Opinion
Civil No. 98-1843 (DWF/AJB).
December 23, 1999.
John A. Cochrane, Esq., Cochrane Bresnahan, Brian B. O'Neill, Esq., Elizabeth H. Schmiesing, Esq., Faegre Benson, and Rodney A. Wilson, Esq., Wilson Law Office, for Plaintiffs.
Jack Kaufman, Esq., United States Department of Justice, for Defendants United States Department of Energy, the Secretary of the Treasury of the United States, and the United States of America.
Timothy R. Thornton, Esq., Briggs Morgan, for Nominal Defendant Northern States Power Company.
Julia E. Anderson, Assistant Attorney General, Minnesota Attorney General's Office, for Amici Minnesota Public Utilities Commission and Minnesota Department of Public Service.
MEMORANDUM OPINION AND ORDER
Introduction
This case arises under the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C.A. § 10101, et seq. Specifically, the lawsuit focuses on a contract between Defendant United States Department of Energy ("DOE") and Nominal Defendant Northern States Power Company ("NSP"); under which DOE is obligated to dispose of NSP's spent nuclear fuel in exchange for fees paid by NSP to DOE. The Plaintiffs and putative class members are ratepayers of NSP who allege that they are entitled to damages and other equitable relief from DOE, the Secretary of the Treasury of the United States, and the United States of America (collectively, the "Federal Defendants") for DOE's breach of the contract.
The matter is currently before the Court on the Federal Defendants' Motion to Dismiss the Plaintiffs' Complaint and NSP's Motion to Dismiss the Plaintiffs' Complaint or for Summary Judgment. Due to the status of discovery, a motion for summary judgment is premature, and the motions to dismiss the Plaintiffs' Complaint will be treated as motions to dismiss. The matter is also before the Court pursuant to the Federal Defendants' Motion to Dismiss NSP's Crossclaim. NSP concedes that if the Plaintiffs' Complaint is dismissed, then NSP's Crossclaim is moot.
The Minnesota Public Utilities Commission ("MPUC") and the Minnesota Department of Public Service (collectively, the "State Agencies") filed a joint amici brief in support of the Defendants' motions to dismiss. The State Agencies request that the Court dismiss the Plaintiffs' lawsuit in deference to the MPUC's jurisdiction over the rates charged by NSP and in recognition of and deference to the ability of the State Agencies to protect ratepayers' interests.
For the reasons stated below, the Court does not have subject matter jurisdiction over the present litigation, and the Plaintiffs otherwise fail to state a claim for which relief may be granted. Therefore, the Federal Defendants' and NSP's Motions to Dismiss are granted. NSP's Crossclaim is thus moot and is dismissed also.
Background
In 1982, Congress enacted the NWPA to protect the public health and the environment from the potential risks associated with radioactive waste. 42 U.S.C.A. § 10131(a). The NWPA assigns to the federal government the responsibility to provide for the permanent disposal of spent nuclear fuel, and it directs that "the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel." 42 U.S.C. § 10131(a)(4). Northern States Power Company v. United States, 43 Fed. Cl. 374, 376 (Fed.Cl. 1999). The NWPA provides that the generators and owners of spent nuclear fuel have the responsibility to provide for and pay the costs of the interim storage of the spent nuclear fuel until the waste is accepted by DOE. 42 U.S.C.A. § 10131(a)(5).
The NWPA authorized DOE to enter into contracts with owners and generators of spent nuclear fuel, pursuant to which DOE is to accept and dispose of the spent nuclear fuel in exchange for the payment of fees from the owners and generators. 42 U.S.C.A. § 10222(a)(1). DOE regulations set forth a "Standard Contract" form to be used by DOE in entering into these contracts. 10 C.F.R. § 961.11. Under the contracts, the owners and generators are to pay statutorily imposed fees to DOE, in return for which DOE would dispose of the spent nuclear fuel, "beginning not later than January 31, 1998." 42 U.S.C.A. § 10222(a)(5)(b).
The NWPA also established the Nuclear Waste Fund ("NWF"), "composed of payments made by the generators and owners of such waste and spent fuel." 42 U.S.C.A. §§ 10131(b)(4), 10222(c). The Secretary of the Treasury is the custodian of the NWF. 42 U.S.C.A. § 10222(c). The NWPA specifies that expenditures may only be made from the NWF for administrative and operation purposes having a direct bearing upon radioactive waste disposal activities. 42 U.S.C.A. § 10222(d). The Plaintiffs allege that DOE has earned interest on the funds in the NWF from their placement in interest-bearing accounts by the United States Treasury and that NSP's payments alone have earned over $90 million in interest through 1997. (Complaint at ¶ 48.)
In June of 1983, DOE executed three virtually identical contracts with NSP (collectively, the "NSP Standard Contract") for the disposal of NSP's spent nuclear fuel, using the Standard Contract form set forth in 10 C.F.R. § 961.11. (Complaint at ¶ 12.) Article VIII of the NSP Standard Contract requires NSP, as "Purchaser," to pay DOE 1.0 mill per kWh of energy generated by nuclear means by the facility named in the contract. The 1.0 mill per kWh fee was statutorily mandated by the NWPA. 42 U.S.C.A. § 10222(a)(2). NSP funds this fee through a line item charge on its ratepayers' monthly electricity bills. (Complaint at ¶ 47.)
DOE failed to begin accepting the spent nuclear fuel by January 31, 1998, and as yet, has not begun accepting any spent nuclear fuel. (Complaint at ¶ 40.)
DOE's breach has already been judicially determined in two cases brought under the NWPA. In 1995, DOE published a Notice in the Federal Register, setting forth its conclusion that it did not have an obligation to begin accepting spent nuclear fuel for disposal beginning January 31, 1998, absent the existence of a repository or interim storage facility by that date. 60 Fed. Reg. 21793 (May 3, 1995).
The United States Court of Appeals for the District of Columbia Circuit disagreed, holding that the NWPA created an unconditional obligation in DOE, reciprocal to the utilities' obligation to pay the fees into the NWF, to start disposing of the spent nuclear fuel no later than January 31, 1998. Indiana Michigan Power Co. v. Dept of Energy, 88 F.3d 1272, 1276 (D.C. Cir. 1996). The Court of Appeals held that a determination of the appropriate remedy was premature at that time, however, as DOE had not yet defaulted upon its statutory or contractual obligations. Indiana Michigan, 88 F.3d at 1277.
Following the Indiana Michigan decision, various state regulatory agencies and utilities, including NSP, petitioned the court for a writ of mandamus requiring DOE to begin disposing of the spent nuclear fuel by the statutory and contractual deadline of January 31, 1998. While the Court of Appeals reaffirmed that DOE had a clear duty to act and the petitioners had a clear right to relief, the Court of Appeals declined to issue the broad writ of mandamus sought because the petitioners had an adequate remedy under the Standard Contracts. Northern States Power Co. v. United States Dept. of Energy, 128 F.3d 754, 759 (D.C. Cir. 1997).
On June 6, 1998, prior to the Plaintiffs' filing of this lawsuit, NSP filed a complaint in the United States Court of Federal Claims against the United States, seeking monetary relief for the United States' breach of the NSP Standard Contract.Northern States Power Co. v. United States, 98-484C (Fed.Cl.). On April 6, 1999, the Court of Federal Claims granted the United States' motion to dismiss for failure to exhaust the administrative remedies set forth in the NSP Standard Contract.Northern States Power Co. v. United States, 43 Fed. Cl. 374, 388 (1999).
On August 7, 1998, the Plaintiffs commenced the present litigation. The Plaintiffs and putative class members are utility customers, or ratepayers, of NSP. (Complaint at ¶ 14.) The Plaintiffs' Complaint is set forth as follows: Count One, Breach of Contract; Count Two, Breach of Implied Contract; Count Three, Taking, Pursuant to the Tucker Act; Count Four, Unjust Enrichment; Count Five, Fifth Amendment Taking and Due Process; and Count Six, Declaration of NSP's Interest, seeking a declaration that NSP has no title to the funds it has collected from the Plaintiffs and an injunction against further collections.
The Plaintiffs do not allege any wrongdoing by NSP and seek no monetary relief against NSP, but rather have named NSP as a "Nominal Defendant."
Discussion
A. Standard of Review
In the present matter, the Federal Defendants have moved for dismissal, while NSP has moved for dismissal or, in the alternative, for summary judgment. The Plaintiffs argue that NSP's motion is properly considered as a motion for summary judgment, due to the parties' introduction of matters outside the pleadings. The Plaintiffs further argue that consideration of a summary judgment motion would be premature, due to the status of discovery.
The Court agrees that a motion for summary judgment is premature. However, the Court finds that the matter is capable of resolution as a motion to dismiss.
The Defendants move for dismissal pursuant to both Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6).
Dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) will not be granted lightly. Wheeler v. St. Louis Southwestern Ry. Co., 90 F.3d 327, 329 (8th Cir. 1996), citingBowe v. Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992), cert. denied, 507 U.S. 992, 113 S.Ct. 1602, 123 L.Ed.2d 164 (1993). Dismissal is proper, however, where an attack on the complaint's alleged basis for subject matter jurisdiction reveals that there is no actual basis for jurisdiction. Wheeler, 90 F.3d at 329, citing Bowe, 974 F.2d at 103.
The district court has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1). Osborn v. U.S., 918 F.2d 724, 728 n. 4 (8th Cir. 1990), citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947). Consideration of matters outside the pleadings under such circumstances does not convert the proceedings to a Rule 56 summary judgment motion.Osborn, 918 F.2d at 729.
A complaint shall be dismissed for failure to state a claim under Rule 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would demonstrate an entitlement to relief. Springdale Educ. Assn. v. Springdale School Dist., 133 F.3d 649, 651 (8th Cir. 1998); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 545 (8th Cir. 1997), citing Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Dismissal is proper only when the complaint on its face reveals "some insuperable bar to relief." Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir. 1998), quoting Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
The allegations in the complaint must be treated as true and must be construed in the plaintiffs favor. Duffy, 133 F.3d at 1122. However, conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim. Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998).
In deciding a motion to dismiss under Rule 12(b)(6), the court may consider matters of public record. Sebastain v. U.S., 185 F.3d 1368, 1374 (Fed. Cir. 1999). In addition, the court may generally consider documents integral to the complaint and upon which the complaint relies, even when not attached to the complaint and produced instead by the defendant in support of a motion to dismiss. Brogren v. Pohlad, 933 F. Supp. 793, 798 (D. Minn. 1995). In the present matter, the NSP Standard Contract is referenced in the Complaint and is integral to and provides the basis of the Plaintiffs' claims. The Court may therefore consider the NSP Standard Contract and matters of public record without converting the present motions to dismiss into motions for summary judgment.
B. Sovereign Immunity and Subject Matter Jurisdiction
Under the doctrine of sovereign immunity, the United States is immune from suit unless it consents to be sued. Miller v. Tony and Susan Alamo Foundation, 134 F.3d 910, 915, (8th Cir. 1998). Waivers of the federal government's sovereign immunity must be unequivocally expressed in statutory text. Miller, 134 F.3d at 915. The United States' consent to be sued must be strictly construed in favor of the sovereign. U.S. v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992). In the absence of a waiver of sovereign immunity, the court lacks subject matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994);Miller, 916 F.3d at 915-16.
In the present matter, the Plaintiffs pursue their contract and taking claims, set forth in Counts One, Two, Three, and Five, under the Tucker Act, 28 U.S.C.A. § 1346(a)(2). The Plaintiffs seek to pursue their due process claim under Section 702 of the Administrative Procedure Act, 5 U.S.C.A. § 702. In addition, the Plaintiffs seek injunctive and declaratory relief, set forth in Count Six, under the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201-02, and the All Writs Act, 28 U.S.C.A. § 1651. The Plaintiffs have conceded to dismissal of Count Four, Unjust Enrichment. (Pl. Mem. in Opp., p. 45, n. 19.)
The Tucker Act provides that the district courts shall have jurisdiction over any "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States. . . ." 28 U.S.C.A. § 1346(a)(2). In the present matter, the Plaintiffs seek monetary damages for breach of contract, breach of implied contract, and for unlawful taking under the Fifth Amendment.
As the Tucker Act waives sovereign immunity only for claims "against the United States," the Plaintiffs' claims under the Tucker Act may not proceed against DOE or the Secretary of the Treasury of the United States.
C. Count One: Breach of Contract
The Tucker Act provides a basis for jurisdiction in the district courts for breach of contract claims under $10,000. 28 U.S.C.A. § 1346(a)(2). Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988). The Tucker Act also extends its grant of jurisdiction to claims brought by plaintiffs who are not named parties to, but rather are intended third party beneficiaries of government contracts. Carlow v. United States, 40 Fed. Cl. 773, 779 (Fed.Cl. 1998). In the present matter, the Plaintiffs claim that they are intended third party beneficiaries of the NSP Standard Contract.
1. Third Party Beneficiaries
The test for determining an intended third party beneficiary status is that the contract must reflect the express or implied intention of the parties to benefit the third party. Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir. 1997). The intended beneficiary need not be specifically or individually identified in the contract, but must fall within a class clearly intended to be benefitted thereby. Montana, 124 F.3d at 1273. The test is premised upon the decision of the United States Supreme Court, which held that "[b]efore a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement to which he is not a party, he must, at least, show that it was intended for his direct benefit. Carlow, 40 Fed. Cl. at 781, quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 35, 57 L. Ed. 195 (1912).
When construing the intended benefit pursuant to a contract based on a federal statute, the court should look to the pertinent statutes and regulations and the underlying policy behind the contracts and applicable statutes and regulations. See Busby School of Northern Cheyenne Tribe v. U.S., 8 Cl. Ct. 596, 602 (Cl.Ct. 1985) ("the plaintiffs in question may very well be able to show they were intended third-party beneficiaries of the contracts between the School Board and the BIA given the pertinent statutes and regulations and the underlying policy behind the contracts and applicable statutes and regulations").
In the present matter, not only is the NSP Standard Contract itself lacking in any mention of ratepayers such as the Plaintiffs, but the statute and regulations in question are similarly devoid of any reference to ratepayers as an intended beneficiary. Instead, the NSP Standard Contract and the NWPA, with its accompanying regulations, refer only to intended obligations and benefits between DOE and the owners and generators of spent nuclear fuel, and to an intention to benefit and protect the general public welfare and the environment.
The NWPA contains an explicit statement of its purposes. 42 U.S.C.A. § 10131(b). Included in its purposes is "a reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high-level radioactive waste and such spent nuclear fuel. . . ." 42 U.S.C.A. § 10131(b)(1) (emphasis added). The NWPA further specifies that "the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel." 42 U.S.C.A. § 10131(a)(4).
In accordance with its purposes, the NWPA authorized DOE "to enter into contracts with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel," such as NSP. 42 U.S.C.A. § 10222(a). The NWPA further authorized DOE to establish procedures for the collection and payment of fees from the generators and owners of the spent nuclear fuel. 42 U.S.C.A. § 10222(a)(4). The NWPA does not authorize DOE to contract with ratepayers such as the Plaintiffs in any capacity.
The funds at issue in the present matter, contained in the NWF, are explicitly described in the NWPA as being "composed of payments made by the generators and owners of such waste and spent fuel, that will ensure that the costs of carrying out activities relating to the disposal of such waste and spent fuel will be borne by the persons responsible for generating such waste and spent fuel." 42 U.S.C.A. §§ 10131(b)(4). The NWPA specified that the fees and funds at issue are generated from utilities such as NSP, not from ratepayers such as the Plaintiffs.
In summary, the purpose of the NWPA is explicitly set forth as an intent to benefit and protect the public welfare and the environment. The NWPA and the corresponding regulations consistently and explicitly emphasize that the NWF fees will be paid by and the full costs of disposal will be borne by the owners and generators of the spent nuclear fuel. Ratepayers, such as the Plaintiffs, are not referenced in the statute or its accompanying regulations, either in regard to the benefits or the obligations contained in the NWPA.
Similarly, the NSP Standard Contract, entered into pursuant to the NWPA, is explicitly between DOE and NSP only; the ratepayers are not referenced, either in regards to the benefits or the obligations at issue. The preamble of the NSP Standard Contract reads as follows:
Whereas, the DOE has the responsibility for the disposal of spent nuclear fuel and high-level radioactive waste of domestic origin from civilian nuclear power reactors in order to protect the public health and safety, and the environment;
. . .
Whereas, all costs associated with the preparation, transportation, and the disposal of spent nuclear fuel and high-level radioactive waste from civilian nuclear power reactors shall be borne by the owners and generators of such fuel and waste;
. . .
(NSP Standard Contract, p. 1.)
The NSP Standard Contract sets forth, in Article VIII, that NSP, as "Purchaser," is required to pay DOE a fee of 1.0 mill per kWh on electricity. The NSP Standard Contract charges fees only to NSP and to no other person or entity. In exchange for payment of the fee, Article IV sets forth that DOE will accept title to NSP's spent nuclear fuel.
Finally Section XXII of the NSP Standard Contract contains an integration clause, which states that the contract "contains the entire agreements between the parties with respect to the subject matter hereof. Any representation, promise, or condition not incorporated in this contract shall not be binding on either party. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any provision contained in this contract."
Neither the NWPA nor the NSP Standard Contract reflects the express or implied intention to benefit the ratepayers as third parties. Rather, the statute and the contract explicitly contemplate that the parties' mutual obligations were entered into so as to benefit the general public as a whole.
The Plaintiffs cite to the legislative history in an attempt to create a question as to Congress' intent to benefit the ratepayers. However, where the resolution of a question of federal law turns on a statute and the intention of Congress, the court must first look to the statutory language. Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 2200, 115 L.Ed.2d 145 (1991). The court will then look to the legislative history if the statutory language is unclear; however, if the statutory language is not unclear, there is no need to look at the legislative history. Toibb, 501 U.S. at 162, 111 S.Ct. at 2200. The Court has looked to the explicit language of the NWPA and has found no such intention to benefit the ratepayers specifically. There is consequently no need to look at legislative history so as to create an ambiguity that does not otherwise exist.
Similarly, the Plaintiffs also cite to public statements by NSP in an attempt to create a question about the parties' intent to benefit ratepayers under the NSP Standard Contract. However, a court's interpretation of a contract begins with the contract's plain language. McAbee Construction, Inc. v. United States, 97 F.3d 1431, 1435 (8th Cir. 1996). If the provisions are clear and unambiguous, they must be given their plain and ordinary meaning, and the court may not resort to extrinsic evidence to interpret them. McAbee, 97 F.3d at 1435. Extrinsic evidence will not be received to change the terms of a contract that is clear on its face. McAbee, 97 F.3d at 1435, quoting Beta Sys., Inc. v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988). The Court examined the language of the NSP Standard Contract and found no ambiguity that would require the introduction of extrinsic evidence. The Plaintiffs were not intended third party beneficiaries of the NSP Standard Contract.
As discussed above, the general rule for determining whether a plaintiff is an intended third party beneficiary is whether the contract reflects the express or implied intention of the parties to benefit the third party. Montana, 124 F.3d at 1273. However, under certain limited circumstances, the third party beneficiary test has a second prong. Schuerman v. U.S., 30 Fed. Cl. 420, 430 (Fed.Cl. 1994); Montana, 124 F.3d at 1273, n. 6. The second prong of the third party beneficiary test applies in cases in which members of the public bring suit against promisors who contract with the government to render a public service or, in other words, in cases of general government contracts benefitting the public at large. Schuerman, 30 Fed. Cl. at 430; Montana, 124 F.3d at 1273, n. 6. In such cases, the third party beneficiary test requires direct evidence in the contract that the contracting parties intended to give the third party an enforceable right to sue for compensation. Schuerman, 30 Fed. Cl. at 430; Montana, 124 F.3d at 1273, n. 6.
The second prong was rejected as per se requirement of third party beneficiary status, and currently only applies under limited circumstances. Carlow, 40 Fed. Cl. at 781; Schuerman, 30 Fed. Cl. at 430; Montana, 124 F.3d at 1273, n. 6.
In the present matter, the NSP Standard Contract is a government contract benefitting the public at large, as discussed above. Therefore, the second prong of the third party beneficiary test applies. The NSP Standard Contract must contain direct evidence that NSP and DOE intended to give the Plaintiff ratepayers an enforceable right to sue for compensation. There can be no question that the Plaintiffs fail to meet this test as a matter of law.
The Plaintiffs fail to meet either prong of the third party beneficiary test as a matter of law. Therefore, regardless of whether one or both prongs of the test are applied, the Plaintiffs are not third party beneficiaries of the NSP Standard Contract.
The Plaintiffs consequently fail to state a claim for breach of contract. In addition, because the Plaintiffs cannot sue under the NSP Standard Contract, there is no jurisdiction for breach of contract under the Tucker Act. Therefore, this Court does not have subject matter jurisdiction over the Plaintiffs' breach of contract claim and the claim must be dismissed.
2. Exhaustion of Administrative Remedies
In the alternative, the Plaintiffs' breach of contract claim must also be dismissed for failure to exhaust administrative remedies. The Plaintiffs allege that they are third party beneficiaries under the NSP Standard Contract. (Complaint at ¶ 65.) The Court has already found that the Plaintiffs' allegation is erroneous as a matter of law. However, even if the Plaintiffs were third party beneficiaries under the Standard Contract, this Court would have to dismiss their claim of breach of contract for failure to exhaust administrative remedies.
A third party beneficiary is bound by the terms of the contract and is subject to the same defenses as the original party would be. Robbins v. Prosser's Moving and Storage Co., 700 F.2d 433, 436 (8th Cir. 1983). In the present matter, Article XVI of the NSP Standard Contract provides that "any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer," whose decision shall be final and conclusive unless appealed to the DOE Board of Contract Appeals within 90 days. (NSP Standard Contract, p. 27; 10 C.F.R. § 961.11, Article XVI.)
The Court of Federal Claims cited to this language in the NSP Standard Contract in dismissing NSP's lawsuit against the United States; the Court held that NSP was required to pursue its claims through the administrative remedies established in the NSP Standard Contract. Northern States Power Co. v. United States, 43 Fed. Cl. at 382, 388. As a third party beneficiary, the Plaintiffs would be subject to the same defense in this lawsuit. Therefore, even if the Plaintiffs' claim of third party beneficiaries status under the NSP Standard Contract was not erroneous as a matter of law, their breach of contract claim would still have to be dismissed for failure to exhaust administrative remedies.
C. Count Two: Breach of Implied Contract
In Count Two, the Plaintiffs allege that they are parties to an implied contract with DOE pursuant to the 1.0 mill per kWh fee paid into the NWF. (Complaint at ¶ 67.) In their Response Brief; the Plaintiffs specified that their breach of implied contract claim is based upon an implied-in-fact contract theory, and they are not pursuing their claim based upon an implied-in-law contract theory. (Pl. Mem. in Opp., p. 45, n. 19.) However, the Plaintiffs cannot set forth an entitlement to relief as a matter of law.
First, the existence of an express contract precludes the existence of an implied contract dealing with the same subject, unless the implied contract is entirely unrelated to the express contract. Atlas Corp. v. United States, 895 F.2d 745, 754 (Fed. Cir. 1990), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22, citing ITT Fed. Support Services v. United States, 531 F.2d 522, 528, n. 12, 209 Ct. Cl. 157 (1976). In the present matter, the rights and duties in question, specifically, the payment of fees to DOE and DOE's corresponding obligation to accept spent nuclear fuel, are explicitly set forth in the NSP Standard Contract. Because the NSP Standard Contract already encompasses the subject matter of the Plaintiffs' claims, the Plaintiffs' breach of implied contract cause of action fails to state a claim as a matter of law.
In the alternative, the Plaintiffs cannot establish the elements of an implied contract as a matter of law. An implied-in-fact contract is one founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding. Lewis v. United States, 70 F.3d 597, 600 (Fed. Cir. 1995), quotingBaltimore Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 426-27, 67 L. Ed. 816 (1923). Like an express contract, an implied-in-fact contract requires: (1) mutuality of intent to contract; (2) consideration; and (3) lack of ambiguity in offer and acceptance. Lewis, 70 F.3d at 600, quoting City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990),cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019. When the United States is a party, a fourth requirement is added: the government representative whose conduct is relied upon must have actual authority to bind the government in contract. Lewis, 70 F.3d at 600, quoting City of El Centro, 922 F.2d at 820.
In the present matter, the Plaintiffs have failed to allege mutuality of intent to contract and lack of ambiguity in offer and acceptance. Rather, the Plaintiffs' Complaint, including the NSP Standard Contract, and the NWPA establish that DOE and NSP contracted with each other for NSP's payment of fees to DOE in exchange for DOE's disposal of spent nuclear fuel.
In addition, the Plaintiffs cannot as a matter of law satisfy the fourth required element of an implied-in-fact, that of actual authority by the government representative in question. The NWPA authorized DOE to contract "with any person who generates or holds title to high-level radioactive waste, or spent nuclear fuel,. . . ." 42 U.S.C.A. § 10222(a)(1). DOE thus had actual authority to enter into contracts with utilities such as NSP. The Plaintiffs cannot as a matter of law establish that DOE had actual authority to contract with ratepayers such as the Plaintiffs for the disposal of spent nuclear fuel. The Plaintiffs' inability to establish actual authority to contract by DOE serves as an insuperable bar to relief in the present matter.
Count Two, breach of implied contract, thus fails to state a claim as a matter of law. Furthermore, without the existence of an implied contract, this Court lacks subject matter jurisdiction under the Tucker Act. Count Two must consequently be dismissed.
D. Count Three and Count Five: Taking and Violation of Due Process
In Count Three, the Plaintiffs assert that "DOE's actions constitute a taking without just compensation, and therefore compensation is available under the Tucker Act,. . . ." (Complaint at ¶ 69.) However, the Tucker Act is only a jurisdictional statute; it does not create any substantive rights. Tippett v. United States, 185 F.3d 1250, 1254 (Fed. Cir. 1999), citing United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976).
In Count Five, the Plaintiffs' assert that "DOE's actions constitute a taking of plaintiffs' and putative class members' property without due process of law,. . . ." pursuant to the Fifth Amendment. (Complaint at ¶ 73.) Therefore, the Court will assume that the Plaintiffs intend to assert both a due process and a taking claim under the Fifth Amendment.
1. Taking under the Fifth Amendment
Pursuant to a taking claim under the Fifth Amendment, a plaintiff must initially show standing. Maniere v. United States, 31 Fed. Cl. 410, 420 (Fed.Cl. 1994). Standing is the constitutional requirement, imposed by the "cases or controversies" provision of Article III, that a plaintiff must allege a judicially cognizable and redressable injury in order to pursue a lawsuit, Ben Oehrleins v. Hennepin County, 115 F.3d 1372, 1378 (8th Cir. 1997).
To establish standing pursuant to a taking claim, the plaintiff must show proof of personal injury, that is, the requisite interest in the property at issue and the deprivation thereof by the United States. Maniere, 31 Fed. Cl. at 420. Accordingly, to demonstrate the requisite interest in the property at issue, the plaintiff must demonstrate ownership of the property at the time of the taking. Maniere, 31 Fed. Cl. at 420. If the plaintiff fails to establish this most basic requirement of the personal injury component of the standing analysis, a court need not progress to the other considerations of standing. Maniere, 31 Fed. Cl. at 420.
The Plaintiffs cannot demonstrate ownership of the property at issue, which are the fees that NSP paid into the NWF, and thus have no standing to pursue a taking claim. The Plaintiffs concede that they simply paid their monthly electricity bills. Revenue paid by the customers for service belongs to the company. Board of Public Utility v. New York Telephone Co. 271 U.S. 23, 31, 46 S.Ct. 363, 366, 70 L.Ed. 808 (1926). By paying bills for service, customers do not acquire any interest, legal or equitable, in the property used for their convenience or in the funds of the company. Board of Public Utility, 271 U.S. at 32, 46 S.Ct. 366. The Plaintiffs in the present matter pay a fee for utility service, including the storage and disposal of spent nuclear fuel. The Plaintiffs thus do not retain an interest in the fee after it is paid to NSP. The Plaintiffs therefore lack standing to assert a taking claim. See also Ben Oehrleins, 115 F.3d at 1379-81 (no standing for customers based upon paying the fees in question through passed-on costs).
The Plaintiffs respond in the present matter by arguing that the fees paid into the NWF are not merely passed on to customers through increased utility bills, but rather, "the Plaintiffs here actually pay the fees in question to the United States, albeit through the agency of NSP. (Pl. Mem. in Opp., p. 25 (emphasis added).) The Plaintiffs thus argue that "NSP effectively acted as DOE's agent with respect to collection of the NWF fees." (Pl. Mem. in Opp., p. 51.) The Plaintiffs argue that "NSP had apparent authority to act as DOE's agent." (Pl. Mem. in Opp., p. 51 (emphasis added).)
However, "[i]t is well established that the government is not bound by the acts of its agents beyond the scope of their actual authority." Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1432 (Fed. Cir. 1998) (emphasis added), citingFederal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). The Plaintiffs do not allege, and cannot as a matter of law establish, that NSP had actual authority to collect fees as DOE's agent.
Therefore, because the Plaintiffs cannot establish that they had the required ownership interest in the fees at the time that they were collected by DOE into the NWF, the Plaintiffs have no standing to pursue their takings claim.
In the alternative, even if the Plaintiffs had standing to pursue a taking claim based upon the NSP's payment of fees into the NWF, the Plaintiffs' taking claim would still be barred.
A compensable taking arises only if the government action in question is authorized. Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998), citing United States v. North Am. Transp. Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 64 L.Ed. 935 (1920). If the government action is unauthorized, the acts of the government's officers may be enjoinable, but they do not constitute the basis of a taking claim. Del-Rio, 146 F.3d at 1362. The principle underlying this rule is that when a government official engages in ultra vires conduct, the official will not, in any legal or constitutional sense, represent the United States, and what the official does or omits to do, without the authority of Congress, cannot create a claim against the government founded upon the Constitution.Del-rio, 146 F.3d at 1362 (emphasis added), citing Hooe v. United States, 218 U.S. 322, 31 S.Ct. 85, 54 L.Ed. 1055 (1910).
In the present matter, the NWPA authorized DOE to contract with NSP for the disposal of spent nuclear fuel in exchange for NSP's payment of fees. 42 U.S.C.A. § 10222(a)(1). DOE had no such "authority of Congress" to take any such fees from the Plaintiffs. Therefore, in the absence of the required "authority of Congress," the DOE's collection of fees from the Plaintiffs would be ultra vires, and thus could not form the basis of a taking claim.
2. Due Process
In Count Five, the Plaintiffs allege that the assessment of fees violates due process under the Fifth Amendment. (Complaint at ¶ 73.) However, the due process clause of the Constitution is not a money-mandating provision such as is required for jurisdiction to lie under the Tucker Act. Golden Pacific Bankcorp v. United States, 15 F.3d 1066, 1076 (Fed. Cir. 1994). The Plaintiffs concede that their due process claim is not cognizable under the Tucker Act. (Pl. Mem. in Opp., pp. 53-54.)
The Plaintiffs seek instead to pursue their due process claim under Section 702 of the Administrative Procedure Act ("APA"), 5 U.S.C.A. § 702, which was not pled in their Complaint. The Plaintiffs thus move the Court to allow them to amend their Complaint accordingly.
However, the Plaintiffs' due process allegation otherwise fails to state a claim for relief. The due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 789, 100 S.Ct. 2467, 2476, 65 L.Ed.2d 506 (1980). The provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. O'Bannon, 447 U.S. at 789, 100 S.Ct. at 2476. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals. O'Bannon, 447 U.S. at 789, 100 S.Ct. at 2476.
As the Court addressed earlier, the government did not directly appropriate any funds from the Plaintiffs, only from NSP. Any allegation by the Plaintiffs that DOE directly assessed fees against the Plaintiffs is erroneous as a matter of law. Therefore, the Plaintiffs' allegations fail to state a claim for violation of due process.
In addition, as the second element of a due process claim, after demonstrating that the plaintiff has a protected liberty or property interest at stake, the plaintiff must prove that the defendant deprived him or her of such an interest without due process of law. Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999). Due process requires adequate notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Marler v. Missouri State Board of Optometry, 102 F.3d 1453, 1456 (8th Cir. 1996), quoting Post v. Harper, 980 F.2d 491, 493 (8th Cir. 1992). In the present matter, the Plaintiffs have not alleged that the government deprived them of notice or an opportunity to be heard. Thus the Plaintiffs have not set forth a claim that they were deprived of due process of law under the Fifth Amendment.
Finally, it is well established that a simple breach of contract does not rise to the level of a constitutional deprivation. Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (due process claim under § 1983 and Fourteenth Amendment). In the present matter, the Plaintiffs' due process allegation is based upon DOE's breach of the NSP Standard Contract. The Plaintiffs have alleged no additional facts that would give rise to a due process claim. The Plaintiffs' allegation therefore does not state a claim for a violation of due process.
For the above reasons, the Plaintiffs' allegations are insufficient to set forth a claim either for taking or for violation of due process under the Fifth Amendment. Therefore, Count Three and Count Five must be dismissed as a matter of law.
The Plaintiffs' motion to amend the Complaint to plead their due process claim under the APA is consequently denied as moot and untimely.
3. Statute of Limitations
In the alternative, even if the Plaintiffs' taking and due process allegations stated a claim for relief; the Plaintiffs' claims would still be barred by the statute of limitations.
The NWPA contains a statute of limitations as follows:
A civil action for judicial review described under subsection (a)(1) of this section may be brought not later than the 180th day after the date of the decision or action or failure to act involved, as the case may be, except that if a party shows that he did not know of the decision or action complained of(or of the failure to act), and that a reasonable person acting under the circumstances would not have known, such party may bring a civil action not later than the 180th day after the date such party acquired actual or constructive knowledge of such decision, action, or failure to act.42 U.S.C.A. § 10139(c).
Subsection (a)(1), as referenced above, includes any civil action "challenging the constitutionality of any decision made, or action taken, under any provision of this part." 42 U.S.C.A. § 10139(a)(1)(C). In Count Three and Count Five, the Plaintiffs allege that DOE's collection of fees pursuant to the NWPA, 42 U.S.C.A. § 10222(a), constitutes a taking and a violation of due process under the Fifth Amendment, in the context of DOE's failure to fulfill its corresponding obligation to begin accepting spent nuclear fuel by January 31, 1998.
The statute also provides that the United States courts of appeals shall have original and exclusive jurisdiction over any such action. 42 U.S.C.A. § 10139(a)(1). The provision thereby provides an additional and distinct basis for the Court's conclusion that it lacks subject matter jurisdiction over the present matter.
Therefore, as the Plaintiffs seek to challenge the constitutionality of DOE's action taken under the NWPA, the Plaintiffs' claims are subject to the 180 day statute of limitations set forth above. DOE failed to fulfill its obligation to begin accepting spent nuclear fuel by January 31, 1998. (Complaint at ¶ 40.) The Plaintiffs commenced the present action on August 7, 1998, thereby filing their action after the limitations period had run.
E. Count Four: Unjust Enrichment
A claim for unjust enrichment essentially states a claim for breach of an implied-in-law contract. Nematollahi v. United States, 38 Fed. Cl. 224, 235 (Fed.Cl. 1997), citing Trauma Serv. Group. Ltd. v. United States, 33 Fed. Cl. 426, 432 (Fed.Cl. 1995), aff'd, 104 F.3d 1321 (Fed. Cir. 1997). However, jurisdiction under the Tucker Act extends only to contracts either express or implied in fact, and not to claims on contracts implied in law. Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 985, 134 L.Ed.2d 47 (1996), citing Sutton v. United States, 256 U.S. 575, 581, 41 S.Ct. 563, 565-66, 65 L.Ed. 1099 (1921).
Therefore, the Court lacks subject matter jurisdiction over the Plaintiffs' claim of unjust enrichment, and Count Four must be dismissed. The Plaintiffs conceded that they are not pursing their claim of unjust enrichment. (Pl. Mem. in Opp., p. 45, n. 19.)
F. Count Six: Declaration of Utility's Interest
In Count Six, the Plaintiffs seek a declaration that NSP has no title to the funds it has collected from the Plaintiffs and an injunction against further collections. (Complaint at ¶ 75.) The Tucker Act, however, does not confer equity jurisdiction.United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993), citing United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976). The Plaintiffs concede that the Tucker Act does not waive sovereign immunity for their claims for equitable relief (Pl. Mem. in Opp., pp. 67-68.) Instead, the Plaintiffs seek to proceed under the Declaratory Judgment Act, 28 U.S.C.A. § 2201-2202, and the All Writs Act, 28 U.S.C.A. § 1651, and seek to amend their Complaint to proceed under the APA, 5 U.S.C.A. § 702.
First, to the extent that the Plaintiffs seek a declaration that NSP has no title to the funds it collects from the Plaintiffs, the Court has already found that the Plaintiffs' allegation is erroneous as a matter of law. As previously addressed, revenue paid by the customers for service belongs to the company, and by merely paying their utility bills, customers do not acquire any interest in the funds of the company. Board of Public Utility, 271 U.S. at 32, 46 S.Ct. at 366. When the Plaintiffs in the present matter pay their fees for utility service, including a fee for the storage and disposal of spent nuclear fuel, that fee then becomes the property of NSP, and the Plaintiffs no longer retain an interest in the fee after it is paid to NSP. To the extent that the Plaintiffs seek a declaration regarding title to funds in the NWF, on the other hand, the Plaintiffs have no standing to seek such a declaration and the Court has no jurisdiction over the subject matter, as previously discussed.
Secondly, to the extent that the Plaintiffs seek an "injunction against further collections," the Plaintiffs' claim must also be dismissed as a matter of law. There are two collections at issue in the present matter. First, NSP collects the fee from the Plaintiffs; second, DOE collects the fee from NSP.
To the extent that the Plaintiffs seek an injunction against the future collection of the fee in question by NSP, that claim may not proceed. As a preliminary matter, the Plaintiffs concede that they do not allege any wrongdoing by NSP and do not seek any recovery against NSP, but have merely named NSP as a Nominal Defendant. Nevertheless, to the extent that the Plaintiffs seek an injunction against NSP, the bar to that claim is discussed in further detail below.
In addition, the Plaintiffs cannot maintain an action for an injunction against the future assessment of fees by DOE, again, for reasons previously addressed in this Order. The Declaratory Judgment Act may allow individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 71, n. 15, 98 S.Ct. 2620, 2629, n. 15, 57 L.Ed.2d 595 (1978). However, as previously addressed, the Plaintiffs cannot maintain this claim against DOE in the present matter. First, the Plaintiffs lack standing because, as previously discussed, DOE does not assess the fee in question against the Plaintiffs. DOE collects the fee in question from NSP only, pursuant to the NSP Standard Contract and the NWPA. Furthermore, as previously addressed in detail, the assessment of the fee in question does not constitute a taking under the Fifth Amendment.
Finally, the federal courts' power to exercise jurisdiction over declaratory judgment actions is discretionary. Aetna Cas. and Sur. v. Jefferson Trust and Sav., 993 F.2d 1364, 1366 (8th Cir. 1993), citing State Farm Mut. Auto. Ins. Co. v. Bonwell, 248 F.2d 862, 865 (8th Cir. 1957). The Declaratory Judgment Act was an authorization, not a command; it gave the federal courts competence to make a declaration of rights, but it did not impose a duty to do so. Public Affairs Assoc., Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582 7 L.Ed.2d 604 (1962).
A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest. Rickover, 369 U.S. at 112, 82 S.Ct. at 582. For the reasons stated above regarding the Court's jurisdiction, sovereign immunity, and the Plaintiffs' failure to otherwise state a claim, to the extent that the Court's power to exercise jurisdiction under the Declaratory Judgment Act is discretionary, the Court would otherwise decline to exercise jurisdiction in the present matter.
G. Filed Rate Doctrine and Primary Jurisdiction
In the alternative, to the extent that the Plaintiffs seek a refund or an injunction against the further collection of the fee in question by NSP, the Plaintiffs claims are barred by the filed rate doctrine and the doctrine of primary jurisdiction.
NSP is a "public utility," as defined in Minn. Stat. § 216B.02, subd. 4. Accordingly, NSP may only charge rates that have been approved by the MPUC, pursuant to Minn. Stat. §§ 216B.03 and 216B.16. A "rate" is defined as "every compensation, charge, fare, toll, tariff; rental and classification, or any of them, demanded, observed, charged, or collected by an public utility for any service and any rules, practices, or contracts affecting any such compensation, charge, fare, toll rental, tariff; or classification." Minn. Stat. § 216B.02, subd. 5.
The filed rate doctrine "has its genesis in Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251-252, 71 S.Ct. 692, 695, 95 L.Ed. 912 (1951)." Nantahala Power Light Co. v. Thornburg, 476 U.S. 953, 962, 106 S.Ct. 2349, 2354-55, 90 L.Ed.2d 943 (1986). In Montana-Dakota, the Supreme Court held that the plaintiff, who had argued that the utility's rates were fraudulent and unlawful, "can claim no rate as a legal right that is other than the filed rate, whether fixed or merely accepted by the Commission,. . . ." Montana-Dakota, 341 U.S. at 251, 71 S.Ct. at 695. Ultimately, the. Supreme Court held as follows:
We hold that the right to a reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission's orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.Montana-Dakota, 341 U.S. at 251-52, 71 S.Ct. at 695.
The Eighth Circuit applied the filed rate doctrine in 1992, inH.J. Inc. v. Northwestern Bell Telephone Co., 954 F.2d 485 (8th Cir. 1992). In an action brought by customers against a telephone company, the Eighth Circuit affirmed the district court's dismissal, holding that the claims "necessarily and plainly challenge the rates previously approved by the Commission," and were thereby barred by the filed rate doctrine. H.J. Inc, 954 F.2d at 493.
The Plaintiffs claims are similarly barred in the present action. To the extent that the Plaintiffs seek a refund of any fee paid to NSP, and/or to the extent that the Plaintiffs seek an injunction against the further collection of any fee by NSP, the Plaintiffs claims are barred by the filed rate doctrine.
In the alternative, the primary jurisdiction doctrine will bar the Plaintiffs' claims. The primary jurisdiction, doctrine is utilized to coordinate judicial and administrative decision making, Access Telecommunications v. Southwestern Bell Telephone Co., 137 F.3d 605, 608 (8th Cir. 1998). The doctrine comes into play whenever enforcement of the claim at issue requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.Atlantis Express, Inc. v. Standard Transportation Services, Inc., 955 F.2d 529, 532 (8th Cir. 1992), citing United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956). There exists no fixed formula for determining whether to apply the doctrine of primary jurisdiction. Access Telecommunications, 137 F.3d at 608. Rather, in each case the question is whether the reasons for the doctrine are present and whether applying the doctrine will aid the purposes for which the doctrine was created. Access Telecommunications, 137 F.3d at 608. These reasons include promotion of uniformity in statutory and regulatory construction and utilization of the agency's specialized knowledge. Atlantis Express, 955 F.2d at 532. Additionally, application of the doctrine is appropriate when policy considerations are at issue. Atlantis Express, 955 F.2d at 532-33.
The purposes behind the doctrine of primary jurisdiction are evident in the present matter. The matter implicates the utilization of a statutory and regulatory scheme so as to fund the permanent disposal of spent nuclear fuel. Deference to the MPUC in such a matter is appropriate.
Notwithstanding the primary jurisdiction doctrine, however, for all the reasons stated, the present matter may not proceed before this Court.
Conclusion
This lawsuit and related litigation around the nation have arisen pursuant to an unfortunate reality. Spent nuclear fuel exists and, notwithstanding DOE's obligations under the NWPA, no permanent repository has been built. However, the present lawsuit is not the appropriate remedy for the ill. The present lawsuit ignores the fact that spent nuclear fuel has already been generated by NSP, and the funds that have been collected in the NWF are required to provide for permanent disposal.
NSP is currently responsible for the interim storage of the spent nuclear fuel; DOE remains responsible for its ultimate disposal. The Plaintiffs, however, have no such responsibility. If the putative class prevailed, the Plaintiffs would disgorge the NWF, but NSP. and DOE would still be responsible for the spent nuclear fuel with no funds to provide for its disposal. A refund would therefore give rise to the need for future rate increases to finance the permanent disposal of the nuclear waste already produced, thus passing the cost on to future ratepayers.
Finally, the NSP Standard Contract pertains to the rights and obligations between NSP and DOE only. NSP pays its statutory fees into the NWF as a matter of law. The fact that NSP may fund this payment through a charge to the Plaintiffs' electricity bills neither affords this Court with jurisdiction over the present matter, nor entitles the Plaintiffs to the forms of relief they seek.
For the reasons stated, IT IS HEREBY ORDERED:
1. The Federal Defendants' Motion to Dismiss (Doc. No. 43) is GRANTED.
2. NSP's Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. No. 42) is GRANTED.
3. The Plaintiffs' Complaint is DISMISSED WITH PREJUDICE.
4. The Federal Defendants' Motion to Dismiss NSP's Crossclaim (Doc. No. 56) is GRANTED.
5. NSP's Crossclaim is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 23, 1999