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Burbank, Cal., City of v. United States

Citation: 32 ELR 20436
No. No. 01-5004, 273 F.3d 1370/(Fed. Cir., 12/19/2001)

The court holds that the U.S. Court of Federal Claims improperly dismissed a city's breach of contract claims against the Bonneville Power Administration (BPA) for lack of jurisdiction. The BPA was created to serve the Pacific Northwest's energy needs. If there is surplus energy, the BPA may sell it pursuant to the authorization and restrictions codified at §§ 837(a) and 839 of the Bonneville Project Act. It was under these statutorily mandated provisions that the city and the BPA entered a contract under which the BPA agreed to sell the city surplus energy. The Court of Federal Claims found that it lacked jurisdiction to review breach of contract claims brought by the city because they constituted final agency actions taken by the BPA and, pursuant to an exception carved out by § 839f(e), are under the exclusive jurisdiction of the U.S. Court of Appeals for the Ninth Circuit.

The court first holds that the Court of Federal Claims erred in determining that it lacked jurisdiction. Section 839f(e)(5) contemplates that where disputed contract provisions are statutorily mandated or are arrived at via an administrative hearing under the BPA in which the pertinent facts are reflected in an administrative record, the Ninth Circuit possesses exclusive jurisdiction. In contrast, where, as here, the alleged breaches of contract pertain to terms that were freely negotiated in an arm's-length transaction and where the facts pertinent to those negotiations fall outside an administrative record, nothing in § 839f(e)(5) grants jurisdiction to the Ninth Circuit. Both breach of contract claims here involved breach of a nonstatutorily mandated provision, and, therefore, the Court of Federal Claims has jurisdiction over both the claims.

The full text of this decision is available from ELR (22 pp., ELR Order No. L-425).

Counsel for Plaintiff
John P. Williams
Duncan & Allen
1575 I St. NW, Washington DC 20005
(202) 289-8400

Counsel for Defendant
Richard P. Nockett
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]