United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-3886

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*

In re: MidAmerican Energy * On Petition for Writ 

Company, * of Mandamus.

*

Petitioner. * [PUBLISHED]

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Submitted: February 12, 2002

Filed: April 3, 2001 - Corrected April 11, 2002

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Before WOLLMAN, BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Petitioner MidAmerican Energy Company ("MEC") files this writ of

mandamus seeking enforcement of our prior opinion, Nebraska Public Power District

v. MidAmerican Energy Co., 234 F.3d 1032 (8th Cir. 2000) (hereinafter NPPD I). 

I. BACKGROUND

A more complete recitation of the facts is found at NPPD I. However, a brief

summary will provide context for the instant dispute.

In 1967, the parties' predecessors entered a "Power Sales Contract" ("PSC"),

obligating Nebraska Public Power District ("NPPD") to construct and manage a

nuclear power facility known as the Cooper Nuclear Station ("Cooper"), and
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obligating MEC to purchase power therefrom until 2004. The PSC remains in effect

until that year and requires NPPD to submit to MEC a monthly statement reflecting

the prior month's Monthly Power Costs. In 1984, NPPD added a line item for

decommissioning costs to this statement. While the parties neither reached a separate

agreement nor amended the PSC to address these decommissioning costs, MEC paid

these amounts without objection. As of the commencement of this litigation, MEC

had paid approximately $78,000,000 toward these estimated charges.

This case originated in federal court when NPPD sought a declaratory

judgment that the contract between NPPD and MEC required MEC to make current,

non-refundable payments toward estimated decommissioning costs of Cooper,

arguing that such payments fell within the contract definition of Monthly Power

Costs. Essentially, NPPD wanted a declaration that the decommissioning costs paid

to-date by MEC were not voluntary, but rather required under the PSC as payments

for power and energy, and therefore non-refundable even if NPPD continued

operation of Cooper after 2004. MEC counterclaimed to establish its right to recover

the amounts it had already paid toward decommissioning if NPPD continued to

operate the power plant after 2004. The district court found the PSC unambiguously

supported NPPD's position, holding that MEC had an unconditional obligation to pay,

in the past and until the expiration of the PSC on September 21, 2004, non-refundable

decommissioning costs. 

MEC appealed the district court ruling, arguing that the district court erred

because the PSC does not require payments of estimated decommissioning costs and

unambiguously exempts MEC from all decommissioning liability if NPPD continues

operations after 2004. We agreed, and determined that "the PSC does not require

MEC to make current, non-refundable payments of estimated decommissioning costs

to NPPD, but makes MEC liable for Cooper's decommissioning only in the event that

NPPD shuts Cooper down in 2004." 234 F.3d at 1046. Moreover, we held that even

though "the PSC does not bar MEC's claims for restitution of amounts already paid,"
1

"All other outstanding claims" would have necessarily included those claims

not before us on appeal–namely, issues two and three of NPPD's Amended Complaint

raising claims regarding the method of investing the decommissioning trust funds

under the contract, and whether the inclusion of transition costs as part of the

decommissioning cost is proper under the contract. The other remaining outstanding

claims include MEC's fourth, sixth, seventh, eighth, ninth, and tenth contingent

counterclaims, which were not certified for appeal by the district court nor raised by

either party in their cross motions for partial summary judgment, as well as MEC's

second and third contingent counterclaims which were remanded for consideration

by the district court when we reversed the district court ruling granting partial

summary judgment to NPPD. Additionally, any defenses NPPD might raise in

response to MEC's remaining counterclaims are now before the district court.

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we specifically left unresolved "the question whether MEC may recover payments

already made in the event NPPD does continue operating Cooper after 2004." Id. at

1045 n.7, 1046. As for MEC's counterclaims under restitution and estoppel theories

seeking recovery of those funds, we clarified that those claims were not before us and

directed the parties to return to the district court to litigate them. Id. at 1045 n.7.

Thus, we reversed the district court's ruling and remanded the case for trial on the

narrow issue of whether MEC might succeed on its counterclaims for recovery of the

funds it had already paid into the decommissioning sinking fund, and all other

outstanding claims.1

On remand, NPPD sought leave to file a second amended complaint in order

to raise new claims which, according to MEC, were recast versions of NPPD's

previous allegations. The magistrate judge granted NPPD's motion, and on appeal the

district judge affirmed the magistrate's decision. MEC now files an emergency

petition for writ of mandamus to compel compliance with our original mandate,

NPPD I. MEC claims that our prior opinion forecloses the causes of action now

raised by NPPD, and that if the parties proceed to trial, they will be relitigating the

same claims as to MEC's liability for decommissioning costs that we previously

decided.
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II. DISCUSSION

The All Writs Act, 28 U.S.C. § 1651(a) gives federal courts the power to issue

writs of mandamus. The issuance of a writ of mandamus is an extraordinary remedy

reserved for extraordinary situations. See, e.g., Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 289 (1988). The Supreme Court has held that only

"exceptional circumstances amounting to a judicial 'usurpation of power'" will justify

issuance of the writ. Will v. United States, 389 U.S. 90, 95 (1967) (quoting De Beers

Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945)). Accordingly, courts

seldom issue writs interfering with a lower court trial order. However, "it is

important to remember that issuance of the writ is in large part a matter of discretion

with the court to which the petition is addressed." Kerr v. United States Dist. Court,

426 U.S. 394, 403 (1976). 

A federal court's power to utilize mandamus to enforce its prior mandate is

firmly established. Iowa Utils. Bd. v. FCC, 135 F.3d 535, 541 (8th Cir. 1998),

vacated on other grounds by 525 U.S. 1133 (1999); Brictson Mfg. Co. v. Munger, 20

F.2d 793, 794 (8th Cir. 1927). Mandamus will lie "to confine a lower court to the

terms of an appellate tribunal's mandate." Will, 389 U.S. at 95-6. Ultimately, "[w]e

have not only the power, but also a duty to enforce our prior mandate to prevent

evasion." Iowa Utils. Bd., 135 F.3d at 541. 

In its second amended complaint, NPPD raises the following causes of action:

(1) Modification or Separate Contract (asserting that NPPD and MEC either

modified the PSC or created a separate agreement to provide that MEC had an

unconditional obligation to pay fifty percent of the estimated decommissioning costs);
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(2) Quantum Meruit/Unjust Enrichment (asserting that MEC will be unjustly

enriched and NPPD deprived if MEC is permitted to retain the benefits without

paying fifty percent of the estimated decommissioning costs); 

(3) Promissory Estoppel (asserting that MEC promised NPPD that it would pay

fifty percent of all costs resulting from Cooper, including decommissioning, and

NPPD relied to its detriment on this promise); 

(4) Reformation (asserting that to the extent the PSC does not impose on MEC

a current unconditional obligation to pay its fifty percent share of non-refundable

decommissioning costs, the parties made a mutual mistake and the PSC in its current

form does not reflect the actual intent of the parties); 

(5) Investments (seeking a declaration that NPPD has acted properly in all

respects regarding the investment of monies being accumulated for

decommissioning); 

(6) Refund of Prepaid Estimated Decommissioning Costs (asserting that

because MEC voluntarily prepaid decommissioning costs, MEC is barred from

receiving a refund); and 

(7) Decommissioning Costs (seeking a declaration determining what costs are

"decommissioning costs" within the contemplation of the parties). 

MEC argues in its petition for writ of mandamus that NPPD's first four causes

of action in its second amended complaint all devolve into exactly the same claim that

was before us in NPPD I, and that under the doctrine of the law of the case, NPPD's

decommissioning claim was explicitly and implicitly resolved by this court's

judgment. We agree.
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"Our mandate encompasses 'everything decided, either expressly or by

necessary implication.'" Iowa Utils. Bd., 135 F.3d at 541 (quoting City of Cleveland

v. Federal Power Comm'n, 561 F.2d 344, 348 (D.C. Cir. 1977)). At issue in our prior

opinion was whether the plain meaning of the PSC unambiguously obligated MEC

to make current, non-refundable payments towards estimated decommissioning costs.

We held that the PSC imposed no such obligation on MEC. NPPD I, 234 F.3d at

1045. In so holding, we specifically stated that "[w]hile the parties neither reached

a separate agreement nor amended the PSC to address these costs, MEC paid these

statements without objection." Id. at 1037. Thus, we clearly determined that MEC

had no obligation under contract or any other separate agreement, equitable or

otherwise, to make current, non-refundable payments towards estimated

decommissioning costs. NPPD is thus foreclosed from amending its complaint to

include new theories of recovery on these issues.

In this case, NPPD's claim has always been in contract. NPPD's amended

complaint sounds in contract, the motion for summary judgment before the district

court was in contract and the district judge dealt with the issues in contract. On

appeal to this court, NPPD again argued that the four corners of the document

supported the opinion of the district judge holding MEC liable for current, nonrefundable estimated decommissioning costs. In its brief NPPD stated that "MEC's

assertion now that its payments of decommissioning costs have actually been a kind

of voluntary contribution under some phantom agreement existing between the parties

outside the provisions of the Contract is, in its most flattering light, imaginative."

Brief of Appellee NPPD at 29, NPPD I, 234 F.3d 1032 (8th Cir. 2000) (No. 99-4067).

Additionally, "claims not raised in an initial appeal brief are waived." Sweat

v. City of Fort Smith, 265 F.3d 692, 696 (8th Cir. 2001). At no prior time during the

pendency of this litigation in either the district court or in this court did NPPD raise

alternate allegations regarding any separate agreement or equitable theory of liability
2

NPPD claims that it raised the issue of modification in its reply and in

discovery prior to the appeal, thus preserving its ability to include its new causes of

action as amended. It is true that NPPD did allege modification in each affirmative

defense to MEC's amended counterclaims. However, our holding on appeal

necessarily determined that the PSC in its then-present form, which would have

included any modification by the parties, did not impose liability on MEC to make

current, non-refundable payments of estimated decommissioning costs to NPPD. Any

argument regarding modification of the PSC should have been raised by NPPD in that

appeal, as the only issue before the Eighth Circuit at that time was an interpretation

of the PSC in its present form.

3

Ante note 1. 

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regarding MEC's obligation to pay decommissioning costs.2

 As a result, NPPD is

now foreclosed from raising in a second amended complaint alternate theories of

liability requiring MEC to pay estimated decommissioning costs.

The only issues left for the district court are whether MEC may recover

payments already made to NPPD, under theories of contract or equity, and the

remaining issues set forth in the parties' pleadings, not taken up on appeal or left

unresolved by our reversal of the district court's grant of partial summary judgment

in favor of NPPD.3

 Whether NPPD has some defense, equitable or otherwise, as to

the payments already made by MEC, is an issue we did not address in our prior

opinion. And, we are not now saying that a contractual or equitable defense to MEC's

current claim of restitution would not prevail. However, in order to preserve the

integrity of our original mandate in this case, NPPD will not be allowed to relitigate

the issue of whether MEC has any liability, contract or otherwise, to continue paying

estimated decommissioning costs. 

NPPD makes much of MEC's assertion that it paid decommissioning costs

pursuant to a separate agreement and that the district court must now determine the

terms of that actual agreement. However, we state with emphasis that this court has
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already determined that the parties "neither reached a separate agreement nor

amended the PSC to address these costs." Thus, relitigation of this matter before the

district court is not in accordance with our prior mandate. NPPD may not retrofit its

complaint to circumvent a binding, unfavorable opinion. These arguments could, and

should, have been raised earlier. It is inappropriate to consider them on remand.

NPPD chose not to argue these points in the initial stages of litigation, and may not

stand better off as regards the law of the case than one who has argued and lost. See

Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C. Cir. 1984). 

We remand this case to the district court for further consideration in conformity

with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.