People of the State of California Ex Rel. Edmund G. Brown Jr., Attorney General of the State of California v. United States , 122 Fed. Cl. 315 ( 2015 )

In the United States Court of Federal Claims
Nos. 07-157C & 07-167C Consolidated
No. 07-184C
Filed: March 16, 2015
*****************************
*
PACIFIC GAS AND ELECTRIC COMPANY, *
and SOUTHERN CALIFORNIA EDISON *
COMPANY, *
*
Plaintiffs, *
v. * Cal. Pub. Util. Code §§ 330-398.5;
* Certification, 28 U.S.C. § 1292(d)(2);
THE UNITED STATES, * Contracts Disputes Act,
*
41 U.S.C. §§ 601−13;
Defendant. *
Department of Energy Organization Act,
*
42 U.S.C. §§ 7101, et seq.;
SAN DIEGO GAS & ELECTRIC COMPANY, *
Department of Energy Power Marketing
*
Rates Delegation Order Confirmation
Plaintiff, *
And Approval, 43 FED. REG. 60,636−37;
v. *
Federal Energy Regulatory Commission;
*
Federal Power Act,
THE UNITED STATES, *
16 U.S.C. §§ 791a et seq.;
*
Judgment on Multiple Claims or Involving
Defendant. *
Multiple Parties, RCFC 54(b);
*
Jurisdiction;
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Law-of-the-Case Doctrine;
*
Motion for Reconsideration,
THE PEOPLE OF THE STATE OF *
RCFC 59;
CALIFORNIA EX REL. EDMUND G. *
Public Utility Regulatory Policies Act, 16
BROWN JR., ATTORNEY GENERAL OF *
U.S.C. §§ 2601 et seq.;
THE STATE OF CALIFORNIA, and the *
Standing;
CALIFORNIA DEPARTMENT OF WATER *
Submitting Claims To Contracting Officer,
RESOURCES BY AND THROUGH ITS *
41 U.S.C. § 7103(a)(2), (b)(1).
CALIFORNIA ENERGY RESOURCES *
SCHEDULING DIVISION, *
*
Plaintiff, *
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
*****************************
Marie L. Fiala, Sidley Austin, LLP, San Francisco, California, Counsel for Plaintiff, Pacific Gas
& Electric Company.
Jane I. Ryan, Steptoe & Johnson, LLP, Washington, D.C., Counsel for Plaintiff, Southern
California Edison Company.
Mark Fogelman, Friedman & Springwater, LLP, San Francisco, California, Counsel for
Plaintiff, San Diego Gas & Electric Company.
Kenneth D. Woodrow, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for Defendant.
Gary Alexander, Deputy Attorney General, Counsel for Plaintiff The People of the State of
California et al., Office of the Attorney General, San Francisco, California.
BRADEN, Judge.
MEMORANDUM OPINION AND FINAL ORDER REGARDING PLAINTIFFS’
BREACH OF CONTRACT CLAIMS
This case arises from the California Energy Crisis of 2000–2001, during which electricity
prices soared to record levels. Plaintiffs first attempted to obtain relief from the Federal Energy
Regulatory Commission (“FERC”) or the United States Court of Appeals for the Ninth Circuit.
These efforts were unsuccessful. See Bonneville Power Admin. v. FERC, 422 F.3d 908, 911 (9th
Cir. 2005) (“Bonneville”) (“We conclude that FERC does not have refund authority over
wholesale electric energy sales made by governmental entities and non-public utilities.”), cert.
denied, 552 U.S. 1076 (2007); see also City of Redding v. FERC, 693 F.3d 828, 841 (9th Cir.
2012) (“FERC clearly acknowledged that it did not have authority to order refunds from the non-
public utilities and explained that it was establishing just and reasonable rates in order to
determine the appropriate refund amount for public entities[.]”). On March 12, 2007, three
California-based investor-owned or public utilities and the State of California filed refund claims
for overcharges in the above-captioned cases in the United States Court of Federal Claims. The
Complaints allege that because two federal power authorities were liable for breach of power
exchange agreements with two non-profit California corporations, these federal power
authorities were in breach of contract with Plaintiffs, because the power exchange agreements
were subject to the FERC tariffs incorporated therein.
To facilitate review of this Memorandum Opinion and Final Judgment, the court has
provided the following outline.
I. REGULATORY BACKGROUND.
A. Prior To September 24, 1996, The Electric Utility Industry In The State Of
California Was Subject Both To Federal And State Regulation.
2
B. On September 24, 1996, The State Of California Decided To Deregulate The
Electric Utility Industry, But That Decision Resulted In An Energy Crisis In
2000−Mid-2001.
II. PROCEDURAL HISTORY.
A. 2000−2006 Proceedings In The Federal Energy Regulatory Commission And
The United States Court Of Appeals For The Ninth Circuit.
B. 2007−2012 Proceedings In The United States Court Of Federal Claims And
May 12, 2012 Liability Decision.
C. The August 27, 2012 Decision Of The United States Court Of Appeals For
The Ninth Circuit.
D. The Government’s November 2, 2012 Motion For Reconsideration In The
United States Court Of Federal Claims And April 2, 2013 Order Denying
Reconsideration.
E. 2013 Reassignment Of This Case, December 20, 2013 Decision To Vacate,
And Subsequent Proceedings In The United States Court Of Federal Claims.
III. DISCUSSION.
A. Whether Plaintiffs Have Standing.
1. Neither The California Investor-Owned Utilities Nor The State Of
California Were In Privity Of Contract, Either With The Western
Power Administration Or The Bonneville Power Administration.
2. Neither The California Investor-Owned Utilities Nor The State Of
California Were Third-Party Beneficiaries To A Contract With
Either The Western Power Administration Or The Bonneville Power
Administration.
3. Neither Cal-PX Nor Cal-ISO Was An Agent Of The Cal-IOUs Or The
State Of California.
B. Jurisdiction
C. Assuming Arguendo, Plaintiffs Have Standing, Count I Of Plaintiffs’ Refund
Period Breach Of Contract Claims Must Be Dismissed.
1. The Government’s Argument.
2. Plaintiffs’ Response.
3
3. The Government’s Reply.
4. The Court’s Resolution.
D. Plaintiffs’ July 1, 2014 Motion To Reinstate The May 2, 2012 Liability
Decision And For Certification Of Orders For Interlocutory Appeal Is
Denied.
IV. CONCLUSION.
* * *
I. REGULATORY BACKGROUND.
To understand this sui generis case, a review of the labyrinth of state and federal law and
regulations that governed the electric utility industry in the State of California is required.
A. Prior To September 24, 1996, The Electric Utility Industry In The State Of
California Was Subject Both To Federal And State Regulation.
In 1935, Congress enacted the Federal Power Act, 16 U.S.C. §§ 791a et seq. This Act
“had two primary and related purposes: to curb abusive practices of public utility companies by
bringing them under effective control, and to provide effective federal regulation of the
expanding business of transmitting and selling electric power in interstate commerce.” Gulf
States Utils. Co. v. Fed. Power Comm’n, 411 U.S. 747, 758 (1973). To accomplish this end,
Congress created the Federal Power Commission (“FPC”). Id.In 1977, in response to power shortages and rising energy costs, Congress consolidated
all federal energy-related programs and agencies in the new Department of Energy (“DOE”).
See Department of Energy Organization Act, codified at 42 U.S.C. §§ 7101 et seq. (1977). That
Act established the Federal Energy Regulatory Commission (“FERC”) as an independent agency
to assume most of the functions previously delegated to the FPC, including expanded regulatory
authority over the interstate sale of all wholesale electricity and transmission service. 1 Id.§§ 7171–72; see also Department of Energy, Power Marketing Rates, Delegation Order For
Confirmation and Approval, 43 FED. REG. 60636−60637 (Dec. 22, 1978).
In 1978, Congress enacted the Public Utility Regulatory Policies Act to conserve the use
of fossil fuels and promote development of new generating facilities with equitable rates. See 16
U.S.C. §§ 2601 et seq. By that time, the number of electricity generators in the country was
1
The sale of wholesale electric power entails “generation, transmission, and distribution
functions.” See Pub. Utils. Comm’n of Cal. v. FERC, 462 F.3d 1027, 1036 (9th Cir. 2006).
“Generation” is defined as “the production of power.” Id. “Transmission” is defined as the
“conveyance of high voltage electric power from the points of generation to substations for
conversion to delivery voltages.” Id.4
growing, because technological advances made it possible to transmit electric power over long
distances at a lower cost by “wheeling,” i.e., “an arrangement in which one electric company
allows another company to use its lines to transmit power to customers in its service area.” FED.
REGULATORY DIRECTORY 172 (16th ed. 2014).
On April 24, 1996, FERC issued Order No. 888, finding that the nation’s larger public
utilities had discriminated in “the wholesale bulk power marketplace” by providing inferior or no
access to third-party power wholesalers. See 61 FED. REG. 21540, 21541 (“FERC Order No.
888”); see also Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 683 (D.C. Cir.
2000) (“[T]he open access requirement of [FERC] Order 888 is premised . . . on FERC’s
identification of a fundamental systemic problem in the industry.”), aff’d, New York v. FERC,
535 U.S. 1 (2002). To remedy this situation, FERC ordered all investor-owned electric utilities
engaged in interstate transmission to file a single open access, non-discriminatory tariff that
offered “network, load-based service and point-to-point, contract-based service.” FERC Order
No. 888, at 21,541. “The theory behind separating these functions, known as ‘unbundling,’ was
that wholesale power competition would be promoted, and consumers would benefit, if public
utilities were required to provide nondiscriminatory, open access, transmission.” Pub. Utils.
Comm’n of Cal. v. FERC, 462 F.3d 1027, 1036 (9th Cir. 2006) (“CPUC”).
B. On September 24, 1996, The State Of California Decided To Deregulate The
Electric Utility Industry, But That Decision Resulted In An Energy Crisis In
2000−Mid-2001. 2
On September 24, 1996, in response to FERC Order No. 888, California enacted
Assembly Bill 1890 (“AB 1890”) to establish a deregulated market for wholesale electric power
in California, where prices would be set by a competitive process to facilitate consumer choice.
See Cal. Pub. Util. Code §§ 330–398.5. At this time, three investor-owned electric utilities
operated in the State of California: Pacific Gas & Electric Company (“PG&E”); San Diego Gas
and Electric Company (“SG&E”); and Southern California Edison (“SC Edison”) (collectively
hereinafter “the Cal-IOUs”). The Cal-IOUs generated and purchased wholesale power and also
owned, operated, and maintained transmission and distribution systems. PE Ex. 214 at 316–17.
The terms, conditions, and prices for these services were set forth in tariffs and rates filed with
FERC. See Pac. Gas & Elec. Co. v. FERC, 306 F.3d 1112, 1114 (D.C. Cir. 2002) (explaining
that the Cal-IOUs “originally consisted of three investor-owned utilities (PG&E, [SC] Edison,
and [SG&E]), each of which is subject to FERC’s jurisdiction”). Retail rates, however, were
subject to the jurisdiction of the California Public Utilities Commission (“CPUC”). See Cal.
Pub. Util. Code § 330(c)−(d); see also CPUC, 462 F.3d at 1037.
2
The facts discussed herein were adjudicated in related FERC or federal district court
proceedings and adopted by the United States Court of Appeals for the Ninth Circuit in: CPUC,
462 F.3d at 1033–46; Bonneville, 422 F.3d at 911–14; In re Cal. Power Exch. Corp., 245 F.3d
1110, 1114–19 (9th Cir. 2001). Additional facts were derived from 3/23/10 Stipulated Facts of
the parties in the United States Court of Federal Claims in Case Nos. 07-157 and 07-167 (“SF
¶¶ 1–26”); Plaintiffs’ Exhibits (“PE 1–256”) and the Government’s Exhibits (“DE 1–626”)
admitted at trial.
5
AB 1890 first required that the Cal-IOUs divest their fossil fuel generating plants and
then sell all wholesale power generated by hydroelectric and nuclear power plants to the
California Power Exchange (“Cal-PX”), a non-profit corporation established to conduct
wholesale electric power transactions. 3 See Cal. Pub. Util. Code § 300(k)(1), (l)(1). The process
was to work in the following manner: Cal-PX would file a tariff with the FERC, establishing the
terms and conditions of service and rates, known as the “Cal-PX FERC Tariff.” The potential
purchasers would enter into Participation Agreements with Cal-PX incorporating the Cal-PX
FERC Tariff. A central provision of this tariff provided that the participants agreed to “abide by,
and . . . perform all of the obligations under the [Cal-PX FERC Tariff,] in respect of all matters
set forth therein including, without limitation, all matters relating to the trading of Energy by it
through the [Cal-PX] markets . . . [and] billing and payments[.]” PE 57 at 1056 (Cal-PX FERC
Tariff, Participation Agreement § II (B)).
Next, potential purchasers or sellers would submit bids to Cal-PX to buy or sell
wholesale power. Based on the bids received, Cal-PX set a “market price” for those
transactions. 4 Initially, Cal-PX set prices on an hourly basis to satisfy short-term demand or spot
markets, i.e., “sales that are 24 hours or less and that are entered into the day of or day prior to
delivery.” 95 FERC ¶¶ 61418, 62545 n.3.
AB 1890 also established a non-profit corporation, the California Independent System
Operator (“Cal-ISO”), to assume operational control over all of California’s electric transmission
facilities and ensure supply and demand on a real-time basis. See CPUC, 462. F.3d at 1038. The
Cal-ISO scheduled requested transmission services for day-after purchase or spot market sales,
subject to FERC oversight and regulation. The Cal-ISO also was required to file a tariff setting
forth the terms and conditions of services and rates (“Cal-ISO FERC Tariff”). PE 66 at 1−390;
see also CPUC, 462 F.3d at 1038−39. The Cal-ISO FERC Tariff also was incorporated into
Scheduling Coordinator Agreements (“SC Agreements”) between Cal-ISO and each firm that
scheduled wholesale power and ancillary services on the Cal-ISO controlled grid. PE 66 at 388
(Cal-ISO FERC Tariff § (A)). A central provision of the Cal-ISO FERC Tariff provided that the
participants agreed to “abide by, and . . . perform all of the obligations under the [Cal-ISO
FERC] Tariff placed on Scheduling Coordinators in respect of all matters set forth therein
including, without limitation, all matters relating to the scheduling of Energy and Ancillary
Services on the [Cal-]ISO Controlled Grid . . . [and] billing and payments[.]” PE 66 at 388 (Cal-
ISO FERC Tariff, § 2 (B)); PE 30 at 616−17 (SC Agreement between Bonneville and Cal-ISO
3
Subsequently, this tariff was revised on three occasions. The last revision was on
August 2, 2000 and is cited herein as Cal-PX FERC Tariff. PE 57.
4
On each trading day, the Cal-PX compiled energy supply and demand curves, based on
offers to supply and demands for energy. The “market price” was then determined by the price
point at which supply equals demand, so that all participants paid the same price. PE 57 at 910
(Cal-PX PX FERC Tariff § 3.8 (Market Clearing Price Determination)); PE 57 at 959−62 (Cal-
PX FERC Tariff Schedule 3 (“market price” formula)); PE 57 at 1076 (Cal-PX FERC Tariff
App’x B (“Market Clearing Price” defined)).
6
with identical language); PE 23 at 601−02 (SC Agreement between WAPA and Cal-ISO with
identical language). The Cal-IOUs entered Participation Agreements with Cal-PX and SC
Agreements with Cal-ISO. PE 15, PE 23, PE 25, PE 26, PE 37, PE 234, PE 250, PE 251. The
California Department of Water Resources also executed a Participation Agreement with Cal-PX
and an SC Agreement with Cal-ISO. PE 248, PE 249.
The Western Area Power Administration (“WAPA”), a federal power-marketing
administration, generated and transmitted wholesale power into California. See N. Star Steel
Co. v. United States, 477 F.3d 1324, 1326 (Fed. Cir. 2007) (WAPA “market[ed] and deliver[ed]
cost-based hydroelectric power and related services within a 15-state region of the central and
western United States,” including California). In all, fifty-seven “power plants operated by the
Department of the Interior’s Bureau of Reclamation, the U.S. Army Corps of Engineers, and the
International Boundary and Water Commission,” utilize WAPA’s transmission system. Id. “By
[federal] statute, the rates [that] WAPA charge[d] in selling power [had to] be at least sufficient
to recover the costs associated with its operations, maintenance, and the federal construction
investment.” Id. (citing 43 U.S.C. § 485h(c)).
The Bonneville Power Administration (“BPA”), also a federal power-marketing
administration, generated wholesale power from the Federal Columbia River Power System and
other federal hydroelectric facilities in the Pacific Northwest, and transmitted and sold excess
power into California. See 16 U.S.C. §§ 832–832m, 839–839h; see also 42
U.S.C. § 7152(a)(1)(C) (“There are transferred to, and vested in, the Secretary all functions of
the Secretary of the Interior . . . with respect to the Bonneville Power Administration including
but not limited to the authority contained in the Bonneville Power Act of 1937[.]”); City of
Burbank v. United States, 273 F.3d 1370, 1373 (Fed. Cir. 2001) (“The BPA markets, transmits,
purchases, exchanges, and sells electric energy in the wholesale market. Federal dams in the
Pacific Northwest generate the hydroelectric energy the BPA sells in this market.”).
In 1999, WAPA and Bonneville decided to participate in the wholesale power and
transmission transactions conducted by Cal-PX and Cal-ISO. Consequently, on May 28, 1999
and June 22, 1999, WAPA executed Participation Agreements with Cal-PX that incorporated, by
reference, a tariff filed with FERC. PE 43 at 657 PE 45 at 662; PE 57 (Cal-PX FERC Tariff).
On February 12, 1998, WAPA executed a SC Agreement with the Cal-ISO. PE 23. On March
18, 1998, BPA entered into a Participation Agreement with Cal-PX. PE 26. On April 30, 1998,
BPA entered into an SC Agreement with Cal-ISO. PE 30.
In the summer of 1999, the CPUC authorized the Cal-IOUs to purchase some wholesale
power in the Cal-PX long-term or “forward contract” market, but the remainder had to be
purchased in the Cal-PX spot market. See In re Cal. Power Exch. Corp., 245 F.3d 1110 (9th Cir.
2001) (explaining that over-reliance on the spot market “prevented [the Cal-IOUs] from
managing their risks more effectively through long-term contracting”). But, the Cal-IOUs
became reliant on unstable spot market purchases that were higher priced. Id. at 1116.
By May 2000, the price of wholesale power in the Cal-PX spot markets doubled. See
CPUC, 462 F.3d at 1040. Rolling blackouts also began to occur, requiring Cal-ISO to declare
thirty-nine system emergencies. Id.
7
Blame for the high prices was placed on the hot weather and other externalities, including
a retail rate freeze imposed by the CPUC and the inability of the Cal-IOUs “to hedge through
forward markets, bilateral contracts, and self-provision,” 5 but the truth was, as the United States
Court of Appeals for the Ninth Circuit observed, that:
the best laid regulatory plans went astray, [because California’s] plan to establish
a competitive market . . . failed to account for energy economics and the
sophistication of modern energy trading. As became clear in hindsight, even
those who controlled a relatively small percentage of the market had sufficient
market power to skew markets artificially. . . . With the new [market] structure,
over 80% of the [wholesale electric power] transactions were being made in spot
markets—the converse of most other electricity markets, in which more than 80%
of the transactions are made through long term forward contracts, lending stability
to the markets. Sellers quickly learned that the California spot markets could be
manipulated by withholding power . . . to create scarcity and then demanding
extremely high prices when scarcity was probable.
Id. at 1039.
II. PROCEDURAL HISTORY.
A. 2000−2006 Proceedings In The Federal Energy Regulatory Commission And
The United States Court Of Appeals For The Ninth Circuit.
By August 2000, SG&E experienced price increases “by a multiple of three or four.” See
92 FERC ¶ 61172, 61604 (2000). 6 In response, SG&E filed a petition with FERC for an
5
PE 225 at 01365 (8/14/00 Motion To Intervene And Response Of SG&E in FERC Dkt.
No. El-00-95-000).
6
PG&E and SC Edison also experienced a dramatic spike in wholesale prices at this
time; however, because they were subject to a rate freeze imposed by AB 1890, they were
prohibited from passing on those increases to retail and industrial customers, forcing them to
assume billions in debt. See S. Cal. Edison Co. v. Peevey, 74 P.3d 795, 789–90 (Cal. 2003).
On October 5, 2001, the United States District Court of the Central District of California
entered a Stipulated Judgment with the CPUC to allow SC Edison to maintain retail rates for a
two-year period to recover $3.3 billion of the $6.3 billion losses that were incurred during the
CPUC-imposed retail rate freeze. See Stipulated Judgment Order, S. Cal. Edison Co. v. Lynch,
No. 00-cv-12056, Dkt. No. 290 (C.D. Cal. Oct. 5, 2011). On September 23, 2002, the United
States Court of Appeals for the Ninth Circuit affirmed the District Court’s entry of the Stipulated
Judgment, but certified certain questions of state law. See S. Cal. Edison Co. v. Lynch, 307 F.3d
794, 809–15 (9th Cir. 2002). On August 21, 2003, the Supreme Court of California concluded
that the Stipulated Judgment “did not violate California law.” S. Cal. Edison Co., 74 P.3d at 797.
On January 12, 2004, the United States Court of Appeals for the Ninth Circuit issued a mandate,
8
emergency order to cap alleged “unjust [and] unreasonable” prices for wholesale and ancillary
services set by Cal-PX and Cal-ISO and to amend the market-based rate schedules. Id. at
¶ 61605.
On November 1, 2000, however, FERC declined to issue an emergency order, but
initiated an investigation that found:
• short-term wholesale power rates in California were “unjust and
unreasonable”;
• the restructuring plan required by AB 1890 was “seriously flawed”; and
• there was “clear evidence” that the California market structure provided
electricity sellers with opportunities to exercise market power that can
result in result in unjust and unreasonable rates under the FPA.
93 FERC ¶¶ 61121, 61349–50 (2000).
Subsequently, FERC also made structural changes to the operation of Cal-PX and Cal-
ISO by: eliminating the requirement that the Cal-IOUs must buy and sell wholesale power
exclusively through Cal-PX; allowing participants to schedule 95 percent of their transactions in
the day-ahead market; replacing Cal-PX and Cal-ISO board members; and requiring Cal-ISO to
file generation interconnection procedures with FERC. See id. ¶¶ 61350–51. In addition, on
September 11, 2000, FERC convened a congressional hearing to ascertain whether refunds were
due to the Cal-IOUs for spot market transactions conducted from October 2, 2000 through
December 31, 2002. See id. ¶ 61370.
On December 15, 2000, FERC issued an Order allowing the Cal-IOUs to resume
generating some of their wholesale requirements. See 93 FERC ¶ 61294, 61982 (2000). That
Order eliminated the Cal-PX requirement that the Cal-IOUs must sell and purchase all their
wholesale power requirements through the Cal-PX, relieving the Cal-IOUs from dependence on
the spot market. See id. FERC also terminated the Cal-PX wholesale tariff and rate schedules
and, instead imposed a “soft cap” on all purchases of electric power from in the Cal-PX and Cal-
ISO markets. Id. ¶¶ 61982–83. In addition, as it had in the November 1, 2000 Order, FERC
observed that retroactive relief funds from the wholesale sellers of electric power may be
warranted for the period October 2, 2000 through December 31, 2000. Id. ¶¶ 62010–11.
On December 22, 2000, the City of San Diego filed a petition with the United States
Court of Appeals for the Ninth Circuit, contending that “FERC . . . unreasonably delayed taking
action on California wholesale power purchasers’ request for refunds” and requesting a Writ of
Mandamus requiring FERC to “come to a decision as to [California] wholesale sellers’ refund
liability” for the period of October 2, 2000 to December 31, 2000. See In re Cal. Power Exch.
Corp., 245 F.3d 1110, 1119, 1124 (9th Cir. 2001). On December 26, 2000, SC Edison also
affirming the District Court’s decision in all respects. See S. Cal. Edison Co. v. Lynch, No. 00-
cv-12056, Dkt. No. 339 (C.D. Cal. Jan. 12, 2004).
9
challenged FERC’s failure to ensure that wholesale electricity was sold at “reasonable” rates.
CPUC, 462 F.3d at 1042.
On January 17, 2001, the Governor of California declared a State of Emergency and
ordered the California Department of Water Resources to purchase sufficient power to end the
rolling blackouts that cost California more than $5 billion. See Proclamation by the Governor of
the State of California (January 17, 2001). 7
On January 30, 2001, Cal-PX suspended operations and, on March 9, 2001, filed for
bankruptcy. See In re Cal. Power Exch. Corp., 245 F.3d at 1119.
On March 9, 2001, FERC issued an Order directing wholesale sellers of electric power to
provide refunds to customers for sales made during January 2001 that were in excess of a proxy
market clearing price or, in the alternative, provide additional justification for the surcharges.
See 94 FERC ¶¶ 61245, 61863 (2001). FERC specified, however, that any refunds were to be
extended only to “public utility sellers,” i.e., investor-owned utilities, not federal governmental
entities, like WAPA and BPA. Id. ¶ 61864.
On April 6, 2001, PG&E filed for bankruptcy, but SC Edison and SG&E were able to
achieve arrangements with creditors. See CPUC, 462 F.3d at 1042–43.
On April 11, 2001, the United States Court of Appeals for the Ninth Circuit held that
FERC’s December 15, 2000 decision to give higher priority to structural remedies, instead of
retroactive refund requests, did not warrant a writ of mandamus. See In re Cal. Power Exch.
Corp., 245 F.3d 1110, 1119, 1125 (9th Cir. 2001).
On April 26, 2001, FERC issued an Order establishing a new market monitoring and
mitigation plan for sales made in the ancillary services and spot markets operated by Cal-ISO.
See 95 FERC ¶¶ 61115, 61351. In addition, FERC authorized an investigation into the
reasonableness of the rates, terms, and conditions of public utility sales in the spot markets in the
entire Western Systems Coordinating Counsel, because “the California [energy] market is
integrated with those of other states.” Id. ¶ 61356.
On June 19, 2001, FERC issued an Order imposing prospective price caps on all spot
market sales in California from June 20, 2001 to September 30, 2002. See 95 FERC ¶¶ 61418,
62545–49. FERC also implemented other steps to mitigate prices. Id. ¶¶ 62547–49.
On July 25, 2001, FERC issued an Order to establish the “scope of and methodology for
calculating refunds related to transactions in the spot markets operated by [Cal-ISO] and [Cal-
PX] during the period October 2, 2000 through June 20, 2001.” 96 FERC ¶¶ 61120, 61499.
Refunds were to be determined by the difference between the market clearing prices charged by
7
Available at http://www.calema.ca.gov/ChiefofStaff/Pages/Emergency-Proclamations.aspx
(last visited March 10, 2015).
10
electric power suppliers and a mitigated market clearing price (“MMCP”), calculated for each
hour from October 2, 2000 to June 20, 2001 (“the Refund Period”), subject to certain
adjustments. See 96 FERC ¶¶ 61516–17. The amount of refunds due was estimated at $2.3
billion, plus $3.5 billion from sales to the California Energy Resources Scheduler (“CERS”).
See CPUC, 462 F.3d at 1043.
On December 19, 2001, FERC issued an Order to reaffirm price mitigation plans for all
regulated spot market sales and established October 2, 2000 as the effective date for refunds. See
97 FERC ¶ 61275.
On February 13, 2002, FERC initiated an enforcement proceeding concerning market
manipulation of energy in the western United States. See 98 FERC ¶ 61165. This proceeding
initially was aimed at the conduct of the bankrupt Enron Corporation. On March 20, 2002,
however, the California Attorney General filed a Complaint alleging that sellers in markets
operated by Cal-PX and Cal-ISO, as well as those making spot market energy sales to CERS,
violated FPA § 205. See 99 FERC ¶¶ 61247, 62055.
On March 20, 2002, California filed a Complaint “against all sellers of power and
ancillary services subject to FERC jurisdiction in markets operated by the ISO and Cal[-]PX and
sellers of power to CERS . . . alleging that FERC’s market-based rate filing requirements
violated the FPA and that, even if valid, the reports filed by electricity sellers did not contain the
transaction-specific information the FPA requires.” California ex rel. Lockyer v. FERC, 383
F.3d 1006, 1010 (9th Cir. 2004).
On May 31, 2002, FERC dismissed California’s March 20, 2012 action as an
impermissible collateral attack on prior FERC orders. 99 FERC ¶ 61247, 62055. Also on May
31, 2002, FERC issued an opinion that “the failure to report transactions in the format required
by [FERC] for quarterly reports is essentially a compliance issue,” for which “re-filing of
quarterly reports to include transaction-specific data is an appropriate and sufficient remedy.”
Id. ¶ 62068.
On December 12, 2002, a FERC Administrative Law Judge (“ALJ”) determined that the
sellers of wholesale power in the spot markets owed Cal-PX and Cal-ISO refunds of
approximately $1.8 billion. 101 FERC ¶¶ 63026, 65132–33. But, the ALJ also found that these
sellers were owed approximately $3 billion in refunds, or a net total of $1.2 billion after refunds.
See id. 8
On March 26, 2003, FERC reaffirmed its prior Orders, substantially adopting the ALJ’s
December 12, 2002 refund findings, and advised the public that refunds would be distributed by
the end of summer 2003. See 102 FERC ¶ 61317.
8
Of the total $3 billion owed to sellers of wholesale power, approximately $1.8 billion
specifically was owed to PG&E, with the $1.2 billion remainder to Cal-PX. See 102 FERC
¶¶ 61317, 62063.
11
On September 9, 2004, the United States Court of Appeals for the Ninth Circuit granted
California’s petition to review FERC’s May 31, 2002 Order, but held that FERC’s decision to
approve market-based tariffs in the wholesale electric market did not violate the FPA. See
California ex rel. Lockyer, 383 F.3d at 1013−17. But, the appellate court held that FERC erred
in concluding that retroactive refunds were not available under FPA § 205. Id. at 1017–18.
On September 6, 2005, in response to approximately 200 petitions for review of various
FERC Orders, the United States Court of Appeals for the Ninth Circuit held that “FERC does not
have refund jurisdiction under FPA § 206 with respect to governmental entities and non-public
utilities.” Bonneville, 422 F.3d at 926. 9 By this holding, the Ninth Circuit affirmed Congress’
decision to not subject federal power marketing administrations to FERC jurisdiction. Id. at 924.
On August 31, 2006, the United States Court of Appeals for the Ninth Circuit considered
scope/transaction issues concerning refunds, not addressed in Bonneville, and held that, although
FERC may order public utilities to issue refunds after a “refund effective date,” FERC is not
authorized under FPA § 206(a) to order refunds prior to the filing of a complaint. See CPUC v.
FERC, 462 F.3d 1027, 1045 (9th Cir. 2006) (“Under the express language of § 206, however,
FERC may not order refunds for any period prior to the filing of the complaint.”). The Ninth
Circuit also held that FPA § 309 authorized FERC to “order refunds if it finds violations of the
filed tariff and imposes no temporal limitations.” Id. The Ninth Circuit concluded that the
FERC Order establishing October 2, 2000 as the refund effective date for FPA § 206 proceedings
did not violate the FPA and remanded that case to FERC for further proceedings. Id. at 1046,
1065.
B. 2007−2012 Proceedings In The United States Court Of Federal Claims And
May 12, 2012 Liability Decision.
On March 12, 2007, PG&E, and SC Edison filed a Complaint in the United States Court
of Federal Claims, alleging that the “voluntary sales of electric power in the California wholesale
markets[,] pursuant to the ISO and PX Tariffs[,] and pursuant to certain written agreements[,]
gave rise to binding contractual obligations that [WAPA and BPA] owed to the other market
participants, including the [Cal-IOUs,] . . . direct parties to and expressly intended beneficiaries
of [WAPA and BPA’s] contractual obligations.” 3/12/07 Compl. ¶ 2. “The signatories to the
[WAPA and BPA] agreements had authority to enter into the agreements and to bind [WAPA
and BPA] contractually. [WAPA and BPA] have breached their contractual obligations[.]”
3/12/07 Compl. ¶ 2. This case was assigned to now-retired Senior Judge Loren Smith (“the prior
trial court”).
On March 13, 2007, SG&E filed an almost identical complaint in the United States Court
of Federal Claims. See San Diego Gas & Elec. Co. v. United States, No. 07-167 (“3/13/07
Compl.”). And, on March 16, 2007, California and the California Department of Water
Resources filed a similar complaint. See California v. United States, No. 07-184 (“3/16/07
Compl.”). Both of these cases also were assigned to the prior trial court.
9
SC Edison and California were also parties subject to this decision.
12
On February 7, 2008, the Government filed a Motion To Dismiss Cases 07-157 and 07-
167. On March 28, 2008 the Government also filed a Motion To Dismiss Case 07-184. 10
On June 24, 2008, the prior trial court heard oral argument on the Government’s February
7, 2008 Motion. 6/24/08 TR at 1–175. On July 9, 2008, the prior trial court issued an Order
denying the Government’s February 7, 2008 Motion without providing either the basis of or
reasoning for this ruling. See Order, Dkt. No. 47 (July 9, 2008).
On October 3, 2008, the Government filed a Motion to Dismiss the California Electricity
Oversight Board (“CEOB”), and a Motion For Joinder, seeking to join Cal-PX and Cal-ISO as
plaintiffs, pursuant to RCFC 19 and 21. On that date, the Government also filed an Answer. On
November 4, 2008, the Government’s February 7, 2008 Motion To Dismiss all claims alleged by
the CEOB was granted.
On February 10, 2009, the prior trial court convened an oral argument on the
Government’s October 3, 2008 Motion for Joinder. On February 17, 2009, the court denied the
Government’s October 3, 2008 Motion for Joinder, again without providing either the basis of or
reasoning for this ruling. 11 See Order, Dkt. No. 78 (Feb. 17, 2009).
On December 22, 2009, the Government filed a third Motion to Dismiss, arguing that the
Cal-IOUs failed to submit certified claims to a contracting officer, before filing a complaint in
the United States Court of Federal Claims, as required by the Contracts Disputes Act, 41
U.S.C. §§ 601–13 (“CDA”).
On April 16, 2010, the prior trial court held oral argument on the Government’s
December 22, 2009 Motion. On May 5, 2010, the prior trial court denied the Government’s
December 22, 2009 Motion, without providing either the basis of or reasoning for this ruling, and
set a trial date on liability. See Order, Dkt. No. 142 (May 5, 2010).
On July 12–15, 19–22, 26–29, and August 2, 2010, the prior trial judge convened a trial
in San Francisco regarding the breach of contract claims alleged by the Cal-IOUs and California.
TR 1–2380. 12
10
The procedural history for Case 07-184, regarding substantive matters, are identical to
the procedural history in Cases 07-157 and 07-167.
11
On November 19, 2009, FERC ordered an ALJ to convene an evidentiary hearing to
determine: (1) whether public utility sellers violated relevant tariffs prior to October 2, 2000 in
markets operated by the Cal-ISO or Cal-PX; and (2) if such violations occurred, whether any
violation affected the market clearing price for the trading hour within which it occurred. See
129 FERC ¶¶ 61147, 61622.
12
On September 7, 2010, FERC requested public comment on whether the “list of
violations under consideration in [the FERC remand proceedings should] be expanded.” 132
FERC ¶ 61209, 62087. On May 26, 2011, FERC issued an Order expanding the scope of the
ALJ’s inquiry to include whether: “(1) market practices that were previously excluded from the
13
On May 2, 2012, the prior trial court issued an Opinion and Order determining that
privity of contract existed between the parties in this case. See Pac. Gas & Elec. Co. v. United
States, 105 Fed. Cl. 420, 432–33 (2012); see also California ex rel. Brown v. United States, 105
Fed. Cl. 18, 28–29 (2012) (same regarding Case No. 07-184) (collectively, “May 2, 2012
Opinions”). In addition, the prior trial court ruled that WAPA and BPA “breached its present
contractual duty to pay the refunds they owe, and they have breached that duty by nonpayment.”
Pac. Gas & Elec., 105 Fed. Cl. at 440.
C. The August 27, 2012 Decision Of The United States Court Of Appeals For
The Ninth Circuit.
On August 27, 2012, approximately three months after the prior trial judge issued a
decision in Pacific Gas & Electric, the United States Court of Appeals for the Ninth Circuit
reaffirmed its holding in Bonneville that FERC had authority, under FPA § 206, to “investigate
rates and to order refunds only from public utilities,” but not from governmental entities such as
BPA and WAPA. See City of Redding, 693 F.3d at 831 (emphasis added); see also id. at 839
(“FERC has asserted that it has the authority to retroactively reset the market rates for all market
participants through the exercise of its § 206(b) refund authority over public utilities. We hold
that it does not . . . . As we previously held in Bonneville, FERC’s refund authority does not
extend to non-jurisdictional governmental entities[.]”) (emphasis added). In addition, to the
extent that FERC revised or reset the market rate for the Refund Period, the Ninth Circuit held
that this discrete activity was within FERC’s authority, as it “necessarily involved reevaluating
the price previously charged by all market participants[,] because the market clearing price was
the same for all of them[.]” Id. at 841. PG&E, SC Edison, and California were parties to that
case.
Significantly, the Ninth Circuit observed:
We are not blind to the potential impact of FERC’s determination of the just and
reasonable prices. In the contract actions brought in other forums, it is claimed
that the Petitioners before us are liable for charges collected by them in excess of
the just and reasonable prices subsequently calculated by FERC. Petitioners seek
to protect themselves against those claims by preventing FERC from recalculating
the market rates. But FERC's recalculation was not an empty exercise, because it
list and definitions of [Market Monitoring and Information Protocol] violation categories in the
Show Cause Proceedings; (2) other [Cal-ISO] and [Cal-PX] tariff violations [occurred];
(3) [other] violations of Commission orders [occurred; (4)] violations of individual sellers’ tariffs
[occurred; and (5)] market practices, such as wash trading, gas market manipulation, false
reporting to publications that compile price indices, and collusion, to the extent such conduct
violated [the] current tariff.” 135 FERC ¶¶ 61183, 62088. PG&E, SC Edison, and California,
among others, requested a rehearing, arguing that they also should be allowed to introduce
evidence of tariff violations by sellers in the Cal-PX and Cal-ISO markets, even if those sellers
reached a settlement with other Cal-IOUs. See 141 FERC ¶ 61087. On November 2, 2012,
FERC denied the rehearing. Id. at P 1.
14
had to determine just and reasonable market clearing prices in order to calculate
the refunds to be ordered from [jurisdictional entities] from which it could order
refunds. What impact this calculation might have on the contract actions pending
in [the United States Court of Federal Claims concerning non-jurisdictional
governmental entities] is not for us to say.
Id. at 842.
D. The Government’s November 2, 2012 Motion For Reconsideration In The
United States Court Of Federal Claims And April 2, 2013 Order Denying
Reconsideration.
On November 2, 2012, the Government filed a Motion For Reconsideration of the prior
trial court’s decision in Pacific Gas & Electric Co. Therein, the Government argued that City of
Redding held that FERC had no retroactive rate-setting authority; thus, the prior trial court erred
in finding that the PX and ISO tariffs “bind the Government to FERC action with respect to past
sales.” Gov’t Recon. Mot. at 3. According to the Government, the court “misinterpreted
FERC’s May 29, 2009 [O]rder as creating for BPA and WAPA contractual obligations through
something . . . that the [O]rder did not accomplish, and could not have accomplished.” Gov’t
Recon. Mot. at 6.
On April 2, 2013, the Government’s November 2, 2012 Motion For Reconsideration was
denied by the prior trial court. See Pac. Gas & Elec. Co. v. United States, 110 Fed. Cl. 135(2013).
E. 2013 Reassignment Of This Case, The December 20, 2013 Decision To
Vacate, And Subsequent Proceedings In The United States Court Of Federal
Claims.
On April 15, 2013, former Chief Judge Emily C. Hewitt reassigned this case to the
undersigned judge. On May 9, 2013, the court convened telephone conference to discuss the
May 2, 2012 Opinions, because the court was concerned about the lack of citations to the record
supporting the factual findings in Pacific Gas & Electric, 105 Fed. Cl. at 424–26, 432–33. The
court requested that the parties supply these citations. On June 21, 2013, the Government
submitted a Status Report “respectfully declin[ing] to furnish annotations or citations for the
[c]ourt’s May 2, 2012 interlocutory decision[s].” Gov’t Status Report at 2. Instead, the
Government proposed five alternatives, including, inter alia, that the court vacate the May 2,
2012 Opinion or allow the parties to file proposed findings of fact and conclusions of law to
assist the court in issuing new opinions. Gov’t Status Report at 3. On July 3, 2013, Plaintiffs
submitted a Status Report that included a copy of the May 2, 2012 Opinion, annotated with
record citations, and responded to the Government’s June 21, 2013 Status Report. On July 17,
2013, the Government filed a Response. On September 27, 2013, Plaintiffs filed a Reply. On
October 9, 2013, the court began an independent examination of each sentence of the May 2,
2012 Opinion, together with the record citations provided by Plaintiffs.
15
On December 20, 2013, the court determined that the interests of justice required that the
May 2, 2012 Opinions be vacated 13 and reconsidered in light of jurisdictional issues that
previously were raised, but summarily rejected without an opinion. See Pac. Gas & Elec. Co. v.
United States, 114 Fed. Cl. 146 (2013).
On February 26, 2014, the court requested that the parties appear at an oral argument to
provide their views as to “why the court, on reconsideration, should not dismiss these cases,
because of plaintiffs’ failure to establish the requirements of standing to sue on a government
contract, thereby depriving the court of jurisdiction.” Notice of Oral Argument, Case No. 07-
157, Dkt. No. 312, at 2.
On June 5, 2014, the court heard oral arguments from the parties regarding standing and
the court’s jurisdiction. See Case No. 07-157, Dkt. No. 332 (6/5/14 TR 1−141).
On July 1, 2014, the Government filed a Motion For Dismissal Or Entry Of Judgment
Upon Plaintiffs’ Refund Period Claims (“Gov’t Mot.”). On July 25, 2014, Plaintiffs filed a
Response (“Pl. Resp.”). On August 4, 2014, the Government filed a Reply (“Gov’t Reply”).
On July 1, 2014, Plaintiffs also filed a Motion To Reinstate The May 2, 2012 Liability
Decision And For Certification For Orders For Interlocutory Appeal (“Pl. Mot.”). On July 18,
2014, the Government filed its Opposition (“Gov’t Opp.”). On August 8, 2014, Plaintiffs filed a
Reply (“Pl. Reply”).
On November 18, 2014, Plaintiffs filed a Notice Of Additional Authority that brought to
the court’s attention FERC’s November 10, 2014 decision in 149 FERC ¶ 61116 (2014). On
November 19, 2014, the Government also filed a Notice Of Additional Authority regarding the
same FERC decision. On November 26, 2014, Plaintiffs filed a Response.
On January 22, 2015, the court held a final oral argument in San Francisco, California
(“1/22/15 TR 1−92”).
III. DISCUSSION.
E. Whether Plaintiffs Have Standing.
As a matter of law, a “plaintiff must be in privity with the United States to have standing
to sue the sovereign on a contract claim.” S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422
F.3d 1319, 1328 (Fed. Cir. 2005). Privity “takes on even greater significance in cases such as
this, because the ‘government consents to be sued only by those with whom it has privity of
contract.’” Id. (quoting Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813
(Fed. Cir. 1984)); see also Anderson v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003)
(holding that “privity is lacking,” where plaintiffs were not signatories to the contractual
13
Specifically, the court vacated Pac. Gas & Elec. Co. v. United States, (No. 07-157C),
105 Fed. Cl. 420 (2012) and California ex rel. Brown v. United States, (No. 07-184C), 105 Fed.
Cl. 18 (2012).
16
documents); see also id. (“To have standing to sue the sovereign on a contract claim, a plaintiff
must be in privity of contract with the United States.”). “Absent privity between [Plaintiffs] and
the [G]overnment, there is no case.” Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed. Cir. 1994).
Two exceptions to the general rule of privity are relevant here: third-party beneficiary
status and agency relationships. See First Hartford Corp. Pension Plan & Trust v. United States,
194 F.3d 1279, 1289 (Fed. Cir. 1999) (stating that, “despite [a] lack of privity, . . . suits may be
brought against the [G]overnment in the [United States] Court of Federal Claims by an intended
third-party beneficiary”); see also Christos v. United States, 48 Fed. Cl. 469, 477–78 (2000)
(“Third-party beneficiary status is an exception to the privity requirement. . . . Another
exception to the privity requirement is an agency relationship.”), aff’d, 300 F.3d 1381 (Fed. Cir.
2002).
Therefore, to establish standing, the Cal-IOUs and California must be in privity of
contract with WAPA and BPA, or have a third-party beneficiary relationship with Cal-PX and
Cal-ISO, or an agency relationship Cal-PX and Cal-ISO.
1. Neither The California Investor-Owned Utilities Nor The State Of
California Were In Privity Of Contract, Either With The Western
Power Administration Or The Bonneville Power Administration.
The Cal-IOU Complaint in the United States Court of Federal Claims alleges that WAPA
and BPA:
signed agreements that . . . expressly agreed to abide by their terms and
conditions. Moreover, by voluntarily electing to transact in the ISO and PX
markets [WAPA and BPA] are charged with knowledge, and are deemed to have
accepted the terms of the Tariffs, which set forth the mutual rights and obligations
among market participants. The terms of the [Cal-ISO FERC and Cal-PX FERC]
Tariffs create enforceable contractual obligations binding on [WAPA and BPA].
03/12/07 Compl. ¶ 28 (citing Cal-PX Tariff ¶ 17 (“Obligations and liabilities under this Tariff”
are binding on the “successors and assigns of the parties”) 14; Cal-ISO Tariff ¶ 17 (same); Cal-PX
Tariff ¶ 14.3 (indemnity provisions); Cal-ISO Tariff ¶ 14.3 (same); Cal-ISO Tariff ¶ 20.7
(choice-of-law, venue clauses); Cal-PX Tariff ¶ 19.6 (same); Cal-ISO Tariff ¶ 15 (consequences
of uncontrollable force); Cal-PX Tariff ¶ 16.11 (same); Cal-PX Tariff ¶16.2 (duty of mitigate).
14
Paragraph 17 of the Cal-PX Tariff did not set forth any obligations between buyers and
sellers of wholesale power, but only addressed obligations and liabilities between the Cal-PX
Participant and the Cal-PX:
No assignment of any service or participation agreement shall relieve the original
PX Participant from its obligations or liabilities to the PX under this Tariff or any
such service or participation agreement arising or accruing due prior to the date of
assignment.
PE 57 ¶ 17 (emphasis added).
17
The California Complaint is substantially similar. See 03/16/07 Compl. ¶ 24, Case No. 07-184
(citing Cal-ISO Tariff ¶¶ 14.3, 15, 17, 20.7).
None of these tariff provisions, however, evidence any the three core elements required
to “form an agreement binding upon the government . . . (1) mutuality of intent to contract;
(2) lack of ambiguity in offer and acceptance; (3) consideration[.]” Anderson, 344 F.3d at 1353.
Instead, the Cal-PX and Cal-ISO Tariffs set forth only the legal duties and obligations WAPA
and BPA owed to Cal-PX and Cal-ISO.
Nevertheless, the prior trial court found that:
the facts at trial showed that [WAPA and BPA] contracted with and owe contract
obligations to the Plaintiffs. First, the evidence showed that the PX . . . [was a]
‘public utilit[y]’ under the FPA. Second, as a public utility, all the sales and all
the purchases of power in those markets were governed by FERC-regulated
tariffs. Third, the applicable Tariffs in this case which were filed with FERC,
specified the rules to abide by in order to participate in these markets. The Tariffs
included when and in what form participants would submit bids to buy and sell
power, and the formulas used to establish prices for all purchase-sale
transactions[,] as well as prescribing the financial settlements resulting from
market transactions. The Tariffs also allocated risks as between the markets and
the market participants. Fourth, because the Tariffs were FERC regulated, FERC
could alter or amend them, including their pricing formulas, and to review and
correct the market-clearing prices. And finally, the Tariffs authorized market
participants to seek FERC's review and correction of prices set under the Tariff
formulas.
Pac. Gas & Elec. Co., 105 Fed. Cl. at 432 (emphasis added).
Although each of these statements is true, none individually or collectively establishes a
contractual relationship between WAPA and BPA either with the Cal-IOUs or California. First,
the fact that Cal-PX was a public utility is not relevant to whether the Cal-IOUs and California
were in privity of contract with WAPA or BPA. Second, the fact that a public utility is subject to
FERC regulated tariffs likewise is irrelevant. Third, although the Cal-PX and Cal-ISO Tariffs
specified the terms and conditions of service, neither of these Tariffs reflects any express or
implied intent by WAPA or BPA to undertake any legal duties to or assume obligations of either
the Cal-IOUs or California. PE 57 ¶ 3 (Cal-PX Tariff “Responsibilities of the PX and PX
Participants”); PE 66 ¶ 5 (Cal-ISO Tariff “Relationship Between ISO and Generators”). In fact,
as FERC recognized, “[W]e are faced with a new market institution, in which sellers and buyers
of electric energy will not contract directly with one another, as has been traditionally done in
the industry, but instead will contract with the [Cal-PX and Cal-ISO].” 80 FERC ¶¶ 61262,
61946 (1997) (emphasis added).
18
The prior trial court found that WAPA and BPA had privity of contract with the Cal-
IOUs and California:
[I]n order for [WAPA and BPA] to have access to the [Cal-PX] Markets, [they]
were required to sign written contracts that incorporated these Tariffs, as well as
agreeing to abide by the Tariffs’ terms and subsequent changes to those Tariffs.
In the ISO, the Scheduling Coordinators were also required to sign a Scheduling
Coordinator Agreement. Thus, the evidence is clear and uncontested that when
[WAPA and BPA] signed the PX and SC Agreements, they agreed to accept the
prices, terms, and conditions established by the [Cal-PX FERC Tariff and Cal-
ISO FERC Tariff], as determined and modified from time to time by FERC.
Pac. Gas & Elec. Co., 105 Fed. Cl. at 432–33.
But, the undersigned judge has concluded otherwise. The fact that WAPA and BPA
agreed to abide by FERC’s “policies, terms, and conditions” does not establish, as a matter of
law, contractual privity between WAPA and the Cal-IOUs or California or BPA with the Cal-
IOUs or California. WAPA and BPA’s promises were made to Cal-PX and Cal-ISO, not to the
Cal-IOUs or California. Moreover, there is no text in the Cal-PX Agreements or Cal-ISO SC
Agreements manifesting any intent by WAPA or BPA to assume any legal duties to the Cal-
IOUs or California. Nor was there any “direct, unavoidable contractual liability [that is]
necessary to trigger a waiver of sovereign immunity.” Nat’l Leased Hous. Ass’n v. United
States, 105 F.3d 1432, 1436 (Fed. Cir. 1997).
In the alternative, the prior trial court judge also concluded that the Cal-IOUs and
California had privity with WAPA and BPA, because it viewed Cal-PX as a:
facilitator[] only, and that the payment obligations were between the buyer and
seller. Since the [Cal-]PX [was a] pass-through entit[y] or clearinghouse[], the
contractual relationships of offer, acceptance, and mutual intent ran between the
Agencies and the [Cal-]IOUs, the Plaintiffs. The [Government’s] argument is
illogical that there is no relationship between [WAPA and BPA] and [the Cal-
IOUs and California]. For example, when one pays a bill with a check, the money
may go into the creditor's bank account, but it is the legal property of the creditor.
It meets the debtor's legal obligations. The same relationship existed here. The
[Cal-]PX . . . [was] like a bank, and [WAPA and BPA] and the [Cal-IOUs and
California] had the obligations.
Pac. Gas & Elec. Co., 105 Fed. Cl. at 433.
The prior trial court’s analogy, however, is unsupported by any record citations and
misconstrues the record that evidences that Cal-PX and Cal-ISO were not passive, neutral
“banks,” simply facilitating pass-throughs of electricity and money. Instead, the Cal-PX and the
Cal-ISO actively engaged in trading, price-setting, and adjusting rates. PE 66 at § 2.2.2 (“To
fulfill its obligations with respect to scheduling Energy and Ancillary Services, the ISO shall:
provide Scheduling Coordinators with operating information and system status . . . ; determine
whether Preferred Schedules submitted by Scheduling Coordinators meet [certain]
19
requirements . . . ; prepare Suggested Adjusted Schedules . . . ; validate all Ancillary Services
bids . . . ; reduce or eliminate Congestion based on Adjustment Bids . . . ; and [i]f necessary,
make mandatory adjustments to Schedules[.]”); PE 57 at § 3.1 (“The PX shall (1) calculate the
prices at which trades in Energy are transacted in the PX Markets, (2) settle trades in Energy
between PX Participants, (3) receive Meter Data from the Scheduling Coordinator Metered
Entities . . . , (4) prepare and distribute to PX Participants invoices reflecting the amounts
payable and receivable . . . , and (5) operate the funds transfer system[.]”). Thus, Cal-PX and
Cal-ISO were active, independent parties to the contracts with WAPA and BPA, not simply
facilitators such that WAPA and BPA were in privity with the Cal-ISOs and California.
For these reasons, the court has determined that WAPA and BPA were not in privity of
contract either with the Cal-IOUs or California.
2. Neither The California Investor-Owned Utilities Nor The State Of
California Were Third-Party Beneficiaries To A Contract With
Either The Western Power Administration Or The Bonneville Power
Administration.
The prior trial court also decided that there was no need to “address whether the Plaintiffs
are third party beneficiaries as the evidence proved that they are direct beneficiaries.” Pac. Gas
& Elec. Co., 105 Fed. Cl. at 433 n.2. In light of today’s privity ruling, the court is obligated to
reconsider that determination, because a third-party beneficiary status is a jurisdictional
exception to privity, i.e., only an intended third-party beneficiary has standing to enforce a
contract to which it is not a direct party. See 13 WILLISTON ON CONTRACTS § 37.1 (4th ed. 2013)
(“[A]n exception to the need for privity was developed through the doctrine of third party
beneficiaries.”); see also RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981) (“[A] beneficiary
of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary
is appropriate to effectuate the intention of the parties and either[:] (a) the performance of the
promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the
circumstances indicate that the promisee intends to give the beneficiary the benefit of the
promised performance.”).
To establish third-party beneficiary status, a contract need not afford a third-party the
“direct right to compensation or the power to enforce that right against the promisor.” Glass v.
United States, 258 F.3d 1349, 1354 (Fed. Cir. 2001); see also Montana v. United States, 124
F.3d 1269, 1273 (Fed. Cir. 1997) (same); Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1260
(Fed. Cir. 2005) (“[T]hird-party beneficiary status is not reserved [solely] for those parties who
benefit expressly under a given contract.”). Instead, third-party beneficiary status may be
established where the party “fall[s] within a class clearly intended to be benefited” by the
contract. See Montana, 124 F.3d at 1273; see also JGB Enters., Inc. v. United States, 497 F.3d
1259, 1261 n.1 (Fed. Cir. 2007) (observing that a subcontractor was a third-party beneficiary,
where “the [contracting officer] knew or should have known that the [G]overnment’s payment
on the contract was intended to directly benefit the subcontractor”).
The United States Court of Appeals for the Federal Circuit has held that third-party
beneficiary status is not established “merely because [a] contract would benefit [a party].” Fed.
Deposit Ins. Corp. v. United States, 342 F.3d 1313, 1319 (Fed. Cir. 2003) (“FDIC”); see also US
20
Ecology, Inc. v. United States, 245 F.3d 1352, 1356 (Fed. Cir. 2001) (holding that the
Government’s cooperation with a third-party is not sufficient to establish a third-party
beneficiary relationship). Instead, “[t]hird party beneficiary status is an ‘exceptional privilege’
and, to avail oneself of this . . . privilege, a party must ‘at least show that [the contract] was
intended for his direct benefit.’” FDIC, 342 F.3d at 1319 (quoting Glass, 258 F.3d at 1354); see
also Flexfab, 424 F.3d at 1259 (holding that an “incidental beneficiary” 15 does not have standing
to sue for breach of a contract). And, that privilege “should not be granted liberally.” Id.; see
also Anderson, 344 F.3d at 1352 (referring to “the stringent requirements which must be satisfied
to establish third-party beneficiary status.”); see also G4S Tech. LLC v. United States, 2015 WL
968116, at *7 (Fed. Cir. Mar. 6, 2015) (holding that there was no third-party beneficiary status,
despite contrary circumstantial evidence, when “the [G]overnment’s actions never deviated from
the scope of its sovereign responsibilities to safeguard taxpayer funds and advance the public
interest”).
In addition, a government contract must reflect the express or implied intention of the
contracting parties to benefit a specific third-party. See Montana, 124 F.3d at 1273 (holding that
a plaintiff “must fall within a class clearly intended to be a beneficiary thereby”). The party
asserting third-party beneficiary status also must “at least, show that [the contract] was intended
for his direct benefit.” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230
(1912). In sum, the trial court must consider the intent of the contracting parties as the
“cornerstone” of the third-party beneficiary status inquiry. See Flexfab, 424 F.3d at 1259.
In this case, neither the specific language of the Cal-PX Participation Agreements nor the
Cal-ISO SC Agreements refer to the Cal-IOUs or California by name, much less reflect any
benefit intended on their behalf by WAPA or BPA. In addition, neither the PX Agreements nor
SC Agreements demonstrate “that a [G]overnment agent with authority to contract on behalf of
the [G]overnment intended to [convey a] benefit” on Cal-IOUs or California. See Flexfab, 424
F.3d at 1256. And, there is no testimony in the record that establishes any authorized agent of
WAPA or BPA intended to convey any benefit to the Cal-IOUs or California. At most, the Cal-
IOUs and California were incidental beneficiaries. As such, they lack third-party beneficiary
standing. See RESTATEMENT (SECOND) OF CONTRACTS § 315 (stating that an incidental
beneficiary “acquires by virtue of the promise no right against the promisor or the promisee”).
For these reasons, the court has determined that the Cal-IOUs and California were not
third-party beneficiaries to the contract between Cal-PX and Cal-ISO with WAPA and BPA.
3. Neither Cal-PX Nor Cal-ISO Was An Agent Of The Cal-IOUs Or The
State Of California.
An agency relationship can arise when:
Two or more principals . . . authorize the same agent to make separate contracts
for them. If the agent makes a single contract with a third party on the principals’
15
The RESTATEMENT (SECOND) OF CONTRACTS § 302 (1981) defines an “incidental
beneficiary” as “a beneficiary who is not an intended beneficiary.”
21
behalves that combines the principals’ separate orders or interests and calls for a
single performance by the third party . . . , unless the agent acted with actual or
apparent authority . . . , the third party is not subject to liability on the combined
contract to any of the separate principals.
RESTATEMENT (THIRD) OF AGENCY § 6.05(2)(c). “An agent acts with actual authority when, at
the time of taking action that has legal consequences for the principal, the agent reasonably
believes . . . that the principal wishes the agent so to act.” Id. at § 2.01. “Apparent authority is
the power held by an agent . . . to affect a principal’s legal relations with third parties when a
third party reasonably believes the actor has authority to act on behalf of the principal and that
belief is traceable to the principal’s manifestations.” Id. at § 2.03.
The cases that United States Court of Appeals for the Federal Circuit has considered to
date concerning agency arise in the context of a prime/subcontractor relationship. For example,
the appellate court has recognized that privity may be established by an agency relationship
between the Government and a subcontractor, only if the “prime” contractor is an agent for the
Government. See United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed. Cir. 1983)
(citing Kern-Limerk, Inc. v. Scurlock, 347 U.S. 110, 120–21 (1954) and W. Union Tel. Co. v.
United States, 66 Ct. Cl. 38, 50 (1928)). But to do so, the facts must establish that the “prime”
contractor was “(1) acting as a purchasing agent for the [G]overnment, (2) the agency
relationship between the [G]overnment and the prime contractor was established by clear
contractual consent, and (3) the contract stated that the [G]overnment would be directly liable to
the vendors for the purchase price.” Johnson Controls, 713 F.2d at 1531 (internal citations
omitted) (emphasis in original); see also Nat’l Leased Hous. Ass’n, 105 F.3d at 1435−36 (same).
In this case, the record reflects that no financial transaction ever took place between the
Cal-IOUs or California and WAPA or BPA. Cal-PX obtained bids for wholesale power from
utilities that signed a Participation Agreement. PE 57 at ¶ 3 (Responsibilities of PX and PX
Participants). Then, Cal-PX set a market price, “based in the most expensive generation needed
to meet demand” and awarded wholesale power at that market price. PE 199 at 32060; 6/24/08
TR at 27–29. Thereafter, each of the Cal-IOUs received individual billing statements, invoices,
and supporting data specifying the amount due to or from Cal-PX. PE 57 at ¶ 4 (PX Accounting
and Administrative Charge), ¶ 6 (Settlements and Billing); 7/14/10 TR at 587−93 (confirming
that Cal-PX and Cal-ISO handled billing and settlements). The Cal-IOUs then made payments
directly to Cal-PX for power purchased. PE 57 at ¶ 4 (PX Accounting and Administrative
Charge). The Cal-PX also required that all signatories to a Participation Agreement provide
collateral and maintain a financial reserve account, held in trust. PE 188 (Cal-PX Operating
Manual ¶ 2 (Bank Accounts)). The Participation Agreements indemnified Cal-PX for the risk of
any losses. PE 57 at ¶ 14.3. Although market participants reserved the right to pursue
delinquent or non-paying participants by a separate lawsuit, they could do so only after providing
notice to Cal-PX. PE 66 at § 11.19; see also 6/24/08 TR at 29–33. These facts evidence that
Cal-PX was not an agent of the Cal-IOUs and California.
Moreover, in Johnson Controls, the United States Court of Appeals for the Federal
Circuit emphasized that, in that case, although the Government “retained a great deal of control”
over the prime contractor, it was “also apparent that the [G]overnment meant to use [the prime
22
contractor] as a buffer between it and the claims of the subcontractors.” 713 F.2d at 1552. Thus,
the subcontractor did not have standing to pursue its claim. Id. at 1557. Similarly here, WAPA
and BPA were in privity with Cal-ISO and Cal-PX; thus, the Government intended Cal-ISO and
Cal-PX to be legal buffers between them and the Cal-IOUs and California. Moreover, the third
Johnson Controls factor, i.e. “the contract stated that the [G]overnment would be directly liable
to the vendors for the purchase price,” is not satisfied here. Id. at 1551. Nothing in the Cal-PX
or Cal-ISO contracts provides that WAPA or BPA would be liable to the Cal-IOUs or California.
Likewise, Christos v. United States, 48 Fed. Cl. 469 (2000), aff’d, 300 F.3d 1381 (Fed.
Cir. 2002), is instructive. There, plaintiffs were employees who had been laid off by
Westinghouse Savannah River Company (“WSRC”). Id. at 472. WSRC contracted with DOE
for cost-reimbursement management and operation. Id. The contract between WSRC and DOE
included “a Personnel Appendix setting forth allowable personnel administration costs,”
including severance pay. Id. at 472–73. Plaintiffs sued DOE for severance pay. Id. at 474. The
court analyzed the Johnson Controls factors and determined that “DOE specifically stated in the
[relevant] Contract’s disclaimer provision that it is not directly liable to third parties like
plaintiffs. . . . [Thus,] plaintiffs cannot establish the third prong of the agency test,” i.e., “the
contract stated that the government would be directly liable.” Id. at 478. Importantly, the
contract contained “no ‘reasonably clear indications’ that the [G]overnment intended to create a
relationship or that it permits the type of suit plaintiffs have filed. Plaintiffs, therefore, cannot
establish the second prong of the agency test either.” Id. The same analysis applies to this case.
The Cal-IOUs and California contracted with Cal-PX and Cal-ISO, not WAPA or BPA. PE 23
(Scheduling Coordinator Agreement between WAPA and Cal-ISO); PE 26 (PX Participation
Agreement between BPA and Cal-PX); PE 30 (Scheduling Coordinator Agreement between
BPA and Cal-ISO; PE 43 (05/28/99 PX Participation Agreement between WAPA and Cal-PX);
PE 45 (06/22/99 PX Participation Agreement between WAPA and Cal-PX). There is no
“reasonably clear indication” in any contract that WAPA or BPA was to be directly liable to the
Cal-IOUs or California. See Christos, 300 F.3d at 478; see also S. Cal. Edison Co. v. Lynch, 307
F.3d at 803 (“SoCal Edison is in privity with [Cal-PX] not with [other wholesale electric] power
companies.” Instead, the latter’s relationship is based on a contingent “unsecured claim against
a third-party debtor.”) (emphasis added).
The fact that the term “agency” appears in the Cal-PX and Cal-ISO contracts does not
change this conclusion. PE 188 at ¶ 5 (Determination of Real Time Market Supplier Trading)
(referring throughout to the Cal-PX and Cal-ISO as “acting as agents”); PE 57 ¶ 3.1 (Cal-PX
“will not be, and shall not be deemed to be a counterparty to any trade transacted through the PX
Markets.”). As a matter of law, however, Cal-ISO stated it would “not act as principal but as
agent for and on behalf of the relevant Scheduling Coordinators.” PE 66 ¶ 2.2.1. Cal-PX acted
as the Scheduling Coordinator for some of the Cal-IOUs and California. PE 57, Schedule 4,
¶ 1.1.1 (“The PX operates as an Energy auction for the PX Markets on behalf of PX Participants.
The PX also acts as a Scheduling Coordinator for certain PX Participants . . . for submitting
Schedules to the [Cal-]ISO.”); PE 25 (SCE PX Participation Agreement); PE 37 (PG&E PX
Participation Agreement); PE 249 (California PX Participation Agreement). Each of these three
Agreements incorporates the Cal-PX tariff; but none exempts the Participant from using Cal-PX
as its Scheduling Coordinator with Cal-ISO. PE 25, PE 37, PE 249. Thus, because Cal-ISO
acted as an agent on behalf of Scheduling Coordinators, and Plaintiffs contracted with Cal-PX to
23
be their Scheduling Coordinator, on first impression, it appears that Plaintiffs met the agency
exception to privity.
But, WAPA and BPA also entered into similar Participation Agreements with Cal-PX
and Cal-ISO. PE 23 (WAPA ISO Scheduling Coordinator Agreement), PE 43, 45 (WAPA PX
Participation Agreements), PE 26 (BPA PX Participation Agreement), PE 30 (BPA ISO
Scheduling Coordinator Agreement). Cal-ISO cannot be an agent to parties on both sides of a
transaction. See RESTATEMENT (THIRD) OF AGENCY § 8.01 (2006) (“An agent has a fiduciary
duty to act loyally for the principal’s benefit in all matters connected with the agency
relationship.”); see also Pegram v. Herdrich, 530 U.S. 211, 224 (2000) (“[T]he common law
(understood as including what were once the distinct rules of equity) charges fiduciaries with a
duty of loyalty[.]”). To the extent that Cal-ISO purports to be an agent to parties on both sides of
this dispute, the Cal-IOUs and California cannot claim an agency exception to privity.
For these reasons, the court has determined that the Cal-IOUs and California have
established neither privity nor either of the exceptions thereto.
F. Jurisdiction.
The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. § 1491, “to render judgment upon any claim against the United States founded either
upon the Constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a
jurisdictional statute; it does not create any substantive right enforceable against the United
States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States
Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424
U.S. 392, 398 (1976).
To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, Constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United
States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires the
litigant to identify a substantive right for money damages against the United States separate from
the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en
banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must
identify a separate source of substantive law that creates the right to money damages. . . . [T]hat
source must be ‘money-mandating.’”). Specifically, a plaintiff must demonstrate that the source
of substantive law upon which he relies “can fairly be interpreted as mandating compensation by
the Federal Government[.]” Testan, 424 U.S. at 400. And, the plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter
jurisdiction [is] put in question . . . . [the plaintiff] bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence.”).
Plaintiffs claim that the court “has jurisdiction over [their] claims for relief pursuant to
the Contract Disputes Act (“CDA”), 41 U.S.C. § 609(a)(1), and the Tucker Act, 28 U.S.C.
24
§§ 1491(a)(1) and 1491(a)(2).” Compl. ¶ 12. The Government has not contested subject-matter
jurisdiction under either statute, but the court has an obligation to consider the issue sua sponte.
See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or
have not presented. Subject-matter jurisdiction can never be waived or forfeited.”) (internal
citation omitted).
Plaintiffs first assert that the court has jurisdiction under the CDA § 609(a)(1). 16 But,
“[t]he CDA applies to contracts entered into by an executive agency for: (1) the procurement of
property, other than real property in being; (2) the procurement of services; (3) the procurement
of construction, alteration, repair or maintenance of real property; or (4) the disposal of personal
property.” N. Star Steel Co. v. United States, 477 F.3d 1324, 1332–33 (Fed. Cir. 2007) (citing 41
U.S.C. § 602(a)). WAPA “markets and delivers cost-based hydroelectric power and related
services[.]” Id. at 1326. Similarly, “BPA markets, transmits, purchases, exchanges, and sells
electric energy in the wholesale market.” City of Burbank, 273 F.3d at 1373. In the relevant
North Star Steel contract, “WAPA agreed to provide both non-firm transmission service . . . and
regulating services[.]” N. Star Steel Co., 477 F.3d at 1327. The United States Court of Appeals
for the Federal Circuit held that “[t]he CDA does not apply to [WAPA’s contract] because it was
a contract for the provision of services by the [G]overnment.” Id. at 1332. This case is different,
because WAPA and BPA were both buying and selling electric services. See 95 FERC ¶ 61418,
62546 (2001) (eliminating the mandatory buy-sell requirement). Thus, the court has jurisdiction
over claims relating to WAPA and BPA’s procurement of electric power and scheduling services
of electric power under the CDA; it does not have jurisdiction over claims relating to their sales.
See 41 U.S.C. § 7102(a)(2). 17
In North Star Steel, the United States Court of Appeals for the Federal Circuit
nonetheless held that “[b]ecause North Star’s claim arose out of . . . an express contract with the
United States, the exercise of jurisdiction by the Court of Federal Claims was proper under the
Tucker Act.” N. Star Steel Co., 477 F.3d at 1332. In this case, Plaintiffs assert that the Tucker
Act provides the court with jurisdiction over their claims. Compl. ¶ 12. But, unlike North Star
Steel, the court has determined that there was no “express contract with the United States.” See
supra Section III.A. For the same reasons Plaintiffs lack standing, the court also does not have
jurisdiction to adjudicate Plaintiffs’ contract claims under the Tucker Act.
16
At the time of Plaintiff’s March 12, 2007 Complaint, Section 609(a)(1) provided:
Except as provided in paragraph (2), and in lieu of appealing the decision of the
contracting officer under section 605 of this title to an agency board, a contractor
may bring an action directly on the claim in the United States Court of Federal
Claims, notwithstanding any contract provision, regulation, or rule of law to the
contrary.
41 U.S.C. § 609(a)(1) (effective to Jan. 3, 2011).
17
On January 4, 2011, 41 U.S.C. § 602 was renumbered 41 U.S.C. § 7102.
25
G. Assuming Arguendo, Plaintiffs Have Standing, Count I Of Plaintiffs’ Refund
Period Breach Of Contract Claims Must Be Dismissed.
1. The Government’s Argument.
The Government argues that the court should enter judgment as to Count I of the
Plaintiffs’ Complaints “because the predicate for those breach of contract claims—the alleged
correction by [FERC] of refund period sales prices pursuant to section 206 of the Federal Power
Act (FPA), 16 U.S.C. § 824e—never happened.” Gov’t Mot. at 4. 18 “[P]laintiffs’ theory of
recovery is factually dependent on FERC having retroactively reset the Market Clearing Price for
all market participants.” Gov’t Mot. at 8 (emphasis added). Plaintiffs’ Complaints allege that
WAPA and BPA are “contractually obligated to reimburse [the IOUs and California] for the
difference between the rates that [BPA and WAPA] initially charged for [their] sales in the ISO
and PX markets . . . and the [Mitigated Market Clearing Price].” Gov’t Mot. at 8 (quoting
Compl., Nos. 07-157C ¶ 75, 07-167C ¶ 75; 2nd Am. Compl., No. 07-184C ¶ 71). The problem
is that “FERC never ‘corrected’ or ‘revised’ refund period sales prices; indeed, it never had any
authority to do so.” City of Redding, 693 F.3d at 840–41. As the United States Court of Appeals
for the Ninth Circuit held, FERC had “authority to determine a rate only prospectively, and
cannot engage in the retroactive resetting of rates . . . either on a market-wide basis or on an
individual basis.” Gov’t Mot. at 9 (citing City of Redding, 693 F.3d at 840). Because FERC
cannot order retroactive refunds under FPA § 206, the factual predicate for Plaintiffs’ breach of
contract never occurred. Gov’t Mot. at 9.
The Government further disputes Plaintiffs’ position that the Cal-PX FERC Tariff
Section 13 and Cal-ISO FERC Tariff Section 19 “mean that ‘the Agencies contractually
committed to abide by FERC-established pricing[.]’” Gov’t Mot. at 10 (quoting Pl. Reply in
Response to the court’s March 19 and March 20 Orders, at 9 (May 23, 2014) (Dkt. No. 327)).
Instead, these sections reserve the “Participant’s ability ‘to exercise its rights under Section 206
of the FPA.’” Gov’t Mot. at 10 (quoting PE 57 at 919; PE 66 at 316–17). Those rights,
however, extend only as far as FPA § 206 permits. Gov’t Mot. at 10. In other words, a
Participant is free to petition FERC to exercise its refund authority under FPA § 206(b), but the
FERC’s authority is limited to “determin[ing] what the just and reasonable price ‘would have
been’ for any refund period,” not “establish[ing] any actual rates.” Gov’t Mot. at 10–11. Section
206(b) of the FPA authorizes FERC only to assess refund liability over “jurisdictional sellers.”
Gov’t Mot. at 11. WAPA and BPA are not subject to FERC jurisdiction.
According to Plaintiffs, Alliant Energy v. Nebraska Public Power Dist., 347 F.3d 1046(8th Cir. 2003), “support[s] the notion that . . . FERC refund orders, otherwise unenforceable
18
The Government also argues the court should dismiss Count 1 of the Plaintiffs’
Complaints, because they “did not present sum-certain claims to a contracting officer.” Gov’t
Mot. at 2. The Contract Disputes Act, however, does not require sum-certain claims. Instead,
the sum-certain language appears in the Federal Acquisition Regulations (“FAR”). The FAR
applies to Government acquisitions, not sales. See Precision Pine & Timber, Inc. v. United
States, 75 Fed. Cl. 80, 87 (2006) (holding that the FAR does not apply when “the Government is
not ‘acquiring,’ but rather, is selling a commodity”). Here, the Government sold electricity. As
such, the FAR does not apply, and Plaintiffs were not required to submit a sum-certain claim.
26
against a non-jurisdictional utility, may nevertheless be enforced via contract.” Gov’t Mot. at
11–12 (citing Pl. Br. in Response to the court’s March 19 and March 20 Orders, at 41 (Apr. 18,
2014) (Dkt. No. 324); Pl. Reply in Response to the court’s March 19 and March 20 Orders, at 10,
12 (May 23, 2014) (Dkt. No. 327)). “[T]he reference to Alliant in Bonneville only suggested that
the remedy, ‘if any,’ would be contractual. Gov’t Mot. at 12. Moreover, the United States Court
of Appeals for the Ninth Circuit “[took] no position on remedies available outside of the FPA.”
Gov’t Mot. at 12 (quoting Bonneville, 422 F.3d at 926). “Alliant did not once mention the FPA,
let alone § 206[.]” City of Redding, 693 F.3d at 840. In addition, the tariff in Alliant was
established under FPA § 205, but this tariff was issued under FPA § 206. Gov’t Mot. at 12.
“Alliant presented an entirely different basis for contractual liability” under Section 205—not
subject to the same jurisdictional constraints as Section 206. Gov’t Mot. at 12. The Alliant tariff
was a provisional rate that FERC accepted “subject to refund if that tariff was ultimately found to
be unreasonable under FPA Section 205”; thus, the Government expressly was liable for a rate it
knew could be subject to a refund. Gov’t Mot. at 13 (citing Mid-Continent Area Power Pool, 87
FERC ¶ 61075, 61324 (April 15, 1999) (“MAPP”)). In this case, however, “FERC itself said
that these rates were accepted as final and were not subject to revision under Section 205.”
Gov’t Mot. at 13 (citing 96 FERC ¶ 61120, 61508 (July 25, 2001)). As such, “[t]here is no
corresponding contractual obligation,” because “City of Redding now makes plain that no such
retroactive change of a rate may ever be made under Section 206[.]” Gov’t Mot. at 14.
2. Plaintiffs’ Response.
Plaintiffs respond that City of Redding does not concern the court’s jurisdiction, but
“whether the parties’ contracts were breached.” Pl. Resp. at 10 n.13. The prior trial court
“previously rejected the same argument . . . concerning FERC’s correction of Refund Period PX
and ISO prices.” Pl. Resp. at 10 (citing Reconsideration Order, 110 Fed. Cl. at 136; California
ex rel. Brown v. United States, 110 Fed. Cl. at 140). The Government has not “provide[d] any
reason why that order may be reconsidered now.” Pl. Resp. at 11. Indeed, at trial, the
Government “pursued . . . the very same ‘retroactive ratemaking’ argument it makes here and
that the Court made fact-based determinations rejecting that argument.” Pl. Resp. at 12 (citing
Pac. Gas & Elec., 105 Fed. Cl. at 435–36, vacated, 114 Fed. Cl. 146 (2013)). Plaintiffs recite
the relevant evidence produced at trial 19 and insist that “this Court must defer” to the findings in
the May 2, 2012 Order. Pl. Resp. at 12–13.
Plaintiffs also argue that “FERC was authorized under the FPA to correct prices in the
PX and ISO markets.” Pl. Resp. at 14. The Government contrasts Sections 205 and 206, but
19
Plaintiffs claim that, at trial, they “demonstrated that [the Government’s expert] Mr.
[Jeffrey] Tranen did not correctly apprehend [sic] the FPA or the nature and scope of FERC’s
price correction authority.” Pl. Resp. at 12. Plaintiffs’ expert, Robert Gee, however, testified
that the PX and ISO tariffs contained clauses that “represent a contractual agreement that market
participants could petition FERC to investigate whether prices being charged are just and
reasonable and, if FERC found they were not, to correct those prices to just and reasonable
levels.” Pl. Resp. at 12 (citing TR 1656–1657 (A-0334–335)). The prior trial court concluded
that Mr. Tranen “misunderstood how FPA Section 206(b) operates” and his testimony had “no
probative value.” Pac. Gas & Elec. Co., 105 Fed. Cl. at 435–36. Therefore, the prior trial court
concluded that the tariff clauses did “represent a contractual agreement[.]” Id. at 435.
27
“[t]his putative distinction . . . is make-believe.” Pl. Resp. at 14. Plaintiffs view Sections 205
and 206 as “grant[ing] FERC parallel authority to keep new or contested rates in place on a
provisional basis, subject to correction and refund at the end of the FERC proceeding.” Pl. Resp.
at 14 (citing Port of Seattle v. FERC, 499 F.3d 1016, 1031–32 (9th Cir. 2007); CPUC, 462 F.3d
at 1046–47). Section 205 governs rate proposals filed by public utilities. See 16 U.S.C.
§ 824d(d). Section 206 governs the investigation of existing rates initiated on behalf of the
customers of public utilities. See 16 U.S.C. § 824e. The only difference between the two
Sections is “which entity initiates the proceeding.” Pl. Resp. at 15. Therefore, “[s]ection 206(b),
just like Section 205, allows FERC to correct prices from the effective date established for the
proceeding[.]” Pl. Resp. at 15 & n.17 (citing FirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 352
(D.C. Cir. 2014) (“The statutory ‘just and reasonable’ standard is the same under section 205 and
section 206.”)). In 1988, Congress added Section 206(b) to “establish[] more symmetry between
the procedures for rate reductions and rate increases.” Pl. Resp. at 16 (quoting 134 Cong. Rec.
S12063, S12064 (1988)). The key elements of Section 206(b) “parallel the procedures for rate
increase applications under Section 205.” Pl. Resp. at 16 (quoting H.R. Rep. No. 100-384, at 3
(1987)). Under Section 206(b), “[FERC] may order refunds of any amounts paid . . . in excess of
those which would have been paid under the just and reasonable rate[.]” 16 U.S.C. § 824e(b).
Just like Section 205, Section 206 also “permit[s] FERC to correct prices under the PX and ISO
tariffs, because the [Cal-]PX and [Cal-]ISO are ‘public utilities’ under the FPA.” Pl. Resp. at 17
(citing CPUC, 462 F.3d at 1038–39). “The Bonneville decision addresses Sections 205 and 206
in tandem throughout, making clear that there is no distinction with respect to FERC’s ratesetting
authority under either statute.” Pl. Resp. at 18 (citing Bonneville, 422 F.3d at 911, 913–19, 921–
22, 925).
Therefore, correcting prices under Section 206(b) “is not unlawful retroactive
ratemaking, any more than is FERC’s correction of rates under Section 205.” Pl. Resp. at 18. In
fact, the Government concedes that FERC lawfully may correct prices under Section 205. See
Gov’t Mot. at 13–14. And, since “the statutory structure of Sections 205 and 206 is identical,”
FERC may lawfully correct prices under 206. Pl. Resp. at 19 (citing La. Pub. Serv. Comm’n v.
FERC, 482 F.3d 510, 520 (D.C. Cir. 2007) (remanding FERC’s decision that it was unauthorized
to order refunds back “for a more considered determination”)). Although City of Redding held
that FERC does not have “the authority to retroactively reset the market rates for all market
participants,” it also held “that the specific FERC price correction orders on which this action is
based did not overstep that boundary.” 693 F.3d at 839. Therefore, City of Redding did not
“reject[] FERC’s correction of the PX and ISO market clearing prices.” Pl. Resp. at 20–21.
Instead, that decision clarified that “FERC had authority to correct prices in the PX and ISO
markets from the effective date established in the FERC proceeding and forward.” Pl. Resp. at
21. For this reason, the United States Court of Appeals for the Ninth Circuit repeatedly upheld
FERC orders correcting prices for all PX and ISO sales. Pl. Resp. at 21 (citing City of Redding
and CPUC). In sum, City of Redding says “exactly what Plaintiffs have been arguing all
along . . . as the basis for their contract claim—FERC corrected the prices charged by all market
participants[.]” Pl. Resp. at 25 (citing City of Redding, 693 F.3d at 841). And, since City of
Redding, FERC has continued “to issue orders holding that it has corrected prices for all
transactions during the Refund Period.” Pl. Resp. at 26 (citing 148 FERC ¶ 61006 at P 11
(2014)).
28
Next, Plaintiffs argue that “[u]nder the FPA, th[e c]ourt does not have subject matter
jurisdiction to review FERC’s orders.” Pl. Resp. at 26. FPA Section 213(b) “confer[s] exclusive
jurisdiction upon the federal courts of appeals to hear challenges to FERC orders.” Pl. Resp. at
26 (citing 16 U.S.C. § 825l). The FPA “prescribe[s] the specific, complete and exclusive mode
for judicial review of the Commission’s orders[.]” City of Tacoma v. Taxpayers of Tacoma, 357
U.S. 320, 336 (1958). As such, the United States Court of Federal Claims may not “consider,
much less decide, whether [FERC’s price correction] orders were correctly made.” Pl. Resp. at
27. The Government admitted as much at the City of Redding oral argument. Pl. Resp. at 28
(citing City of Redding v. FERC, Court of Appeals, Ninth Circuit, Nos. 09-72775, 09-72789, 09-
72791, 09/23/14 TR 14 (“If FERC says that the moon is made of green cheese under the Federal
Power Act, Court of Federal Claims is [going to] have that as binding[.]”)).
For this reason, Alliant is “exactly on point.” Pl. Resp. at 29. In Bonneville, the
Government argued that the Alliant circumstances were “directly analogous to those presented
here.” Joint Brief of Public Entity Petitioners and Petitioner/Intervenors on the Jurisdictional
Cases, Bonneville Power Admin. v. FERC (9th Cir. Dec. 23, 2004) at 41 (A-0135). The
Government “embraced” Alliant, even though it “arose under Section 205 rather than Section
206.” Pl. Resp. at 29. “[T]he fact that Alliant arose under Section 205 does not affect the
outcome here in the least.” Pl. Resp. at 32. “Because FERC lacks authority under either
Sections 205 or 206 to order governmental entities to pay refunds, the outcome in Alliant is due
solely to the fact that [the Government] was contractually bound by the FERC determination
changing the tariffed charges it had previously collected. That conclusion is directly applicable
here.” Pl. Resp. at 32–33.
Finally, prior to the PX and ISO markets becoming operational, BPA and WAPA
“actively pursued authority to receive the same PX and ISO prices as all other sellers.” Pl. Resp.
at 33 (citing Motion to Intervene and Protest of Bonneville Power Administration (June 6, 1997),
PE 11 at 533–36 (A-0417–420)). In addition, since 2001, “the Agencies have fought to avoid
honoring the very contract terms that they wanted and eagerly solicited from FERC in the first
place[.]” Pl. Resp. at 33. The Agencies “have sought and obtained refunds from other market
participants for overcharges on the Agencies’ purchases, while consistently refusing to pay
refunds for the Agencies’ sales to their purchasers in the market, who suffered exactly the same
injury.” Pl. Resp. at 33–34 (citing 96 FERC ¶ 61120, 61513 n.56). There is just no reason why
the Agencies “should be allowed to retain their windfall profits, and [the Government] offers no
such reason—only hypertechnical excuses for why it should not be held to the contracts that it
eagerly sought and freely entered.” Pl. Resp. at 35.
3. The Government’s Reply.
The Government makes five points in its Reply. First, “[i]t has long been recognized that
courts have the inherent power to modify interlocutory orders before entering a final judgment.”
Gov’t Reply at 1 (quoting 12/20/13 Order at 3). All relevant orders in this case are interlocutory
pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 54(b); thus, the court
may revisit them now. Gov’t Reply at 1–2. The law-of-the-case doctrine requires trial courts to
follow appellate court rulings, but it “does not otherwise bind a court to strict adherence to its
own prior interlocutory decisions.” Gov’t Reply at 2. Therefore, Plaintiffs wrongly impose
29
RCFC 59(a)’s “showing of extraordinary circumstances” standard onto the RCFC 54(b) orders in
this case. Gov’t Reply at 2–3.
Second, “Plaintiffs ignore the public entity exemption in Section 201(f) of the Federal
Power Act.” Gov’t Reply at 8. As the Ninth Circuit held, Section 201(f) is “a ‘huge’ exemption
[that] removes Governmental entities from FERC’s regulatory powers under sections 205 and
206.” Gov’t Reply at 8 (quoting Bonneville, 422 F.3d at 915–16). BPA and WAPA fall into that
“huge” exemption. Gov’t Reply at 8–9 (citing 125 FERC ¶ 61297).
Third, Plaintiffs also fail to respond to Bonneville’s holding that “FERC’s authority to
investigate rates and to order refunds is limited to any rate collected by ‘any public utility’; the
statute carries no reference to nonpublic utilities.” Bonneville, 422 F.3d at 911. According to the
United States Court of Appeals for the Ninth Circuit, “the fact that ISO and CalPX were public
utilities is irrelevant because FERC is ordering refunds from the governmental entities/non-
public utilities, not ISO or CalPX themselves.” Id. at 920. FERC’s actions “have no effect on”
governmental entities; thus, the proper focus is on sellers’ rates, not PX and ISO tariffs. Gov’t
Reply at 10.
Fourth, City of Redding is clear that “FERC has no authority to retroactively change rates
for the Refund Period rates. Instead, FERC may calculate the ‘would have been’ rate for the
Refund Period for the sole and limited purpose of assessing a refund liability on jurisdictional
sellers.” Gov’t Reply at 10 (citing City of Redding, 693 F.3d at 839–41). “[B]oth the majority
and the dissent in City of Redding agree that FERC does not have authority retroactively to
change prices market-wide for the Refund Period.” Gov’t Reply at 11 (citing City of Redding,
693 F.3d at 842). The Government contends that Plaintiffs’ “entire basis for breach is their
belief [is] that FERC’s May 29, 2009 order retroactively reset the Market Clearing Price for all
market participants.” Gov’t Reply at 11 (citing Pl. Resp. at 23–24). FERC, however, has no
authority to revise any past prices, either individually or market-wide. Gov’t Reply at 12 (citing
City of Redding, 693 F.3d at 842 (“[W]e reject the argument that FERC has an expansive
statutory authority to retroactively reset rates.”)).
Finally, the Government accuses Plaintiffs of “badly mischaracterize[ing] the Alliant
case” and the Public Entity Petitioners’ brief to the Ninth Circuit in Bonneville. Gov’t Reply at
12–13. That brief simply noted that FERC’s position in MAPP was inconsistent with that in
Bonneville. Gov’t Reply at 13. Moreover, “[t]here are major factual and legal differences
between” MAPP and this case. Gov’t Reply at 13. MAPP involved a provisional rate under
Section 205, giving FERC the undisputed power to subsequently alter the rate. Gov’t Reply at
13–14 (citing 87 FERC ¶ 61323, 61324 (1999)). In this case, however, “FERC specifically held
that the rates at issue in the Refund Period were final rates, not provisional, and refused to
change those rates on that basis.” Gov’t Reply at 14 (citing 96 FERC ¶ 61120, 61508 (2001)).
Here, FERC did not change any rate under Section 205. Gov’t Reply at 14. As for Section 206,
“City of Redding expressly rejected [P]laintiffs’ and FERC’s argument that FERC’s Section 206
powers were analogous to FERC’s power to change provisional rates filed under Section 205.”
Gov’t Reply at 14 (citing City of Redding, 693 F.3d at 840–41). Plaintiffs’ attempt to
characterize FERC’s actions as retroactive ratemaking is misguided, because “that retroactive
revision never occurred.” Gov’t Reply at 15. Any “provisions in the ISO and PX tariffs to
return the settlement amounts owed to sellers if errors, FERC directives, or other good cause
30
dictates” are “immaterial to the resolution of this case.” Gov’t Reply at 15. Such an obligation
would arise only if FERC revised BPA’s and WAPA’s rates, which it did not, as City of Redding
held. Gov’t Reply at 15.
4. The Court’s Resolution.
“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” RCFC 12(h)(3). Plaintiffs argue that the United States Court of
Federal Claims may not “review” the FERC Orders that are the predicate for their contract
claim. See 16 U.S.C. § 825l(b) (requiring that parties aggrieved by FERC orders “obtain a
review to such order in the United States Court of Appeals for any circuit wherein the licensee
or public utility to which the order relates is located or has its principal place of business, or in
the United States Court of Appeals for the District of Columbia”). But, the court is not
“reviewing” FERC’s Orders or questioning its factual findings. Instead, the court has analyzed
the FERC Orders to determine whether Plaintiffs have a valid contract-based claim against the
Government.
In that regard, two issues require resolution. First, does Section 206 of the FPA, 16
U.S.C. § 824e, authorize FERC retroactively to correct the Market Clearing Price of wholesale
electricity sales for participants in the Cal-PX and Cal-ISO markets? Second, is the
Government contractually liable for the difference between the rates that it charged wholesale
customers and the rates that FERC later determined to be “just and reasonable”?
The United States Court of Appeals for the Ninth Circuit extensively examined these
very issues in Bonneville and again in City of Redding. Although not bound by the Ninth
Circuit's holdings, 20 the court finds that appellate court’s reasoning to be persuasive and
Plaintiffs here have done little to refute the conclusion that FPA Sections 201, 205, and 206 do
not authorize the FERC to issue retroactive refunds.
Section 201(f) states:
No provision in this subchapter shall apply to, or be deemed to include, the United
States, a State or any political subdivision of a State, . . . or any corporation which
is wholly owned, directly or indirectly, by any one or more of the foregoing, or
any officer, agent, or employee of any of the foregoing acting as such in the
course of his official duty, unless such provision makes specific reference thereto.
16 U.S.C. § 824(f).
As the United States Court of Appeals for the Ninth Circuit observed:
20
See, e.g., Gibralter Fin. Corp. of Cal. v. United States, 825 F.2d 1568, 1572 (Fed. Cir.
1987) (“We are, of course, not bound by the Ninth Circuit’s ruling.”). Federal courts, however,
generally “do not create conflicts among the circuits without strong cause.” Wash. Energy
Co. v. United States, 94 F.3d 1557, 1561 (Fed. Cir. 1996) (citation omitted). Although each
circuit has an obligation independently to analyze the cases before it, the court “accord[s] great
weight to the decisions of the other circuits on the same question.” Id.31
The sweep of this exemption is huge. . . . [BPA] falls within the general
exclusion. The BPA is an agency of the United States. . . . A search of
subchapter II for specific reference to FERC’s jurisdiction over governmental
entities for refund purposes comes up empty-handed for FERC.
Bonneville, 422 F.3d at 915–16. 21
The United States Court of Appeals for the Ninth Circuit further explained that “[w]hen
Congress wanted a provision of the FPA subchapter II to apply to governmental entities, it knew
how to so specify.” Id. at 916 (citing FPA Sections 210–213). Congress, however, did not state
that Sections 205 or 206 should apply to governmental entities in any respect. In fact, it limited
those Sections’ application to “public utilities.” See 16 U.S.C. § 824d(a) (“All rates and charges
made, demanded, or received by any public utility[.]”); 16 U.S.C. § 824e(a) (“Whenever the
Commission . . . shall find that any rate . . . collected by any public utility[.]”). A public utility is
defined as “any person who owns or operates facilities subject to the jurisdiction of the
Commission under this subchapter.” 16 U.S.C. § 824e (emphasis added). Neither BPA nor
WAPA falls within this definition, because, pursuant to Section 201(f), they are not “subject to
the jurisdiction of [FERC].” Thus, Sections 205 and 206 do not apply to BPA or WAPA.
In fact, FERC recently issued an Order affirming that it “is precluded from ordering a
remedy for the transactions involving BPA, and WAPA[.]” 149 FERC ¶ 61116 at P 22 (2014).
And, it dismissed BPA and WAPA from that proceeding, because “at the current stage of the
proceeding, where the Commission will be ordering a remedy . . . , it is appropriate to dismiss
the non-jurisdictional entities from the proceeding.” Id. As FERC stated, there was “no reason
for [BPA and WAPA’s] continued participation,” because FERC had no authority to order a
retroactive remedy from a non-public utility. 22 Id. Based on this recent FERC Order, as well as
the United States Court of Appeals for the Ninth Circuit’s rulings in Bonneville and City of
Redding, the court concludes that Section 206 of the FPA does not authorize FERC retroactively
to correct the market clearing price for participants in the Cal-PX and Cal-ISO Markets.
Plaintiffs contend that if they cannot obtain relief from the FERC, they should at least be entitled
to the difference between actual and corrected prices under contract law. Compl. ¶ 3 (“The
Agencies are now contractually liable to reimburse the California IOUs for the difference
between the rates that the Agencies charged during the Refund Period and the lawful, corrected
rates under the tariffs.”). According to Plaintiffs, “the Agencies contractually agreed to be bound
21
Although WAPA was not a party in Bonneville, it too falls within the Section 201(f)
exemption as an agency of the United States. See Western Area Power Administration, History,
http://ww2.wapa.gov/sites/western/about/history/pages/default.aspx (last visited March 10, 2015)
(“On Dec. 21, 1977, high gas prices and an emphasis on conservation led Congress to create the
Department of Energy, including Western Area Power Administration—a new agency to sell and
deliver hydropower across 15 central and western states.”).
22
FERC declined to vacate earlier “findings regarding the transactions involving these
non-jurisdictional entities, as there are no grounds to do so. The Commission precedent is clear
that while it is precluded from ordering these entities to pay refunds, the Commission may
consider the facts and circumstances of governmental entities as part of its investigation of
jurisdictional rates.” 149 FERC ¶ 61116 at P 23 (2014).
32
by the provisions of the ISO and PX Tariffs, which incorporate FERC’s power to correct prices
that it determines to be unjust, unreasonable, or unlawful.” Compl. ¶ 73. But, even assuming
that the FERC Tariffs included the full extent of the FPA’s Section 206 authority, Plaintiffs still
have no cognizable contract claim against WAPA or BPA. Section 206 does not authorize
FERC to order retroactive refunds, and neither the Cal-PX Agreements nor the SC Agreements
contained any textual direction obligating them to do so.
H. Plaintiffs’ July 1, 2014 Motion To Reinstate The May 2, 2012 Liability
Decision And For Certification Of Orders For Interlocutory Appeal Is
Denied.
Plaintiffs July 1, 2014 Motion requests that the court reinstate the prior trial judge’s May
2, 2012 Order and certify it to the United States Court of Appeals for the Federal Circuit.
For the reasons stated in the court’s December 20, 2013 Order, the former trial court’s
May 2, 2012 Orders required reconsideration, because “jurisdictional issues that were previously
raised, but summarily rejected without a formal opinion.” Reconsideration Order, Pac. Gas &
Elec., Dkt. No. 311 at 2 (Dec. 20, 2013). As discussed herein, the United States Court of
Appeals for the Ninth Circuit’s recent decision in City of Redding completely undercuts the May
2, 2012 Order.
Reinstating and certifying the May 2, 2012 Order would not expedite this litigation. The
most efficient way to resolve the jurisdictional issues raised is by “entry of a final judgment as to
one or more, but fewer than all, claims or parties.” RCFC 54(b). 23
IV. CONCLUSION.
For the reasons discussed herein, the April 2, 2013 Orders denying the Government’s
November 2, 2012 Motion For Reconsideration, Pac. Gas & Elec. Co. v. United States, 110 Fed.
Cl. 135 (2013), are vacated; Plaintiffs’ July 1, 2014 Motion To Reinstate The May 2, 2012
Liability Decision And For Certification Of Orders For Interlocutory Appeal is denied; the
Government’s July 1, 2014 Motion for Entry of Judgment Dismissing Claim I of Pacific Gas &
23
RCFC 54(b) provides:
When an action presents more than one claim for relief—whether as a claim,
counterclaim, or third-party claim—or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.
RCFC 54(b).
33
Electric Co.’s March 12, 2007 Complaint, pursuant to RCFC 54(b), is granted; the
Government’s July 1, 2014 Motion for Entry of Judgment Dismissing Claim I of San Diego Gas
& Electric Co.’s March 13, 2007 Complaint is granted; the Government’s July 1, 2014 Motion
for Entry of Judgment Dismissing Claim I of California’s March 16, 2007 Complaint is granted;
and the Government’s July 1, 2014 Motion To Dismiss is denied.
Pursuant to RCFC 54(b), there being no just cause for delay, the Clerk is directed to
dismiss Claim 1 of Plaintiffs’ March 12, 2007, March 13, 2007, and March 16, 2007 Complaints.
IT IS SO ORDERED.
/s/ Susan G. Braden
Susan G. Braden, Judge
34