described as the

Government’s “novel submission” that the state’s “entire

action is barred” because a CFC judgment directing payment

of the withheld sums would be an “adequate remedy.”

487 U.S. at 902. The Court emphasized that the state sought

declaratory and injunctive relief beyond the powers of the

CFC, not only to obtain reimbursement of the withheld funds,

but to ensure that the Government would not withhold similar

funds in the future. /d. at 893-94, 900-01. Recognizing that

prospective relief in the form of an order requiring the

Government “to modify [its] future practices” might be

appropriate, this Court announced that it was unwilling

“to assume, categorically, that a naked money judgment

against the United States will always be an adequate

substitute for prospective relief fashioned in light of the

rather complex ongoing relationship between the parties.”

Id. at 905. As this Court explained, even if “the purely

monetary aspects of the case could have been decided in the

Claims Court that is not a sufficient reason to bar that aspect

of the relief available in a district court.” /d. at 910 n.48.

Following Bowen, the circuit courts have consistently

held that actions against the Government for prospective,

equitable relief, rather than money damages, fall within the

exclusive domain of the district courts.* Prior to its May 3,

9. See, e.g., Polanco v. U.S. Drug Enforcement Admin., 158

F.3d 647 (2d Cir. 1998) (constitutional challenge to forfeiture

proceeding seeking return of money forfeited or commencement of

new proceeding); Veda, Inc. v. United States, 111 F.3d 37 (6th Cir.

1997) (action for declaratory and injunctive relief challenging

compliance with procurement statutes); Randall v. United States,

(Cont'd)

2001 decision in this case, the Federal Circuit had agreed.'°

In contrast, the court held that actions should be transferred

to the CFC where it was evident that a one-time payment of

money would make the plaintiff whole.'’ Thus, under Bowen

(Cont'd)

95 F.3d 339 (4th Cir. 1996), cert. denied, 519 U.S. 1150 (1997) (action

seeking correction of military records); Aetna Casualty & Surety Co.

vy. United States, 71 F.3d 475 (2d Cir. 1995) (action to compel

government to exercise right of setoff); Kidwell v. Department of the

Army, 56 F.3d 279 (D.C. Cir. 1995) (action requesting change in military

discharge status); Southeast Kansas Community Action Program, Inc.

v. Secretary of Agriculture, 967 F.2d 1452 (10th Cir. 1992) (action

challenging administration of child nutrition program); Transohio

Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598

(D.C. Cir. 1992) (action challenging banking regulations); Zellous v.

Broadhead Assoc., 906 F.2d 94 (3d Cir. 1990) (action challenging

administration of HUD regulations and seeking order compelling agency

to make timely rent adjustments); Marshall Leasing, Inc. v. United

States, 893 F.2d 1096 (9th Cir. 1990) (action challenging forfeiture of

vehicle and seeking return of property); Esch v. Yeutter, 876 F.2d 976

(D.C. Cir. 1989) (action challenging reduction in farm subsidies).

See also Tuscon Airport Authority v. General Dynamics Corp., 136

F.3d 641, 645-46 (9th Cir. 1998) (Section 704 does not bar action to

enforce Government’s obligation to indemnify in ongoing and

anticipated litigation).

10. See, e.g., James v. Caldera, 159 F.3d 573 (Fed. Cir. 1998)

(action by army officer seeking reenlistment); National Center for Mfg.

Sciences v. United States, 114 F.3d 196 (Fed. Cir. 1997) (action by

consortium seeking release of funds under Defense Appropriation Act);

Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) (action seeking

recalculation of rent under HUD regulations); Mitchell v. United States,

930 F.2d 893 (Fed. Cir. 1991) (action for retirement credit and back

pay).

11. See, e.g., Brazos Electric Power Coop. Inc. v. United States,

144 F.3d 784 (Fed. Cir. 1998) (“single, uncomplicated payment of

money” to plaintiff would provide “an entirely adequate remedy” for

claim to compel performance of contract); Kanemoto v. Reno, 41 F.3d

641 (Fed. Cir. 1994) (action to enforce federal statute providing

compensation to Japanese citizens interned during World War II).

and its progeny, actions for declaratory and injunctive relief

that do not seek the payment of money as compensatory

relief, but rather an order compelling the Government to take

or refrain from taking certain action, fall squarely within the

subject matter jurisdiction of district courts.

The Federal Circuit’s decision here, which repudiates

this entire line of precedent, is based upon the court’s

unjustified view that Bowen should be limited to its own

facts. According to the Federal Circuit, Bowen has no

application beyond Medicaid disallowance decisions or other

situations involving an ongoing relationship between federal

and state governments. Pet. App. 9a-10a. As a result, the court

held that petitioners have no right to pursue their claims for

declaratory and injunctive relief to redress ongoing

constitutional violations in the district court, but must pursue

a series of refund actions in the CFC. /d. 14a.

The Federal Circuit’s extremely narrow view of Bowen

and corresponding disregard for its progeny are unjustified.

There is nothing in the majority’s opinion in Bowen — or

any subsequent decision of this Court — which suggests that

it should be given such a restrictive reading. In contrast, this

Court has followed Bowen in a variety of factual settings,

including, most notably, in Eastern Enterprises, which

involved claims nearly identical to the ones at issue here.

See Eastern Enterprises, 524 U.S. 498 (1998) (Due Process

and Takings Clause challenges to federal statute requiring

payment of money to government fund). See also Department

of Army v. Blue Fox, Inc., 525 U.S. 255 (1999) (applying

Bowen to dispute between government and contractor over

payment of sums due on government construction project);

Darby v. Cisneros, 509 U.S. 137 (1993) (action by real estate

developer challenging government’s decision to bar him from

participating in federal programs). Indeed, if the Federal

Circuit’s limited view of Bowen were correct, the plaintiff

in Eastern Enterprises would not have been entitled to

declaratory or injunctive relief, but would have been forced

to make payments under the Coal Act and then pursue a series

of refund actions in the CFC.

The Federal Circuit’s tortured reading of Bowen and its

progeny cannot be justified by the court’s entirely misplaced

concern with forum-shopping. As this Court and other

circuits (including the Federal Circuit) have repeatedly

recognized, where both equitable and monetary relief are

necessary to make a plaintiff whole, a plaintiff may be

required simultaneously to bring one action in the district

court challenging the validity or constitutionality of the

agency’s action, and another in the CFC to obtain

compensation. See Pennsylvania R.R. Co. v. United States,

363 U.S. 202 (1960); Creppel v. United States, 41 F.3d 627

(Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States,

27 F.3d 1545 (Fed. Cir. 1994); Charter Federal Savings

Bank v. Office of Thrift Supervision, 976 F.2d 203 (4th Cir.

1992); Hahn v. United States, 757 F.2d 581 (3d Cir. 1985).

Although this procedure may appear “illogical” as the

concurring opinion of Senior Circuit Court Judge Plager

suggests, id. 16a, it merely reflects the distinct jurisdictional

make-up of these two federal courts. Thus, as the District

Court properly concluded, the procedural posture of this case

does not justify departure from this Court’s clear precedent.”

Pet. App. 48a-59a.

Moreover, where, as here, the constitutionality of a

federal statute is at issue, this Court has repeatedly recognized

the right of litigants to seek equitable relief in the district

court. See, e.g., Califano v. Sanders, 430 U.S. 99, 109 (1977)

(“when constitutional questions are in issue, the availability

12. See also New York Power Authority v. United States,

42 Fed. Cl. 795, 803 (1999) (rejecting the Government’s forum

shopping label noting that “it is not for this court to monitor the

propriety of a party’s litigation tactics as long as it is allowed under

federal law”).

of judicial review 1s presumed); Bell v. Hood, 327 U.S. 678

(1946) (“it is established practice for this Court to sustain

the jurisdiction of federal courts to issue injunctions to protect

rights safeguarded by the Constitution”); see also United

States v. Vazquez, 145 F.3d 74 (2d Cir. 1998) (no waiver of

sovereign immunity required for constitutional challenge).

In the same vein, this Court has held that the APA should be

construed broadly to reflect Congress’ clear intent to

eliminate barriers to judicial review. See, e.g., Bennett v.

Spear, 520 U.S. 154 (1997); Bowen, 487 U.S. at 903-04;

Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41

(1967). Moreover, when a conflict concerning jurisdiction

arises between the CFC under the Tucker Act, and the district

court under the APA, “ ‘[t]he policies of the APA take

precedence over the Tucker Act.’ ” Bowen, 487 U.S. at 908

n.46, quoting, Delaware Div. of Health and Social Services

v. Department of Health and Human Services, 665 F. Supp.

1104, 1117 n.15 (D. Del. 1987).

The Federal Circuit’s decision, stripping the District

Court of power to issue declaratory or injunctive relief in a

case that seeks absolutely no monetary payment by the

Government at all, cannot be reconciled with Bowen, its

progeny and decades worth of this Court’s related precedent.

The court’s strained reading of Bowen renders its continued

vitality beyond Medicaid disallowance litigation highly

suspect and creates considerable confusion as to the proper

forum for actions against the Government requesting purely

equitable relief. This Court’s review is necessary to restore

certainty and avoid further wasteful litigation over important

issues of jurisdiction and sovereign immunity that repeatedly

arise in litigation against the Government. See Christianson v.

Colt Indus. Operating Corp., 486 U.S. 800 (1988).

ll. THE FEDERAL CIRCUIT’S OPINION IS

IRRECONCILABLE WITH THIS COURT’S

DECISION IN EASTERN ENTERPRISES v. APFEL

The Federal Circuit’s decision inexplicably ignores this

Court’s ruling in Eastern Enterprises, despite the striking

similarity between the two cases. In Eastern Enterprises, the

plaintiff, Eastern, brought an action in Massachusetts district

court alleging that certain provisions of the Coal Act Industry

Retiree Health Benefit Act of 1992 (“Coal Act”), which required

it to make annual payments to a fund providing health and

retirement benefits to coal mine workers, violated the Takings

and Due Process Clauses of the Fifth Amendment. Eastern, like

petitioners here, sought declaratory and injunctive relief from

its ongoing payment obligations. Although the Government did

not challenge the district court’s jurisdiction over Eastern’s Due

Process Clause claim, this Court did examine, sua sponte,

whether Eastern’s request for declaratory and injunctive relief

on its Takings Clause challenge should be brought in the district

court or the CFC. The Court held that where, as here, the

challenged statute requires the payment of money to the

Government, an action for equitable relief is properly brought

in the district court because the CFC cannot provide a remedy.

The Court reasoned: :

[A] claim for compensation under the Takings

Clause must be brought to the Court of Federal

Claims in the first instance.

In this case, however, Eastern does not seek

compensation from the Government. Instead,

Eastern requests a declaratory judgment that the Coal

Act violates the Constitution and a corresponding

injunction against . . . enforcement of the Act as to

Eastern. Such equitable relief is arguably not within

the jurisdiction of the Court of Federal Claims under

the Tucker Act. See United States v. Mitchell, 463

U.S. 206, 216 77 L.Ed. 2d 580, 103 S.Ct. 2961

(1983) (explaining that, in order for a claim to be

“cognizable under the Tucker Act,” it “must be one

for money damages against the United States”);

see also, e.g., Bowen v. Massachusetts, 487 U.S. 879,

905 101 L.Ed. 2d 749, 108 S.Ct. 2722 (1988).

Id. at 520 (emphasis added). Rather, as the Court explained:

[I]n a case such as this one, it cannot be said that -

monetary relief against the Government is an

available remedy. . . . [T]he “presumption of Tucker

Act availability must be reversed where the

challenged statute, rather than burdening real or

physical property, requires a direct transfer of funds”

mandated by the Government. In that situation, a

claim for compensation “would entail an utterly

pointless set of activities.” Instead, as we explained

in Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59, 71, n. 15 (1978), the

Declaratory Judgment Act “allows individuals

threatened with a taking to seek a declaration of the

constitutionality of the disputed governmental action

before potentially uncompensable damages are

sustained.”

... Based on the nature of the taking alleged in this

case, we conclude that the declaratory judgment and

injunction sought by petitioner constitute an

appropriate remedy under the circumstances, and

that it is within the district courts’ power to award

such equitable relief.

Id. at 521-22 (emphasis added) (citations omitted).

The Federal Circuit’s decision here, that the District

Court has no jurisdiction over the exact same constitutional

challenges to a federal statute similar to EPACT, conflicts

directly with this Court’s holding in Eastern Enterprises.

The parallels between this case and Eastern Enterprises are

eg ene Oe ep ae ee

clear. Here, as in Eastern Enterprises, the challenged statute,

EPACT, requires a “direct transfer of funds mandated by

the Government” and petitioners, like Eastern, “request[] a

declaratory judgment that the ... Act violates the

Constitution [on Takings and Due Process grounds and seek]

a corresponding injunction against ... enforcement of the

Act.” 524 U.S. at 520. As in Eastern Enterprises, a claim

for compensation “ ‘would entail an utterly pointless set of

activities’ ” for “ ‘[e]very dollar paid pursuant to a statute

would be presumed to generate a dollar of Tucker Act

compensation.’ ” /d. at 521. Accordingly, as in Eastern

Enterprises, “the declaratory and injunctive relief sought

[by petitioners] . . . is within the district courts’ power to

award such equitable relief.” Jd. at 522."

The Federal Circuit’s opinion here also conflicts with

other circuit court decisions holding that Takings Clause

challenges to federal statutes requiring the payment of money

to the Government should be brought in district court and

not the CFC. See, e.g., Student Loan Marketing Ass'n v. Riley,

104 F.3d 397, 401-02 (D.C. Cir.), cert. denied, 522 U.S. 913

(1997) (Tucker Act does not deprive district court of

13. The fact that Eastern made no payments under the Coal Act

and thus, had no refund action pending in the CFC does not distinguish

this case from Eastern Enterprises. The issue posited by this Court

was whether Eastern should first file a CFC suit before proceeding in

the district court, and this Court concluded that no such suit was required.

524 U.S. at 520-21. There is no indication that the Court would have

reached a different conclusion had Eastern, like petitioners here, filed a

CFC action as a protective measure pending resolution of the

constitutional questions in the district court. In any event, Eastern did

not make any payments before commencing its district court action

because the defendant fund, as the Government knows, agreed to accept

a letter of credit in lieu of payment pending a determination of the

constitutional issues presented. Other coal companies that challenged

the Coal Act in district court did make payments and following the

Supreme Court’s decision in Eastern Enterprises, sought, and in many

cases, received refunds. See, e.g., Mary Helen Coal Corp. v. Hudson,

235 F.3d 207 (4th Cir. 2000).

jurisdiction over Takings Clause challenge to statute

“involving straightforward mandates of cash payment to the

government”); Jn Re Chateaugay Corp., 53 F.3d 478, 491-

92 (2d Cir.), cert. denied, LTV Steel Co. v. Shalala, 516 U.S.

913 (1995) (“no merit” to suggestion that Tucker Act

removes district court from jurisdiction over constitutional

challenges to Coal Act).

One member of the Federal Circuit, in a subsequent

decision in this case, questioned the vitality of Eastern

Enterprises because it is a plurality opinion. Pet. App. 64a.

The plurality nature of the decision, however, does not

eliminate its value as precedent. See, e.g., City of Lakewood

v. Plain Dealer Publishing Co., 486 U.S. 750, 764 (1988);

Marks v. United States, 430 U.S. 188, 193-94 (1977). Indeed,

since Eastern Enterprises, the circuit courts have entertained

numerous actions involving Fifth Amendment challenges

without questioning the district court’s exercise of

jurisdiction. See Blue Diamond Coal Co. v. Trustees of the

UMWA Combined Benefit Fund, 2001 WL 459913

(6th Cir. 2001) (Coal Act payments); Mary Helen Coal Corp.

v. Hudson, 235 F.3d 207 (4th Cir. 2000) (same); United States

Fidelity & Guar. Co. v. McKeithen, 226 F.3d 412 (Sth Cir.

2000) (Louisiana workers’ compensation fund). To the extent,

however, that courts are unclear as to the weight to be given

Eastern Enterprises, review is warranted to avoid continued

confusion over the important jurisdictional question that

prompted this Court to examine the issue in Eastern

Enterprises in the first place.

II. THE FEDERAL CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S JURISPRUDENCE AND

CREATES A SPLIT AMONG THE CIRCUITS

CONCERNING THE PROPER FORUM FOR DUE

PROCESS LITIGATION -

This Court has long held that actions against the

Government under the Tucker Act cannot be maintained in

the CFC unless they are premised upon a constitutional

provision, federal statute or regulation that mandates

compensation by the Government. See, e.g., United States

v. Mitchell, 463 U.S. 206, 218 (1983); United States v.

Testan, 424 U.S. 392, 400 (1976); Richardson v. Morris,

409 U.S. 464 (1973); United States v. King, 395 U.S. 1

(1969); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); United

States v. Jones, 131 U.S. 1 (1889). Because the Due Process

Clause is not money-mandating, actions against the

Government based upon such violations are deemed to be

beyond the purview of the CFC under the Tucker Act.

See, e.g., Richardson, 409 U.S. at 464-65 (Tucker Act does

not provide jurisdiction over due process and equal protection

challenges to Social Security Act); United States v. Clark,

445 U.S. 23, 37 (1980) (“[t]he Court of Claims . . . was wrong

in resolving this case on the basis of its constitutional

holding, both as a matter of prudential considerations as well

as jurisdiction”) (Rehnquist, J. dissenting).'4

The circuit courts of appeals, relying on this Court’s

precedent, have repeatedly held that the CFC has no

jurisdiction over Due Process Clause claims, see, e.g., Rothe

Development Corp. v. United States, 194 F.3d 622 (Sth Cir.

1999); Polanco v. U.S. Drug Enforcement Admin., 158 F.3d

647 (2d Cir. 1998); Lake Mohave Boat Owners Ass'n v.

National Park Service, 78 F.3d 1360 (9th Cir. 1996);

14. See also United States v. Hopkins, 427 U.S. 123 (1976)

(noting that counsel conceded during oral argument that Jestan

foreclosed his due process clause claim).

Marshall Leasing, Inc. v: United States, 893 F.2d 1096

(9th Cir. 1990); Clark v. Library of Congress, 750 F.2d 89

(D.C. Cir. 1984), and prior to its decision in this case, the

Federal Circuit did so as well. See, e.g., James v. Caldera,

159 F.3d 573 (Fed. Cir. 1998); Crocker v. United States, 125 _

F.3d 1475 (Fed. Cir. 1997); LeBlanc v. United States, 50 F.3d

1025 (Fed. Cir. 1995); Hamlet v. United States, 63 F.3d 1097

(Fed. Cir. 1995), cert. denied, 517 U.S. 1155 (1996); Murray

v. United States, 817 F.2d 1580 (Fed. Cir. 1987).

However, without so much as a passing reference to this

contrary precedent, the Federal Circuit here held that the CFC

is free to adjudicate Due Process Clause claims where the

asserted violation is couched as an “illegal exaction.”

Accordingly, the court concluded, petitioners’ Due Process

Clause challenges to EPACT could be fully adjudicated in

the CFC as claims for reimbursement of allegedly illegally

exacted funds.

The Federal Circuit’s conclusion that the CFC can

resolve Due Process Clause challenges to federal statutes

expands the jurisdiction of the CFC beyond that previously

recognized by an appellate court. The only case upon which

the Federal Circuit relies that involved a constitutional

question is Mallow v. United States, 161 Ct. Cl. 446 (1963),

but there, the federal statute at issue had been declared

unconstitutional by this Court in a prior action originating

in district court. Thus, the Court of Claims did not

independently determine whether the statute violated the Due

Process Clause, but merely applied controlling Supreme

Court precedent. The other two cases cited by the Federal

Circuit — New York Life Ins. Co. v. United States, 118 F.3d

1553 (Fed. Cir. 1997), cert. denied, 523 U.S. 1094 (1998),

and Eastport S.S. Corp. v. United States, 372 F.2d 1002

(Ct. Cl. 1967) (“Eastport”) — involved no constitutional

issues at all.

Moreover, Eastport did not even involve an illegal

exaction claim. In contrast, in Eastport, the plaintiff sought

damages from the United States for interference with

contract. The court dismissed the claim because no federal

statute, regulation or constitutional provision provided

Eastport with a right to recover from the government. /d. at

608-613. Before reaching the merits, the court purported to

summarize the bases of its jurisdiction in various cases,

including one such category of cases which the court

described as “.. . those in which ‘the Government has the

citizen’s money in its pocket’ and the claim is ‘to recover an

illegal exaction....’” 178 Ct. Cl. at 605-606. The court

_emphasized, however, that suits could be brought in the CFC

to recover such exactions “ ‘except where Congress has

expressly placed jurisdiction elsewhere.’ ” Jd.

Prior to the Federal Circuit’s decision in this case, no

appellate court had held that Eastport’s illegal exaction

language deprives the district court of power to determine

the constitutionality of federal statutes under the Due Process

Clause, or that it confers such power on the CFC."* Although

this Court has occasionally referred to the illegal exaction

discussion in Eastport, it has done so in dicta and without

further discussion of the issue. See Testan, 424 U.S. at 402;

see also Office of Personnel Mgmt. v. Richmond, 496 U.S.

414, 432 (1990) (same); Army and Air Force Exchange

Service v. Sheehan, 456 U.S. 728, 740 n.11 (1982) (same).

In contrast, this Court has consistently reviewed Due

Process Clause challenges to federal statutes requiring the

payment of money without questioning the exercise of

15. The CFC has considered the issue, but has reached

conflicting results. Compare New York Power Authority v. United

States, 42 Fed. Cl. 795 (1999) (CFC has no power to adjudicate Due

Process Clause claim) with Commonwealth Edison Co. v. United

States, 46 Fed. Cl. 29 (2000) (CFC has power to hear Due Process

Clause claim).

jurisdiction by the district court. See, e.g., Eastern

Enterprises, 524 U.S. at 520; Pension Benefit Guar. Corp. v.

R.A. Gray & Co., 467 U.S. 717 (1984); Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59

(1978); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

(1976). In none of these cases did this Court suggest that the

Due Process Clause claims should have been brought in the

CFC because that court, under an “illegal exaction” theory,

could provide an adequate remedy.

The Federal Circuit here held that the illegal exaction

theory based on Eastport ’s dicta, deprives the District Court

of power to adjudicate petitioners’ Due Process Clause

claims. Nothing in Eastport, however, justifies the court’s

broad departure from precedent or its expansive view of the

CFC’s power to hear Due Process Clause challenges to

federal statutes. This Court’s review is warranted to clarify

the scope of the district court’s jurisdiction over these

important questions and to eliminate the substantial

confusion that the Federal Circuit’s decision creates as to

the proper forum for a whole class of constitutional litigation

against the Government.

IV. THIS CASE IS AN EXCELLENT VEHICLE FOR

RESOLUTION OF SEVERAL IMPORTANT ISSUES

THAT WILL HAVE NATIONWIDE IMPLICATIONS

BEYOND THE CIRCUMSTANCES PRESENTED IN

THIS CASE

With remarkable disregard of this Court’s precedent, the

Federal Circuit’s decision here reorders the respective

jurisdiction of the district court and the CFC in constitutional

litigation involving the United States. It construes the CFC’s

jurisdiction broadly to include an entire category of cases

involving Due Process and Takings Clause challenges to

federal statutes that heretofore have rested solely within the

domain of the district courts.'® Conversely, the court’s

decision strips the district courts of jurisdiction to review

the constitutionality of federal statutes and to award

corresponding declaratory and injunctive relief to redress

threatened harm whenever a claim for money, after-the-fact,

might be maintained in the CFC. As this Court observed,

“Congress has the constitutional authority to define the

jurisdiction of the lower federal courts . . . and, once the lines

are drawn, ‘limits upon federal jurisdiction ... must be

neither disregarded nor evaded.’ ” Keene Corp. v. United

States, 508 U.S. 200, 207 (1993), quoting Owen Equipment

& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) (citations

omitted). The Federal Circuit’s decision here blurs these well-

established jurisdictional lines.

_ There are potentially far-reaching implications. Under

28 U.S.C. § 1292(d)(4)(A), enacted in 1988, the Federal

Circuit has exclusive jurisdiction over district court orders

granting or denying motions to transfer actions to the CFC

for want of jurisdiction in the district courts. As such, the

court’s decision sets a rule that will have stare decisis effect

in district courts nationwide as to the proper forum for claims

for equitable relief based on Takings and Due Process

Clause challenges to federal revenue-generating statutes.

16. Indeed, Congress recently declined to give the CFC the very

power that the Federal Circuit, with a stroke of the pen, here

conferred upon that court. In the Tucker Act Shuffle Relief Act of

1997, Congress proposed to expand the power of the CFC to

determine the constitutionality of federal statutes under the Takings

Clause and to award corresponding declaratory and injunctive relief.

See H.R. 105-424, 105th Congress, 2d Sess. (1998). The Government

opposed the amendment on grounds that it would present serious

constitutional difficulties under Article I-Article III separation of

powers principles. Jd. See also The Tucker Act Shuffle Relief Act of

1997: Hearings on H.R. 992 Before the Subcomm. on Immigration

and Claims of the House Comm. of the Judiciary, 105th Cong. (1997)

(Statement of Eleanor D. Acheson, Assistant Attorney General, Office

of Policy Development). The legislation ultimately failed.

The regional courts of appeals, lacking jurisdiction over these

precise issues, will have little or no opportunity to challenge

the Federal Circuit’s position. The only check on the exercise

of the Federal Circuit’s power, thus, lies by way of review in

this Court.

In addition, the jurisdictional issues raised here are not

limited to the unique circumstances presented in this

case. There are dozens of federal statutes currently in

force requiring the payment of billions of dollars of

“assessments” to fund a wide array of federal programs.

See, e.g., 7 U.S.C. § 7416 (assessments imposed for promotion,

research and information regarding agricultural commodities);

42 U.S.C. § 2214 (annual assessments levied by Nuclear

Regulatory Commission); 12 U.S.C. § 4516 (annual

assessments levied on federal mortgage associations and

corporations). These statutory schemes frequently come under

attack on various constitutional grounds, often in protracted

proceedings, as is evident from the Coal Act litigation which

has now spanned almost an entire decade. See, e.g., Eastern

Enterprises, 524 U.S. at 519.

The Federal Circuit’s decision also will reverberate well

beyond the particular parties to this dispute and potentially

impact a broad class of constitutional litigation against the

Government. Under the Federal Circuit’s rationale, all

constitutional challenges to federal legislation requiring the

payment of money to the Government may not be heard in the

district court, but should be brought in the CFC. Thus, if the

Federal Circuit’s decision is allowed to stand, it will potentially

extend the CFC’s jurisdiction to a whole panoply of

constitutional challenges to federal statutes requiring the

payment of money to the Government, such as the one recently

invalidated by this Court on First Amendment grounds.

See United States v. United Foods, Inc., 121 S. Ct. 2334 (2001)

(statute requiring mushroom handlers to pay assessments to fund

Government advertising program violates First Amendment).

sn eeeeeeeeeeeniessaaeiiie as

This case also is uniquely suitable as a vehicle for

addressing the jurisdictional issues presented here. More than

two-thirds of the domestic utilities challenging EPACT and

the D&D Fund are parties to this proceeding. The precise

questions presented here are also pending in three other

district court actions and approximately 30 CFC cases, none

of which involve the broad array of parties here. Accordingly,

this Court’s decision will establish the future course of this

and any future D&D Fund litigation, thereby avoiding

duplicative and piecemeal review of the issues in each of

these separate cases.

This Court’s plenary review is respectfully requested to

resolve the conflicts and eliminate the confusion which the

Federal Circuit’s decision now presents.

CONCLUSION

For the foregoing reasons, petitioners_respectfully

request that this petition for a writ of certiorari be granted.

Respectfully submitted,

DaniEL R. MuRDOCK

Counsel of Record

Lori J. VAN AUKEN

Bruce R. BRAUN

Davo A. ZEITLIN

Winston & STRAWN

Attorneys for Petitioners

200 Park Avenue

New York, New York 10166

(212) 294-6700

APPENDIX

APPENDIX A — OPINION AND ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT DATED AND

DECIDED MAY 3, 2001

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1464

CONSOLIDATED EDISON COMPANY OF NEW YORK,

INC., NEW YORK POWER AUTHORITY, NIAGARA

MOHAWK POWER CORPORATION, ROCHESTER GAS

AND ELECTRIC CORPORATION, ARIZONA PUBLIC

SERVICE CORPORATION, COMMONWEALTH EDISON

COMPANY, DUKE ENERGY CORPORATION, ENTERGY

GULF STATES, INC., FLORIDA POWER CORPORATION,

FLORIDA POWER AND LIGHT COMPANY, GPU

NUCLEAR, INC. (on behalf of Jersey Central Power & Light

Company, Metropolitan Edison Company, and Pennsylvania

Electric Company), INDIANA MICHIGAN POWER

COMPANY, NEBRASKA PUBLIC POWER DISTRICT,

PECO ENERGY COMPANY, SOUTHERN CALIFORNIA

EDISON COMPANY, SOUTHERN NUCLEAR OPERATING

COMPANY, INC., SYSTEM FUELS, INC., TEXAS

UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC

& POWER COMPANY, WASHINGTON PUBLIC POWER

SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE

CORPORATION, and WOLF CREEK NUCLEAR

OPERATING CORPORATION (on behalf of Kansas City

Power & Light Company, Kansas Electric Power

Cooperative, Inc., and Kansas Gas and Electric Company),

Plaintiffs-Appellees,

Appendix A

UNITED STATES, DEPARTMENT OF ENERGY,

DEPARTMENT OF ENERGY AS SUCCESSOR TO THE

UNITED STATES ATOMIC ENERGY COMMISSION, and

ENERGY RESEARCH AND DEVELOPMENT

ADMINISTRATION,

Defendants-Appellants.

Appealed from: United States District Court for the Southern

District of New York

Senior Judge Whitman Knapp

¥ *x *

DECIDED: May 3, 2001

Before RADER, Circuit Judge, PLAGER, Senior Circuit

Judge,* and GAJARSA, Circuit Judge.

Opinion for the court filed by Circuit Judge RADER.

Concurring opinion filed by Senior Circuit Judge PLAGER.

RADER, Circuit Judge.

Consolidated Edison Company of New York and twenty-

one other nuclear utilities (collectively, Con Ed) sued the -

United States, the Department of Energy, and the Energy

* Judge Plager assumed senior status on November 30, 2000.

Appendix A

Research and Development Administration in the United

States District Court for the Southern District of New York

seeking declaratory judgments and injunctive relief. Consol.

Edison Co. of N.Y. v. United States, 45 F. Supp. 2d 331

(S.D.N.Y. 1999). Con Ed’s suit challenged the

constitutionality of the Energy Policy Act of 1992 (EPACT),

42 U.S.C. § 2297g (1994), on due process and takings

grounds. The district court denied the Government’s motion

to transfer the case to the United States Court of Federal

Claims, or alternatively, to dismiss.

On December 5, 2000, this court affirmed the district

court’s decision to deny the Government’s motion. The

Government filed a suggestion that this court rehear that

December 5 decision en banc. This court unanimously

accepted the petition. Accordingly, this court, acting en banc,

vacated the judgment of this court entered on December 5,

2000, and reported at 234 F.3d 642 (Fed. Cir. 2000). The

en banc court then reassigned the opinion to the panel for

revision. Because the Court of Federal Claims can offer an

adequate remedy in this case, this court now reverses and

remands.

Con Ed sued the Government, challenging the

constitutionality of EPACT. Before EPACT, Con Ed

contracted with the Government for uranium enrichment

services under a series of fixed-price agreements. After

enactment of EPACT in 1992, the Government began

decontaminating and decommissioning several of its uranium

processing facilities. EPACT stipulated that the Government

Appendix A |

would pay sixty-eight percent of the decontamination and

decommissioning costs; annual assessments on domestic

nuclear utilities would supply the remaining thirty-two

percent. EPACT made the Department of Energy responsible

for computing each utility’s share of the assessment in

proportion to that utility’s use of Government enrichment

services in the past. 42 U.S.C. § 2297g-1(c) (1994) (amended

1998).

After making initial payments under EPACT, Con Ed,

and other nuclear utilities not parties to this suit, sued the

Government in the Court of Federal Claims seeking refunds

of those payments. The lawsuits before the Court of Federal

Claims asserted many of the same constitutional grounds as

this lawsuit. In one such case, this court reversed the Court

of Federal Claims’ grant of summary judgment in favor of a

nuclear utility, concluding that collection of the assessments

under EPACT did not violate the utility’s contract under

which it had purchased the enriched uranium from the

government, nor constituted a taking of the utility’s contract

rights. Yankee Atomic Elec. Co. v. United States, 112 F.3d

1569 (Fed. Cir. 1997), cert. denied, 118\S. Ct. 2365 (1998).

After several subsequent nuclear utility losses in the

Court of Federal Claims, Con Ed filed this suit in the district

court. Instead of seeking refunds of assessments, however,

Con Ed sought a declaratory judgment that EPACT was

unconstitutional on several grounds and an injunction on

enforcement of the EPACT assessments. By taking this

procedural posture, Con Ed sought a hearing in another

forum. To achieve this objective, Con Ed drew its complaint

to avoid prayers for relief actionable in the Court of Federal

Appendix A

Claims, such as claims against the United States for money

damages. See 5 U.S.C. § 702 (1994).

The Government moved the district court to transfer this

case to the Court of Federal Claims, where other nuclear

utility cases await disposition. The Government contended

that Con Ed’s suit in the district court under the

Administrative Procedure Act (APA) amounts to

impermissible forum shopping. The APA, according to the

Government, does not waive sovereign immunity from this

suit in the district court because Con Ed can obtain full legal

relief, if successful, in the Court of Federal Claims.

Specifically, the Government noted that the Court of Federal

Claims has, on occasion, asserted power under the Tucker

Act to order a full refund of illegally exacted funds. See 28

U.S.C. § 1491(a)(1) (1994); New York Life Ins. Co. v. United

States, 118 F.3d 1553 (Fed. Cir. 1997). Thus, if Con Ed can

show illegal exaction of EPACT assessments, the

Government maintained, the Court of Federal Claims may

have authority to order a refund. Lawsuits seeking that

remedy were already pending in the Court of Federal Claims.

The Government discounted potential restrictions on the

Court of Federal Claims’ power to order injunctive or other

prospective relief. If the EPACT assessments in fact violate

constitutional guarantees, the Government asserted,

injunctive relief would not be necessary. Rather, res judicata

would bar the Government from future assessments against

Con Ed under EPACT in the face of a Court of Federal

Claims illegal exaction judgment. In addition, the

Government assured that it would not attempt to make future

assessments after a loss in the Court of Federal Claims.

Appendix A

In the face of these arguments, the district court denied

the Government’s motion. The district court cited cases from

the United States Court of Appeals for the Second Circuit-

and the United States Supreme Court to confirm that the APA

waives the sovereign immunity of the United States for suits

that properly invoke equitable relief from agency action.

Bowen v. Massachusetts, 487 U.S. 879, 904 (1988); Jn re

Chateaugay Corp., 53 F.3d 478, 493 (2d Cir. 1995). After

denying the Government’s motion, the district court certified

the jurisdictional question for interlocutory review. This

court has exclusive jurisdiction to hear the appeal under

28 U.S.C. § 1292(d)(4)(A) (1994).

II.

The sole question in this case is whether the APA waives

sovereign immunity for an action in a district court on the

merits of Con Ed’s claim because Con Ed seeks declaratory

and prospective injunctive relief, rather than a refund of

EPACT payments. This court reviews legal questions, such

as jurisdiction and authority of the Court of Federal Claims

and the district court, without deference. Terran v. Sec’y of

Health & Human Servs., 195 F.3d 1302, 1309 (Fed. Cir.

1999).

To invoke the jurisdiction of a federal court for relief

from monetary obligations imposed by a federal agency, a

litigant must show that the United States has waived its

sovereign immunity. Kanemoto v. Reno, 41 F.3d 641, 644

(Fed. Cir. 1994) (citing United States v. Sherwood, 312 U.S.

584, 586-87 (1941) (“The terms of [the sovereign’s] consent

to be sued in any court define that court’s jurisdiction to

i ala Sa

Pate Wile Bo icons

Few ee ae see

Appendix A

entertain the suit.”)). The Supreme Court has explained that

a litigant may invoke the APA as a waiver of sovereign

immunity, thereby invoking district court jurisdiction, if the

litigant can satisfy both 5 U.S.C. § 702 (by requesting “relief

other than. money damages”) and 5 U.S.C. § 704 (1994) (no

“adequate remedy” is available elsewhere, such as the Court

of Federal Claims). Bowen, 487 U.S. at 892-93, 904-05.

Although Con Ed may satisfy § 702 by not seeking “money

damages,” jurisdiction still lies in the Court of Federal Claims

because that court can provide an “adequate remedy” in this

case within the meaning of § 704.

Under specified circumstances, the APA waives

sovereign immunity for actions challenging agency actions

in district court. Section 702 provides:

A person suffering legal wrong because of

agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof. An

action in a court of the United States seeking relief

other than money damages and stating a claim

that an agency or an officer or employee thereof

acted or failed to act in an official capacity or

under color of legal authority shall not be

dismissed nor relief therein be denied on the

ground that it is against the United States or that

the United States is an indispensable party. ...

Nothing herein . . . confers authority to grant relief

if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is

sought.

Appendix A

5 U.S.C. § 702 (emphasis added). Thus, the APA

“eliminat[es] the defense of sovereign immunity in cases

covered by [§ 702].” Bowen, 487 U.S. at 892.

Section 702, however, denies this sovereign immunity

waiver to claims for money damages or for claims that seek

remedies “expressly or impliedly” precluded by other

statutes. 5 U.S.C. § 702; Transohio Sav. Bank v. Dir., Office

of Thrift Supervision, 967 F.2d 598, 607 (D.C. Cir. 1992).

In Bowen, the Supreme Court examined this limitation on

APA waivers. In that case, the Commonwealth of

Massachusetts sought review of a final order of the Secretary

of Health and Human Services refusing to reimburse a

category of Medicaid expenses. Bowen, 487 U.S. at 882. The

Supreme Court set forth reasons that § 702’s exclusion for

money damages claims did not foreclose district court

judicial review of Massachusetts’ monetary claims. As

explained below, however, this court need not address the

§ 702 limitation in this case because another limitation on

APA review precludes district court review.

In addition to § 702’s “money damages” limitation,

§ 704 of the APA further excludes from the APA’s sovereign

immunity waiver those claims for which adequate remedies

are elsewhere available. 5 U.S.C. § 704; Transohio, 967 F.2d

at 608. Section 704 states, in relevant part: “Agency action

made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are subject to

judicial review.” 5 U.S.C. § 704 (emphasis added). In other

words, a claimant with an alternative adequate remedy in another

court, such as the Court of Federal Claims, cannot seek review

of agency action in a district court under the APA.

Appendix A

Therefore, Con Ed must show that § 704 does not

withdraw any waiver of sovereign immunity otherwise

granted by § 702. Section 704 codifies a requirement ensuring

that the general grant of review in the APA does not

“duplicate existing procedures for review of agency action.”

Bowen, 487 U.S. at 903. In effect, § 704 withdraws the

limited waiver of immunity under § 702 if an adequate

judicial remedy is already available elsewhere. 5 U.S.C.

§ 704; see also Kanemoto, 41 F.3d at 644 (“[W]here agency

action is otherwise reviewable in court and an adequate

remedy is available in connection with that review, the APA’s

waiver of sovereign immunity under section 702 is not

available.”); Mitchell v. United States, 930 F.2d 893,

895-96 (Fed. Cir. 1991).

As noted earlier, the district court relied on the Supreme

Court’s Bowen decision for the proposition that the Court of

Federal Claims could not offer an adequate remedy in this

case. Consolidated Edison, 45 F. Supp. 2d at 336 (stating

that APA has waived sovereign immunity “[b]Jecause the

relief sought here is disproportionately prospective and

therefore equitable (as opposed to compensatory).”). Bowen,

however, does not enunciate a broad rule that the Court of

Federal Claims cannot supply an adequate remedy in any

case seeking injunctive relief.

At the outset, this court notes that the Supreme Court’s

ruling in Bowen emphasized the complexity of the continuous

relationship between the federal and state governments

administering the Medicaid program. The Supreme Court

was “not willing to assume, categorically, that anaked money

judgment against the United States will always be an

10a

Appendix A

adequate substitute for prospective relief fashioned. in the

light of the rather complex ongoing relationship between the

parties.” Bowen, 487 U.S. at 905. The Supreme Court’s

choice of absolute language such as “categorically” and

“always” leaves room for the proposition that the Court of

Federal Claims may well supply an adequate remedy in cases

without a complex ongoing federal-state interface.

See, e.g., Kanemoto, 41 F.3d at 645. Unlike the Medicaid

program with its shifting populations and demographics,

advancing medical technologies, unforeseeable health

threats, and varying state and federal economic conditions,

the relationship between Con Ed and the United States

features a known and fixed series of payments over time.

For this reason, among others, Bowen does not enunciate

the categorical rule that the district court attributed to it.

In Bowen, the Supreme Court gave several other reasons

that the Court of Federal Claims could not supply an adequate

remedy in that particular complex ongoing federal-state

relationship. For instance, the Court labeled “doubtful” “the

jurisdiction of the [Court of Federal Claims] to entertain the

action, or perhaps even to enter a specific money judgment

against the United States.” Jd. at 905; see also Bowen at 906

n.42. Although the Supreme Court had doubts about the

Court of Federal Claims’ jurisdiction over Medicaid

disallowance decisions, this case presents no jurisdictional

problems. The Court of Federal Claims has long possessed

jurisdiction to consider constitutional claims, such as Con

Ed’s claims about the EPACT assessments, under the “illegal

exaction” doctrine. New York Life Ins., 118 F.3d at 1553;

Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009

(Ct. Cl. 1967); Mallow v. United States, 161 Ct. Cl. 446

Ilig Md A pate BS i CM

lla

Appendix A

(1963). Indeed, the factual background and the constitutional

claims at issue in the current litigation overlap with those

already before the Court of Federal Claims. Thus, another

reason for the Supreme Court’s apprehensions in Bowen is

not present in this case.

The Supreme Court further suggested in Bowen that “the

nature of the controversies that give rise to disallowance

decisions typically involve state governmental activities that

a district court would be in a better position to understand

and evaluate than a single tribunal headquartered in

Washington.” 487 U.S. at 907-08. Unlike Bowen, which

involved a dispute between the Commonwealth of

Massachusetts and the United States, this case does not -

involve a state at all. This case relates to a contract between

the utilities and the Government, and specifically, the

utilities’ financial obligations under EPACT. This case does

not involve the complexities of government-to-government

relationships. This case does not involve “[m]anaging the

relationships between States and the Federal Government

that occur over time and that involve constantly shifting

balance sheets.” Jd. at 904 n.39. In sum, this case does not

“involve state governmental activities that a district court

would be in a better position to understand and evaluate”

than the Court of Federal Claims. /d. at 907-08. In Bowen,

the Supreme Court linked its judgment to a specific set of

circumstances that are not present in this case. The Supreme

Court’s language and reasoning in that case do not preclude

the Court of Federal Claims’ illegal exaction doctrine from

providing an adequate remedy in the circumstances of this

case.

12a

Appendix A

Ill.

Indeed the procedural background and facts of this case

indicate that the Court of Federal Claims can supply an

adequate remedy even without an explicit grant of

prospective relief. Turning first to the facts of this case, Con

Ed’s district court complaint seeks a prospective injunction

on its future payments of money under EPACT. In the event

of success in its claims before the Court of Federal Claims,

Con Ed will receive a refund of all payments under EPACT

because the United States illegally exacted those funds. In

the face of such a judgment, the United States could not

proceed to assess further EPACT payments without again

illegally exacting funds. Res judicata principles would

require immediate refund of any assessment with interest.

See Foster v. Hallco Mfg. Co., Inc., 947 F.2d 469, 475-76

(Fed. Cir. 1991) (“The principles of law denominated

‘res judicata’ embody the public policy of putting an end to

litigation.”). Moreover, this court cannot imagine that the

United States would continue to require the utility companies

to pay unlawful exactions.

In sum, Con Ed’s district court case in reality seeks only

prospective monetary relief. Con Ed’s case for retrospective

monetary relief before the Court of Federal Claims overlaps

with its claims for prospective monetary relief before the

district court. Relief from its retrospective obligations will

also relieve it from the same obligations prospectively. In

this case, without the complexities of the ongoing federal-

state relationships present in Bowen, a money judgment in

the Court of Federal Claims will provide Con Ed with an

adequate remedy against the same exactions in the future.

13a

Appendix A

See, e.g., Kanemoto, 41 F.3d at 645 (“[A] ‘naked money

judgment’ would provide Kanemoto an adequate remedy.”).

The procedural background of this case seals the

conclusion that Con Ed has an adequate remedy in the Court

of Federal Claims. Con Ed originally sued in the Court of

Federal Claims seeking a refund of payments made under

EPACT, asserting many of the same constitutional claims it

asserts before the district court. After initial successes, the

utility companies’ cases took a turn against its position.

Yankee Atomic, 112 F.3d at 1571. Only at that late stage of

the litigation did Con Ed file this suit in district court deleting

all reference to monetary recovery and instead seeking a -

declaratory judgment and an injunction.

This court and its sister circuits will not tolerate a

litigant’s attempt to artfully recast its complaint to

circumvent the jurisdiction of the Court of Federal Claims.

Veda, Inc. v. United States Dep't of Air Force, 111 F.3d 37,

39 (6th Cir. 1997) (citing A.E. Finley Assoc., Inc. v. United

States, 898 F.2d 1165, 1167 (6th Cir. 1990) (“[O]ne cannot

circumvent exclusive jurisdiction in the Claims Court by

suing simply for declaratory or injunctive relief in a case

where such relief would be the equivalent of a judgment for

money damages.’’)); Marshall Leasing, Inc. v. United States,

893 F.2d 1096, 1099 (9th Cir. 1990); Eagle-Picher Indus.,

Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir. 1990)

(quoting Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985)

(“A party may not circumvent the Claims Court’s exclusive

jurisdiction by framing a complaint in the district court as

one seeking injunctive, declaratory or mandatory relief where

the thrust of the suit is to obtain money from the United

14a

Appendix A

States.”)); see also Am. Sci. Eng’g., Inc. v. Califano, 571

F.2d 58, 61-63 (1st Cir. 1978); Ala. Rural Fire Ins. Co. v.

Naylor, 530 F.2d 1221, 1225-26 (Sth Cir. 1976). The circuits

have consistently rebuffed such blatant forum shopping to

avoid adequate remedies in an alternative forum. Jd.

Every legal issue that Con Ed seeks to resolve in this

district court case could be (and, in some cases, has been)

decided in a suit before the Court of Federal Claims.

Likewise, as evidenced by the previously filed Court of

Federal Claims litigations, a refund of the EPACT payments

could provide an adequate remedy for Con Ed and other

utilities. Moreover, a decision by the Court of Federal Claims

would effectively moot any prospective relief that the district

court could afford. Accordingly, the Court of Federal Claims

can supply an “adequate remedy” to prevent the

constitutional wrongs alleged by Con Ed. Therefore, under

§ 704, an adequate remedy in the Court of Federal Claims

deprives Con Ed of duplicative district court adjudication.

CONCLUSION

Because § 704’s exception for alternative adequate

remedies forecloses a waiver of immunity under § 702 in

this case, the district court erred in denying the Government’s

motion to transfer to the Court of Federal Claims. This court

returns this case to the district court with directions to transfer.

COSTS

Each party shall bear its own costs.

- REVERSED AND REMANDED.

15a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1464

CONSOLIDATED EDISON COMPANY OF NEW YORK,

INC., NEW YORK POWER AUTHORITY, NIAGARA

MOHAWK POWER CORPORATION, ROCHESTER GAS

AND ELECTRIC CORPORATION, ARIZONA PUBLIC

SERVICE CORPORATION, COMMONWEALTH EDISON

COMPANY, DUKE ENERGY CORPORATION, ENTERGY

GULF STATES, INC., FLORIDA POWER CORPORATION,

FLORIDA POWER AND LIGHT COMPANY, GPU

NUCLEAR, INC. (on behalf of Jersey Central Power & Light

Company, Metropolitan Edison Company, and Pennsylvania

Electric Company), INDIANA MICHIGAN POWER

COMPANY, NEBRASKA PUBLIC POWER DISTRICT,

PECO ENERGY COMPANY, SOUTHERN CALIFORNIA

EDISON COMPANY, SOUTHERN NUCLEAR OPERATING

COMPANY, INC., SYSTEM FUELS, INC., TEXAS

UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC

& POWER COMPANY, WASHINGTON PUBLIC POWER

SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE

CORPORATION, and WOLF CREEK NUCLEAR

OPERATING CORPORATION (on behalf of Kansas City

Power & Light Company, Kansas Electric Power

Cooperative, Inc., and Kansas Gas and Electric Company),

Plaintiffs-Appellees,

l6a

Appendix A

UNITED STATES, DEPARTMENT OF ENERGY,

DEPARTMENT OF ENERGY AS SUCCESSOR TO THE

UNITED STATES ATOMIC ENERGY COMMISSION, and

ENERGY RESEARCH AND DEVELOPMENT

ADMINISTRATION,

Defendants-Appellants.

PLAGER, Senior Circuit Judge,* concurring.

This case confronts the court with a choice between a

seemingly illogical Supreme Court rule, calling for a less-

than-sensible result, on the one hand, or under-ruling the

Supreme Court decision, here Bowen v. Massachusetts, 487

U.S. 879 (1988), on the other. This time the court has chosen

the latter course. I cannot disagree; it remains to be seen

whether the Supreme Court will.

* Judge Plager assumed senior status on November 30, 2000.

17a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1464

CONSOLIDATED EDISON COMPANY OF NEW YORK,

INC., NEW YORK POWER AUTHORITY, NIAGARA

MOHAWK POWER CORPORATION, ROCHESTER GAS

AND ELECTRIC CORPORATION, ARIZONA PUBLIC

SERVICE CORPORATION, COMMONWEALTH EDISON

COMPANY, DUKE ENERGY CORPORATION, ENTERGY

GULF STATES, INC., FLORIDA POWER CORPORATION,

FLORIDA POWER AND LIGHT COMPANY, GPU

NUCLEAR, INC. (on behalf of Jersey Central Power & Light

Company, Metropolitan Edison Company, and Pennsylvania

Electric Company), INDIANA MICHIGAN POWER

COMPANY, NEBRASKA PUBLIC POWER DISTRICT,

PECO ENERGY COMPANY, SOUTHERN CALIFORNIA

EDISON COMPANY, SOUTHERN NUCLEAR OPERATING

COMPANY, INC., SYSTEM FUELS, INC., TEXAS

UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC

& POWER COMPANY, WASHINGTON PUBLIC POWER

SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE

CORPORATION, and WOLF CREEK NUCLEAR

OPERATING CORPORATION (on behalf of Kansas City

Power & Light Company, Kansas Electric Power

Cooperative, Inc., and Kansas Gas and Electric Company),

Plaintiffs-Appellees,

18a

Appendix A

UNITED STATES, DEPARTMENT OF ENERGY,

DEPARTMENT OF ENERGY AS SUCCESSOR TO THE

UNITED STATES ATOMIC ENERGY COMMISSION, and

ENERGY RESEARCH AND DEVELOPMENT

ADMINISTRATION,

Defendants-Appeliants..

ORDER

The Appellants filed a combined petition for rehearing

and rehearing en banc. A response thereto was invited by

the court, and filed by the Appellees. The petition for

rehearing and response were referred to the panel that heard

the appeal, and thereafter, the petition for rehearing en banc

and response were referred to the circuit judges who are in

regular active service. A poll having been taken, it is

ORDERED that the petition for rehearing en banc was

granted; the judgment of the court entered on December 5,

2000, and reported at 234 F.3d 642 (Fed. Cir. 2000), is hereby

vacated; and the opinion of the court accompanying the

judgment is withdrawn.

The en banc court returned this appeal to the merits

panel, who issue the revised opinion that accompanies this

order.

FOR THE COURT,

May 3, 2001 s/ Jan Horbaly

Date Jan Horbaly

Clerk

19a

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

DATED AND DECIDED DECEMBER 5, 2000

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1464

CONSOLIDATED EDISON COMPANY OF NEW YORK,

INC., NEW YORK POWER AUTHORITY, NIAGARA

MOHAWK POWER CORPORATION, ROCHESTER GAS

AND ELECTRIC CORPORATION, ARIZONA PUBLIC

SERVICE CORPORATION, COMMONWEALTH EDISON

COMPANY, DUKE ENERGY CORPORATION, ENERGY

GULF STATES, INC., FLORIDA POWER

CORPORATION, FLORIDA POWER AND LIGHT

COMPANY, GPU NUCLEAR, INC. (on behalf of Jersey

Central Power & Light Company, Metropolitan Edison

Company, and Pennsylvania Electric Company), INDIANA

MICHIGAN POWER COMPANY, NEBRASKA PUBLIC

POWER DISTRICT, PECO ENERGY COMPANY,

SOUTHERN CALIFORNIA EDISON COMPANY,

SOUTHERN NUCLEAR OPERATING COMPANY, INC.,

SYSTEM FUELS, INC., TEXAS UTILITIES ELECTRIC

COMPANY, VIRGINIA ELECTRIC & POWER

COMPANY, WASHINGTON PUBLIC POWER SUPPLY

SYSTEM, WISCONSIN PUBLIC SERVICE

CORPORATION, and WOLF CREEK NUCLEAR

OPERATING CORPORATION (on behalf of Kansas City

Power & Light Company, Kansas Electric Power

Cooperative, Inc., and Kansas Gas and Electric Company),

Plaintiffs-Appellees,

20a

Appendix B

UNITED STATES, DEPARTMENT OF ENERGY,

DEPARTMENT OF ENERGY AS SUCCESSOR TO THE

UNITED STATES ATOMIC ENERGY COMMISSION, and

ENERGY RESEARCH AND DEVELOPMENT

ADMINISTRATION,

Defendants- Appellants.

Appealed from: United States District Court for the Southern

District of New York

Senior Judge Whitman Knapp

He m tad

DECIDED: December 5, 2000

Before RADER, Circuit Judge, PLAGER, Senior Circuit

Judge,* and GAJARSA, Circuit Judge.

Opinion for the court filed by Circuit Judge RADER.

Dissenting opinion filed by Circuit Judge GAJARSA.

RADER, Circuit Judge.

Consolidated Edison Company of New York and twenty-

one other nuclear utilities (collectively, Con Ed) sued the

United States, the Department of Energy, and the Energy

* Judge Plager assumed senior status on November 30, 2000.

2la

Appendix B

Research and Development Administration (collectively, the

Government) in the United States District Court for the

Southern District of New York seeking declaratery

judgments and injunctive relief. Consolidated Edison Co. v.

United States, 45 F. Supp. 2d 331 (S.D.N.Y. 1999). Con Ed’s

suit challenged the constitutionality of the Energy Policy

Act of 1992 (EPACT), 42 U.S.C. § 2297(g) (1994), on due

process and takings grounds. The district court denied the

Government’s motion to transfer the case to the United States

Court of Federal Claims, or alternatively to dismiss. Because

the district court correctly denied the Government’s motion,

this court affirms.

Con Ed sued the Government, challenging the

constitutionality of EPACT. Before enactment of EPACT,

Con Ed contracted with the Government for uranium

enrichment services under a series of fixed-price agreements.

After enactment of EPACT in 1992, the Government began

decontaminating and decommissioning several of its uranium

processing facilities. EPACT stipulated that the Government

would pay sixty-eight percent of the decontamination and

decommissioning costs and that annual assessments on

domestic nuclear utilities would supply the remaining thirty-

two percent. EPACT made the Department of Energy

responsible for computing each utility’s share of the -

assessment in proportion to that utility’s use of Government

enrichment services in the past. See 42 U.S.C. § 2297g-1(c).

After making initial payments under EPACT, Con Ed,

and other nuclear utilities not parties to this suit, sued the

22a

Appendix B

Government in the Court of Federal Claims seeking refunds

of those payments. The Court of Federal Claims lawsuits

asserted many of the same constitutional grounds as this

lawsuit. In one such case, this court reversed the Court of

Federal Claims’ grant of summary judgment in favor of a

nuclear utility, concluding that collection of the assessments

under EPACT was not unconstitutional as applied. Yankee

Atomic Elec. Co. v. United States, 112 F.3d 1569, 1571 (Fed.

Cir. 1997), cert. denied, 118 S. Ct. 2365 (1998).

After several subsequent nuclear utility losses in the

Court of Federal Claims, Con Ed filed this suit in the district

court. Instead of seeking refunds of assessments paid,

however, Con Ed sought declaratory judgment that EPACT

is unconstitutional on several grounds and an injunction on

enforcement of the EPACT assessments. By taking this

procedural posture, Con Ed sought a hearing in another

forum. To achieve this objective, Con Ed carefully drew its

complaint to avoid prayers for relief actionable in the Court

of Federal Claims, such as claims against the United States

for money damages. See 5 U.S.C. § 702 (1994).

The Government moved the district court to transfer this

case to the Court of Federal Claims, where other nuclear

utility cases await disposition. The district court denied that

motion. The district court noted that the United States Court

of Appeals for the Second Circuit and the United States

Supreme Court have confirmed that the Administrative

Procedure Act (APA) waives the sovereign immunity of the

United States for suits that properly invoke equitable relief

from agency action. Bowen v. Mass., 487 U.S. 879, 904

(1988); In re Chateaugay Corp., 53 F.3d 478, 493 (2d Cir.

23a

Appendix B

1995). After denying the Government’s motion, the district

court certified the jurisdictional question for interlocutory

review.

Il.

The sole question in this case is whether the APA waives

sovereign immunity for an action in a district court on the

merits of Con Ed’s claim because its complaint seeks

equitable relief outside the Court of Federal Claims’ statutory

grant of authority. This court reviews legal questions, such

as jurisdiction and authority of the Court of Federal Claims

and the district court, without deference. Terran v. Sec’y of

Health & Human Servs., 195 F.3d 1302, 1309 (Fed. Cir.

1999).

The Government contends that Con Ed’s suit in the

district court under the APA amounts to impermissible forum

shopping. The APA, according to the Government, does not

waive sovereign immunity for this suit in the district court

because Con Ed can obtain full legal relief, if successful, in

the Court of Federal Claims. Specifically, the Government

notes that the Court of Federal Claims has, on occasion,

asserted power under the Tucker Act to order a full refund

of illegally exacted funds. See 28 U.S.C. § 1491(a)(1) (1994);

New York Life Ins. Co. v. United States, 118 F.3d 1553, 1554

(Fed. Cir. 1997). Thus, if Con Ed can show illegal exaction

of EPACT assessments, the Government maintains, the Court

of Federal Claims may have authority to order a refund.

Indeed, the Government explains that such suits are already

pending in the Court of Federal Claims.

24a

Appendix B

Predicting and attempting to preempt Con Ed’s response,

the Government discounts the Court of Federal Claim’s lack

of power to order injunctive or other prospective relief. If

the EPACT assessments in fact violate constitutional

guarantees, the Government asserts, injunctive relief would

not be necessary. Rather, res judicata would implicitly bar

the Government from assessing Con Ed under EPACT in

the future in the face of a Court of Federal Claims illegal

exaction judgment. Alternatively, the Government makes a

“trust me” argument, explaining that it “would not be so

unwise as to require” Con Ed to assert res judicata by making

future assessments after a loss in the Court of Federal Claims.

This district court case does warrant the Government’s

“forum shopping” characterization. However, while forum

shopping is generally disfavored, see Hanna v. Plumer, 380

U.S. 460, 468 (1965), jurisdictional anomalies may permit

form shopping, see In re Air Crash Disaster Near New

Orleans, La., 821 F.2d 1147, 1157 (Sth Cir. 1987) (vacated

on other grounds) (“After all, the purpose of diversity

jurisdiction is to allow a certain kind of forum-shopping.”).

This case presents such an instance, where the federal code

tolerates a variety of forum shopping. Although the operative

facts of Con Ed’s case in the Court of Federal Claims are

nearly the same as in its case in the district court, the Supreme

Court has explained that a litigant may invoke the APA as a

waiver of sovereign immunity for prospective equitable relief

because such relief is not within the jurisdiction of the Court

of Federal Claims. Bowen, 487 U.S. at 904. Thus, depending

on the relief sought — a refund of illegal exactions under

the Tucker Act or an injunction under the APA — jurisdiction

may lie either in the Court of Federal Claims, see Transohio

25a

Appendix B

Sav. Bank v. Director, OTS, 967 F.2d 598, 606 (D.C. Cir.

1992), or in the district courts, see Bowen, 487 U.S. at 904.

Ill.

The APA waives sovereign immunity for actions

challenging agency actions in district court. Section 702

provides:

A person suffering legal wrong because of

agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof. An

action in a court of the United States seeking relief

other than money damages and stating a claim that

an agency or an officer or employee thereof acted

or failed to act in an official capacity or under |

color of legal authority shall not be dismissed nor

relief therein be denied on the ground that it is

against the United States or that the United States _

is an indispensable party. . . . Nothing herein .. .

confers authority to grant relief if any other statute

that grants consent to suit expressly or impliedly

forbids the relief which is sought.

5 U.S.C. § 702. In Bowen, the Supreme Court explains that

section 702 “eliminat[es] the defense of sovereign immunity

in cases covered by [§ 702].” Bowen, 487 U.S. at 892. The

Court further notes: “It is common ground that if review is

proper under the APA, the District Court had jurisdiction

under 28 U.S.C. § 1331 [the federal question statute].” Jd. at

892 n.16. Indeed, in this case, Con Ed properly cites

26a

Appendix B

28 U.S.C. §§ 1331 (federal question statute), 1361 (the

mandamus statute), and 2201-02 (1994) (the declaratory

judgment statute) to show subject matter jurisdiction for its

claim for equitable relief.

Thus, the question in this case narrows to whether § 702

of the APA waives sovereign immunity for a suit in a district

court for the relief requested. Stated in other terms, does the

APA waive immunity for the relief sought by Con Ed in this

case? Relevant to that question, section 702 of the APA does

not waive sovereign immunity for money damages claims

or for claims that seek remedies “expressly or impliedly”

precluded by other statutes. 5 U.S.C. § 702; Transohio, 967

F.2d at 607. Section 704 of the APA further excludes from

the APA’s sovereign immunity waiver those claims for which

adequate remedies are elsewhere available. 5 U.S.C. § 704

(1994); Transohio, 967 F.2d at 607. Section 704 states:

Agency action made reviewable by statute and

final agency action for which there is no other

adequate remedy in a court are subject to judicial

review.

5 U.S.C. § 704. Read together, sections 702 and 704 limit

the APA’s waiver of sovereign immunity. In sum, the APA

authorizes suits against the Government, other than for

money damages, to redress final agency actions not otherwise

addressable under federal statutes. Bowen, 487 U.S. at 903

(“When Congress enacted the APA to provide a general

authorization for review of agency action in the district

courts, it did not intend that general grant of jurisdiction to

duplicate the previously established special statutory

procedures relating to specific agencies.”).

27a

Appendix B

The Supreme Court’s Bowen decision exemplifies the

operation of these APA provisions in a setting similar to

this case. In Bowen, the Commonwealth of Massachusetts

sought review of a final order of the Secretary of Health and

Human Services refusing to reimburse a category of

Medicaid expenses. Bowen, 487 U.S. at 882. The Supreme

Court gave two reasons why § 702’s exclusion for money

damages claims did not foreclose judicial review: First,

Massachusetts’ complaints “sought declaratory and

injunctive relief... not... money damages.” Jd. at 893.

Second, “[nJeither a disallowance decision, nor the reversal

of a disallowance decision, is properly characterized as an

award of ‘damages.’ ” Jd. Thus, in Bowen, Massachusetts

did not seek relief in the form of monetary damages, which

would have placed its claim outside the terms of the waiver

in § 702.

In this case, Con Ed, like the Commonwealth of

Massachusetts in Bowen, seeks declaratory and prospective

injunctive relief from allegedly unconstitutional EPACT

assessments, not money damages. This prayer for relief

Satisfies the first issue in the Bowen reasoning because

Con Ed does not seek the recovery of funds at all, but only

an injunction on future EPACT assessments. Likewise,

Con Ed’s suit also falls within Bowen’s second reason for

evading the money damages obstacle to an APA waiver

because Con Ed’s prayer for an injunction on future EPACT

assessments cannot be properly characterized as a request

for an award of damages. Even assuming that Con Ed sought

return of its paid assessments in the district court, its claims

would not register as “money damages.” In the words of the

Supreme Court:

28a

Appendix B

Our cases have long recognized the

distinction between an action at law for damages

— which are intended to provide a victim with

monetary compensation for an injury to his

person, property or reputation — and an equitable

action for specific relief — which may include

... “the recovery of specific property or monies,

ejectment from land, or injunction either directing

or restraining the defendant officer’s actions.”

Bowen, 487 U.S. at 893 (italics in original). Thus Con Ed’s

prayer for relief might even hypothetically have sought return

of money without falling within the excluded category of

“money damages.” However, Con Ed does not seek money

at all. Con Ed’s prayer for specific relief from the EPACT

assessments in this case does not fall within the Supreme

Court’s definition of money damages.

Having evaded the money damages exclusion within

§ 702, Con Ed still must show that § 704 does not withdraw

the waiver of sovereign immunity granted by § 702. Section

704 codifies a requirement ensuring that the general grant

of review in the APA does not “duplicate existing procedures

for review of agency action.” Bowen, 487 U.S. at 903. In

effect, § 704 withdraws the limited waiver of immunity in

§ 702 if an adequate judicial remedy is already available

elsewhere. 5 U.S.C. § 704. In this case, this court must examine

whether the Court of Federal Claims supplies an “adequate

remedy” to prevent the constitutional wrongs alleged by Con

Ed. If the Court of Federal Claims supplies an “adequate

remedy,” then Con Ed’s cause of action would fall within

an exception to the APA’s waiver of sovereign immunity.

aa DN ee eT ee ee eee ee ee ee ee ee

29a

Appendix B

The Supreme Court confronted this issue in Bowen. The

Court determined that the Court of Federal Claims cannot

supply an “adequate remedy” in a case seeking injunctive

relief:

The [Government] argues that § 704 should be

construed to bar review of the agency action in

the District Court because monetary relief against

the United States is available in the Claims Court

under the Tucker Act. This restrictive — and

unprecedented — interpretation of § 704 should

be rejected because the remedy available to the

[plaintiff] in the Claims Court is plainly not the

kind of “special and adequate review procedure”

that will oust a district court of its normal

jurisdiction under the APA.

Bowen, 487 U.S. at 904. For the reasons stated in Bowen,

the Court of Federal Claims cannot supply an adequate

remedy for Con Ed’s suit either. As this passage from Bowen

indicates, district court action under the APA is the normal

default rule, negated only by special and adequate alternative

review procedures. More to the point, however, Con Ed seeks

prospective injunctive relief. Indeed, the Supreme Court —

noting that the Bowen plaintiff might have chosen to bring

suit in the Court of Federal Claims — explained:

The Claims Court does not have the general

equitable powers of a district court to grant

prospective relief. . .. We are not willing to assume,

categorically, that a naked money judgment

_ against the United States will always be an

30a

Appendix B

adequate substitute for prospective relief

fashioned in the light of the rather complex

ongoing relationship between the parties.

Bowen, 487 U.S. at 905. In this case, as in Bowen, the Court

of Federal Claims has no jurisdiction beyond award of a

“naked money judgment.” This case also features a complex

ongoing relationship to decontaminate and decommission

nuclear facilities. EPACT itself involves computations based

on past use of Government enrichment services and ongoing

obligations to share decommissioning expenses. In this complex

ongoing relationship, this court, like the Supreme Court in

Bowen, cannot be sure that a money judgment will adequately

substitute for prospective relief. Prospective relief, such as

sought in this case, lies beyond the powers of the Court of

Federal Claims. In direct terms, claims for money damages

before the Court of Federal Claims do not supply an “adequate

remedy” for a claim for equitable relief in this complex case.

It is important to keep in mind that the question before

us is not whether plaintiffs are entitled to the remedy they

seek, but only whether the district court is empowered to

give them a hearing. The dissent recognizes that the answer

to that question lies in how we understand the Supreme Court’s

Bowen decision. Though the dissent attempts to distinguish

Bowen on its facts, the facts are that, like Bowen, this case

involves not a one-shot contract to be performed or not, but

an ongoing legal and contractual relationship between the

plaintiffs and the federal government with a complex of

duties and responsibilities, one of which is challenged by

the Government’s insistence that payments are due on a basis

different from that understood by the plaintiffs.

31a

Appendix B

The dissent appreciates that the case turns on Bowen's

holding that a suit in the Court of Federal Claims for money

damages to recover past payments is not necessarily an

“adequate remedy” under APA § 704 when a plaintiff seeks

declaratory and injunctive relief against future assessments.

The dissent makes its case for the opposite rule by quoting

at length from Justice Scalia’s dissent in Bowen, and asserting

that “the logic promulgated by the dissent in Bowen is

persuasive” (slip op. at 13) — thus candidly acknowledging

that the position the dissent here calls for is indeed one of

dissent.

There are good arguments for the rule the dissenters

prefer. Among others, it would reduce the potential for this

kind of litigation over where to litigate, a consequence of

our system of federal courts with divided and sometimes

overlapping jurisdiction. Indeed, in the fullness of time it

may well be that the rule announced by the Supreme Court

in Bowen will prove so unworkable that the Court will choose

tochange it.' If so, we will have one less area of indeterminate

jurisdictional line-drawing, and plaintiffs will be precluded

from doing the kind of forum shopping they did here.

However, this court does not possess any special

authority over the law governing this case, as it has in the

intellectual property field, see Warner-Jenkinson Co. v.

Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997). We have

1. Two other Justices, Chief Justice Rehnquist and Justice

Kennedy, joined Justice Scalia’s dissent. Whether the change in the

makeup of the Court since Bowen will, in the future, convert the

dissent into a majority is a matter beyond speculation by lower court

judges.

32a

Appendix B

the Supreme Court misinformed about its view of federal

jurisdiction. Accordingly, this court is bound to follow, as

best it can, the guidance given it by the majority in Bowen

and not that of the dissent, and to recognize the difference.

CONCLUSION

Because neither § 702’s exclusion for money damages

nor § 704’s exception for alternative adequate remedies

foreclose the APA’s waiver of immunity in this case, the

district court correctly determined that it was authorized to

proceed under the APA. The district court correctly denied

the Government’s motion to transfer to the Court of Federal

Claims; the matter is returned to the trial court for continued

proceedings.

COSTS

Each party shall bear its own costs.

AFFIRMED.

33a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

99-1464

CONSOLIDATED EDISON COMPANY OF NEW YORK,

INC., NEW YORK POWER AUTHORITY, NIAGARA

MOHAWK POWER CORPORATION, ROCHESTER GAS

AND ELECTRIC CORPORATION, ARIZONA PUBLIC

SERVICE CORPORATION, COMMONWEALTH EDISON

COMPANY, DUKE ENERGY CORPORATION, ENERGY

GULF STATES, INC., FLORIDA POWER

CORPORATION, FLORIDA POWER AND LIGHT

COMPANY, GPU NUCLEAR, INC. (on behalf of Jersey

Central Power & Light Company, Metropolitan Edison

Company, and Pennsylvania Electric Company), INDIANA

MICHIGAN POWER COMPANY, NEBRASKA PUBLIC

POWER DISTRICT, PECO ENERGY COMPANY,

SOUTHERN CALIFORNIA EDISON COMPANY,

SOUTHERN NUCLEAR OPERATING COMPANY, INC.,

SYSTEM FUELS, INC., TEXAS UTILITIES ELECTRIC

COMPANY, VIRGINIA ELECTRIC & POWER

- COMPANY, WASHINGTON PUBLIC POWER SUPPLY

SYSTEM, WISCONSIN PUBLIC SERVICE

CORPORATION, and WOLF CREEK NUCLEAR

OPERATING CORPORATION (on behalf of Kansas City

Power & Light Company, Kansas Electric Power

Cooperative, Inc., and Kansas Gas and Electric Company),

Pla:ntiffs-Appellees,

34a

Appendix B

UNITED STATES, DEPARTMENT OF ENERGY,

DEPARTMENT OF ENERGY AS SUCCESSOR TO THE

UNITED STATES ATOMIC ENERGY COMMISSIO.., 21d

ENERGY RESEARCH AND DEVELOPMENT

ADMINISTRATION,

Defendants-Appellants.

GAJARSA, Circuit Judge, dissenting.

I respectfully dissent from the majority opinion for two

reasons. First, I believe that the majority’s analysis is in direct

conflict with Supreme Court precedent, precedent of this

court, and the statutory scheme promulgated by Congress,

which provides for judicial review pursuant to the

Administrative Procedure Act only when no other adequate

remedy is available. Second, the majority opinion allows the

plaintiffs an opportunity to collaterally attack a clear and

controlling precedent of this court and moreover it frustrates

the legislative purpose of the Tucker Act.

Specifically, under the rubric of affording Con Ed an

opportunity to seek equitable relief, the majority opinion

countenances an end run around the Tucker Act by expanding

the government’s limited waiver of sovereign immunity far

beyond its statutory constraints. The majority reaches its

conclusion by linking a truism — that the Court of Federal

Claims (“CFC”) cannot issue injunctions — with a

non sequitur — that the CFC cannot otherwise provide

Con Ed effective relief. The majority opinion condones the

plaintiffs’ forum shopping by permitting the twenty-two

plaintiffs to avoid the jurisdiction of the CFC where they

a ee

35a

Appendix B

have submitted the same claims on overlapping and similar

legal theories that have been rejected by this court in Yankee

Atomic Electric Co. v. United States, 112 F.3d 1569 (Fed.

Cir. 1997). The majority rationalizes the concept of forum

shopping on the premise that “the federal code tolerates a

variety of forum shopping.” This case certainly does not

present such an instance.

This circuitous journey begins with Congress’

recognition in the late 1980’s-that the government’s uranium

facilities would have to be decontaminated and

decommissioned. It was estimated that the total cost of the

clean up would exceed $20 billion over a period of forty

years. In response to the clean up requirement Congress

enacted the Energy Policy Act of 1992 (“EPACT”). 42 U.S.C.

§§ 2297(g) et seq. (1994 & Supp. 2000). The EPACT

created the Uranium Enrichment Decontamination and

Decommissioning Fund (“Fund”). The Fund accumulated

monies by assessing a charge to domestic utility companies

that purchased and used the enrichment services and from

public funds to be appropriated by Congress. The EPACT

also limited the collection of funds from the domestic utilities

after the earlier of 15 years after October 24, 1992 or

the collection of $2.25 billion (adjusted for inflation).

See § 2297g-1(e). The EPACT imposed the special

assessment on each domestic utility that had benefited from

the government’s enrichment services. It further provided

that the domestic utilities could pass this cost through to the

consumers by treating the special assessment as “‘a necessary

and reasonable current cost of fuel, which shall be fully

recoverable in rates in all jurisdictions in the same manner

as the utility’s other fuel cost.” § 2297g-1(g).

36a

Appendix B

The government has annually billed the domestic utilities

since October, 1992 for their pro-rata share of the special

assessment. After paying the special assessments, the

domestic utilities challenged the assessment in the CFC,

requesting a reimbursement of monies paid alleging that the

special assessment breached their contracts with the federal

government by retroactively increasing the cost of the

uranium enrichment services and that it constituted an illegal

exaction — a taking in violation of the Takings Clause of

the Fifth Amendment. The CFC, in one of the cases then

pending, held that the special assessment was an illegal

exaction under the Takings Clause and granted the plaintiff

a money judgment. Yankee Atomic Electric Co. v. United

States, 33 Fed. Cl. 580 (1995). On appeal, however, this court

in Yankee Atomic Electric Co. v. United States, 112 F.3¢:

1569, reversed the CFC’s finding that the Act was “a generai

exercise of Congress’ 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.” Yankee Atomic,

112 F.3d at 1577. Basically, this court held that the special

assessment did not breach any contract rights and Yankee

Atomic had no property right that had been taken by the

assessment.

The Supreme Court denied certiorari, Yankee Atomic

Electric Co. v. United States, 524 U.S. 951 (1998),

whereupon the remaining plaintiffs, understanding their

predicament, forged a new theory as a collateral attack

against the Yankee Atomic legal roadblock and the EPACT.

Having followed one avenue that they originally believed to

be correct, but which proved to be futile, they now adopt

37a

Appendix B

similar and overlapping legal theories buttressed by their

request of alternative remedies. They now seek a declaratory

judgment and injunctive relief in the United States District

Court for the Southern District of New York. This appeal is

the positive result obtained by the plaintiffs in their forum

shopping quest to obtain alternative relief on substantially

the same legal premises. The utility companies, plaintiffs

below, sought a declaratory judgment that the special

assessment: (1) constitutes a taking of a vested property

interest by their fixed price contracts with the federal

government without just compensation under the Fifth

Amendment (Takings) (Count I); (2) violates the Due Process

Clause of the Fifth Amendment because the assessment is

irrational and arbitrary, abrogates the plaintiffs’ due process

right to receive enrichment services at the contractually

specified prices and unfairly imposed retroactive liability

on the plaintiffs for continuation that the plaintiffs did not

create (Count II); (3) violates the Due Process Clause in that

it constitutes an illegal, irrational, unfair and disproportionate

tax imposed on an exceedingly narrow base and “unlawfully

impairs” their rights under the contracts and settlement

agreements with the government (Count III); and (4) violates

their fixed price contracts and Settlement agreement with

the government for enrichment services by retroactively

imposing additional costs based on the use of those services

(Counts [V-VI).' The plaintiffs have not specifically

requested monetary damages from the federal district court

but have sought to enjoin the government from collecting

1. These allegations are the same as the plaintiffs’ amended

complaint filed in the CFC in the parallel cases. See Commonwealth

Edison Co. v. United States, 46 Fed. Cl. 29, 35 (2000), appeal

pending :

38a

Appendix B

additional monies under the special assessment provisions

and to bar enforcement of these provisions. The issue before

the court is whether the relief sought is akin to an action in

damages. This action cannot be so camouflaged to be

anything but an action for damages.’

The government argued that all of the CFC’s actions

arise out of the “same series of transactions, facts and

circumstances” as the case filed at the federal district court

and the case should not proceed simultaneously in both

forums. The federal district court rejected the government’s

motion to stay the proceedings in favor of the CFC

proceedings, holding that the plaintiffs could not obtain

injunctive relief from the CFC so as to escape the continuing

obligation to make payments into the Fund. Consolidated

Edison Co. of N.Y. v. United States, 30 F.Supp.2d 385

(S.D.N.Y. 1998). The government then moved the court to

transfer the plaintiffs’ case to the CFC pursuant to 28 U.S.C.

§ 1631. The decision on interlocutory appeal before us is

the federal district court’s denial of that motion. Consolidated

Edison Co. of N.Y. v. United States, 1999 WL 212686

(S.D.N.Y. Apr. 12, 1999).

The district court’s holding denying the government’s

motion to transfer relied on Jn re Chateaugay Corp., 53 F.3d

478 (2d Cir. 1995) and Eastern Enterprises v. Apfel, 524

U.S. 498 (1998), reasoning that where the challenge is solely

for the taking of money (i.e., compelled payments) Congress

could not have intended to relegate such a suit to the Tucker -

Act because the “just compensation” for such a taking is

2. If it quacks like a duck, waddles like a duck, struts like a

duck, it must be a duck.

39a

Appendix B

simply a “dollar for each dollar” taken.’ The district court

also rejected the government’s position that the plaintiffs

only sought money damages barred by Section 702 of the

APA holding that the utilities only sought prospective relief.

Furthermore, it concluded that under the “adequate remedy”

provisions of Section 704 of the APA the CFC could not

have jurisdiction over the plaintiffs’ due process claims;

moreover, the CFC could not grant equitable relief. The

plaintiffs in the case before the district court alleged that

they had paid six special assessments to the Fund totaling

$569 million, but they didnot make a demand for a refund

of the payments as part of their prayer for relief.‘

The majority opinion falls into the same open logic pit,

which swallows the reasoning of the district court. First, it

ignores the fact that the district court premised its

jurisdictional argument on the basis that the CFC could not

address the plaintiffs’ due process claims. This is error. In

fact, in the context of the so-called “illegal exaction”

3. It should be noted that the majority at least has not pursued

the same legal reasoning as the federal district court. It has not

premised its conclusions on either Chateaugay or Eastern

Enterprises, recognizing perhaps the limitations of those-decisions

in establishing the legal support for their conclusions since in both

of those cases no monies were paid to the respective funds prior to

the declaratory and injunctive relief actions being filed.

4. Does this failure imply that the plaintiffs have forsaken the

recovery of past payments, namely the $569 million previously paid,

or will they continue to pursue the past amounts if they obtain a

favorable interpretation of the EPACT before the Southern District

and the Second Circuit? Will the CFC be bound by that ruling or by

our Yankee Atomic decision in their continuing challenge?

40a

Appendix B

doctrine, enunciated most prominently in Eastport S.S. Corp.

v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967), the

CFC does have jurisdiction to consider due process claims.

See Mallow v. United States, 161 Ct. Cl. 446 (1963).

See also Commonwealth Edison, 46 Fed. Cl. at 42-43 (2000)

(discussing additional cases). Second, instead of focusing

on whether the CFC can provide the plaintiffs an adequate

remedy, the majority opinion focuses on whether or not the

CFC can enjoin the federal government from collecting any

future payments from the plaintiffs. But this inquiry does

not address the focal question posed by the APA, to wit,

whether an adequate remedy is available in the CFC.

The plaintiffs’ plain and underlying premise is to

circumvent the binding precedent of this court established

by Yankee Atomic. The majority states that “instead of

seeking refunds of assessments paid,” the plaintiffs have

sought declaratory judgment that the EPACT is

unconstitutional and seek an injunction on the enforcement

of the special assessments. It concludes that the case

“presents . . . [an] instance where the federal code tolerates

a variety of forum shopping.” However, the majority fails to

recognize that it has opened a one-way forum shopping street.

It allows a challenge by a plaintiff, who has, failed to win

before the Federal Circuit, to pursue an additional remedy

by restructuring its complaint seeking declaratory judgment

and injunctive relief. When the federal government fails

before the Federal Circuit, it has no such remedy. For the

government, this result constitutes a “tails you win, heads

I lose” scenario in which the precedents of this court can be

ignored by private litigants essentially at will. I do not believe

that is what Congress intended.

4la

Appendix B

Moreover, contrary to the majority’s positing of the issue

as one of whether the APA waived sovereign immunity for

an action in the district court because the plaintiffs seek

equitable relief, the real issue should be posed as whether or

not the district court has subject matter jurisdiction to grant

declaratory and injunctive relief to a party making a due

process challenge to a government assessment, when the

same party is concurrently suing the government in the CFC

for a refund of money already paid? The question simply

stated is whether the CFC can provide an adequate remedy;

if so, this action is barred because the federai district court

lacks jurisdiction. Despite the numerous cases littering the

intersection of the Tucker Act and Section 704 of the APA,

no clear answer has yet emerged. The majority opinion only

adds to the cacophony.

The plaintiffs have cited 28 U.S.C. §§ 1331 and 1361 to

show subject matter jurisdiction for their claim for equitable

relief. However, federal question jurisdiction under 28 U.S.C.

§ 1331 does not by itself operate as a waiver of sovereign

immunity. See Kester v. Campbell, 652 F.2d 13, 15 (9th Cir.

1981). The plaintiffs would need to identify an independent

basis for the waiver of sovereign immunity to maintain their

claim in the federal district court. The majority has found

that waiver in Section 702 of the APA, 5 U.S.C. § 702.

However, Section 702 is unavailing if there is an adequate

remedy in a court that can provide appropriate relief.

In the instant case, given that plaintiffs have already paid

some of the special assessments and have filed their claims

for refunds in the CFC to recoup those payments, an adequate

remedy exists for purposes of Section 704. A decision by

42a

Appendix B

the CFC would effectively moot any prospective relief that

the district court could afford. There are two possible

scenarios. One, if the CFC upholds the lawfulness of the

special assessments, then no lawful exaction exists from

which prospective relief could be provided. Second, if the

CFC holds the special assessment unconstitutional, then its

decision would be binding and it is absurd to believe that

the DOE would continue to require the domestic utilities to

make payment of unlawful exactions. Moreover, it is

reasonable to presume that the CFC, pursuant to its authority

under 28 U.S.C. § 1491(a)(2), can provide appropriate

prospective relief. As was stated by Justice Scalia in dissent:

Respondent can assert immediately a claim for

money damages in Claims Court, which if

successful, will as effectively establish its right

as would a declaratory judgment in district court.

Since there is no allegation that the Secretary will

not honor in the future a Claims Court judgment

that would have not only precedential! but

collateral estoppel effect ... the ability to bring

an action in Claims Court with regard to

disallowance decisions already made provides

effective prospective relief as well.

Bowen v. Massachusetts, 487 U.S. 879, 926 (1988) (Scalia, J.,

dissenting).

By the plain language of its terms, Section 704 of the

APA allows judicial review only when “there is no other

adequate remedy in a court.” Bennett v. Spear, 520 U.S. 154,

175 (1997). Section 704 provides that where agency action

43a

Appendix B

is otherwise reviewable in a court and an adequate remedy

is available in conjunction with that review, the APA’s

waiver of sovereign immunity under Section 702 is not

available. See Kanemoto v. Reno, 41 F.3d 641, 644 (Fed.

Cir. 1994); Mitchell v. United States, 930 F.2d 893, 895-96

(Fed. Cir. 1991).

The majority relies on Bowen v. Massachusetts, 487 U.S.

879, to establish the interplay of Section 702 and 704 and

parallels the present case with Bowen; however, Bowen is

clearly distinguishable on its facts and the majority’s reliance

on Bowen is misplaced. In Bowen, the Commonwealth of

Massachusetts brought suit to reverse a federal agency’s

refusal to reimburse the state for certain categories of

Medicaid expenditures. Bowen, 487 U'S. at 886-87. Pursuant

to the Medicaid program, the federal government made

quarterly advance payments to the state in anticipation of

the future reimbursable costs of the state’s program. When

the state was notified by the Secretary of Health and Human

Services (“HHS”) that certain of its claimed expenditures

had been disallowed, the state brought suit in the federal

district court requesting declaratory and injunctive relief

setting aside the Secretary’s decision. The United States

challenged the district court’s jurisdiction to hear the case

contending that the Tucker Act provided exclusive

jurisdiction for the suit in the Court of Federal Claims

(previously the U.S. Claims Court). /d. at 890.

The Supreme Court discussed the term “money

damages” as used in the APA, 5 U.S.C. § 702:

The term “money damages,” we think, normally

refers to a sum of money used as compensatory

44a

Appendix B

relief. Damages are given to the plaintiff to

substitute for a suffered loss, whereas specific

remedies are not substitute remedies at all, but

attempt to give the plaintiff the very thing to

which he was entitled. Thus, while in many

instances an award of money is an award of

damages, [o]ccasionally a money award is also a

specie remedy. Courts frequently describe

equitable actions for monetary relief under a

contract in exactly those terms.

Bowen, 487 U.S. at 895 (citation omitted).

The Supreme Court further observed that “managing the

relationships between the states and the federal government

that occur over time and involve constantly shifting balance

sheets requires a different sort of review and relief process.”

(emphasis added). /d. at 905 n.39. The Court further noted

that relevant statute created “complex questions” with “an

intricate ongoing relationship” between the federal

government and the State raised in Medicaid disallowance

decisions. Jd. at 901 n.31. Flowing from these observations,

the Supreme Court determined that the district court properly

had jurisdiction because the case presented issues for which

a district court “would be in a better position to evaluate

than a single tribunal.” The Court then determined that the

case was not one in which “a naked money judgment against

the United States will always be an adequate remedy.”

Id. at 905.

The facis in the present case are drastically different than

those in Bowen. Here, no constantly shifting balance sheet

45a

Appendix B

or complex scheme exists; rather the amount that plaintiffs

must pay is fixed and predetermined. Further, the only

ongoing aspect of the EPACT is that money must be paid

over a course of fifteen years instead of in one lump sum.

Put differently, in the present case, unlike Bowen, the

payment does not involve an amount that is dependent on

constantly fluctuating multiple variables.

The majority also embraces the position that they are

not determining whether or not the plaintiffs are entitled to

the remedy they seek but only whether or not the district

court has jurisdiction. However, in order to establish

jurisdiction with the district court it had to determine first

whether Section 702 waived sovereign immunity. It basically

accepted the federal district court’s interpretation of Bowen,

holding that Section 702 waives immunity because the relief

sought is equitable in nature. The Supreme Court, however,

has instructed that the “Bowen analysis of § 702, .... did

not turn on distinctions between ‘equitable’ actions and other

actions,” Dep't. of the Army v. Blue Fox, Inc., 525 U.S. 255,

261 (1999). Specifically, the Supreme Court stated:

As Bowen recognized, the crucial question under

§ 702 is not whether a particular claim for relief

is “equitable” (a term found nowhere in § 702),

but rather what Congress meant by “other than

money damages” (the precise terms of § 702).

Bowen held that Congress employed this language

to distinguish between specific relief and

compensatory, or substitute, relief.

Id. at 261.

46a

Appendix B

The Supreme Court further explained that in Bowen:

We held that the State’s suit was not one “seeking

money in compensation for the damage sustained

by the failure of the Federal Government to pay

as mandated; rather, it [was] a suit seeking to

enforce the statutory mandate itself, which

happens to be one for the payment of money.”

Id. at 262.

Therefore, it is clear that the Bowen decision cannot be

used as a predicate to grant jurisdiction to the federal district

court in the case. It seems plain, that under the Bowen

analysis, the plaintiffs’ claim is precisely the type of suit

that is properly before the Court of Federal Claims rather

than the district court, because a “complex scheme” of federal

interaction has not been raised. That is, “the district court is

not in any better position to understand and evaluate the claim

than a single tribunal.” The dispute does not involve an

“intricate ongoing relationship” between the parties and there

is no need for prospective relief because an adequate remedy

is available — money damages. As was stated by Justice

Scalia in his dissent in Bowen: “If the jurisdictional division

established by Congress [by § 702] is not to be reduced to

an absurdity, the line between damages and specific relief

must surely be drawn on the basis of the substance of the

claim, and not its mere forum.” Jd. at 915. To put the answer

bluntly, the plaintiffs are glorifying form over substance.

We are allowing them to pursue another avenue to eventually

obtain money damages from the federal government.

47a

Appendix B

Moreover, the logic promulgated by the dissent in Bowen

is persuasive. The majority surely could not have meant that

the Tucker Act can be by-passed at will simply by rephrasing

a complaint in declaratory judgment terms — something that

could occur in virtually every case exactly as the parties did

in this case. Many cases decided since Bowen have limited

it basically to its facts; however, it has created and continues

to generate much mischief. It is time that the Supreme Court

apply the coup de grace to Bowen; otherwise courts will

continue to be confused, like the majority in this case, and

place many cases outside the jurisdiction of the CFC.

I would hold that the district court lacks jurisdiction

under Section 702 because the CFC can provide an adequate

remedy for purposes of Section 704.

48a

APPENDIX C — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

DATED APRIL 12, 1999

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

98 Civ. 4155 (WK)

CONSOLIDATED EDISON COMPANY

OF NEW YORK, et al.,

Plaintiffs,

— against —

UNITED STATES OF AMERICA, et al.,

Defendants.

OPINION & ORDER

WHITMAN KNAPP, SENIOR DISTRICT JUDGE

Plaintiffs seek declaratory and injunctive relief in

challenging the constitutionality of certain provisions of the

Energy Policy Act of 1992 (““EPACT’”), 42 U.S.C. § 2297g,

et seq. Defendants have moved, pursuant to 28 U.S.C. § 1631,

for an order transferring this action to the United States Court

of Federal Claims (“CFC”) for consolidation with plaintiffs’

claims in that court, or, in the alternative, dismissing this

action for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure. As

49a

Appendix C

noted by defendants, upon the filing of a motion to transfer

a case to the CFC, proceedings in the district court are

statutorily stayed until sixty days after a decision on the

motion. See 28 U.S.C. § 1292(d)(4)(B).

PROCEDURAL BACKGROUND

The factual background of this case is set forth in our

Opinion and Order dated November 25, 1998, familiarity

with which will be presumed. This action was commenced

on June 12, 1998 and an amended complaint was filed on

August 14. On August 17, the defendants moved, pursuant

to Fed. R. Civ. P. 7(b)(1), for a stay pending the resolution

of related actions commenced by each of the plaintiffs in

the CFC. In an Opinion and Order of November 25, 1998,

we denied that motion, but certified the question for

interlocutory appeal. In denying the motion for a stay, we

implicitly determined that we had subject matter jurisdiction,

though we were not directly called upon to decide that issue.

Defendants did not avail themselves of the right to

appeal, but on December 11 brought the instant motion to

transfer or dismiss. Shortly thereafter, the plaintiffs brought

a motion by order to show cause asking us to strike the instant

motion, or, in the alternative, to lift the statutory stay so that

discovery could proceed. At a hearing on December 23, we

denied the plaintiffs’ motion and directed plaintiffs to

respond to the defendants’ motion on the merits.

Defendants contend that plaintiffs’ claims are barred by

the doctrine of sovereign immunity and that plaintiffs’ sole

remedy is in the CFC. Defendants maintain that none of the

50a

Appendix C

complaint’s purported bases for district court jurisdiction,

(1) federal question jurisdiction, 28 U.S.C. § 1331; (2) the

mandamus statute, 28 U.S.C. § 1361; (3) the Declaratory

Judgment Act, 28 U.S.C. § 2201-2202; and (4) the

Administrative Procedure Act, 5 U.S.C. §§ 701 and 702,

operate to waive the government’s sovereign immunity.

Plaintiffs respond by asserting that: (1) no waiver of

sovereign immunity is required because district courts have

subject matter jurisdiction to hear constitutional challenges

to statutes; and (2) even if a waiver of sovereign immunity

were required, § 702 of the Administrative Procedure Act |

provides for such a waiver in these circumstances. Thus, we

now confront the jurisdictional question head-on.

DISCUSSION

In the motion at bar defendants have taken the position,

as they did on their prior motion to stay, that 28 U.S.C.

§ 1491 (“the Tucker Act”) mandates that plaintiffs’ claims

are properly considered only in the CFC and not in the district

court. We must therefore examine whether plaintiffs’ claims,

which seek declaratory and injunctive relief, may be

adjudicated in this forum.

A. Subject matter jurisdiction and sovereign immunity

The Second Circuit’s decision in Jn re Chateaugay Corp.

(2d Cir. 1995) 53 F.3d 478 convinces us that we retain subject

matter jurisdiction over this action without regard to whether

the government has waived sovereign immunity.

Chateaugay dealt with the question of who should pay

the spiraling costs wrought by a series of benefits agreements

Sla

Appendix C

over many years between coal mine owners and their

employees. The burden of funding the pensions and benefits

of an “ever-greater” number of retirees was falling upon an

“ever-smaller” number of mining companies. Chateaugay,

53 F.3d at 484. Congress responded to the crisis by enacting

the Coal Act, Pub. L. No. 102-486, 106 Stat. 2776, 3036-56

(codified at 26 U.S.C. §§ 9701-9722). The Coal Act spread

the costs of funding the pensions between the mining

companies then in existence and the companies which had

already left the industry (by imposing the latter group’s

obligations on “related persons,” typically successors in

interest). To enforce compliance, the Coal Act authorized

the Secretary of the Treasury to impose taxes on companies

who failed to meet their obligations under the Act.

LTV Steel Company, the plaintiff in Chateaugay and a

former coal mining outfit which had already filed for

bankruptcy protection at the time of the Act’s passage,

challenged the constitutionality of the Coal Act on two

grounds: (1) it claimed that the Act violated the Due Process

Clause; and (2) that the Act constituted a taking of private

property for public use without just compensation. The

Chateaugay court affirmed the district court’s dismissal of

the due process claims after finding that the Coal Act, as an

economic regulation, need only meet the rational basis level

of scrutiny. 53 F.3d at 486-491.

Of greater interest for our purposes is the court’s analysis

of the takings claims. Citing the declaratory nature of the

relief sought by LTV Steel, the court began its examination

of the takings claims by expressly rejecting the government’s

theory that the district court was without jurisdiction to hear

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them. /d. at 491-92 (“We find no merit to the government's

suggestion that the Tucker Act, 28 U.S.C. § 1491(a), acts to

remove from the federal district courts jurisdiction over an

action for declaratory relief where no money damages have

been requested.”).

The court then proceeded to address the thornier issue

of whether a takings claim could ever be brought in a district

court without first seeking compensation in the CFC. /d. at

492. After surveying a wide variety of Supreme Court

decisions, the Chateaugay court noted a distinction between

the Supreme Court’s endorsement of district court

jurisdiction over (1) statutes burdening real and tangible

property; and (2) those requiring direct transfers of money

to the government. /d. at 493. Finding significance in that

distinction, the Chateaugay court concluded as follows:

We hold that where the challenged statute requires

a person or entity to pay money to the government,

it must be presumed that Congress had no

intention of providing compensation for the

deprivation through the Tucker Act. Common

sense dictates such a presumption. For example,

in the case of the Black Lung Act, which required

mining companies to contribute funds for the

benefit of afflicted former miners, it would make

no sense to presume that Congress intended for

the Treasury to compensate mining companies for

their contributions because the Act lacks an

express Congressional statement to the contrary.

Such a presumption would tend to nullify all

existing legislation adjusting the benefits and

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burdens of economic life: Every dollar paid

pursuant to a statute would be presumed to

generate a dollar of Tucker Act compensation.

53 F.3d at 493.

While defendants attempt to distinguish Chateaugay on

the grounds that the Coal Act required the mine owners to

pay compensation to a privately operated fund, as opposed

to the government itself, it is clear from the decision that the

court based its reasoning on the assumption that the mine

owners were being forced to pay money directly to the

government. See 53 F.3d at 493 n.6. In addition, we agree

with the position advanced by plaintiffs at oral argument

that as far as their due process claims are concerned, whether

the payments are remitted to a private fund or to the

government is of no import because the harm is suffered as

a result of the deprivation oftheir property and without regard

to who ultimately receives the property.

As a result, the Chateaugay holding, which was

expressly adopted by the Supreme Court in Eastern

Enterprises v. Apfel (1998) 118 S.Ct. 2131, at 2145, is directly

on point. In the statute at bar, 42 U.S.C. § 2297g-1(g),

Congress provided that “[a]ny special assessment levied

under this section on domestic utilities . . . 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.” As did the

Chateaugay court on the facts before it, we believe, after

consideration of those before us, that it would defy logic for

the EPACT Congress to have intended for the Treasury to

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compensate nuclear power companies dollar-for-dollar for

their assessment costs. This fact is further evidenced by the

statute itself, which authorized the power companies to

recover their additional costs via utility rate increases —

i.e., Congress plainly intended for the plaintiffs to be

compensated by the energy-consuming public as opposed to

government coffers.

As aresult, we conclude that the decisions in Chateaugay

and Eastern Enterprises establish that constitutional

challenges to federal statutes which mandate payment of

money directly to the government may be heard in federal

district court.

B. Waiver of sovereign immunity

Assuming, arguendo, that the foregoing discussion is

faulty, we conclude that any sovereign immunity the

government may have enjoyed is waived by Section 702 of

the Administrative Procedures Act (“APA”), 5 U.S.C. § 702.

That section waives sovereign immunity for claims against

the government seeking “other than money damages”:

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by

agency action within the meaning of a relevant

statute, is entitled to judicial review thereof. An

action in a court of the United States seeking relief

other than money damages and stating a claim that

an agency or an officer or employee thereof acted

or failed to act in an official capacity or under

color of legal authority shall not be dismissed nor

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relief therein be denied on the ground that it is

against the United States or that the United States

is an indispensable party. The United States may

be named as a defendant in any such action, and

a judgment or decree may be entered against the

United States . . . Nothing herein (1) affects other

limitations on judicial review or the power or duty

of the court to dismiss any action or deny relief

on any other appropriate legal or equitable ground;

or (2) confers authority to grant relief if any other

statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

In support of their contention that such section does not

waive sovereign immunity in this forum, defendants raise

three arguments: (1) immunity is not waived because the

Tucker Act “impliedly forbids” the relief sought by plaintiffs;

(2) immunity is not waived because the nature of the relief

sought is not “other than money damages”; and (3) immunity

is not waived because § 702, read in conjunction with § 704,

operates to preclude review since plaintiffs have an adequate

remedy in the CFC. We will take each argument in turn.

(1) A survey of relevant case law makes it apparent that as

a general rule the Tucker Act has been held to “impliedly

forbid” claims that seek (in essence) money damages,

but not those that seek (in essence) equitable relief.

Compare Polanco v. United States Drug Enforcement

Administration (2d Cir. 1998) 158 F.3d 647, 652 (APA

waives sovereign immunity for relief that is equitable

in nature, notwithstanding the fact that the property at

issue is currency); and United States v. Vazquez (2d Cir.

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1998) 145 F.3d 74, 79 (United States has expressly

consented to suit in cases seeking declaratory and

injunctive relief); with Brazos Electric Power

Cooperative, Inc. (Fed. Cir. 1998) 144 F.3d 784, 788

(sovereign immunity not deemed waived where “a single,

uncomplicated payment of money [by the government]

would provide Brazos with an entirely adequate remedy.

No prospective relief would be required ...”); and

Kanemoto v. Reno (Fed. Cir. 1994) 41 F.3d 641 (because

“naked money judgment” would provide Kanemoto with

an adequate remedy, APA does not waive sovereign

immunity in district court).

Moreover, where significant prospective relief is

implicated, as it is on the facts at bar', the preferred forum

is in fed

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