# Petition for Writ of Certiorari — Consolidated Edison Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2235%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1054 ## Text ‘“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, v. 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. il 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: 1. a 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) iv 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: Bs 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. vi 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. sa 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 ix 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 ................. I. The Federal Circuit’s Opinion “Under-Rules” Bowen And Conflicts With Decisions Of This Court And Other Circuit Courts Of Appeals XI XX 11 13 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 xu 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 XV 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 27 xx 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 ................... l 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. 2 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”). 3 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. 4 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 5 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. 6 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), Re 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). 8 “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. 9 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 11 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). 12 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 13 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). 14 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) 15 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). 16 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 17 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”). 18 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). 19 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 20 (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 21 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). 22 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. 23 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). 24 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. 25 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). 26 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 27 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. 28 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 29 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 la 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, 2a 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. 3a 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. I. 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 4a 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 5a 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. 6a 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 7a 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. 8a 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. 9a 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. I. 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 cha [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2235%3A1. Public record. Not legal advice.