United States Court of Appeals for the Federal Circuit 

2007-5083 

NEBRASKA PUBLIC POWER DISTRICT, 

 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Jay E. Silberg, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, argued 

for plaintiff-appellant. With him on the brief were Alex D. Tomaszczuk, Daniel S. 

Herzfeld, and Jack Y. Chu, of McLean, Virginia. 

Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

defendant-appellee. With him on the brief were Tony West, Assistant Attorney General, 

Jeanne E. Davidson, Director, Alan J. Lo Re, Assistant Director, and Andrew P. 

Averbach and Christopher J. Carney, Trial Attorneys. Of counsel was Jane K. Taylor, 

Attorney, United States Department of Energy, of Washington, DC. 

Brad Fagg, Morgan, Lewis & Bockius LLP, of Washington, DC, for amici curiae 

Arizona Public Service Company, et al. With him on the brief were M. Stanford Blanton, 

Balch & Bingham LLP, of Birmingham, Alabama, for Southern Nuclear Operating 

Company, et al.; David A. Churchill, Jenner & Block LLP, of Washington, DC, for 

Consolidated Edison of New York, Inc.; Richard James Conway, Dickstein Shapiro LLP, 

of Washington, DC, for Boston Edison Company; Norman M. Hirsch, Jenner & Block, 

LLP, of Chicago, Illinois, for Energy Northwest; Richard W. Oehler, Perkins Coie LLP, of 

Seattle, Washington, for Wisconsin Electric Power Company; and Jerry Stouck and 

Robert Shapiro, Greenberg Traurig, LLP, of Washington, DC, for Yankee Atomic Energy 

Company, et al. 

James Bradford Ramsay, National Association of Regulatory Utility 

Commissioners, of Washington, DC, for amicus curiae The National Association of 

Regulatory Utility Commissioners. 

 

Appealed from: United States Court of Federal Claims 

Judge Francis M. Allegra
United States Court of Appeals for the Federal Circuit 

2007-5083 

NEBRASKA PUBLIC POWER DISTRICT, 

Plaintiff- Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Appeal from the United States Court of Federal Claims 

in 01-CV-116, Judge Francis M. Allegra. 

 

__________________________ 

DECIDED: January 12, 2010 

__________________________ 

Before MICHEL, Chief Judge, and NEWMAN, MAYER, LOURIE, RADER, SCHALL, 

BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges. 

Opinion for the court filed by Circuit Judge BRYSON, in which Chief Judge MICHEL and 

Circuit Judges NEWMAN, MAYER, LOURIE, RADER, SCHALL, LINN, DYK, PROST, 

and MOORE join. Concurring opinion filed by Circuit Judge DYK, in which Circuit Judge

LINN joins. Dissenting opinion filed by Circuit Judge GAJARSA. 

BRYSON, Circuit Judge. 

 This case requires us to address a difficult question involving the allocation of 

jurisdiction between regional circuit courts and the Court of Federal Claims. The 

dispute in this case centers on the interaction between a provision of the Nuclear Waste 

Policy Act (“NWPA”), 42 U.S.C. §§ 10101-10270, and a government contract with a 

utility company that operates a nuclear power facility. 
2007-5083 2 

 The NWPA authorizes the United States Department of Energy (“DOE”) to enter 

into contracts with nuclear power producers to dispose of the high-level radioactive 

waste and spent nuclear fuel produced by nuclear power plants. The statute requires 

the contracts to provide that in return for the payment of fees by the nuclear power 

producers, DOE would begin disposing of the spent nuclear fuel and high-level 

radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B). 

 DOE did not begin accepting nuclear waste in 1998. Several years later, 

Nebraska Public Power District (“NPPD”), which had entered a nuclear waste disposal 

contract with DOE, filed a breach of contract action in the Court of Federal Claims. A 

central issue in the breach of contract action was whether prior decisions of the United 

States Court of Appeals for the District of Columbia Circuit interpreting DOE’s 

obligations under the NWPA were binding on the parties in the action before the Court 

of Federal Claims. The Court of Federal Claims held that the D.C. Circuit’s rulings were 

void because the D.C. Circuit lacked jurisdiction in the prior statutory review 

proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That 

issue is now before us on interlocutory review. We hold that the D.C. Circuit had 

jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order 

issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order 

of the Court of Federal Claims and remand to that court for further proceedings. 

I 

A 

 Spent nuclear fuel and high-level radioactive waste are by-products of the 

operation of nuclear power plants. Because those substances remain dangerously 
2007-5083 3 

radioactive for many years, disposing of them requires a safe, secure, and permanent 

disposal facility. In 1983, Congress sought to fashion a comprehensive solution to the 

challenge of nuclear waste disposal by enacting the NWPA, which authorized DOE to 

construct a suitable permanent storage facility for the nuclear material and made further 

provision for the construction of interim storage facilities. 

 While Congress assigned DOE the task of constructing the permanent storage 

facility, it provided that the costs of disposal “should be the responsibility of the 

generators and owners of such waste and spent fuel.” 42 U.S.C. § 10131(a)(4). 

Accordingly, Congress authorized DOE to enter into contracts with nuclear power 

providers to dispose of their nuclear waste in return for the payment of fees. 42 U.S.C. 

§ 10222(a)(1). With respect to the contents of the contracts, section 302(a)(5) of the 

statute required the following: 

(5) Contracts entered into under this section shall provide that— 

(A) following commencement of operation of a repository, the Secretary 

shall take title to the high-level radioactive waste or spent nuclear fuel 

involved as expeditiously as practicable upon the request of the generator 

or owner of such waste or spent fuel; and 

(B) in return for the payment of fees established by this section, the 

Secretary, beginning not later than January 31, 1998, will dispose of the 

high-level radioactive waste or spent nuclear fuel involved as provided in 

this subchapter. 

42 U.S.C. § 10222(a)(5). The NWPA further provided that the Nuclear Regulatory 

Commission “shall not issue or renew a license” to any utility using a nuclear power 

facility unless the utility has entered into a contract under section 302 or is negotiating 

with the Secretary to enter into such a contract. Id. § 10222(b)(1)(A). 
2007-5083 4 

B 

 Pursuant to its statutory rulemaking authority, DOE promulgated a regulation in 

1983 containing what it termed the “Standard Contract for Disposal of Spent Nuclear 

Fuel and/or High-Level Radioactive Waste.” 48 Fed. Reg. 16,590 (Apr. 18, 1983) 

(codified at 10 C.F.R. § 961.11). In accordance with section 302(a)(5)(B) of the NWPA, 

the Standard Contract contained a provision setting January 31, 1998, as the deadline 

for DOE’s acceptance of nuclear waste. 48 Fed. Reg. at 16,600 (codified at 10 C.F.R. 

§ 961.11, Art. II). In response to questions about the remedies that would be available 

to ensure that DOE would perform its contractual obligations in a timely fashion, and in 

particular that it would meet the 1998 deadline, DOE stated, “The 1998 date is called for 

in the Act, and we believe it to be a realistic date. Our performance will be judged by 

meeting this date.” 48 Fed. Reg. at 16,598. 

 Under the mandatory nuclear waste contracts, the utilities began making 

payments to DOE, and they have continued to do so since that time. At present, the 

licensed nuclear power utilities make a total of $750 million in payments under the 

contracts each year. To date, however, DOE has not accepted any nuclear waste from 

any of the utilities. 

 By 1994, it had become clear that DOE was not going to have a permanent 

repository ready to accept nuclear waste by the statutory deadline of January 31, 1998. 

In recognition of that reality, DOE conducted a notice-and-comment proceeding to 

address the extent of DOE’s obligations under the NWPA. At the outset of that 

proceeding, DOE announced its “preliminary view” that, although it “may have created 

an expectation that it would begin accepting such spent nuclear fuel in 1998,” it had no 
2007-5083 5 

statutory or contractual obligation to accept nuclear waste beginning in 1998 if it did not 

have an operational repository or other facility constructed in accordance with the 

NWPA by that time. 59 Fed. Reg. 27,007, 27,008 (May 25, 1994). 

 After inviting and receiving comments on that issue of statutory construction, 

DOE issued what it termed its “Final Interpretation of Nuclear Waste Acceptance 

Issues,” 60 Fed. Reg. 21,793 (May 3, 1995) (“Final Interpretation”). In the Final 

Interpretation, DOE acknowledged that it would not be able to begin accepting nuclear 

waste by the January 31, 1998, deadline and in fact projected that “the earliest possible 

date for acceptance of waste for disposal at a repository is 2010.” Id. at 21,794. The 

agency took the position, however, that it did not have an unconditional obligation under 

the statute or the Standard Contract to accept nuclear waste by 1998. DOE explained 

that it interpreted the NWPA to mean that the statutory deadline did not apply if DOE did 

not have a facility available to accept nuclear waste by that date. Id. at 21,794-95. 

C 

 A number of utilities, states, and state agencies filed a petition in the D.C. Circuit 

for review of the Final Interpretation. Invoking section 119 of the NWPA, 42 U.S.C. 

§ 10139, which provides for court of appeals review of certain claims arising under the 

Act, the petitioners challenged the portion of the Final Interpretation in which DOE took 

the position that it did not have an unconditional statutory obligation to begin accepting 

nuclear waste by January 31, 1998. They argued that DOE’s legal position was 

contrary to the provision in section 302 of the NWPA that in return for the payment of 

fees, “the Secretary, beginning not later than January 31, 1998, will dispose of the high-
2007-5083 6 

level radioactive waste or spent nuclear fuel involved as provided in this subchapter.” 

42 U.S.C. § 10222(a)(5)(B). 

 The D.C. Circuit reviewed the Final Interpretation to determine whether it 

constituted a permissible interpretation of the statute by DOE. After analyzing the 

statute and the Final Interpretation, the court concluded that DOE’s interpretation was 

contrary to the statutory mandate, and the court therefore rejected DOE’s interpretation. 

Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d 1272 (D.C. Cir. 1996). 

 The court interpreted section 302 of the NWPA as imposing on DOE an 

unconditional obligation to accept nuclear waste upon the payment of fees by the 

utilities. In particular, the court explained that nothing in the statute suggested that the 

obligation to accept nuclear waste was conditioned on the commencement of repository 

operations. Under the “plain language of the statute,” the court held, the utilities 

undertook to pay fees “‘in return for [which] the Secretary’ had a commensurate duty” to 

begin disposing of the spent nuclear fuel and high-level radioactive waste by a date 

certain. 88 F.3d at 1276. While acknowledging that Congress had expected that a 

permanent facility would be available by 1998, the court ruled that even though 

Congress anticipated that a facility would be available, that “does not mean that 

Congress conditioned DOE’s obligation to begin acceptance of [nuclear waste] on the 

availability of a facility.” Id. at 1277. The court thus concluded that section 302(a)(5)(B) 

“creates an obligation in DOE, reciprocal to the utilities’ obligation to pay, to start 

disposing of [nuclear waste] no later than January 31, 1998.” Id.

 Notwithstanding the court’s ruling, DOE subsequently advised the utilities with 

which it had section 302 contracts that it would not begin accepting nuclear waste by 
2007-5083 7 

the 1998 statutory deadline. The utilities then returned to the court of appeals seeking a 

writ of mandamus to force DOE to comply with its statutory obligations as previously 

announced by the court. While that action was pending in the court of appeals, DOE 

asserted that under the “Unavoidable Delays” clause in the Standard Contract, 10 

C.F.R. § 961.11, Art. IX(A), it was not obligated to provide a financial remedy for the 

delay in accepting the nuclear waste. 

 The court of appeals denied the utilities’ request for a writ of mandamus requiring 

DOE to begin accepting nuclear waste as of the statutory deadline. N. States Power 

Co. v. U.S. Dep’t of Energy, 128 F.3d 754 (D.C. Cir. 1997). The court acknowledged 

that “DOE’s current approach toward contractual remedies is inconsistent with the 

NWPA” and with the court’s prior decision on the matter. Id. at 756. Nonetheless, the 

court held that ordering DOE to comply with its statutory obligations was unnecessary 

because the Standard Contract “provides a potentially adequate remedy if DOE fails to 

fulfill its obligations by the deadline.” Id. at 756. The court explained that the 

unconditional statutory duty to begin accepting nuclear waste as of January 31, 1998, 

left “no room for DOE to argue that it does not have a clear duty to take the [nuclear 

waste] from the owners and generators by the deadline imposed by Congress.” Id. at 

758-59. Moreover, the court held that there was no reason to believe that the expenses 

the utilities incurred in dealing with the nuclear waste that DOE failed to remove would 

not be taken into account “if the contractual processes operate as Congress intended.” 

Id. at 759. 

 Although the court of appeals declined to order DOE to begin accepting nuclear 

waste as of 1998, it entered a more limited mandamus order. Holding that the NWPA 
2007-5083 8 

“imposes an unconditional obligation” to begin accepting nuclear waste by January 31, 

1998, the court issued a writ of mandamus “precluding DOE from excusing its own 

delay on the grounds that it has not yet prepared a permanent repository or interim 

storage facility.” Northern States, 128 F.3d at 761. The court held that in light of DOE’s 

unconditional duty under the statute, the petitioners’ ability to enforce the contract 

“would be frustrated if DOE were allowed to operate under a construction of the contract 

inconsistent with our prior conclusion that the NWPA imposes an obligation on DOE 

‘without qualification or condition.’” Id. at 759. 

 In particular, the court of appeals rejected DOE’s argument that it was not 

obligated to accept nuclear waste because its failure to do so was “unavoidable” within 

the meaning of the “Unavoidable Delays” clause in Article IX of the Standard Contract. 

128 F.3d at 757. The court held that DOE’s contention that its delayed performance 

was excusable because it did not have a permanent repository, or congressional 

authority to provide storage in an interim facility, was “simply recycling the arguments 

rejected by this court in Indiana Michigan.” Id. at 759-60. The court therefore ordered 

DOE “to proceed with contractual remedies in a manner consistent with NWPA’s 

command that it undertake an unconditional obligation to begin disposal of the [nuclear 

waste] by January 31, 1998.” Id. at 760. 

 DOE petitioned for rehearing, arguing that the court’s mandamus order had 

improperly intruded upon the jurisdiction of the Court of Federal Claims with regard to 

claims arising under government contracts. In response to the rehearing petition, the 

court issued a supplemental opinion in which it clarified the scope of its order. N. States 

Power Co. v. Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C. Cir. May 5, 1998). 
2007-5083 9 

The court explained that it had barred DOE from interpreting the Standard Contract “as 

imposing only a contingent disposal obligation; such an interpretation, we ruled, would 

place the DOE in violation of its statutory duties . . . which required it to undertake an 

unconditional obligation.” Id. at *1. Beyond that clarification of the statute’s 

requirements, the court “remitted the utilities to their remedies under the Standard 

Contract.” Id. at *2. The statutory duty to include such an unconditional obligation in 

the contract, the court added, “is independent of any rights under the contract.” Id. 

DOE petitioned for a writ of certiorari, which was denied. Dep’t of Energy v. N. States 

Power Co., 525 U.S. 1016 (1998). 

D 

 In its complaint in the Court of Federal Claims, NPPD sought damages for 

breach of contract on account of DOE’s failure to accept nuclear waste as of January 

31, 1998, and thereafter. The government proposed to defend in part on the ground 

that its failure to meet the 1998 deadline was excused under the “Unavoidable Delays” 

clause of the contract. NPPD sought to bar the government from asserting that defense 

on the ground that it conflicted with the D.C. Circuit’s mandamus order. The 

government responded that the D.C. Circuit lacked jurisdiction to enter the mandamus 

order and that the order was therefore void. 

 The Court of Federal Claims agreed with the government and held that the D.C. 

Circuit lacked jurisdiction to issue the mandamus order based on the absence of an 

applicable waiver of sovereign immunity. The court therefore ruled that the order was 

void and had no effect on the litigation over the contract. The court then certified that 

order for interlocutory review by this court, and this court granted interlocutory review. 
2007-5083 10 

Following briefing and argument before a panel of this court, we granted rehearing en 

banc before judgment by the panel. We now reverse. 

II 

 The issue in this case is whether the D.C. Circuit’s decisions in Indiana Michigan

and Northern States are entitled to res judicata effect in the proceedings before the 

Court of Federal Claims. Normally, a final judgment in one court is binding on the same 

parties in a subsequent action before another court as a matter of res judicata; in such a 

setting the first judgment ordinarily cannot be collaterally challenged in the second 

proceeding, even on the ground that the first tribunal lacked subject matter jurisdiction. 

See Christopher Village, L.P. v. United States, 360 F.3d 1319, 1329-30 (Fed. Cir. 2004). 

However, we have recognized an exception to that principle if the first court acted in 

derogation of principles of sovereign immunity and its judgment was void on that 

ground. Id. at 1333. The Court of Federal Claims ruled that the D.C. Circuit’s 

mandamus order was void because it was not supported by a waiver of sovereign 

immunity. 

 The trial court based its decision on three grounds. First, the court held that 

section 119 of the NWPA, 42 U.S.C. § 10139, did not give the D.C. Circuit jurisdiction to 

review DOE’s Final Interpretation for inconsistency with section 302 of the Act. In that 

respect, the court disagreed with a series of decisions of the D.C. Circuit beginning with 

that court’s decision in General Electric Uranium Management Corp. v. United States 

Department of Energy, 764 F.2d 896 (D.C. Cir. 1985) (General Electric). 

 Second, the court held that there was no valid waiver of sovereign immunity for 

the review action undertaken and the mandamus order entered by the D.C. Circuit in 
2007-5083 11 

the Indiana Michigan and Northern States cases, respectively. The court ruled that the 

only possible source of a waiver of sovereign immunity enabling the D.C. Circuit to act 

in those cases would be section 10(a) of the Administrative Procedure Act (“APA”), 5 

U.S.C. § 702. However, the court held that section 10(a) did not waive sovereign 

immunity for the review proceedings in the D.C. Circuit because the plaintiffs did not 

satisfy the requirement in section 10(c) of the APA, 5 U.S.C. § 704, that there be “no 

other adequate remedy in a court” before an APA judicial review action can be brought. 

The court held that an action before the Court of Federal Claims for contract breach 

would provide an adequate remedy for the injury asserted by the utilities in the litigation 

before the D.C. Circuit. For that reason, the court held that the “no adequate remedy” 

requirement of section 10(c) was not satisfied, and that section 10(a) therefore did not 

effect the required waiver of sovereign immunity. Absent a waiver of sovereign 

immunity, the court held, the D.C. Circuit did not have jurisdiction over the utilities’ 

action in the Indiana Michigan case, and it did not have jurisdiction to issue the 

mandamus order that it issued in the Northern States case. 

 Third, and relatedly, the trial court held that the D.C. Circuit had improperly 

addressed contract interpretation issues that were within the exclusive jurisdiction of the 

Court of Federal Claims. The court viewed the dispute before the D.C. Circuit as 

“entirely contained within the terms of the contract” between DOE and the utilities. 

While acknowledging that the Standard Contract had to be construed in light of the 

NWPA, the court held that the effect of the NWPA on DOE’s obligations under the 

contract was a contract interpretation issue that fell outside the jurisdiction of the D.C. 

Circuit. 
2007-5083 12 

 For the reasons set out in detail below, we disagree with each of the trial court’s 

reasons for concluding that the D.C. Circuit’s mandamus order is void. First, based on 

the analysis of the D.C. Circuit in General Electric and the decision of this court in 

PSEG Nuclear, L.L.C. v. United States, 465 F.3d 1343 (Fed. Cir. 2006), we hold that 

section 119 of the NWPA authorized the D.C. Circuit to review the utilities’ statutory 

claim arising under section 302 of the Act. Second, we hold that the “no adequate 

remedy” requirement in section 10(c) of the APA does not apply to special statutory 

review provisions such as section 119 of the NWPA. Section 10(c) of the APA therefore 

did not bar the D.C. Circuit from exercising its jurisdiction to determine the scope of the 

government’s obligations under section 302 of the NWPA and to order appropriate relief 

to enforce those obligations. Finally, we hold that the D.C. Circuit’s decision construing 

section 302 of the NWPA, and its order directing the government to act in accordance 

with the utilities’ rights under that provision, did not improperly intrude on the jurisdiction 

of the Court of Federal Claims to address NPPD’s breach of contract claim. The D.C. 

Circuit’s order prohibited the government from using contract interpretation as a means 

of avoiding its statutory obligations under section 302, which the D.C. Circuit was 

authorized to do as a means of enforcing the statutory claim that was brought before it 

in the Indiana Michigan case. Beyond that implementation of its statutory ruling, the 

D.C. Circuit properly left all issues of contract breach, enforcement, and remedy to be 

determined in the litigation before the Court of Federal Claims. 

A 

 Section 119(a)(1)(A) of the NWPA, 42 U.S.C. § 10139(a)(1)(A), provides that the 

courts of appeals shall have original and exclusive jurisdiction over any civil action “for 
2007-5083 13 

review of any final decision or action of the Secretary, the President, or the [Nuclear 

Regulatory] Commission under this part.” The term “this part” refers to part A of 

subchapter I of the NWPA, which is entitled “Repositories for Disposal of High-Level 

Radioactive Waste and Spent Nuclear Fuel.” Subchapter II of the Act deals with 

research and development relating to the disposal of high-level radioactive waste and 

spent nuclear fuel. Subchapter III contains “Other Provisions Relating to Radioactive 

Waste,” including section 302(a)(5) of the Act, 42 U.S.C. § 10222(a)(5), which 

designates those provisions that must be included in nuclear waste disposal contracts 

entered into by DOE and nuclear power providers. The Court of Federal Claims held 

that the D.C. Circuit lacked jurisdiction to review the Final Interpretation because the 

challenge to the Final Interpretation arose under section 302(a)(5), which is found in 

Subchapter III of the Act, not in Part A of Subchapter I. 

 In General Electric, the D.C. Circuit rejected the argument that section 119 

applies only to actions arising from Part A of Subchapter I of the NWPA. 764 F.2d at 

901-04. The court first noted that section 119 provides for review of matters such as the 

choice, characterization, approval of, and authorization for construction of disposal 

sites, and that section 221 of the Act, 42 U.S.C. § 10201, applies the judicial review 

provisions of section 119 to Subchapter II of the Act. In light of the broad scope of the 

review provisions, the court concluded that it would be “inconceivable that Congress 

intended to have review of all actions concerning waste disposal in the court of appeals 

. . . except for questions concerning the composition of the Nuclear Waste Fund and a 

few other matters located in Subchapter III.” 764 F.2d at 901-02. 
2007-5083 14 

 The matters addressed in Subchapter III are closely related to those addressed 

in Part A of Subchapter I. Thus, section 111(b) of the NWPA, 42 U.S.C. § 10131(b), 

which is in Part A of Subchapter I, states that the purposes of Part A include 

establishing a schedule for the construction and operation of repositories, establishing 

federal responsibility for nuclear waste disposal, and creating a Nuclear Waste Fund to 

ensure that the costs of disposal are borne by the persons responsible for creating the 

nuclear waste. Section 302 fills in the details for creating and operating the Nuclear 

Waste Fund established in section 111(b). Thus, while the civil action before the D.C. 

Circuit addressed DOE’s specific responsibilities under section 302, the action could 

also be regarded as arising under section 111(b). See Natural Res. Def. Council, Inc. v. 

Abraham, 244 F.3d 742, 747 (9th Cir. 2001) (section 119 grants jurisdiction to review 

decisions “under the [NWPA] when the decision is pursuant to a part of the Act and 

relates to the purposes of the part in which the judicial review provision is placed”). 

 In addition, as the D.C. Circuit observed in General Electric, “the evolution of the 

placement of section 302 in the [NWPA] strongly suggests that its physical separation 

from the judicial review provision in section 119 is pure happenstance and in no way 

indicates a congressional intent that review under the different subchapters be 

governed by different standards.” 764 F.2d at 903. A close examination of the 

legislative history of the NWPA provides strong support for that conclusion. 

 The principal bill on which the NWPA was based, H.R. 3809 (1982), contained a 

judicial review provision similar to the enacted version of section 119. See H.R. Rep. 

No. 97-491, pt. I, at 14, 56-57 (1982) (section 119). That bill also contained a 

substantive provision corresponding to section 302 of the enacted statute. See id. at 
2007-5083 15 

15-16, 58-59 (section 124(a)(4)(B)). A second House bill, H.R. 6598 (1982), produced 

by a different committee, also had a judicial review provision corresponding to section 

119 and a substantive provision equivalent to section 302. See H.R. Rep. No. 97-785, 

pt. I, at 16-17, 18-19 (1982). Significantly, in both of those predecessor bills the section 

that became section 302 of the NWPA was located in subtitle A of Title I, thus clearly 

providing court of appeals review for issues arising under that section. When the House 

bills were reconciled on the floor of the House, the predecessor provision to section 302 

was moved to Title III of the Act, but no change was made in section 119, the judicial 

review provision. See 128 Cong. Rec. 26,305, 26,306-42 (1982). While there was no 

explanation for moving section 302 out of Title I, there was no suggestion that Congress 

intended, as part of the process of reconciling the House bills, to withdraw court of 

appeals review with respect to matters arising under section 302 that had been covered 

in both of the predecessor bills.1 The Senate adopted the House bill in substance 

without material change to sections 119 and 302. 

 Even if the statute is regarded as ambiguous as to whether section 119 places 

review of matters arising from section 302 in a court of appeals, or leaves such matters 

to district courts under the default judicial review provision of section 10(c) of the APA, 5 

U.S.C. § 704, any such ambiguity must be resolved in favor of court of appeals review. 

 

1

 The third of the three House predecessor bills, H.R. 5016 (1981), contained 

no provision equivalent to section 302, but it contained a judicial review provision that 

provided court of appeals review for all matters arising under the Act. See Nuclear 

Waste Disposal Policy, Hearings on H.R. 1993, H.R. 2881, H.R. 3809, and H.R. 5016 

Before the Subcomm. on Energy Conservation and Power of the H. Comm. on Energy 

& Commerce, 97th Cong. 2d Sess. 209-10 (1982). Accordingly, nothing in that bill 

suggests any reason that the House, in the course of reconciling the predecessor bills, 

would have intended to restrict court of appeals review of matters arising under the 

provision that ultimately became section 302. 
2007-5083 16 

When there is a question whether judicial review was meant to be in district courts or 

courts of appeals, that ambiguity is resolved in favor of court of appeals review. 

General Electric, 764 F.2d at 903; see generally Clark v. Commodity Futures Trading 

Comm’n, 170 F.3d 110, 114 (2d Cir. 1999); Tennessee v. Herrington, 806 F.2d 642, 650 

(6th Cir. 1986); Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192-93 (7th Cir. 

1986). Because review in a district court would be subject to the appellate jurisdiction of 

the court of appeals in any event, resolving jurisdictional ambiguity in favor of direct 

review in the court of appeals “avoids duplicative review and the attendant delay and 

expense involved.” General Electric, 764 F.2d at 903; see also Harrison v. PPG Indus., 

Inc., 446 U.S. 578, 593 (1980); Natural Res. Def. Council v. Abraham, 355 F.3d 179, 

193-94 (2d Cir. 2004); Ind. & Mich. Elec. Co. v. U.S. Envtl. Prot. Agency, 733 F.2d 489, 

491 (7th Cir. 1984). That is particularly true in the case of a review proceeding involving 

a pure legal issue, such as the review of DOE’s Final Interpretation for consistency with 

section 302 of the NWPA. In that context, as the General Electric court concluded, “we 

cannot assume that Congress intended both the District Court and this court to perform 

the identical review function” of reviewing DOE’s interpretation of the NWPA. 764 F.2d 

at 904. 

 In the aftermath of the General Electric decision, other circuits likewise rejected 

the argument that section 119 applies only to matters arising under Part A of 

Subchapter I of the NWPA. See Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 

1300, 1312-13 (11th Cir. 2002); County of Esmeralda v. U.S. Dep’t of Energy, 925 F.2d 
2007-5083 17 

1216, 1218-19 (9th Cir. 1991); Tennessee v. Herrington, 806 F.2d at 647-51. No circuit 

court has taken the opposite position.2

 More recently, in the PSEG case, this court agreed with General Electric and the 

other circuit decisions holding that the reviewing authority conferred by section 119 of 

the NWPA is not limited to matters arising under Part A of Subchapter I of the Act. See

465 F.3d at 1349 (“We agree with . . . the D.C. Circuit that agency actions mandated 

under [Subchapter] III which relate to the creation of repositories for spent nuclear fuel 

fall within the class of actions subject to review by the courts of appeals under section 

119.”). The court further held that the January 31, 1998, deadline for beginning nuclear 

waste collection “was clearly statutorily mandated” by section 302 of the NWPA, and it 

recognized that judicial review under section 119 of the NWPA “as to whether the DOE 

properly incorporated these obligations within its contracts may fall within the jurisdiction 

conferred to the courts of appeals in section 119.” Id. at 1350. 

 

2

 The Court of Federal Claims interpreted several circuit court decisions as 

rejecting the General Electric court’s interpretation of section 119, but we do not read 

those decisions in that manner. The Ninth Circuit in Natural Resources Defense 

Council, Inc. v. Abraham, 244 F.3d 742 (9th Cir. 2001), did not reject the analysis in 

General Electric, but held that “NWPA’s provision for judicial review is limited to 

decisions ‘under’ the part or at least under the Act when the decision is pursuant to a 

part of the Act and relates to the purposes of the part in which the judicial review 

provision is placed.” Id. at 747 (emphases in original). In both General Electric and 

Indiana Michigan, as we discussed above, the agency action at issue “relates to the 

purposes” of subchapter I, part A, of the Act. In Nevada v. Herrington, 827 F.2d 1394, 

1399-1400 (9th Cir. 1987), the court did not address whether section 119 applies to 

activities arising under section 302. Public Citizen v. Nuclear Regulatory Commission, 

845 F.2d 1105, 1106 (D.C. Cir. 1988), is inapposite. In that case, the D.C. Circuit stated 

that it was not necessary to decide whether the rationale of General Electric applied to a 

proceeding to review a claim arising under section 306 of the Act; nothing in the court’s 

opinion in that case reflects a repudiation of the court’s earlier decision in General 

Electric. 
2007-5083 18 

 The court in PSEG held that section 119 does not have the effect of transferring 

all contract breach issues to the courts of appeals. As the court explained, “issues of 

whether the DOE breached its contractual obligations, and if so, to what damages, if 

any, PSEG is entitled for the breach” did not arise under the NWPA, but were for the 

Court of Federal Claims to address. PSEG, 465 F.3d at 1350. That was because those 

issues are “not within the DOE’s statutory obligations under the NWPA.” Id. However, 

with respect to claims arising from the statutory mandates in section 302, PSEG

supports NPPD’s position that courts of appeals have jurisdiction to review such claims 

pursuant to section 119 of the Act. 

 The government makes the further argument that even if, as PSEG held, section 

119 applies to at least some issues arising under section 302, section 119 review is 

limited to actions relating to the creation of nuclear waste repositories. Because the 

government characterizes this case as involving the date for accepting nuclear waste, 

but not “the development of or date for opening a repository,” the government argues 

that section 119 does not vest judicial review jurisdiction in the courts of appeals. The 

government notes that subparagraph (A) of section 302(a)(5) refers to the 

commencement of repository operations and DOE’s responsibility to take title to nuclear 

waste, but does not refer to the date the repository operations are to begin, while 

subparagraph (B) of section 302(a)(5) identifies the date by which disposal must begin, 

but does not mention a repository. Accordingly, the government contends that even if 

issues arising under section 302(a)(5)(A) of the NWPA are subject to review in a court 

of appeals, issues arising under section 302(a)(5)(B) are subject to review, if at all, only 

in a district court under the default review provisions of the APA. 
2007-5083 19 

 The government’s argument is not based on the statutory text, the legislative 

history, or any discernible policy, but instead appears tailored simply to accommodate 

the specific holding of PSEG while still maintaining that section 119 did not provide the 

D.C. Circuit with jurisdiction to review DOE’s Final Interpretation in the Indiana Michigan

case. The divided review regime contemplated by the government’s argument would be 

exceptionally cumbersome, and it is difficult to think of any reason why Congress would 

have wanted to create such a scheme. We reject the government’s proffered distinction 

of PSEG and hold that the D.C. Circuit did not lack jurisdiction to review the consistency 

of DOE’s Final Interpretation with section 302 of the NWPA based on the purported 

inapplicability of section 119 of the Act.3

 

B 

 Apart from ruling that section 119 of the NWPA did not authorize court of appeals 

review of a claim arising under section 302, the trial court held that the D.C. Circuit 

lacked jurisdiction to review the Final Interpretation because there was no statutory 

 

3

 The government argues that the utilities’ action in the D.C. Circuit was 

barred by the 180-day statute of limitations in section 119(c), 42 U.S.C. § 10139(c), and 

that the D.C. Circuit’s order should not be given res judicata effect in the present 

proceedings for that reason as well. Setting aside whether the statute of limitations for 

a judicial review proceeding under section 119(c) is jurisdictional in nature, there is no 

merit to the government’s argument. In 1983, the utilities had no reason to believe DOE 

would interpret the Standard Contract as it did in the Final Interpretation, because at 

that time DOE assured the utilities that it regarded itself as bound by the 1998 deadline. 

In 1994, when DOE announced its preliminary view that the NWPA did not require it to 

begin accepting nuclear waste in 1998 if it did not have a facility ready at that time, the 

utilities immediately sought judicial review. However, the D.C. Circuit dismissed the 

petition for review on the ground that it was premature. N. States Power Co. v. Dep’t of 

Energy, Nos. 94-1457 & 95-1321 (D.C. Cir. July 28, 1995). Only with the promulgation 

of the Final Interpretation did DOE’s position with regard to its statutory responsibilities 

become sufficiently clear and final for judicial review. The petition was filed within 180 

days of the issuance of the Final Interpretation and was thus timely. 

 
2007-5083 20 

waiver of sovereign immunity for that review proceeding. Accordingly, the trial court 

concluded that the D.C. Circuit’s mandamus order was void on that ground as well. 

 Section 10(a) of the APA is the source typically invoked for waiver of sovereign 

immunity in a case involving judicial review of administrative action by federal agencies 

or officials. It provides, in pertinent part, that an action seeking relief other than money 

damages and stating a claim challenging an action by an agency or officer of the United 

States “shall not be dismissed nor relief therein be denied on the ground that it is 

against the United States.” 5 U.S.C. § 702. The Court of Federal Claims held that 

section 10(a) did not waive sovereign immunity with respect to the review conducted by 

the D.C. Circuit in the Indiana Michigan and Northern States cases because section 

10(c) of the APA, 5 U.S.C. § 704, requires that there be “no other adequate remedy in a 

court.” The court explained that an adequate remedy was available through an action 

for breach of contract in the Court of Federal Claims, and it was therefore improper for 

the D.C. Circuit to conduct judicial review of DOE’s Final Interpretation. See 73 Fed. Cl. 

at 672-73 (“[B]ecause an adequate remedy was and is available in this court, section 

704 precluded the D.C. Circuit in Indiana Michigan from relying on the section 702 

waiver in issuing the judgment that, in turn, led it to issue in Northern States the 

mandamus at issue.”). 

 We disagree with the trial court’s interpretation of section 10(c) of the APA. That 

statute provides, in pertinent part: “Agency action made reviewable by statute and final 

agency action for which there is no other adequate remedy in a court are subject to 

judicial review.” 5 U.S.C. § 704. The most natural reading of that sentence is that it 

relates to two categories of agency action: agency action that is made reviewable by a 
2007-5083 21 

specific review-authorizing statute, such as section 119 of the NWPA (referred to as 

“special statutory review”), and final agency action for which there is no adequate 

remedy at law (referred to as “nonstatutory review” or, sometimes, “general statutory 

review”). Under that reading, the “adequate remedy at law” proviso applies only to 

nonstatutory review and not to special statutory review, such as the review at issue in 

this case. For that reason, even if the plaintiffs would have been entitled, in a contract 

breach action in the Court of Federal Claims, to invoke section 302 of the NWPA to 

overcome DOE’s reliance on the “Unavoidable Delays” clause, the fact that they could 

have invoked section 302 in the contract breach litigation would not bar them from 

seeking relief in a statutory APA review proceeding. 

 Although the statutory language can be interpreted, with some effort, to apply the 

“adequate remedy” proviso to both statutory and nonstatutory review, the courts have 

not interpreted section 10(c) in that manner. In Abbott Laboratories v. Gardner, 387 

U.S. 136 (1967), the Supreme Court characterized section 10(c) of the APA as 

providing “specifically not only for review of ‘[a]gency action made reviewable by statute’ 

but also for review of ‘final agency action for which there is no other adequate remedy in 

a court.’” Id. at 140; see also Bowen v. Massachusetts, 487 U.S. 879, 904 (1988) 

(quoting the pertinent language in Abbott Laboratories approvingly); id. at 926 & n.4 

(Scalia, J., dissenting) (distinguishing between agency action specifically made 

reviewable by another statute and nonstatutory review in which review of final agency 

action is permitted under the APA if there is no “other adequate remedy”).4 

 

4

 The legislative history of the APA underscores the point. As originally 

enacted, the pertinent language of section 10(c) read as follows: “Every agency action 
2007-5083 22 

 This court and others have characterized section 10(c) in the same way. On 

several occasions, we have noted that the “no other adequate remedy in a court” 

formulation is associated with “nonstatutory review.” See Doe v. United States, 372 

F.3d 1308, 1312 (Fed. Cir. 2004) (stating that in a “nonstatutory review action” there 

must be “no other adequate remedy in a court”); Brazos Elec. Power Coop., Inc. v. 

United States, 144 F.3d 784, 786 (Fed. Cir. 1998) (same); Nat’l Ctr. for Mfg. Scis. v. 

United States, 114 F.3d 196, 200 (Fed. Cir. 1997) (same). Other circuits have uniformly 

characterized section 10(c) in the same fashion.5

 We concur with those 

characterizations and accord section 10(c) its natural meaning, under which the “no 

 

made reviewable by statute and every final agency action for which there is no other 

adequate remedy in any court shall be subject to judicial review.” Pub. L. No. 404, 

§ 10(c), 60 Stat. 237, 243 (1946). That formulation makes it inescapably clear that the 

“no other adequate remedy” proviso does not apply to “agency action made reviewable 

by statute.” The language of section 10(c) was changed to the present form when Title 

5 of the U.S. Code was recodified in 1966, Pub. L. No. 89-554, 80 Stat. 378, 392-93 

(1966), but the accompanying revision notes explain that no substantive change was 

intended. See 5 U.S.C. p. 766 (2006 ed.) (Historical and Revision Notes). 

 5

 See, e.g., Turner v. Sec’y of the U.S. Dep’t of Housing & Urban Dev., 449 

F.3d 536, 539 (3d Cir. 2006) (agency actions are reviewable if they are “made 

reviewable by statute” or if there was a “final agency action for which there is no other 

adequate remedy in a court”); Pennaco Energy, Inc. v. U.S. Dep’t of the Interior, 377 

F.3d 1147, 1155 (10th Cir. 2004) (agency action is subject to judicial review “when it is 

either: (1) ‘made reviewable by statute,’ or (2) a ‘final agency action for which there is no 

other adequate remedy in a court’”); Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 638 

(6th Cir. 2004) (federal courts may review two types of agency actions: “[1] Agency 

action made reviewable by statute and [2] final agency action for which there is no other 

adequate remedy in a court”); Niagara Mohawk Power Corp. v. FERC, 306 F.3d 1264, 

1268 (2d Cir. 2002) (“Niagara must show that either (1) the FERC action of which 

Niagara seeks judicial review is ‘made reviewable by statute’ or (2) ‘there is no other 

adequate remedy in a court.’”); Carter/Mondale Presidential Comm., Inc. v. Fed. 

Election Comm’n, 711 F.2d 279, 284 n.9 (D.C. Cir. 1983) (section 704 “makes judicial 

review available for two categories of agency action: ‘[a]gency action made reviewable 

by statute’ and ‘final agency action for which there is no other adequate remedy in a 

court’”). 

 
2007-5083 23 

adequate remedy” requirement does not apply to special statutory review provisions 

such as section 119. 

 Consideration of Congress’s objectives in enacting section 10(a) shows why this 

construction makes sense. Congress was, of course, aware of the pre-existing statutes 

that provided for special review of particular agency action, including review in the 

courts of appeals for actions of agencies such as the Interstate Commerce Commission, 

the National Labor Relations Board, and the Federal Trade Commission. See Bowen, 

487 U.S. at 903. It was to fill in the gaps in that patchwork of special review provisions 

that Congress created the right to general review of agency action in the district courts 

through section 10(a). Congress provided that the new default review created by 

section 10(a) would not be available if there were already an adequate remedy available 

in a court, because it “did not intend that general grant of jurisdiction to duplicate the 

previously established special statutory procedures relating to specific agencies.” Id. 

By the same token, however, Congress plainly did not intend section 10(a) to narrow 

the scope of the pre-existing special statutory review provisions, which would be the 

effect if the “no adequate remedy” requirement were deemed applicable to those 

provisions. Accordingly, we reject the rationale of the Court of Federal Claims to the 

extent that it relies on the “no other adequate remedy in a court” provision of section 

10(c) to hold that the D.C. Circuit was foreclosed from conducting the review proceeding 

in this case.6

 

6

 Because we hold that section 10(a) of the APA waives sovereign immunity 

for a judicial review action under section 119 of the NWPA, we need not decide 

whether, as NPPD argues, section 119 itself waives sovereign immunity for such an 

action. 
2007-5083 24 

 The Court of Federal Claims relied heavily on this court’s decision in Christopher 

Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004), in support of its decision. 

In that case, the Fifth Circuit directed the issuance of a declaratory judgment in favor of 

government contractors that had filed a nonstatutory APA action in district court. We 

held that the Fifth Circuit’s order was void because the contractors had an adequate 

remedy in a court of law, namely, an action in the Court of Federal Claims for breach of 

contract. Significantly, the judicial review at issue in that case was nonstatutory review, 

not review pursuant to a special statutory review provision permitting review in a 

regional court of appeals, such as section 119 of the NWPA. The court’s analysis in 

Christopher Village with respect to the “no other adequate remedy” clause of section 

10(c) of the APA is therefore inapplicable here. That is also true of another case the 

trial court cited, Consolidated Edison Co. v. United States, 247 F.3d 1378 (Fed. Cir. 

2001), which similarly relied on the “no other adequate remedy” clause in section 10(c) 

in a nonstatutory review case. Because the availability of review under section 119 of 

the NWPA obviates the need to inquire into the availability of other possible judicial 

remedies, section 10(c) of the APA is not an impediment to court of appeals review in 

this case. Accordingly, we hold that section 10(a) of the APA waived sovereign 

immunity for the judicial review of DOE’s Final Interpretation by the D.C. Circuit .7

 

7

 The government also argues that the D.C. Circuit’s mandamus order is 

barred by sovereign immunity because the judicial review action in the D.C. Circuit was 

not one “seeking relief other than money damages,” as required by section 10(a) of the 

APA. We reject that argument. In their mandamus petition in the D.C. Circuit, the 

utilities sought an order requiring DOE to accept their nuclear waste, and thus were not 

requesting money damages. The court denied the requested relief, but substituted an 

order barring DOE from acting in derogation of its statutory obligation under section 
2007-5083 25 

C 

 In addition to holding that Congress did not waive sovereign immunity for the 

D.C. Circuit’s review proceeding in Indiana Michigan, the Court of Federal Claims 

focused in particular on the mandamus order and held that the order “pretermits a key 

aspect of the contractual dispute before this court,” 73 Fed. Cl. at 662, and in so doing 

“plainly encroaches upon this court’s jurisdiction.” Id. at 663. 

 In assessing whether the D.C. Circuit’s mandamus order improperly invaded the 

jurisdiction of the Court of Federal Claims over the adjudication of contract rights, it is 

important to focus on precisely what agency action was challenged in the D.C. Circuit 

and what relief the D.C. Circuit granted. The issue before the D.C. Circuit in Indiana 

Michigan was whether section 302(a)(5)(B) of the NWPA imposed an unconditional 

obligation on DOE to accept nuclear waste by the statutory deadline. The agency 

action challenged in that case was DOE’s announcement in the Final Interpretation that 

it had no statutory obligation to accept nuclear waste by 1998 if DOE did not have an 

appropriate storage facility at that time. The D.C. Circuit rejected that argument as 

clearly contrary to the NWPA. 

 The issue before the D.C. Circuit in Northern States was what relief was 

appropriate in light of what the court characterized as DOE’s effort to circumvent the 

 

302(a)(5)(B). Neither the relief sought, nor the relief granted, was for money damages. 

The fact that the relief granted could affect subsequent contract litigation that in turn 

could result in an award of damages does not convert the mandamus order into an 

award of damages. See Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed. Cir. 1994) 

(upholding district court jurisdiction to review a regulation even though “once the 

propriety of [the agency’s] interpretation of the regulation has been adjudicated, it will 

act accordingly, and any monetary consequences will flow through the contractual 

scheme”). 
2007-5083 26 

court’s statutory ruling by arguing that the Standard Contract relieved it of the 

responsibility to accept nuclear waste if it lacked a facility for accepting the waste. The 

D.C. Circuit determined that DOE’s interpretation of the Standard Contract would allow 

DOE to treat its obligation to accept nuclear waste as a contingent obligation, in 

violation of the unconditional statutory obligation announced by the court in Indiana 

Michigan. Viewing DOE’s position as simply “recycling the arguments” that the court 

had rejected in Indiana Michigan, the court issued an order “precluding DOE from 

excusing its own delay on the grounds that it has not yet prepared a permanent 

repository or interim storage facility.” Northern States, 128 F.3d at 761. 

 The D.C. Circuit concluded that it was necessary to bar DOE from doing under 

the rubric of contract interpretation what section 302(a)(5)(B) prohibited as a matter of 

statutory compulsion. Beyond that, however, the court stated that the utilities would be 

required to seek relief for any asserted breach of contract in an action before the Court 

of Federal Claims. On rehearing, in response to DOE’s argument that the court had 

erroneously “designated itself as the proper forum for adjudication of disputes arising 

under the Standard Contract,” the D.C. Circuit stated, “[W]e did not; we merely 

prohibited the DOE from implementing an interpretation that would place it in violation of 

its duty under the NWPA to assume an unconditional obligation to begin disposal by 

January 31, 1998. The statutory duty . . . is independent of any rights under the 

contract.” N. States Power Co. v. Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C. 

Cir. May 5, 1998), at *2. The court added that its initial decision in Northern States

described “the nature of the DOE’s obligation, which was created by the NWPA and 

undertaken by the DOE under the Standard Contract. It does not place the question of 
2007-5083 27 

contract remedies in this court, nor set up this court as a source of remedies outside the 

Standard Contract.” Id. 

 A later opinion by the D.C. Circuit in a different case sheds further light on what 

that court regarded as the proper scope of its reviewing authority with respect to the 

NWPA and the Standard Contract. In Wisconsin Electric Power Co. v. United States 

Department of Energy, 211 F.3d 646 (D.C. Cir. 2000), a nuclear power producer 

petitioned for a writ of mandamus from the D.C. Circuit declaring that the Department of 

Energy must provide both monetary and non-monetary relief for having failed to begin 

disposing of the company’s nuclear waste by January 31, 1998. The court denied the 

petition. The court explained that it had held in Indiana Michigan that DOE had an 

unconditional statutory obligation to begin disposing of nuclear waste by January 31, 

1998, but that DOE had “acted to frustrate that decision by holding that its failure to 

perform was ‘unavoidable’ and therefore, under the terms of the [Standard] Contract, 

did not render the Department liable for damages of any kind.” Id. at 647. For that 

reason, the court noted, it had issued a writ of mandamus “forbidding the DOE from 

claiming, in proceedings under its contracts, that its failure to perform was ‘unavoidable’ 

because a repository was not available.” Id. The court stated that it had “expressed no 

opinion about the relief the DOE would have to provide for breach of that obligation,” 

and that “[t]he Court of Federal Claims, not this court, is the proper forum for 

adjudicating contract disputes.” Id. at 648. Thus, in Wisconsin Electric, as in Northern 

States, the D.C. Circuit characterized its authority as limited to prohibiting the 

government from acting in derogation of its statutory obligations under the NWPA. The 
2007-5083 28 

court disclaimed that its authority otherwise extended to any issue of contract 

interpretation, enforcement, or remedies. 

 The trial court in this case characterized the D.C. Circuit’s mandamus order as 

being at odds with the analysis in this court’s recent decision in PSEG Nuclear, L.L.C. v. 

United States, 465 F.3d 1343 (Fed. Cir. 2006), but we disagree. Like this case, PSEG

was a case brought by a nuclear power producer alleging a breach of contract because 

of DOE’s failure to begin accepting nuclear waste as of January 31, 1998. In PSEG, 

however, the Court of Federal Claims held that it lacked jurisdiction over the plaintiff’s 

breach of contract claim because section 119 of the NWPA gave the courts of appeals 

exclusive jurisdiction over all actions relating to the contract term requiring performance 

by January 31, 1998. On appeal, this court rejected the Court of Federal Claims’ 

conclusion that section 119 divested it of jurisdiction over the underlying breach of 

contract action. We held that section 119 gave the regional courts of appeals 

jurisdiction to decide whether the Standard Contract complied with the requirements of 

section 302, but that it did not strip the Court of Federal Claims of its Tucker Act 

jurisdiction over the breach of contract suit. 465 F.3d at 1349-50. 

 In the course of its analysis, the PSEG court distinguished between “judicial 

review as to whether the DOE properly incorporated [its statutory] obligations within its 

contracts,” an issue that the court said could fall within the jurisdiction of the courts of 

appeals under sections 119 and 302 of the NWPA, and “the performance of and any 

damages for failure to meet those obligations. 465 F.3d at 1350. The latter issues, the 

court held, “are not within the DOE’s statutory obligations under the NWPA,” but fall 

within the jurisdiction of the Court of Federal Claims. Id.
2007-5083 29 

 Because the issue in PSEG was whether the NWPA wholly stripped the Court of 

Federal Claims of its jurisdiction over PSEG’s breach of contract claim, the PSEG court 

did not find it necessary to decide “whether the courts of appeals continue to have 

jurisdiction to decide the propriety of agency actions under section 302 once the 

government includes the required language in the Standard Contract.” 465 F.3d at 

1348. That unresolved question is presented in this case. Yet, while PSEG does not 

decide that question, it provides guidance as to the proper analytical approach for 

deciding it. 

 First, the PSEG court recognized that section 119 of the NWPA authorizes court 

of appeals review of DOE actions taken under section 302. Second, the court made 

clear that the breadth of the reviewing court’s mandate under that authority depends on 

whether the agency action in question “involve[s] the agency’s authority under that 

statutory mandate,” that is “whether the DOE properly incorporated [the statutory] 

obligations within its contracts.” PSEG, 465 F.3d at 1350. Finally, the court explained 

that answering that question does not involve the reviewing court in “issues of whether 

the DOE breached its contractual obligations, and if so, to what damages, if any, PSEG 

is entitled for the breach.” Id. 

 That is the same line the D.C. Circuit drew in the Indiana Michigan, Northern 

States, and Wisconsin Electric decisions, and we reaffirm that distinction here. It was 

within the authority of the D.C. Circuit to say what section 302(a)(5) of the NWPA 

means; and, except to the extent that the D.C. Circuit’s ruling on the statutory question 

controls as a matter of res judicata, it is within the authority of the Court of Federal 

Claims to interpret, apply, and enforce the provisions of the Standard Contract. 
2007-5083 30 

 Notwithstanding the disclaimers by the D.C. Circuit, the Court of Federal Claims 

in this case concluded that the D.C. Circuit’s mandamus order was void because that 

court had exceeded its jurisdiction by “enforcing the terms of the Standard Contract,” a 

task that Congress committed to the Court of Federal Claims through the Tucker Act. 

73 Fed. Cl. at 662. The trial court viewed the D.C. Circuit’s mandamus order as 

dictating the resolution of an important dispute over contract interpretation, a dispute 

that the court regarded as “squarely within this court’s Tucker Act jurisdiction.” Id. The 

court added that “the fact that a contract is underlain by a statute or regulation does not 

turn a contract interpretation question into one involving statutory or regulatory 

construction to be controlled by the administrative law decisions of other courts.” Id. at 

664. We disagree with that analysis. 

 Section 302(a)(5)(B) of the NWPA directs that DOE’s contracts with nuclear 

power producers must provide that DOE will begin disposing of nuclear waste by 

January 31, 1998. As a matter of statutory construction, the D.C. Circuit interpreted 

DOE’s obligation to begin accepting nuclear waste in 1998 as unconditional. If DOE 

had omitted the clause required by section 302(a)(5)(B) from its contracts, it is clear that 

a court order directing the inclusion of that clause in its contracts would constitute a 

straightforward enforcement of DOE’s statutory responsibilities and would not intrude on 

the Tucker Act jurisdiction of the Court of Federal Claims. See PSEG, 465 F.3d at 

1348. 

 What the D.C. Circuit did in the Indiana Michigan and Northern States cases is 

not meaningfully different. As the D.C. Circuit viewed the matter, DOE included a 

provision in the Standard Contract pertaining to its obligation to begin accepting nuclear 
2007-5083 31 

waste by 1998, but then nullified the statutory requirement by interpreting the 

“Unavoidable Delays” clause to make that obligation conditional. DOE’s conduct, as the 

D.C. Circuit viewed it, was equivalent to having omitted the clause required by section 

302(a)(5)(B) from the Standard Contract in the first place. Once the D.C. Circuit 

construed the NWPA to require DOE to begin accepting nuclear waste by 1998, it was 

not a significant further step to conclude that Congress did not intend for DOE to avoid 

that statutory obligation by adopting a contrary interpretation of the Standard Contract. 

Thus, based on its interpretation of the NWPA, the D.C. Circuit held that the 

government’s failure to have a repository ready by January 31, 1998, could not be 

excused as unavoidable delay. 

 The government argues—with a passing endorsement from the trial court, 73 

Fed. Cl. at 672 n.30—that the D.C. Circuit’s mandamus order fell outside the waiver of 

sovereign immunity in section 10(a) of the APA because it ran afoul of the proviso in 

that section barring review “if any other statute that grants consent to suit expressly or 

impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Citing Sharp v. 

Weinberger, 798 F.2d 1521 (D.C. Cir. 1986), the government contends that the D.C. 

Circuit’s order was impliedly forbidden by the Tucker Act. 

Sharp and the other cases on which the government relies stand for the 

proposition that “[t]he sole remedy for an alleged breach of contract by the federal 

government is a claim for money damages, either in the United States Claims Court 

under the Tucker Act or, if damages of no more than $10,000 are sought, in the district 

court under the Little Tucker Act.” Sharp, 798 F.2d at 1523 (citations omitted). But the 

cases cited by the government involve actions for relief based on rights conferred by a 
2007-5083 32 

contract. In Sharp, for example, the plaintiff sought “a declaration that he had a valid 

contract with appellees and an injunction requiring appellees to perform that contract.” 

Id. 

 The D.C. Circuit subsequently explained that a case is not a “contract case” that 

is subject to the “impliedly forbids” limitation in section 10(a) simply because it involves 

contractual issues. Instead, the question whether the Tucker Act impliedly forbids a 

district court from acting in a case depends on “whether, despite the presence of a 

contract, plaintiffs’ claims are founded only on a contract, or whether they stem from a 

statute or the Constitution.” Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 

967 F.2d 598, 609 (D.C. Cir. 1992). The court drew the following lesson from Sharp: 

that under section 10(a) and the Tucker Act, “litigants may bring common-law contract 

claims only as actions for money damages in the Claims Court, but they may bring 

statutory and constitutional claims for specific relief in federal district court even when 

the claims depend on the existence and terms of a contract with the government.” Id. at 

610; see also Roberts v. United States, 242 F.3d 1065, 1068-69 (Fed. Cir. 2001) 

(quoting with approval the standard articulated in Transohio); Katz v. Cisneros, 16 F.3d 

1204, 1209 (Fed. Cir. 1994) (same). 

 In Indiana Michigan, unlike in Sharp, the utilities sought relief based on a statute. 

Even though it was clear that the D.C. Circuit’s remedial order would affect later 

litigation over contract-based rights, it remains the case that the D.C. Circuit was 

interpreting statutory rights, not rights under a contract. For that reason, the D.C. 

Circuit’s action was not impliedly forbidden by the Tucker Act. 
2007-5083 33 

 The government’s position in this case is fueled in large measure by its 

conviction that the D.C. Circuit was wrong when it interpreted section 302 as imposing 

an unconditional obligation to begin accepting nuclear waste in 1998, and its hope that 

the Court of Federal Claims or this court will interpret the statute differently. It is 

important to emphasize, however, that the merits of that issue of statutory construction 

are not before us. The D.C. Circuit resolved that issue, and its resolution became final 

when the government’s petition for certiorari in the Northern States case was denied. 

The question before us is whether the D.C. Circuit had jurisdiction to decide that issue 

of statutory construction, or whether the doctrine of sovereign immunity barred it from 

reviewing the government’s compliance with section 302 and enforcing its decision by 

prohibiting the government from taking actions inconsistent with the D.C. Circuit’s 

interpretation of the government’s statutory obligations. 

 The mandamus order was issued pursuant to the D.C. Circuit’s authority to 

construe the NWPA and to direct DOE to comply with its obligations under the statute. 

The order did not address any issue of contract breach, direct the implementation of any 

remedy, or construe any contract defense, except to the extent that the proposed 

interpretation of the contract would conflict with the statutory directive in section 

302(a)(5). Those issues are all left to the Court of Federal Claims to decide in the 

contract breach action before it. We are satisfied that the D.C. Circuit’s order was 

confined to the issue of statutory interpretation and did not impermissibly invade the 

jurisdiction of the Court of Federal Claims to adjudicate the parties’ rights and remedies 

under the contract between them. 
2007-5083 34 

 In sum, the D.C. Circuit’s decisions in the Indiana Michigan and Northern States

cases were not barred by sovereign immunity and should not have been denied res 

judicata effect on that ground. We therefore reverse the order of the Court of Federal 

Claims under review and remand for further proceedings consistent with this opinion. 

REVERSED and REMANDED. 
United States Court of Appeals for the Federal Circuit 

2007-5083 

NEBRASKA PUBLIC POWER DISTRICT, 

Plaintiff- Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 01-CV-116, Judge Francis M. 

Allegra. 

 

DYK, Circuit Judge, with whom LINN, Circuit Judge, joins, concurring. 

 While I join the majority, I write separately to address what I view as the dissent’s 

overreading of the majority opinion. 

The court appears to be unanimous in agreeing that the District of Columbia 

Circuit had jurisdiction to interpret the statute, and that the D.C. Circuit did not (and 

could not) address purely remedial questions. I read the majority opinion here as 

holding that as a matter of res judicata, the D.C. Circuit’s statutory interpretation bars 

interpreting the Unavoidable Delays clause as creating a defense to liability. However, 

contrary to the dissent, I do not read either the D.C. Circuit or the majority here as 

ordering the government to pay money damages (expectancy damages) for breach of 

the agreement.1

 Although I read the majority as establishing government liability, it 

 1

 See Dissent at 14 (“[T]he D.C. Circuit ordered what is, in effect, 

compensatory relief. . . . The D.C. Circuit exceeded its jurisdiction in [precluding the 
2007-5083 2 

remains open for the government to argue that the Unavoidable Delays clause bars a 

damages award (as opposed to some other contractual remedy such as restitution). 

Indeed, on its face the Unavoidable Delays clause appears only to deal with the 

availability of a particular remedy—money damages—and, of course, the D.C. Circuit 

has no jurisdiction to determine questions concerning damages remedies. Section 702 

of the APA precludes the D.C. Circuit from making such determinations, whether in the 

form of a declaratory determination or mandamus. See 5 U.S.C. § 702 (waiving 

sovereign immunity only where the plaintiff is “seeking relief other than money 

damages”). As the Supreme Court noted in Great-West Life & Annuity Insurance Co. v. 

Knudson, 534 U.S. 204, 210 (2002), “[a]lmost invariably . . . suits seeking (whether by 

judgment, injunction, or declaration) to compel the defendant to pay a sum of money to 

the plaintiff are suits for ‘money damages,’ as that phrase has traditionally been applied, 

since they seek no more than compensation for loss resulting from the defendant’s 

breach of legal duty.” See also Consol. Edison Co. of N.Y., Inc. v. U.S., Dep’t of 

Energy, 247 F.3d 1378, 1382–83 (Fed. Cir. 2001) (“Section 702 [of the APA], however, 

denies this sovereign immunity waiver to claims for money damages . . . .”). 

 

Department of Energy from relying on the Unavoidable Delays provision] and by its writ 

thus obligated the DOE to pay compensatory damages in a subsequent breach of 

contract action.”). 
United States Court of Appeals for the Federal Circuit 

2007-5083 

NEBRASKA PUBLIC POWER DISTRICT, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 01-CV-116, Judge Francis M. 

Allegra. 

GAJARSA, Circuit Judge, dissenting. 

The issue before the court is a fundamental question of jurisdiction between this 

court and the D.C. Circuit. If the order in mandamus issued by the D.C. Circuit had 

interpreted the statutory requirements of the Nuclear Waste Policy Act (NWPA), then it 

would have been within that court’s jurisdiction. Instead, the D.C. Circuit actually forbids 

the United States from defending itself in a contract action in the Court of Federal 

Claims. In my judgment, the order in mandamus is clearly directed to the interpretation 

of the Standard Contract (not the NWPA) and is thus not only outside the jurisdiction of 

the D.C. Circuit, but also infringes upon the Court of Federal Claims’s exclusive Tucker 

Act jurisdiction over the administration of contract disputes, thereby impacting the 

sovereign immunity of the United States and undermining this court’s duty to review the 

contract decisions of the Court of Federal Claims. I must therefore dissent from the 

majority’s judgment. 
I. 

As an initial matter, I am compelled to highlight the procedural posture of this 

case. Nebraska Public Power District appeals an interlocutory decision of the Court of 

Federal Claims (the “trial court”), Nebraska Public Power District v. United States, 

73 Fed. Cl. 650 (2006), that sustained the United States’ collateral attack on the D.C. 

Circuit’s decisions in Indiana Michigan Power Company v. Department of Energy

(“Indiana Michigan Power”), 88 F.3d 1272 (D.C. Cir. 1996), and Northern States Power 

Company v Department of Energy (“Northern States I”), 128 F.3d 754 (D.C. Cir. 1997). 

The trial court certified its decision for immediate review by this court, and we accepted 

the appeal. 

The appeal was argued before a panel of this court. Thereafter, a poll of the 

judges in regular active service was conducted to determine whether the appeal should 

be heard en banc. An en banc hearing was subsequently granted. The en banc court 

requested supplemental briefing relating to the interpretation and preclusive effects of 

the D.C. Circuit’s Northern States I decision and heard further argument. 

At no time during this process has the trial court issued any decision on the 

merits of this case. Accordingly, this court’s review is limited solely to the trial court’s 

decision before us on interlocutory appeal. The question presented is simple: whether 

the D.C. Circuit’s order in mandamus in Northern States I precludes the Department of 

Energy (“DOE”) from relying on a clause of the Standard Contract—the Unavoidable 

Delays clause—in a breach of contract action brought by several nuclear power 

companies in the Court of Federal Claims. Importantly, it is not for this court to 

determine in the first instance whether the DOE should be estopped from relying on the 

2 

2007-5083 
Unavoidable Delays clause or what impact the Unavoidable Delays clause may have on 

the availability of various contract remedies in light of the DOE’s ongoing failure to 

accept Spent Nuclear Fuel (“SNF”). 

II. 

Turning, then, to the limited question at hand, it is undisputed that traditional 

notions of res judicata and comity1 require that the valid judgments of other courts be 

given preclusive effect in the Court of Federal Claims. But it is similarly beyond dispute 

that only valid judgments are deserving of preclusive effect. See, e.g., Restatement 

(Second) of Judgments § 17 (1982). And to be valid, a judgment must be within the 

issuing court’s subject matter jurisdiction. See, e.g., Restatement (Second) of 

Judgments § 11 (1982) (“A judgment may properly be rendered against a party only if 

the court has authority to adjudicate the type of controversy involved in the action.”). 

This does not mean, of course, that a judgment of questionable validity is always 

susceptible to collateral attack. See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de 

Guinee, 456 U.S. 694, 702 n.9 (1982); Christopher Village v. United States, 360 F.3d 

1319, 1329-30 (Fed Cir. 2004). Rather, “[w]hen a court has rendered a judgment in a 

contested action, the judgment precludes the parties from litigating the question of the 

court’s subject matter jurisdiction in subsequent litigation except if: (1) [t]he subject 

matter of the action was so plainly beyond the court's jurisdiction that its entertaining the 

action was a manifest abuse of authority; or (2) [a]llowing the judgment to stand would 

 1

 Comity, both in the notional sense of courteous respect and in the more 

legalistic sense of the federal full faith and credit statute, 28 U.S.C. § 1738. See Davis 

v. Davis, 305 U.S. 32, 40 (1938) (establishing that the federal full faith and credit statute 

extended the Full Faith and Credit Clause to federal courts).

3 

2007-5083 
substantially infringe the authority of another tribunal or agency of government.” 

Restatement (Second) of Judgments § 12 (1982). 

On several occasions, the Supreme Court has taken the opportunity to address 

the circumstances under which a collateral attack to an extra-jurisdictional judgment 

may be maintained. For example, in United States v. United States Fidelity & 

Guarantee Co., the Court considered whether “a former judgment against the United 

States on a cross-claim, which was entered without statutory authority, fixing a balance 

of indebtedness to be collected as provided by law, [is] res judicata in [a subsequent] 

litigation for collection of the balance.” 309 U.S. 506, 507 (1940). The Court decided 

that such a judgment was without res judicata effect, explaining: “It has heretofore been 

shown that the suability of the United States . . . depends on affirmative statutory 

authority. Consent alone gives jurisdiction to adjudge against a sovereign. Absent that 

consent, the attempted exercise of judicial power is void.” Id. at 514. See also Kalb v. 

Feuerstein, 308 U.S. 433, 438–39 (1940) (permitting collateral attack on judgment 

where Congress had limited the issuing court’s jurisdiction); Durfee v. Duke, 375 U.S. 

106, 114 (1963) (“To be sure, the general rule of finality of jurisdictional determinations 

is not without exceptions. Doctrines of federal pre-emption or sovereign immunity may 

in some contexts be controlling.”). 

Relying on this precedent, this court has established a framework for determining 

when we will sustain a collateral attack. In Christopher Village v. United States, we 

considered whether a decision of the Fifth Circuit, holding that the Department of 

Housing and Urban Development (“HUD”) had violated its statutory and contractual 

duties, should be given res judicata effect by the Court of Federal Claims. 360 F.3d 

4 

2007-5083 
1319, 1324-26 (Fed. Cir. 2004). The Fifth Circuit had explained that its ruling was a 

“predicate for a damages action against HUD in the Court of Federal Claims.” 

Christopher Village v. Restinas, 190 F.3d 310, 315 (5th Cir. 1999). Ultimately, we held 

that if the prior decision was (a) issued without subject matter jurisdiction and (b) the 

court’s lack of jurisdiction “directly implicates issues of sovereign immunity,” then the 

prior decision should be considered void and without res judicata effect. Christopher 

Village, 360 F.3d at 1332 (quoting Int’l Air Response v. United States, 324 F.3d 1376, 

1380 (Fed. Cir. 2003).2 These requirements are met when a district court or one of the 

circuit courts of appeals decides an issue that is properly within the exclusive jurisdiction 

of the Court of Federal Claims. Id. at 1332-33. Applying this framework, we determined 

that the Fifth Circuit’s decision was void and should not be given preclusive effect. Id. at 

1333. 

The majority here does not disagree that the Christopher Village framework 

should guide our decision in the present appeal. Instead, applying that framework, the 

majority somehow finds that the D.C. Circuit’s writ of mandamus in Northern States I

was within that court’s jurisdiction. I cannot agree. In my judgment, the D.C. Circuit 

established a clear predicate to a damages action and exceeded its jurisdiction when it 

issued the writ of mandamus in Northern States I; that extra-jurisdictional act implicates 

issues of sovereign immunity by interfering with the exclusive jurisdiction of the Court of 

Federal Claims. 

 2

 The D.C. Circuit has similarly held: “[I]t is axiomatic that, before a 

judgment can have issue preclusive effect under the doctrines of either res judicata or 

collateral estoppel, that judgment must be valid.” Davis v. Chevy Chase Fin. Ltd., 667 

F.2d 160, 172 (D.C. Cir. 1981). 

5 

2007-5083 
III. 

The D.C. Circuit’s jurisdiction is defined by the NWPA, which provides in relevant 

part: “Except for review in the Supreme Court of the United States, the United States 

courts of appeals shall have original and exclusive jurisdiction over any civil action . . . 

for review of any final decision or action of the Secretary [of Energy], the President, or 

the Commission under this part.” NWPA, § 119 (codified at 42 U.S.C. 

§ 10139(a)(1)(A)). In PSEG Nuclear, LLC v. United States, this court acknowledged 

“that agency actions mandated under Title III [of the NWPA] which relate to the creation 

of repositories for spent nuclear fuel fall within the class of actions subject to review by 

the courts of appeals under section 119.” 465 F.3d 1343, 1349 (Fed. Cir. 2006). We 

explained, however, that the courts of appeals’ section 119 jurisdiction is limited: 

[S]ection 302 of the NWPA only required that the DOE 

include certain obligations in its contracts. Therefore, judicial 

review as to whether the DOE properly incorporated these 

obligations within its contracts may fall within the jurisdiction 

conferred to the courts of appeals in section 119. However, 

the performance of and any damages for failure to meet 

those obligations were not provided for by statute. The 

claims at issue here involve only issues of whether the DOE 

breached its contractual obligations, and if so, to what 

damages, if any, PSEG is entitled for the breach. Because 

these are not within the DOE’s statutory obligations under 

the NWPA, City of Burbank [v. United States, 273 F.3d 1370 

(Fed. Cir. 2001),] does not compel us to conclude that 

section 119 of the NWPA strips the Claims Court of its 

Tucker Act jurisdiction over PSEG’s claim merely because 

the claim involves a statutorily mandated provision. 

Id. at 1350. Similarly, in Wisconsin Electric Power v. Department of Energy, the D.C. 

Circuit decided that, although the NWPA “grants the court jurisdiction over cases 

seeking review of: (1) final action taken by the agency pursuant to the NWPA, and (2) 

the agency’s failure to take any action required by the NWPA[,] . . . a contract breach by 

6 

2007-5083 
the DOE does not violate a statutory duty. The Court of Federal Claims, not this court, 

is the proper forum for adjudicating contract disputes.” 211 F.3d 646, 648 (D.C. Cir. 

2000) (internal quotation marks and citation omitted). The D.C. Circuit’s jurisdiction—

and the full extent to which the United States waived its sovereign immunity to suit in 

the regional courts of appeals—is thus limited to review of agency action or inaction 

under the statute itself.3 Accordingly, the disagreement here boils down simply to 

whether the D.C. Circuit’s Northern States I order is directed to agency action under the 

NWPA or to agency action in a contract dispute. In my view, it is unquestionably 

directed to and aimed at the contract dispute. By doing so, the D.C. Circuit acted 

beyond its statutory jurisdiction. The majority parses this issue by concluding that the 

mandamus order “did not address any issue of contract breach, direct the 

implementation of any remedy, or construe any contract defense” but rather only 

directed the DOE to comply with its statutory obligations. Maj. Op. at 33. 

Notwithstanding their cleverly worded interstitial attempt in limiting the interpretation of 

liability by the D.C. Circuit, the majority cannot avoid the obvious legal conclusion that 

this affects the damages imposed upon the United States. The majority’s position is 

clearly erroneous. 

Beginning in the opening paragraph of the Northern States I decision, the D.C. 

Circuit condemns the “DOE’s current approach toward contractual remedies” and 

“preclud[es] DOE from advancing any construction of the Standard Contract that would 

 3

 It is undisputed that the D.C. Circuit’s authority to issue writs under the All 

Writs Act, 28 U.S.C. § 1651(a), does not exceed the boundaries of the court’s 

jurisdiction. See Clinton v. Goldsmith, 526 U.S. 529, 535 (1999); In re Princo Corp., 478 

F.3d 1345, 1351 (Fed. Cir. 2007) (“The authority of the courts of appeals to issue the 

writ ‘is restricted by statute to those cases in which the writ is in aid of their respective 

jurisdiction.’”) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1945)).

7 

2007-5083 
excuse its delinquency on [certain grounds].” 128 F.3d at 756. Elsewhere in its opinion, 

the D.C. Circuit states: “Petitioners’ ability to enforce the contract would be frustrated if 

DOE were allowed to operate under a construction of the contract inconsistent with our 

prior conclusion that the NWPA imposes an obligation on DOE without qualification or 

condition.” Id. at 759 (internal quotation marks omitted). Indeed, the court explained 

that its writ “necessarily means, of course, that DOE not implement any interpretation of 

the Standard Contract that excuses its failure to perform on the grounds of acts of 

Government in either its sovereign or contractual capacity.” Id at 760 (internal quotation 

marks omitted). There is no question that throughout its Northern States I opinion, the 

D.C. Circuit targets the interpretation of the Standard Contract and the way in which a 

contract action may proceed. Under our decision in PSEG, this is unquestionably 

outside the D.C. Circuit’s jurisdiction and is a direct encroachment on the jurisdiction of 

our court and that of the Court of Federal Claims. PSEG, 465 F.3d at 1350 (explaining 

that the D.C. Circuit does not have jurisdiction over questions concerning “whether the 

DOE breached its contractual obligations, and if so, to what damages, if any [the utility] 

is entitled for the breach” because these issues are not “within the DOE’s statutory 

obligations” but exist entirely by way of the contract).4 

Indeed, even the D.C. Circuit recognized that “breach by the DOE [of the 

Standard Contract] does not violate a statutory duty.” Northern States Power Co. v. 

Dep’t of Energy, No. 97-1064, 1998 WL 276581, at *2 (D.C. Cir. May 5, 1998) (per 

curiam). But the D.C. Circuit’s mandamus is directed precisely and explicitly to the 

 4

 And, of course, if the D.C. Circuit does not have jurisdiction under §119, it 

does not have any jurisdiction at all, since actions not brought under the NWPA’s review 

provision, even if properly brought under the general provisions of the Administrative 

Procedure Act, would have to be filed in the district courts. 

8 

2007-5083 
issue of “remedies” for a breach. According to the D.C. Circuit, because the statute 

required an unconditional acceptance of SNF by January 31, 1998, the DOE could not 

defeat the utilities’ claims for damages by arguing that the Standard Contract’s 

Unavoidable Delays clause applied. But an inquiry into whether a contract contains a 

certain term is separate from an inquiry into what circumstances entitle a party to a 

remedy for breach of that term. The NWPA permits the D.C. Circuit to perform the 

former inquiry, but not the latter. See PSEG, 465 F.3d at 1350. 

The text of the Unavoidable Delays clause demonstrates that the inquiries are 

separate. It states that “[n]either the Government nor the Purchaser shall be liable 

under this contract for damages caused by failure to perform its obligations hereunder, if 

such failure arises out of causes beyond the control and without the fault or negligence 

of the party failing to perform.” 10 C.F.R. § 961.11 at Article IX.A. (emphasis added) 

(1983). In other words, the issue of remedy, and specifically whether there should be 

no remedy because of “unavoidable delay,” only applies if a party has failed to perform 

its obligations under the contract. Therefore, contrary to the premise of the D.C. 

Circuit’s mandamus, whether the DOE uses the Unavoidable Delays clause to minimize 

or prevent having to pay damages for failing to meet the “unconditional obligation” to 

begin disposing of SNF by January 31, 1998, is a separate inquiry from whether the 

contract properly incorporates the statutorily mandated unconditional deadline into its 

terms. Moreover, the statute is entirely silent on the issue of contractual remedies (or 

even whether the contract has to provide any monetary damages at all). Therefore, 

there is no reasonable argument here that the D.C. Circuit’s jurisdiction could extend to 

any reliance by the DOE on the Standard Contract’s Unavoidable Delays clause. 

9 

2007-5083 
Additionally, the D.C. Circuit’s writ of mandamus prohibits the DOE from 

construing the Unavoidable Delays clause to excuse its failure to dispose of SNF by 

January 31, 1998. See Northern States I, 128 F.3d at 756 (“We . . . issue a writ of 

mandamus precluding DOE from advancing any construction of the Standard Contract 

that would excuse its delinquency on the ground [of Unavoidable Delay].”). This order is 

no different than a declaratory judgment construing the Unavoidable Delays clause as 

excluding delay caused by the government’s failure to prepare a permanent repository 

or storage facility for the SNF by January 31, 1998. A declaratory judgment as to the 

proper construction of a contractual term is a quintessential adjudication of a contract 

dispute and can only be adjudicated in the Court of Federal Claims. Wisconsin Elec. 

Power Co., 211 F.3d at 648 (“The Court of Federal Claims, not this court, is the proper 

forum for adjudicating contract disputes.”). 

The majority concedes that the D.C. Circuit interpreted the Unavoidable Delays 

clause.5 Maj. Op. at 33 (“[The mandamus order] did not . . . construe any contract 

defense except to the extent that the government’s proposed interpretation of the 

contract would conflict with the statutory directive of section 302(a)(5).”) (emphasis 

added). Yet, inexplicably, the majority considers the D.C. Circuit’s action “not 

meaningfully different” from the D.C. Circuit’s statutory construction of the NWPA in 

Indiana Michigan Power. Maj. Op. at 30. The NWPA, as construed by the D.C. Circuit, 

 5

 Even the concurring opinion agrees that the D.C. Circuit interpreted the 

Standard Contract by establishing government liability. See Concur. Op. at 1 (“I read 

the majority as establishing government liability . . . “). But it then attempts to cabin the 

scope of the majority’s opinion by arguing that “it remains open for the government to 

argue that the Unavoidable Delays clause bars a damages award (as opposed to some 

other contractual remedy such as restitution).” Id. at 2. This argument, however, is in 

the same league as the interstitial argument made by the majority and has no more legs 

to stand upon than the majority’s opinion. 

10 

2007-5083 
obligates the DOE to accept SNF by January 31, 1998, and to include such an 

unconditional obligation in its Standard Contracts. Indiana Michigan Power, 88 F.3d at 

1277. No one disputes that the Standard Contract contains such an unconditional 

obligation. Whether the DOE then nullified this provision by interpreting the 

Unavoidable Delays clause to excuse its non-performance is an entirely different issue 

that involves contract interpretation, not statutory construction. While the D.C. Circuit’s 

holding in Indiana Michigan Power will undoubtedly inform a court’s interpretation of 

whether or not having a repository or facility constitutes Unavoidable Delay under the 

contract, relying on statutory provisions to interpret contractual ones does not make the 

interpretive task any less grounded in an issue of contract interpretation. The majority 

fails to recognize this distinction when it approvingly notes that “based on its 

interpretation of the NWPA, the D.C. Circuit held that the government's failure to have a 

repository ready by January 31, 1998, could not be excused as unavoidable delay.” 

Maj. Op. at 31. This is another failure of the majority to recognize that the D.C. Circuit 

interpreted the Standard Contract. 

The majority’s attempt to maintain comity with the D.C. Circuit by distinguishing 

between liability qua breach and liability qua damages is, in my view, not intellectually 

defensible. First, it is unclear to me how this supposed distinction is functional in the 

context of the Unavoidable Delays clause, which is directed to “liab[ility] for damages.” 

And second, even if the clause was amenable to linguistic parsing of this sort, I fail to 

see how such a distinction would place the D.C. Circuit’s Northern States I decision 

within that court’s jurisdiction. Specifically, the question of breach is every bit as much 

within the exclusive jurisdiction of the Court of Federal Claims as is the question of 

11 

2007-5083 
damages. Indeed, the predicate decision in Christopher Village, which this court 

determined was void and without res judicata effect, was directed solely and explicitly to 

the question of breach, not damages. 360 F.3d at 1324. Accordingly, in my judgment 

the D.C. Circuit’s Northern States I decision exceeded that court’s jurisdiction; it is not 

amenable to interpretation so as to give it validity. 

IV. 

Because the majority holds simply that the D.C. Circuit’s Northern States I

decision did not exceed that court’s jurisdiction, it does not need to reach the second 

prong of the Christopher Village analysis—whether the extra-jurisdictional act implicates 

the United States’ sovereign immunity. My disagreement over the issue of jurisdiction, 

however, requires me to continue the analysis. The D.C. Circuit’s extra-jurisdictional 

writ interferes with the exclusive jurisdiction of the Court of Federal Claims, thereby 

implicating the United States’ sovereign immunity. As we explained in PSEG: 

The Tucker Act generally vests the Court of Federal Claims 

with jurisdiction to render judgment in government contract 

disputes. This jurisdiction is supplanted only if, in a specific 

jurisdictional statute, Congress grants exclusive jurisdiction 

over a contract dispute to another court. The NWPA did not 

strip the Court of Federal Claims of its jurisdiction over 

[breach of contract] claims because it did not vest that 

jurisdiction in another court. 

465 F.3d at 1349 (citations omitted). The APA affects a limited waiver of the United 

States’ sovereign immunity from suit. In particular, 5 U.S.C. § 702 states in relevant 

part: 

A person suffering legal wrong because of agency action, or 

adversely affected or aggrieved by agency action within the 

meaning of a relevant statute, is entitled to judicial review 

thereof. An action in a court of the United States seeking 

relief other than money damages . . . shall not be dismissed 

nor relief therein be denied on the ground that it is against 

12 

2007-5083 
the United States . . . . The United States may be named as 

a defendant in any such action, and a judgment or decree 

may be entered against the United States . . . . Nothing 

herein 

. . . 

(2) confers authority to grant relief if any other statute that 

grants consent to suit expressly or impliedly forbids the relief 

which is sought. 

See Consol. Edison Co. of New York, Inc. v. Dep’t of Energy, 247 F.3d 1378, 1382–83 

(Fed. Cir. 2001) (“Under specified circumstances, the APA waives sovereign immunity 

for actions challenging agency actions in district court . . . . Section 702 [of the APA] 

denies this sovereign immunity waiver to claims for money damages or for claims that 

seek remedies ‘expressly or impliedly’ precluded by other statutes.”). Section 704 adds 

a further limitation: “Agency action made reviewable by statute and final agency action 

for which there is no other adequate remedy in a court are subject to judicial review.” 

5 U.S.C. § 704. The APA’s waiver is thus tempered by no fewer than three restrictions 

on suit: (1) the action cannot be for money damages; (2) the action cannot be expressly 

or impliedly forbidden by another statute; and (3) the action cannot be one for which 

adequate remedy is available elsewhere. 

A. 

In Bowen v. Massachusetts, the Supreme Court considered the first restriction on 

the APA’s waiver of sovereign immunity—that the action may not be for “money 

damages.” Explaining that not all monetary relief is necessarily “money damages,” the 

Court held that “money damages” in Section 702 is properly understood as 

compensatory rather than specific relief. 487 U.S. at 895–97. The Court then held that 

the Commonwealth of Massachusetts’s suit was not one “seeking money in 

13 

2007-5083 
compensation for the damage sustained by the failure of the Federal Government to 

pay as mandated; rather, it [was] a suit seeking to enforce the statutory mandate itself, 

which happens to be one for the payment of money.” Id. at 900 (emphasis removed). 

The D.C. Circuit’s writ of mandamus in Northern States I presents a scenario that 

is the converse of Bowen. The D.C. Circuit did not offer specific relief; indeed, it 

acknowledged that it has no authority to do so. Rather, the D.C. Circuit ordered what is, 

in effect, compensatory relief. Specifically, the D.C. Circuit interpreted contractual terms 

by distinguishing between the treatment of avoidable and unavoidable delays under 

Article IX of the Standard Contract, Northern States I, 128 F.3d at 759 (explaining that 

avoidable delays result in money damages whereas unavoidable delays create no 

liability), and precluded the DOE from relying on the unavoidable delays provision, id. at 

760. The D.C. Circuit exceeded its jurisdiction in doing so and by its writ thus obligated 

the DOE to pay compensatory damages in a subsequent breach of contract action. 

Therefore, even under Bowen’s broad view of Section 702, the D.C. Circuit’s writ of 

mandamus exceeds the “other than money damages” limitation on the APA’s waiver of 

sovereign immunity. 

Since Bowen, the Supreme Court has adopted a narrower and clearer position 

on the issue: 

Almost invariably . . . suits seeking (whether by judgment, injunction, or 

declaration) to compel the defendant to pay a sum of money to the plaintiff 

are suits for ‘money damages,’ as that phrase has traditionally been 

applied, since they seek no more than compensation for loss resulting 

from the defendant’s breach of legal duty. 

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (internal 

quotation marks and citation omitted). Certainly, the D.C. Circuit’s writ is addressed to 

nothing more than compensation for loss resulting from the DOE’s alleged breach of its 

14 

2007-5083 
contractual obligations. It would thus appear to be beyond question that the writ runs 

afoul of the Supreme Court’s most recent view of “money damages” and is, therefore, 

beyond the scope of the APA’s waiver of sovereign immunity. 

The precedents of this court require the same result. For example and as 

acknowledged by the majority, in Christopher Village we held that “[a] party may not 

circumvent the Claims Court’s [now the Court of Federal Claims’s] exclusive jurisdiction 

by framing a complaint in the district court as one seeking injunctive, declaratory or 

mandatory relief where the thrust of the suit is to obtain money from the United States.” 

360 F.3d at 1328 (quoting Consolidated Edison Co. of New York, Inc. v. Dep’t of 

Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001)). But the majority fails to recognize that 

the D.C. Circuit did exactly that in Northern States I—it circumvented the Court of 

Federal Claims’s exclusive jurisdiction by crafting its order as a writ of mandamus that 

interprets the Standard Contract thereby removing the contractual shield of protection 

held by the United States. This is a subterfuge to provide the power companies with a 

means to obtain money damages from a now-defenseless United States in a later 

breach of contract action. This clearly is tantamount to a money mandate infringing 

upon our jurisdiction, the jurisdiction of the Court of Federal Claims, and the sovereign 

immunity of the United States. 

B. 

Moreover, as explained above, contract claims are within the exclusive 

jurisdiction of the Court of Federal Claims. See Roberts v. United States, 242 F.3d 

1065, 1068 (Fed. Cir. 2001). Therefore, the Tucker Act, which waives sovereign 

immunity and confers jurisdiction on the Court of Federal Claims in cases sounding in 

15 

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contract, “impliedly forbids relief other than the remedy provided by the Court of Federal 

Claims.” Presidential Gardens Assocs. v. United States, 175 F.3d 132, 143 (2d Cir. 

1999) (quotation marks omitted). 

There is little room for debate that Nebraska Power’s rights are contractual. But 

for the existence of the contract, there would be no right at all. Nor can it be contested 

that the relief sought in Northern States I was contractual—Nebraska Power requested 

a writ of mandamus ordering the United States to perform on its contract.6

 Moreover, 

the relief granted by the D.C. Circuit was contractual—a writ of mandamus precluding 

the DOE from relying on a contract defense in a future breach-of-contract action. The 

action before the D.C. Circuit in this case neither presented an independent statutory 

claim, nor would a breach of contract by the DOE be contrary to statute. See N. States 

Power Co., 1998 WL 276581, at *2 (D.C. Cir. May 5, 1998) (per curiam) (“While the 

statute requires the DOE to include an unconditional obligation in the Standard 

Contract, it does not itself require performance. Breach by the DOE does not violate a 

statutory duty . . . .”). The D.C. Circuit’s writ is thus properly viewed as contractual 

relief, cf. Katz v. Cisneros, 16 F.3d 1204, 1209 (Fed. Cir. 1994) (distinguishing between 

“declaratory relief in the performance of a contract” and “judicial interpretation of a 

federal regulation”), and is impliedly forbidden by the Tucker Act. For this additional 

reason, the D.C. Circuit’s action exceeded the APA’s waiver of sovereign immunity. 

C. 

Finally, the APA’s waiver of sovereign immunity does not apply if an adequate 

remedy is available elsewhere. 5 U.S.C. § 704. The availability of monetary damages 

 6 The power companies came to court dressed in sheep’s clothing but in 

fact obtained a result that would be the envy of any pack of wolves.

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in the Court of Federal Claims is an adequate remedy under Section 704. See Telecare 

Corp. v. Leavitt, 409 F.3d 1345, 1349 (Fed. Cir. 2005); Christopher Village, 360 F.3d at 

1327 (“[A] litigant's ability to sue the government for money damages in the Court of 

Federal Claims is an adequate remedy that precludes an APA waiver of sovereign 

immunity in other courts.”) (internal quotation marks omitted). Here, as the D.C. Circuit 

recognized, monetary damages are available to the utilities in the Court of Federal 

Claims. See Northern Power I, 128 F.3d at 756 (“[T]he Standard Contract between 

DOE and the utilities provides a potentially adequate remedy . . . .”). Accordingly, an 

adequate remedy is available, and the APA does not waive the United States’ sovereign 

immunity in the D.C. Circuit. 

--o0o-- 

Notwithstanding the protective fervor with which the majority persists in 

defending the jurisdiction of the D.C. Circuit by interstitially parsing liability and 

damages, I believe that the D.C. Circuit exceeded the limits of its jurisdiction under 

section 119 of the NWPA when it granted the writ of mandamus ordering a contractual 

remedy. It trespasses upon and limits the jurisdiction of our Court and the Court of 

Federal Claims. This essentially emasculates our law established by Christopher 

Village. Without a basis of jurisdiction under section 119, the D.C. Circuit’s opinion 

directly interfered with the government’s sovereign immunity. Unlike its decision in 

Indiana Michigan Power, the D.C. Circuit’s writ of mandamus in Northern States I

directly impacts the ability of the government to defend itself against having to pay 

money damages (and indirectly, will also result in the payment of damages), is 

forbidden by the Tucker Act, and thus falls outside the limits of Section 702’s waiver of 

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sovereign immunity. I can appreciate the majority’s attempt to avoid criticism of a sister 

court, but the sheer mushy applesauce consistency of the majority opinion in avoiding a 

jurisdictional confrontation with the D.C. Circuit should be obvious.7

 On this basis, the 

trial court’s ultimate holding to void the mandamus was correct and should be affirmed. 

7

 See Zuni Public School Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 113 

(2007) (Scalia, J., dissenting).