14. Plaintiff maintains that the Appropriations Clause does not apply. (ECF No. 30 at 10.) Specifically, Plaintiff argues that the case of Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) is distinguishable because the funds here were already appropriated for payment by the DOL's final decision to pay the claim and James Hammond signing the EN–20 Form. (Id. at 11 n. 9 (citing Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 767 F.3d 912, 923 (9th Cir.2014) for the proposition that when funds are already appropriated, Appropriation Clause arguments are without merit).) First, the court notes that the Appropriations Clause “precludes the payment of money on a claim against the government except as authorized by statute.”
It thus cannot establish the traditional elements of estoppel. Moreover, while "the Supreme Court has never categorically foreclosed estoppel against the government ..., it has ‘reversed every finding of estoppel that [it has] reviewed.’ " Indus. Customers of Nw. Utils. v. Bonneville Power , 767 F.3d 912, 927 (9th Cir. 2014) (second alteration in original) (quoting Off. of Pers. Mgmt. v. Richmond , 496 U.S. 414, 422, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) ). And even if estoppel applies to the government, a party claiming estoppel in this context must show, in addition to the traditional elements, that "(1) the government engaged in affirmative misconduct going beyond mere negligence; (2) the government's wrongful acts will cause a serious injustice; and (3) the public's interest will not suffer undue damage by imposition of estoppel."
BPA's decision to recoup SDDs to which PacifiCorp and other customers were not entitled was not arbitrary or capricious. BPA has authority under the NWPA to set rates and to retroactively bill its customers. Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 767 F.3d 912, 929 (9th Cir. 2014). BPA considered the financial impact its decision might have on its customers, as well as BPA's own role in contributing to the billing errors that necessitated the retroactive billing.
We have previously recognized the expertise of the GAO in this area and have relied on the Red Book in interpreting appropriations bills. See, e.g. Indus. Customers of Nw. Utils. v. Bonneville Power Admin. , 767 F.3d 912, 923 (9th Cir. 2014). The majority provides no basis to rely on that expertise selectively.
To establish equitable estoppel against the government, Defendants must show not only the traditional elements of the doctrine, but also "both (1) affirmative misconduct on the part of the government and (2) that the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage." Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 767 F.3d 912, 928 (9th Cir. 2014) (internal quotation marks omitted). The evidence fails to establish either of those elements.
Assuming that equitable estoppel is available against the government in FTCA cases, "[t]he party claiming estoppel must show both (1) 'affirmative misconduct' on the part of the government and (2) that the government's wrongful act will cause a serious injustice and the public's interest will not suffer undue damage." Industrial Customers of Nw. Utils. v. Bonneville Power Admin., 767 F.3d 912, 928 (9th Cir. 2014); accord Estate of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011)("Additionally, when estoppel is sought against the government, there must be affirmative misconduct (not mere negligence) and a serious injustice outweighing the damage to the public interest of estopping the government."). Affirmative misconduct is "a deliberate lie ... or a pattern of false promises."