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Florida Power & Light Company v. United States

August 25, 1999

FLORIDA POWER & LIGHT COMPANY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., EMPRESA NACIONAL DEL URANIO, S.A., IES UTILITIES, INC., NIAGARA MOHAWK POWER CORPORATION, PENNSYLVANIA POWER AND LIGHT COMPANY AND WISCONSIN ELECTRIC POWER COMPANY, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES, DEFENDANT-APPELLEE.



Before Michel, Clevenger, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Seven utility companies appeal the dismissal of the action they filed in the Court of Federal Claims. The dismissal order was entered on the government's motion for judgment on the pleadings. Because we conclude that the government is not entitled to judgment at this stage of the case, we reverse and remand.

I.

Nuclear power plants require an enriched form of uranium for fuel. The United States government has long provided uranium enrichment services to both domestic and foreign utility companies. Each of the plaintiff utilities in the instant suit entered into a "Utilities Services Contract" with the United States before September 1, 1992. Under those contracts, the utilities agreed to purchase a fixed percentage of their uranium needs from the United States government. Until July 1, 1993, the contracts were administered and performed through the Department of Energy (DOE).

The Energy Policy Act of 1992 amended the Atomic Energy Act of 1954, making significant changes in the government's uranium enrichment services program. The Energy Policy Act established the United States Enrichment Corporation (USEC) to undertake the uranium enrichment services previously performed by DOE. All of the existing uranium enrichment contracts, including those with the plaintiff utilities, were transferred to USEC for administration. See 42 U.S.C. § 2297c(b)(1) (1994). The transfer was effective as of July 1, 1993. See 42 U.S.C. § 2297b-14(e) (1994).

The price DOE could charge for enrichment services was constrained by statute. Section 161(v) of the Atomic Energy Act, 42 U.S.C. 2201(v) (1988), specified that "any prices established under this subsection shall be on a basis of recovery of the Government's costs over a reasonable period of time." The USEC's statutory pricing mandate is quite different. The USEC is required to "establish prices for its products, materials, and services provided to customers other than [DOE] on a basis that will allow it to attain the normal business objectives of a profitmaking corporation." 42 U.S.C. § 2297c-1(a) (1994).

In addition to creating USEC, the Energy Policy Act also created the Uranium Enrichment Decontamination and Decommissioning Fund (D&D Fund). See 42 U.S.C. § 2297(g)(a) (1994). That fund was established to pay, among other things, "[t]he costs of all decontamination and decommissioning activities of [DOE] . . . until such time as the Secretary certifies and the Congress concurs, by law, that such activities are complete." 42 U.S.C. § 2297g-2(b)(c) (1994). The D&D Fund is funded in part by a special assessment of up to $150 million collected annually from domestic utilities that purchased enrichment services from DOE between 1945 and October 23, 1992. The first annual assessment, for Fiscal Year 1993, was invoiced in September 1993.

The time period at issue in this case is the period between the enactment of the Energy Policy Act on October 24, 1992, and the date on which USEC assumed responsibility for the administration of the enrichment contracts, July 1, 1993. The utilities complain that DOE improperly included decontamination and decommissioning costs in its contract prices during that transition period, because DOE separately recovered those costs through the FY 1993 special assessment. The utilities submitted claims based on that theory to the DOE contracting officer in July 1995. The contracting officer denied the claims as of October 13, 1995, and the utilities thereafter filed suit in the Court of Federal Claims. In the trial court, the government filed a motion for judgment on the pleadings, arguing inter alia that the utilities' action was barred by res judicata and stare decisis. The trial court agreed and dismissed the action.

II.

A.

The trial court held that the doctrine of res judicata bars most of the plaintiff utilities from maintaining this action. According to the court, the claims asserted in this action arose from the same transaction as the claims asserted in the related cases of Barsebêck Kraft AB v. United States, 121 F.3d 1475 (Fed. Cir. 1997), and Centerior Service Co. v. United States, No. 95-103C (Fed. Cl. Dec. 17, 1997), and should have been asserted in those cases.

The utilities argue that this case involves a claim for damages based on conduct by DOE between October 24, 1992, and July 1, 1993, and that the claim for that period could not have been asserted in Barsebêck or Centerior, because the DOE contracting officer had not issued his final decision at the time those suits were filed. The trial court rejected that argument, concluding that because the utilities received the contracting officer's decision denying their claims before the decisions in those cases were issued, they could have amended their complaints to include the claims asserted in the case at bar.

We hold that the utilities' action is not barred by res judicata. The utilities were required to submit their claims to the appropriate contracting officer in order for jurisdiction to vest in the Court of Federal Claims. In Barsebêck and Centerior, that contracting officer was at USEC, while in this case the contracting officer was at DOE. The Court of Federal Claims could not obtain jurisdiction over the claims presented in this case until the DOE contracting officer issued his final decision, and he did not do so until after the complaints in the Barsebêck and Centerior cases were filed.

The trial court relied upon Electric Boat Co. v. United States, 81 Ct. Cl. 361 (1935), for the proposition that the utilities should have filed a supplemental complaint to include the claim decided by the DOE contracting officer after that contracting officer issued his decision. The Electric Boat case, however, was decided before the adoption of the Federal Rules of Civil Procedure, and the proposition for which it stands is contrary to modern federal practice. For example, in Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998), the Eleventh Circuit held that in light of Federal Rule of Civil Procedure 15(d), which makes supplemental pleadings optional, "the doctrine of res judicata does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim." See also Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) ("Plaintiff's failure to supplement the pleadings of his already commenced lawsuit will not result in a res judicata bar."); Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (2d Cir. 1997) (Plaintiff "was ...


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