# Opposition Brief — Consolidated Edison Co. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1054

## Text

No. 01-205 OCT S33 2001

Jn the Supreme Court of the Chuted States. « |

CONSOLIDATED EDISON COMPANY OF NEW YORK,
ET AL., PETITIONERS

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

THEODORE B. OLSON
Nolicitor (x hie ral
Co1mpse / of Re cord

ROBERT D. MCCALLUM, JR.
Assistant Atto ‘ney General

BARBARA C. BIDDLE

MARK W. PENNAK
Afforneys
Departin nt of Justice
Washington, 1¢ ‘ 20580-0001

(202) 314-2217

QUESTION PRESENTED

Whether petitioners, public utility companies seeking
declaratory and injunctive relief in district court on
their contractual and constitutional challenge to the
annual Special Assessments levied pursuant to the
Energy Policy Act of 1992 (EPACT), 42 U.S.C. 2297¢ et
seq., had an adequate remedy before the Court of
Federal Claims for purposes of 5 U.S.C. 704, where
petitioners had pending in the Court of Federal Claims
actions challenging EPACT on the same substantive
grounds and seeking refunds of EPACT Special
Assessments already paid by those utilities in earlier
years.

(I)

TABLE OF CONTENTS

Page
Opinions below .......-.secssssessseesseecsneeesneensnnessnecsnessnncennenqnnaqannsnsnsessses l
Bitintt | (a 811) | er 2
Statement ......cccccccccccssssssccsecccsscssscssccssesnessnssscssnssescssensssnascssscsensrsess 2
Argument ........ccsccsessesssceseessesssnsessssssnnensscnssensensenserssencenscnncnnscnssnoss® 8
CONCHUSION ....0..ccceesceeseesesscsscesscsssssccsssssecessnsssssscssensenenscnsssassscssnseenses 22

TABLE OF AUTHORITIES
Cases:
Aetna Cas. & Sur. Co. v. United States, 71 F.3d

AT5 (2d Cir. 1995) .....cccccceereeeeersesressereressseenessnencassnessencnasanncees 11
Beacon Theatres, Inc. v. Westover, 359 U.S. 500

(1959) ....ccccccccssccecersecsssssessssesesssssssasssssssssrscsnsensassasscesasenenssasecsoees 13
Betz v. United States, 40 Fed. Cl. 286, appeal

dismissed, 155 F.3d 568 (Fed. Cir 1998) ....cccceseeeneeeeeees 18
Bowen v. Massachusetts, 487 U.S. 879 (1988)... 2,5,7

8, 9, 10
Califano v. Sanders, 430 U.S. 99 (1977) .ccccscssesesserceeseneseees g
Carolina Power & Light Co. v. United States, 48

Fed. Cl. 35 (2000), appeal pending, No. 01-5040

(Fed. Cir.) cccccsccscssssesssecsseseesssscsescenensessssasensncnsneeencanensnsanensacerecs 29
Castillo Morales v. United States, 19 Cl. Ct. 342

(1990) ........c..cccscccorccsscccssssccsscrsrsssccsossssccsssessnasscssoossnssssnssssssooses 18
Chateaugay, In re, 53 F.3d 478 (2d Cir.), cert. denied,

BIG U.S. 813 (1998) co.cccccscesscscssssceceresseecsesssssenssesenseessssnsnesneees 16
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 13
Clapp v. United States, 117 F. Supp. 576 (Ct. Cl.),

cert. denied, 348 U.S. 834 (1954) .....cccseeeeeeeeeeeenenneenenes 19
Clark v. Library of Congress, 750 F.2d 89 (D.C.

Cir. 1984) .......ccccccccccccccccessssssscccsescccssssrscsssscscccsssssssnssssssccsssssses 21
Commonwealth Edison Co. v. United States, 46

Fed. Cl. 29 (2000), appeal pending, No. 00-5069

(Fed. Cir. argued Oct. 3, 2001) ....cesssecssseeenseensenensnseseens 21

(IIT)

lV

Cases—Continued:
Consolidated Edison Co. v. United States, 54 F.
Supp.2d 364 (S.D.N.Y. 1999), appeal dismissed for
lack of jurisdiction, No. 99-6239, 2000 WL 713417

Se CR. TI TA, FD encescsstercertesinenanignenitenininninianianinns
Department of the Army v. Blue Fox, Inc., 525

EU UE TIIIIE cccesscinsh casscdln ous teeashcidiesienndlaceiia ease dimtbenenlcicbiiabdinse
Eagle-Picher Indus., Inc. v. United States, 901

08 SI I Ce BD sesinnecetdlncrteetacrsiriescione
Eastern Enters. v. Apfel, 524 U.S. 498 (1998)...
Eastport S.S. Corp. v. United States, 372 F.2d

ee ees Seals ED pisintiviaskestisohianiaaiiaetntaiatatatcntdldenaihemenate
Hanna v. Plumer, 380 U.S. 460 (1965) oo. eee
Kanemoto v. Reno, 41 F.3d 641 (Fed. Cir. 1994) .....000.....
Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) ...............
Lake Mohave Boat Owners Ass'n v. National Park

Serv., 78 F.3d 1360 (9th Cir. 1996) .............ccccccsccssssssscescsees

Maine Yankee Atomic Power Co. v. United States,

44 Fed. Cl. 372 (1999), appeal pending, No. 99-5156

RT CIPD scisseteclishecnnsselesnisthndeeitacihiesieeadicalabeiedepeiddedhuieshalinind
Mallow v. United States, 161 Ct. Cl. 446 (1963) «0.0.00...
Marshall Leasing, Inc. v. United States, 893 F.2d

1096 (9th Cir. 1990) .......... spiesiasiahiilaiaistidinaninaniapeiiantisecitnsiik
Mikohn Gaming Corp. v. Acres Gaming, Inc., 165

Fe ee Cr: Cis ID cetpctetdinircicinisgeniniiinimnninnaininitins
Montalvo v. United States, 231 Ct. Cl. 980

CIRIIEID ncenenniiissnrinnnssennnidiiensicesnanesiainlianieenstaaibnsihiasiticansatinnaliiitnanaiaitastiibine:
Murray v. United States, 817 F.2d 1580 (Fed. Cir.
IBUINED . csvtnsaseninssissctiinahianinenianlpihsincabiebaaneepnaabatioeslataiahsusenisiatianientninialans

North Star Ala. Hous. Corp. v. United States,

9 F.3d 1430 (9th Cir. 1993), cert. denied,

Re Ge aes Se CURE Aichetccaseninseknsddeieccnnnslieidiailainibaapvidietiecinde
Omaha Pub. Power Dist. v. United States, 44

Fed. Cl. 383 (1999), appeal pending, No. 99-5160

(Fed. Cir. argued Nov. 2, 2000) ...cccrccscsssscsasseseressasscssesssceesse
O'Shea v. Littleton, 414 U.S. 488 (1974) wo. eens

Page

21-22

19

20

16

V

Cases——Continued: Page
Polanco v. DEA, 158 F.3d 647 (2d Cir. 1998) .occccccccc--.. 11, 20
Randall v. United States, 95 F.3d 339 (4th Cir.

1996), cert. denied, 519 U.S. 1150 (1997) cocccccccccccccececcsce. 11
Rothe Dev. Corp. v. United States Dep't of Def.,
BOG Fak GRE Cte Cie, BI) ais saecenecscscsnessenstsdnvnssesncsseiniacscace 20)

Sacramento Mun. Util. Dist. v. United States, 44
Fed. Cl. 395 (1999), appeal pending, No. 99-5158

(Fed. Cir. argued Nov. 2, 2000) ..cceccccccccssccscssecssessecscssccesees 22
Sampson v. Murray, 415 U.S. 61 (1974) coccccccccccccsesscecessee, 13,14
Sharp v. Weinberger, 798 F.2d 1521 (D.C. Cir.

SEED sundccenuiniapiatcniatnniambadirctn ce ake ete 16
Student Loan Marketing Ass'n v. Riley, 104 F.3d 397

(D.C. Cir.), cert. denied, 522 U.S. 913 (1997) coc ccccccccccccceee. 16
United States v. Mitchell, 463 U.S. 206 (1983) oo... 18
United States v. Testan, 424 U.S. 392 (1976) cecccccccccccssosee 18
Veda, Inc. v. United States Dep't of the Air Force,

SEE: F OG SF CGC. BR) iscsi cae 11
Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d

RE COA. CEP. DON ciscnscecnincsincaasibsentientarcmmancteianal 14
Wabash Valley Power Ass’n v. Rural Electrification

Admin., 903 F.2d 445 (7th Cir. 1990) v..c.ccecccseccccssessesseeceeee 7a
Williamson County Reg'l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) ceccccccccccccececcoeees - 14-15, 16

Yankee Atomic Elec. Co. v. United States, 112
F.3d 1589 (Fed. Cir. 1997), cert. denied, 524 U.S.

951 (1998) ......... qeeinnieeehiatinensoninasen Asihdainsinanitcnhicniinibiasmianisinasidades 4

Zelman v. Gregg, 16 F.3d 445 (Ist Cir. 1994) cocccccccceccceoe. 16

Constitution, statutes and regulations:

Fai SNC siictensscdideiaphasbath bebo iene le cece ree 19
RISE js cicsitiinictins iiasdnnconenduinieiadiaiog a eae 21
RT sidibssintkciniediaaiescatieinadss Ae 14,18

Due Process Clause .0........cccccccccscsescssseseseseseceees 15, 17, 19, 21

TU CONE ioiciiaet cee ae One 15, 18

Vi

Statutes and regulations—Continued: Page

Administrative Procedure Act, 5 U.S.C. 701 et seq.:

DU ARs, Tie ctscsccetassbiinitntnteabiaidisiicaiieniadiriaeet a 9,11

BD UTA, Fe cicnisencitstbistimieabitiee ee ee, passim
Energy Policy Act of 1992, Pub. L. No. 102-486, 106

TCGE.. ETO sinceseciesinubtimnanntietestintebinipagiiaitea dias netietiaieemaceiicn ttt aes 2

§ 901, 42 U.S.C. 2297 (106 Stat. 2923) .0.........c5..cccccesceees 2

§ 901(b)(1), 42 U.S.C. 2297 e(D)D) cccccccceccccccccccessscsseees 2

§$ 901(e), 42 U.S.C. 229TD-14(@) .........cceccccscossssssssecsssssesees 2

© £O0E, SE UKs Frere etenisisincestetsinstiittetenntaieetnininaiiasens 3

© SEGA, GE UA, BRD ccsestnsccssnsinsshintansntansncemneses 2

TOE Lah, TB UE as. PE EIEED ccsnstensctieninntenindindiantnaieaniannes 19

SB UBL. Te stteertineeesstindlniteeeeee a 4

SB UK. TED scniticidticunsabiadeaiateaeiens 4

SS WARM. BES cvitintiiccnitniaia ee eee 3]

SD UBA\ EES ctusditsnimiscsiintomisbneans 4

BO Gir like Gs GEN initessnccishianeniniaMaadasliamainanie ata 3

OGTR FD censcsadastenepuitiseeridblanniadcniciihadea tbh beattitaabieeauianars 3

Miscellaneous:

BB FOE, Tams. SE BEG CIGD inccissicicnmsasssthsinisinitisiibnmseaeanmenann. 3
GD Fed, Tam, SED GIO ccescsseissisninesinttsntsanintiiaiiensaniiniaaseaie 3

Jn the Supreme Court of the United States

No. 01-205

CONSOLIDATED EDISON COMPANY OF NEW YORK,
ET AL., PETITIONERS _

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The initial December 5, 2000, opinion of the court of
appeals (Pet. App. 19a-47a) is reported at 234 F.3d 642.
The May 3, 2001, en banc order of the court of appeals
granting the petition for rehearing en banc and re-
turning the matter to the merits panel for issuance of a
revised opinion (Pet. App. 17a-18a) is reported at 247
F.3d 1386. The May 3, 2001, revised opinion of the
panel (Pet. App. la-16a) is reported at 247 F.3d 1378.
The opinion and order of the district court (Pet. App.
48a-59a) is reported at 45 F. Supp. 2d 331.

(1)

JURISDICTION

The judgment of the court of appeals was entered
May 3, 2001. The petition for a writ of certiorari was
filed August 1, 2001. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

STATEMENT

The Administrative Procedure Act (APA) provides a
cause of action to challenge agency action in federal
district court where “there is no other adequate remedy
in a court” under another statute. 5 U.S.C. 704. By its
express terms, Section 704 “does not provide additional
judicial remedies in situations where the Congress has
provided special and adequate review procedures.”
Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). This
case concerns whether Section 704 permits petitioners,
who can obtain and in fact have already sought judicial
review of their claims in the Court of Federal Claims, to
bring the same claims in an action for prospective relief
in district court under the APA.

1. In 1992, Congress enacted the Energy Policy Act
of 1992 (EPACT), Pub. L. No. 102-486, 106 Stat. 2776.
Under EPACT, the government spun off its uranium
enrichment services to a newly created corporation, the
United States Enrichment Corporation (USEC). See
Pub. Law No. 102-486, § 901, 106 Stat. 2923 (42 U.S.C.
2297). All of the enrichment contracts between the
government and the utilities were assigned to the
USEC. 42 U.S.C. 2297e(b)(1). The transfer became
effective July 1, 1993. 42 U.S.C. 2297b-14(e).

EPACT established the Uranium Decontamination
and Decommissioning Fund (the Fund), which is to be
used to meet the costs of cleaning up government en-
richment facilities. See 42 U.S.C. 2297g-2(b) (establish-
ing the Fund to pay “[t]he costs of all decontamination

ee |

3

and decommissioning activities of the Department [of
Energy] * * * until such time as the Secretary certi-
fies and the Congress concurs, by law, that such activi-
ties are complete”). The Act provides for the federal
government to absorb the lion’s share of the clean-up
costs. In particular, Congress must contribute $330
million annually, or 68% of the total cost, through an-
nual appropriations over a 15-year period, with the
amount adjusted annually to account for inflation. See
42 U.S.C. 2297¢-1.

EPACT further provides that the remaining 32% (a
figure not to exceed $2.25 billion over 15 years) would
be collected in annual installments (not to exceed $150
million per year) over the 15-year period, to be adjusted
annually for inflation, from those domestic utility com-
panies that had used government-enriched uranium in
the generation of electricity. See 42 U.S.C. 2297g-1.
The amount of the fee assessed each domestic utility
company is based on the percentage of enrichment
work units each had purchased from the Department of
Energy, relative to the total number of work units
produced by the Department of Energy over the life of
the enrichment facilities. The formula thus apportions
contributions to the Fund based on each utility’s pro-
rata consumption of uranium enriched by the federal
government. The Department of Energy calculated the
amount to be collected from each utility shortly after
EPACT was enacted and is collecting those sums an-
nually over the 15-year period. See 10 C.F.R. Pt. 766;
58 Fed. Reg. 41,164 (1993); 59 Fed. Reg. 41,956 (1994).
Once a year, each utility is invoiced for its predeter-
mined share of the assessments. See 10 C.F.R. 766.103.

2. Soon after the enactment of EPACT, petitioners
and other utility companies filed several separate suits
in the Court of Federal Claims challenging the EPACT

4

assessments on constitutional and-contractual grounds.
The plaintiffs in those suits asserted that the Court of
Federal Claims had jurisdiction to order the refund of
monies that were “illegally exacted” from them under:
EPACT and paid into the Special Assessment Fund. In
one of those suits, the Federal Circuit reached the
merits of the claims and sustained EPACT against
takings and breach of contract theories of liability. See
Yankee Atomic Elec. Co. v. United States, 112 F.3d
1569 (Fed. Cir. 1997), cert. denied, 524 U.S. 951 (1998).

After the decision in Yankee Atomic, petitioners filed
this action in federal district court in New York, relying
on the same constitutional and contractual claims they
had asserted in support of their “illegal exaction” suits
in the Court of Federal Claims. The United States
moved to transfer the district court case to the Court of
Federal Claims under 28 U.S.C. 1631. Petitioners, the
government argued, could not bring suit under the
APA because they had an “adequate remedy” in another
court within the meaning of Section 704, viz. their still-
- pending refund action in the Court of Federal Claims.
The district court denied that motion. Pet. App. 48a-
~59a. The United States filed an appeal of that denial
to the Federal Circuit, as permitted by 28 U.S.C.
1292(d)(4)(A). Pursuant to 28 U.S.C. 1292(d)(4)(B),
district court proceedings were stayed pending the
decision of the Federal Circuit.

3. In an initial decision issued December 5, 2000, a |
divided panel of the Federai Circuit affirmed. The
majority acknowledged that petitioners had initially
brought suit in the Court of Federal Claims seeking a
refund of the assessments they already had paid into
the Fund. The panel held, however, that petitioners
nonetheless could also file a separate suit in district
court, so long as they sought only declaratory or other

5

equitable relief as to prospective payments. The panel
majority acknowledged that, in so holding, it was
permitting petitioners to “forum shop[]” and thus evade
the Circuit’s earlier decision in Yankee Atomic. Pet.
App. 24a (“This district court case does warrant the
Government’s ‘forum shopping’ characterization.”). The
majority nonetheless held that the Court of Federal
Claims did not provide an “adequate remedy” to
prevent the constitutional wrongs alleged by peti-
tioners under Bowen v. Massachusetts, 487 U.S. 879
(1988), because this case “features a complex ongoing
relationship to decontaminate and decommission
nuclear facilities.” Pet. App. 30a. The majority
concluded that “[{iJn 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,” which, the court opined, “lies
beyond the powers of the Court of Federal Claims.”
[bid.

Judge Gajarsa dissented. Pet. App. 33a-47a. The
Court of Federal Claims, Judge Gajarsa reasoned, has
jurisdiction over all of petitioners’ constitutional and
contractual claims in the pending refund suits in the
Court of Federal Claims. Because petitioners had a
fully adequate remedy in the Court of Federal Claims,
he explained, suit under the APA was not authorized
by 5 U.S.C. 704. Disagreeing with the majority’s asser-
tion that the case involves a “complex ongoing relation-
ship” of the type found in Bowen, Judge Gajarsa ex-
plained that “[a] decision by the CFC [in plaintiffs’
pending suits] would effectively moot any prospective
relief that the district court could afford.” Pet. App.
41a-42a. If the Court of Federal Claims were to hold
the assessments unlawful, he noted, that decision would
have the effect of declaratory relief: The decision

6

“would be binding and it is absurd to believe that the
| Department of Energy] would continue to require the
domestic utilities to make payment of unlawful exac-
tions.” Jd. at 42a.

4. The Federal Circuit granted rehearing en banc,
vacated the December 5, 2001, panel decision, and re-
turned the case to the merits panel; the panel in turn
issued a‘unanimous “revised opinion” to “accompan|y]”
the en bane court’s order. Pet. App. 18a. The new
panel decision reversed the district court’s refusal to
transfer the case to the Court of Federal Claims, hold-
ing that the Court of Federal Claims could provide a
fully adequate remedy to adjudicate all of petitioners’
claims. As a result, the panel concluded, the district
court lacked jurisdiction under Section 704 of the APA
to adjudicate petitioners’ claims. /d. at 8a-9a.

The court of appeals distinguished this Court’s de-
cision in Bowen. Noting that the Court in Bowen had
expressed doubts as to whether the Court of Federal
Claims had jurisdiction to entertain the actions, the
court of appeals explained that “this case presents
no jurisdictional problems” because “[t]he Court of
Federal Claims has long possessed jurisdiction to con-
sider constitutional claims, such as [petitioners’] claims
about the EPACT assessments, under the ‘illegal
exaction’ doctrine.” Pet. App. 10a. Indeed, the court
noted that “the factual background and the consti-
tutional claims at issue in the current litigation overlap
with those already before the Court-of Federal Claims”
in several other lawsuits. Jd. at lla.

The court of appeals also distinguished Bowen on the
ground that it involved a complex, ongoing relationship -
between the federal government and the States under
the Medicaid program. The EPACT program, the court
observed, is unlike the Medicaid program, because “the

relationship between Con Ed and the United States
features a known and fixed series of payments over
time,” whereas the Medicaid statutory program fea-
tured “shifting populations and demographics, advan-
cing medical technologies, unforeseeable health threats,
and varying state and federal economic conditions.”
Ibid.

The court of appeals further noted that the Medicaid
controversy at issue in Bowen “typically involve[s]
state governmental activities that a district court would
be in a better position to understand and evaluate than
a single tribunal headquartered in Washington.” Pet.
App. lla (quoting Bowen, 487 U.S. at 907-908). In con-
trast, “this case does not involve a state at all” but
“relates to a contract between the utilities and the
Government, and specifically, the utilities’ financial
obligations under EPACT.” Jbid. In sum, the court
concluded, this case does not “involve ‘[mJanaging the
relationships between States and the Federal Govern-
ment that occur over time and that involve constantly
shifting balance sheets,’” and thus does not involve
“state governmental activities that a district court
would be in a better position to understand and evalu-
ate.” Ibid. (quoting Bowen, 487 U.S. at 904 n.39, 907-
908).

The court of appeals also concluded that “the pro-
cedural 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.” Pet. App. 12a. Noting that petitioners had
already alleged the same constitutional and contractual
theories of recovery in seeking refunds in illegal exac-
tion suits in the Court of Federal Claims, the court
reasoned that success on those claims for retrospective
relief would effectively provide petitioners with pro-

8

spective relief. If petitioners prevailed in those suits,
the court reasoned, “the United States could not pro-
ceed to assess further EPACT payments without again
illegally exacting funds.” Jbid. Noting that res judicata
principles “would require immediate refund” of any
such assessment, the court stated that “this court can-
not imagine that the United States would continue to
require the utility companies to pay unlawful exac-
tions.” Jbid. As a result, “[rJelief from [petitioners’]
retrospective obligations will also relieve [them] from
the same obligations prospectively.” Jbid.

Finally, the court of appeals noted that the “pro-
cedural background of this case seals the conclusion
that [petitioners have] an adequate remedy in the
Court of Federal Claims.” Pet. App. 18a. Noting that
petitioners’ district court suit had been filed only after
the adverse decision in Yankee Atomic, the court rea-
soned that petitioners had simply “artfully recast
[their] complaint to cireumvent the jurisdiction of the
Court of Federal Claims,” engaging in “blatant forum
shopping to avoid adequate remedies in an alterative
forum.” Id. at 13a, 14a. The court explained that
“lelvery legal issue that [petitioners] seek[] 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.” Jd. at 14a.

ARGUMENT

The court of appeals’ decision is correct and does not
conflict with any decision of this Court or any decision
of any other court of appeals. Further review therefore
is not warranted. |

1. Petitioners’ principal argument is that the court
of appeals’ decision is inconsistent with Bowen v.
Massachusetts, 487 U.S. 879 (1988). Pet. 11. Bowen,

aN ee en Pe nem Ta en ee Ec ee eT

9

petitioners appear to argue, stands for the broad pro-
position that complaints seeking prospective or injunc-
tive relief automatically “fall within the exclusive
domain of the district courts.” Pet. 14. That reading of
Bowen is overbroad, incorrect, and textually irreconcil-
able with 5 U.S.C. 704.

} The Administrative Procedure Act (APA) does, as a
general matter, provide a cause of action to challenge
; agency action in district court, subject to certain limits.

Jurisdiction for such suits is conferred by 28 U.S.C.
1331; and the APA, 5 U.S.C. 702, expressly waives sov-
ereign immunity from such suits to the extent they do
not seek money damages.’ See, e.g., Califano v.
Sanders, 430 U.S. 99 (1977). Section 704, however,
limits the availability of such actions by permitting
them only when “there is no other adequate remedy in
a court” under another statute. 5 U.S.C. 704. As this
Court has explained, Section 704 “does not provide
additional judicial remedies in situations where the.
Congress has provided special and adequate review
procedures.” Bowen, 487 U.S. at 903. Thus, if adequate
review may be obtained in another forum, such as the
Court of Federal Claims under the Tucker Act, Section
704 precludes litigants such as petitioners from seeking
review under the APA.

Here, the Federal Circuit concluded that a lawsuit in
the Court of Federal Claims, brought under the Tucker
. Act for a refund of money illegally exacted, would pro-
| vide petitioners with “adequate” review. Nothing in
Bowen contradicts that conclusion. To the contrary, in
Bowen, the Court specifically observed that a Tucker
Act suit in the Court of Federal Claims can “offer pre-

! Petitioners do not dispute that their district court suit was
brought against the United States under the APA.

10

cisely the sort of ‘special and adequate review pro-
cedures’ that § 704 requires to direct litigation away
from the district courts.” Bowen, 487 U.S. at 900-901
n.31; see also zd. at 904 n.39. Under the specific cireum-
stances presented in Bowen, of course, the Court ex-
pressed concern that the Court of Federal Claims might
not have had jurisdiction over the claims at issue there.
Here, in contrast, the Federal Circuit was confident
that the Court of Federal Claims had jurisdiction.

Nor can petitioners persuasively argue that, for some
fact-specific reason peculiar to this case, an action in the
Court of Federal Claims under the Tucker Act would
be inadequate. While petitioners filed this suit seeking
prospective relief in district court, they have also filed
precisely the same substantive claims in the Court of
Federal Claims, demanding retrospective relief. As the
Federal Circuit explained, if petitioners were to prevail
in the Court of Federal Claims suit, “the United States
could not proceed to assess further EPACT payments
without again illegally exacting funds.” Pet. App. 12a.
Because res judicata principles “would require immedi-
ate refund” of any such assessment, “[rJelief from [peti-
tioners’] retrospective obligations [would] also relieve
[them] from the same obligations prospectively.” bid.
Indeed, “a decision by the Court of Federal Claims [in
these cases] would effectively moot any prospective
relief that the district court could afford.” Jd. at 14a.

The various court of appeals cases that petitioners
cite are not to the contrary. Whether or not an alterna-
tive remedy is “adequate” necessarily must be exam-
ined on a case-by-case basis, and none of the decisions
cited by petitioners remotely resembles the current
case. Not one of them involved litigants that had al-
ready brought suit for retrospective relief in the Court
of Federal Claims and then—following the issuance of

ee ee

il

unfavorable Federal Circuit precedent—filed almost
identical claims in APA actions for prospective relief in
district court. Nor did any of them hold, as petitioners
suggest, that an otherwise available Tucker Act rem-
edy must automatically be considered “inadequate” for
purposes of Section 704 merely because the plaintiff, in
the APA action, requests prospective relief.”

For similar reasons, the decision below does not, as
petitioners assert, limit Bowen “to its own facts.” Pet.
16. The inquiry established by Bowen is always the

2 For example, while petitioners rely on Polanco v. DEA, 158
F.3d 647 (2d Cir. 1998), the court in Polanco found that the
plaintiffs there could not bring any action at all—for retrospective
or prospective relief—in the Court of Federal Claims under the
Tucker Act. 158 F.3d at 652 & n.3. Polanco, moreover, is
questionable authority following this Court’s decision in Depart-
ment of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999). Ad-
dressing the scope of the waiver of sovereign immunity in 5 U.S.C.
702, the Court in Polanco held that Section 702’s bar against suits
seeking “money damages” is inapplicable so long as the plaintiff
seeks “equitable relief.” 158 F.3d at 652. Blue Fox, however,
makes it clear that “the equitable nature of the” relief sought “does
not mean that [the] ultimate claim was not one for ‘money
damages.’” 525 U.S. at 262. Petitioners’ reliance on Randall v.
United States, 95 F.3d 339 (4th Cir. 1996), cert. denied, 519 U.S.
1150 (1997), is misplaced for similar reasons. There, as in Polanco
and unlike here, the plaintiff could not bring a suit for “monetary
damages on which to premise jurisdiction under the Tucker Act.”
Id. at 348. Finally, petitioners’ reliance on Veda, Inc. v. United
States Department of the Air Force, 111 F.3d 37 (6th Cir. 1997),
and Aetna Casualty & Surety Co. v. United States, 71 F.3d 475 (2d
Cir. 1995), is misplaced, because those decisions do not address
Section 704, and nowhere address the adequacy of the Tucker Act
remedy. Instead, they address only whether the actions were for
“money damages” within the meaning of 5 U.S.C. 702. On that
issue, moreover, they (like Polanco) are questionable authority
following Blue Fox.

12

same, i.e., whether the alternative remedy is “adequate”
for purposes of Section 704 of the APA. Here, the court
‘of appeals noted that the factors that had led to the
finding of inadequacy in Bowen were completely absent.
Unlike in Bowen, in this case there is no doubt as to
whether the Court of Federal Claims will assert juris-
diction. Moreover, unlike in Bowen, there is no “com-
plex, ongoing federal-state relationship”; there are no
“constantly shifting balance sheets”; and there are no
“state governmental activities.” Nor do petitioners
suggest any other factor that might render a Tucker
Act remedy inadequate.

In essence, petitioners insist that one may always
avoid the express mechanism for review provided by
the Tucker Act by asking for prospective relief that the
Court of Federal Claims cannot grant. As the court of
appeals properly recognized, there simply is no basis
for that bright-line rule, particularly where, as here, the
claimants were pursuing substantially the same claims
retrospectively under the Tucker Act at the time they
filed their APA suit. Indeed, the rule in the Federal
Circuit as well as in other circuits long has been that
“{a] party may not avoid the [Court of Federal Claims’]
jurisdiction by framing an action against the federal
government that appears to seek only equitable relief
when the party’s real effort is to obtain damages in
excess of $10,000.” Kanemoto v. Reno, 41 F.3d 641, 646
(Fed. Cir. 1994). This rule makes clear what petitioners
conveniently ignore: The courts are not bound by a
plaintiff’s allegations of the need for prospective relief.
Rather, the courts assess jurisdictional questions by
reference to the “true nature of the action.” Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994). See also
Pet. App. 13 (citing authorities from other circuits).

13

In this case, the “true nature” of petitioners’ district
court suit was to avoid the jurisdiction of the Court of
Federal Glaims (and that of the Federal Circuit), where
petitioners had initially filed suit but where other utili-
ties have been unsuccessful on the merits. Seeking to
escape the same fate, petitioners hope now to recover
the EPACT assessments already paid by obtaining a
declaration in district court, and then using that decla-
ration as res judicata and collateral estoppel in their
suits to recover past payments now pending in the
Court of Federal Claims. Petitioners’ purported need
for prospective relief is thus a fiction.

Indeed, petitioners cannot claim that the unavail-
ability of injunctive relief in the Court of Federal
Claims renders suit in that forum inadequate, because
petitioners are not entitled to equitable relief in any
court, including in district court under the APA. The
traditional rule is that equitable relief ‘s unavailable
where there is an adequate remedy at law. See, e.g.,
Sampson v. Murray, 415 U.S. 61, 88 (1974) (“The basis
of injunctive relief in the federal courts has always been
irreparable harm and inadequacy of legal remedies.”)
(quoting Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 506-507 (1959)); Mikohn Gaming Corp. v. Acres
Gaming, Inc., 165 F.3d 891, 898 (Fed. Cir. 1998) (same).”
As noted in Sampson, “[t]he possibility that adequate
compensatory or other corrective relief will be available
at a later date, in the ordinary course of litigation,

* See also City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
(“The equitable remedy is unavailable absent a showing of irre-
parable injury.”); O'Shea v. Littleton, 414 U.S. 488, 502 (1974)
(noting that “[rJespondents have failed, moreover, to establish the
basic requisites of the issuance of equitable relief in these
cireumstances—the likelihood of substantial and immediate irre-
parable injury, and the inadequacy of remedies at law’’).

14

weighs heavily against a claim of irreparable harm.”
415 U.S. at 90 (quoting Virginia Petroleum Jobbers
Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). Here,
petitioners have filed an action for such corrective,
compensatory relief in the Court of Federal Claims.
Because that suit can offer petitioners legal relief, they
have no, basis for seeking equitable relief under the
APA. Indeed, the district court in this case (in the
context of a discovery order) reached precisely that
conclusion. Petitioners could not meet the equitable
requirement of irreparable injury, the court found,
because petitioners have a fully adequate remedy at
law in the Court of Federal Claims in the form of a suit
for a refund of any assessment illegally exacted. See
Consolidated Edison Co. v. United States, 54 F. Supp.
2d 364 (S.D.N.Y. 1999), appeal dismissed for lack of
jurisdiction, No. 99-6239, 2000 WL 713417 (2d Cir. May
11, 2000). For the same reason, they lack the irrepar-
able injury necessary to obtain permanent injunctive
relief.

2. Petitioners also assert (Pet. 19-22) that the de-
cision below conflicts with Eastern Enterprises v.
Apfel, 524 U.S. 498 (1998). That contention is without
merit. As an initial matter, Eastern Enterprises did
not concern the meaning or effect of 5 U.S.C. 704. In-
stead, it concerned whether a “takings” claim under the
Fifth Amendment is premature if a Tucker Act remedy
is available. 524 U.S. at 521 (plurality opinion). As the
Court explained in Williamson County Regional Plan-
ning Commission v. Hamilton Bank, 473 U.S. 172, 193-

* Petitioners’ citation of cases regarding the availability of
judicial review, Pet. 17-18, is beside the point. The question here is
not whether review is available. It is where that review should be

had.

15

195 (1985), a claim that the government has taken
property without “just compensation” ordinarily is
premature—because no violation has yet occurred—
until available means of obtaining compensation have
been employed and compensation has been denied.
Here the question is not whether a takings claim is ripe.
It is whether the APA and Section 704 afford peti-
tioners an alternative avenue for relief in view of their
already pending actions in the Court of Federal Claims.

More fundamentally, the plurality in Eastern Enter-
prises concluded that Congress did not intend to remit
the plaintiffs in that case to a Tucker Act remedy. Dis-
tinguishing the Court’s earlier decisions, which sug-
gested that the availability of a Tucker Act remedy
renders any takings claim in federal district court
premature, the plurality concluded that “in a case such
as” Eastern Enterprises itself, “it cannot be said that
monetary relief against the Government is an available
remedy” because “[t]he payments mandated by the
Coal Act, although calculated by a Government agency,
are paid to the privately operated Combined Fund,”
and Congress did not contemplate “that the Treasury
would compensate coal operators for their liability
under the Act.” 524 U.S. at 521. Accordingly, the
plurality reasoned, in a situation involving mandated
payments by one private party to another, the “pre-
sumption of Tucker Act availability must be reversed.”
Ibid. Here, by contrast, EPACT requires domestic
utility companies to pay assessments directly to the
United States and petitioners seek a refund of pay-
ments from the United States.

Eastern Enterprises is also distinguishable because
there, unlike here, the claims were all premised on the
Due Process Clause and the Takings Clause. Here, in
contrast, petitioners also contend (in multiple counts of

16

the complaint) that the EPACT assessments violate
their contract and settlement rights with the govern-
ment. Such contract matters plainly fall within the
exclusive jurisdiction of the Court of Federal Claims.
Indeed, it is well established that the district courts
have no power under the APA to award declaratory or
equitable relief on contract claims.”

3. Petitioners contend (Pet. 23-26) that this Court
should grant review because the decision below creates
a conflict among the circuits concerning the proper

5 See, e.g., Sharp v. Weinberger, 798 F.2d 1521, 1524 (D.C. Cir.
1986) (Sealia, J.) (“We know of no case in which a court has
asserted jurisdiction either to grant a declaration that the United
States was in breach of its contractual obligations or to issue an in-
junction compelling the United States to fulfill its contractual
obligations.”); Zelman v. Gregg, 16 F.3d 445, 448 (1st Cir. 1994)
(“equitable relief cannot be obtained on contract claims against the
government”); North Star Ala. Hous. Corp. v. United States, 9
F.3d 1430 (9th Cir. 1993) (en banc) (same), cert. denied, 512 U.S.
1220 (1994); Eagle-Picher Indus., Inc. v. United States, 901 F.2d
1530, 1532 (10th Cir. 1990) (APA’s waiver of sovereign immunity
“does not extend to actions founded upon a contract with the
United States”); Wabash Valley Power Ass’n v. Rural Electrifi-
cation Admin., 903 F.2d 445, 452 (7th Cir. 1990) (effort to obtain
specific performance of promise allegedly made by an agency not
within district court’s jurisdiction). Petitioners’ claim (Pet. 21-22)
that the decision below conflicts with Jn re Chateaugay, 53 F.3d 478
(2d Cir.), cert. denied, 516 U.S. 813 (1993), and Student Loan
Marketing Ass'n v. Riley, 104 F.3d 397 (D.C. Cir.), cert. denied,
522 U.S. 913 (1997), fails for the same reasons as petitioners’ claim
of conflict with Eastern Enterprises. Both of those cases address
the ripeness of takings claims in light of Williamson County,
supra, rather then the availability of an APA action under 5 U.S.C.
704; neither involved contract claims; and neither involved litigants
that already had takings claims pending in the Court of Federal
Claims when they filed suit for declaratory relief in another forum.

17

forum for the litigation of due process claims. That
purported conflict is illusory.

In this case, the court of appeals held that peti-
tioners’ due process claims were cognizable in the Court
of Federal Claims under the “illegal exaction” doctrine.
Pet. App. 5a. Court of Federal Claims and Federal Cir-
cuit precedent hold that that doctrine permits plaintiffs
to recover under the Tucker Act monies illegally taken
by the government, even if the plaintiff cannot identify
a statute mandating the return of funds. The Court of
Federal Claims has observed:

[I]t is not every claim involving or invoking the
Constitution, a federal statute, or a regulation which
is cognizable here. The claim must, of course, be for
money. Within that sphere, the non-contractual
claims we consider under Section 1491 can be divided
into two somewhat overlapping classes—those in
which the plaintiff has paid money over to the
Government, directly or in effect, and seeks return
of all or part of that sum; and those demands in
which money has not been paid but the plaintiif
asserts that he is nevertheless entitled to a payment
from the treasury. In the first group (where money
or property has been paid or taken), the claim must
assert that the value sued for was improperly paid,
exacted, or taken from the claimant in contravention
of the Constitution, a statute, or a regulation.

Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1007 (1967).

Petitioners assert that their due process claims can-
not be asserted in the Court of Federal Claims because
the Due Process Clause is not a “money-mandating”
cause of action. Pet. 23. Petitioners correctly recognize
the general rule that the Court of Federal Claims lacks

18

jurisdiction over due process claims. That consti-
tutional provision, unlike the Just Compensation Clause
of the Fifth Amendment, does not itself mandate the
payment of money in compensation for the plaintiff's
loss. See United States v. Testan, 424 U.S. 392,
400 (1976); United States v. Mitchell, 463 U.S. 206, 216-
217 (1983) (plaintiff generally “must demonstrate” that
the “source of substantive law he relies upon can fairly
be interpreted as mandating compensation by the
Federal Government for the damage sustained”) (em-
phasis added) (internal quotaticn marks omitted). See,
e.g., Murray v. United States, 817 F.2d 1580, 1582-1583 -
(Fed. Cir. 1987); Montalvo v. United States, 231 Ct. Cl.
980, 982-983 (1982). But petitioners ignore the fact that
the Court of Federal Claims permits monetary re-
covery under the Tucker Act in the absence of a money-
mandating statute or constitutional provision if the
plaintiff can assert an “illegal exaction” claim of the sort
recognized in Easiport. Specifically, the Court of
Federal Claims permits a plaintiff to seek damages
under the Tucker Act if the “value sued for was improp-
erly paid, exacted, or taken from the claimant in contra-
vention of the Constitution, a statute, or a regulation.”
Eastport S.S. Corp., 372 F.2d at 1007; see, e.g., Castillo
Morales v. United States, 19 Cl. Ct. 342, 345 (1990); Betz
v. United States, 40 Fed. Cl. 286, appeal dismissed, 155
F.3d 568 (Fed. Cir. 1998).

Thus, following Eastport, Tucker Act jurisdiction has
been recognized if the claim arises either (1) under a
“money-mandating” statute or constitutional provision,
or (2) under a claim that the money sought by the
plaintiff has been “illegally exacted” by the government
from the plaintiff in contravention of a statute or consti-
tutional provision. See Testan, 424 U.S. at 400-402
(noting and distinguishing the illegal exaction theory of

- 19

Eastport and explaining that, in the absence of such a
claim, the jurisdiction of the Court of Federal Claims
“depends upon whether any federal statute can fairly
be interpreted as mandating compensation by the
Federal Government for the damage sustained”). In
Mallow v. United States, 161 Ct. Cl. 446 (1968), for
example, the Court of Claims held that it had juris-
diction over a suit seeking to recover an illegally
exacted fine, either as a claim founded upon an Act of
Congress, or as a ciaim founded upon the Constitution.
See also Clapp v. United States, 117 F. Supp. 576 (Ct.
Cl.) (upholding illegal exaction theory as basis for
jurisdiction), cert. denied, 348 U.S. 834 (1954). In this
case, the court of appeals merely applied that same
doctrine to hold that petitioners could bring a Tucker
Act suit to recover the sums that were allegedly
exacted from them in violation of the Due Process
Clause.

Bowing to that weight of authority, petitioners do not
question whether the Court of Federal Claims has
applied the illegal exaction theory to adjudicate statu-
tory claims. Rather, petitioners assert that such juris-
diction cannot extend to constitutional claims, such as
their due process claims. Pet. 24-25. Petitioners, how-
ever, offer no reason why the illegal exaction doctrine,
as articulated by the Federal Circuit, would be limited
to statutory claims. The text of the Tucker Act clearly
contemplates adjudication of constitutional issues. It
affords the Court of Federal Claims jurisdiction to
render judgment “upon any claim against the United
States founded either upon the Constitution[] or any
Act of Congress.” 28 U.S.C. 149i(a)(1). Petitioners
offer no reason why the illegal exaction doctrine would
apply differently for claims “founded * * * upon
* * * any Act of Congress” than it does for claims

20

“founded * * * upon the Constitution” when the
Tucker Act mentions both in the same clause.

Finally, petitioners’ contention (Pet. 23-24) that there
is a conflict in the circuits on this issue is without merit.
Most of the cases cited by petitioners simply do not
address the scope of the illegal exaction doctrine. For
example, Rothe Development Corp. v. United States
Department of Defense, 194 F.3d 622 (5th Cir. 1999)
(cited at Pet. 23), nowhere holds that a plaintiff may
bring a due process claim in district court notwith-
standing its ability to bring a Tucker Act illegal
exaction claim for precisely the same constitutional
injuries. To the contrary, in that case the court held
that it lacked jurisdiction over the appeal—and that the
appeal had to be transferred to the Federal
_Circuit—because the suit sounded in quasi-contract and
arose under the Tucker Act. Jd. at 626. Moreover, in
Rothe the plaintiff could not have brought a claim for
the return of illegally exacted money in the Court of
Federal Claims because the plaintiff there had not paid
money to the government. Instead, the suit challenged
the government’s decision to award a contract opportu-
nity to one of the plaintiff’s competitors. /d. at 623.
The remaining cases cited by petitioners are similarly
distinguishable. And certainly none holds that liti-

® Polanco v. DEA, supra (cited at Pet. 23), for example, in-
volved an allegedly defective forfeiture, and nowhere addressed
whether the piaintiff could have brought a Tucker Act suit under
an illegal exaction theory. Further, as explained above (p. 11 n.2,
supra), Polanco’s analysis of whether the APA action was barred
by sovereign immunity has been superseded by this Court’s more
recent decision in Blue Fox. Similarly, neither Marshall Leasing,
Inc. v. United States, 893 F.2d 1096, 1101 (9th Cir. 1990) (cited at
Pet. 24), nor Lake Mohave Boat Owners Ass’n v. National Park
Service, 78 F.3d 1360, 1365 (9th Cir. 1996) (cited at Pet. 23),

21

gants, such as petitioners, that have already filed due
process actions in the Court of Federal Claims—and
over which the Court of Federal Claims has exercised
jurisdiction under the illegal exaction doctrine—may
later bring the same claims in district court under the
APA.

Ultimately, the fallacy of petitioners’ argument is
most apparent from petitioners’ own actions. Notwith-
standing their assertion that substantive due process
constitutional claims cannot be brought in the Court of
Federal Claims, petitioners in fact have brought pre-
cisely such claims in that court seeking a refund of their
payments of prior EPACT assessments. Such a will-
ingness to undermine their own claims can only be ex-
plained by petitioners’ desire to escape adverse Federal
Circuit precedent, such as Yankee Atomic.’ In what

considered the illegal exaction theory, much less rejected it. And
Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984) (cited at
Pet. 24), is even further afield. In that case, the plaintiff claimed
that the government had violated his First Amendment rights -by
dismissing him; and he sought reinstatement to his former posi-
tion. Because the plaintiff had not paid any money to the govern-
ment, an illegal exaztion claim—under the First Amendment or
the Due Process Clause—was not a possibility.

* While petitioners assert (Pet. 11) that Yankee Atomic did not
directly decide the due process and takings questions presented in
their Court of Federal Claims and district court actions, Yankee
Atomic directly decided a takings claim and disposed of the con-
tract claims asserted by petitioners. Yankee Atomic thus stands
as a direct roadblock to petitioners’ lawsuit. Furthermore, the
same constitutional claims involved in this case have been rejected
on the merits by the Court of Federal Claims in five other cases
brought by other nuclear utilities, including Commonwealth
Edison and Carolina Power, both of whom are named plaintiffs in
petitioners’ district court tion. See Omaha Pub. Power Dist. v.
United States, 44 Fed. Cl. 383 (1999), appeal pending, No. 99-5160
(Fed. Cir. a¥gued Nov. 2, 2000); Maine Yankee Atomic Power Co.

22

the court of appeals properly characterized as “forum-
shopping,” Pet. App. 24a, petitioners are plainly seeking
“to circumvent the jurisdiction of the Court of Federal
Claims,” id. 13a, so as to escape adverse precedent.
That sort of forum shopping should not be countenanced
by the courts. See, e.g., Hanna v. Plumer, 380 U.S. 460,
468 (1965).

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General

ROBERT D. MCCALLUM, JR.
Assistant Attorney General

BARBARA C. BIDDLE
MARK W. PENNAK
Attorneys

NOVEMBER 2001

v. United States, 44 Fed. Cl. 372 (1999), appeal pending, No. 99-
5156 (Fed. Cir. argued Nov. 2, 2000); Sacramento Mun. Util. Dist.
v. United States, 44 Fed. Cl. 395 (1999), appeal pending, No. 99-
5158 (Fed. Cir. argued Nov. 2, 2000); Commonwealth Edison Co. v.
United States, 46 Fed. Cl. 29 (2000), appeal pending, No. 00-5069
(Fed. Cir. argued en banc Oct. 3, 2001); Carolina Power & Light
Co. v. United States, 48 Fed. Cl. 35 (2000), appeal pending, No. 01-
5040 (Fed. Cir.).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2235%3A2. Public record. Not legal advice.