South Carolina v. United States

232 F.Supp.3d 785

State of SOUTH CAROLINA, Plaintiff,

v.UNITED STATES;

United States Department Of Energy;

Dr. Ernest Moniz, in his official Capacity as Secretary of Energy;

National Nuclear Security Administration;

and

Lt. General Frank G. Klotz, in his official Capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security, Defendants.

Civil Action No. 1:16–cv–00391–JMC

United States District Court, D. South Carolina, Aiken Division.

Signed February 7, 2017

Alan Wilson, Robert Dewayne Cook, Thomas Parkin C. Hunter, SC Attorney General's Office, Benjamin Parker Mustian, John William Roberts, Randy Lowell, Willoughby and Hoefer, Kenneth Paul Woodington, William Henry Davidson, II, Davidson Morrison and Lindemann, Columbia, SC, for Plaintiff.

Barbara Murcier Bowens, US Attorneys Office, Columbia, SC, Raphael Ortega Gomez, Spencer Elijah Wittman Amdur, US Department of Justice, Washington, DC, for United States.

ORDER AND OPINION

J. Michelle Childs, United States District Court Judge

Before the court is a motion for reconsideration, filed by Plaintiff, the State of South Carolina (the "State"), pursuant to Fed. R. Civ. P. 54(b), 59(e), and 60(b), asking the court to reconsider its rulings in its October 31, 2016 order directing further briefing in regard to the motion to dismiss filed by Defendants United States, the United States Department of Energy ("DOE"), Dr. Ernest Moniz, the National Nuclear Security Administration ("NNSA"), and Lieutenant General Frank G. Klotz (collectively "Defendants"). (ECF No. 62.)¹ For the reasons that follow, the court DENIES the motion for reconsideration.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2016, the State filed a complaint against Defendants asserting three causes of action, based largely on the provisions of 50 U.S.C. § 2566. (See ECF No. 1.) The State alleges that Defendants are responsible for operations at the Savannah River Site ("SRS"), which serves as the construction site for the MOX Facility that is intended to fabricate mixed-oxide fuel from defense plutonium owned by the federal government in accordance with international agreements. (See id. ); 50 U.S.C. § 2566. Section 2566(h) defines the production objective of the MOX Facility as producing mixed-oxide fuel from defense plutonium at an average rate determined by its production during a defined period but not less than one metric ton of mixed-oxide fuel per year. 50 U.S.C. § 2566(h)(2).

Relevant here, subsections (c)(1) and (d)(1) provide for certain consequences in the event the MOX production objective is not achieved:

(c) Contingent requirement for removal of plutonium and materials from Savannah River Site

If the MOX production objective is not achieved as of January 1, 2014, the Secretary [of Energy] shall, consistent with the National Environmental Policy Act of 1969 and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere—

(1) not later than January 1, 2016, not less than 1 metric ton of defense plutonium or defense plutonium materials; and

....

(d) Economic and impact assistance

(1) If the MOX production objective is not achieved as of January 1, 2016, the Secretary shall, subject to the availability of appropriations, pay to the State of South Carolina each year beginning on or after that date through 2021 for economic and impact assistance an amount equal to $1,000,000 per day, not to exceed $100,000,000 per year, until the later of—

(A) the date on which the MOX production objective is achieved in such year; or

(B) the date on which the Secretary has removed from the State of South Carolina in such year at least 1 metric ton of defense plutonium or defense plutonium materials.

50 U.S.C. § 2566(c)(1), (d)(1).

In its complaint, the State alleges that its suit arises out of agency action by Defendants that fails to comply with applicable law regarding the MOX Facility. (ECF No. 1 at 1.) Relevant here,² the State asserted two causes of action:

(1) In its second cause of action, the State alleges that Defendants failed to meet the MOX production objective by January 1, 2014, and failed to remove one metric ton of defense plutonium by January 1, 2016, or thereafter. (Id. at 27.) The State alleges that Defendants have unlawfully withheld a non-discretionary, mandatory duty and obligation to the State, and it seeks an order enjoining and requiring Defendants to remove from South Carolina one metric ton of defense plutonium pursuant to § 2566(c) and preventing Defendants from transferring additional defense plutonium to SRS. (Id. at 27–28, 31–32.)

(2) In its third cause of action, the State alleges that Defendants failed to meet the MOX production objective, and failed to remove one metric ton of defense plutonium, by January 1, 2016, or thereafter. (Id. at 28.) The State alleges that Defendants have unlawfully withheld a non-discretionary, mandatory duty and obligation to the State, and it seeks an order enjoining and requiring Defendants to pay the State the economic and impact assistance amount and to remove an additional one metric ton of defense plutonium from South Carolina, pursuant to § 2566(d). (Id. at 31–32.)

On April 25, 2016, Defendants filed a motion to dismiss, asserting, among other things, that they were protected by, and had not waived, sovereign immunity with respect to the third cause of action under § 2566(d). (ECF No. 17 at 30–34.) They understood the State to premise jurisdiction and a waiver of sovereign immunity on the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. , but argued that the third cause of action was barred by 5 U.S.C. § 702 or § 704. (Id. )

On October 31, 2016, the court entered the order that is the subject of the instant motion for reconsideration. (See ECF No. 56.) The court began its analysis by noting that the State primarily seeks to enforce what it avers are two statutory rights. (Id. at 9.) First, under the third cause of action, the State seeks an order requiring Defendants to make the § 2566(d)(1) economic and impact assistance payments, which the court referred to as the "monetary claim." (Id. ) Second, under the second cause of action, the State seeks an order requiring Defendants to remove one metric ton of plutonium from South Carolina pursuant to § 2566(c), which the court referred to as the "removal claim."³ (Id. )

The court next determined that the State could not proceed on either claim unless there had been a waiver of sovereign immunity. (See id. at 6 (citing Hawaii v. Gordon , 373 U.S. 57, 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (per curiam)).) The court concluded that sovereign immunity for the claims had been waived, if at all, only under the APA. (See id. at 7–8 (citing Suburban Mortg. Assocs., Inc. v. U.S. Dep't of Hous. & Urban Dev. , 480 F.3d 1116, 1121–22 (Fed. Cir. 2007) ).) Interpreting the APA and relevant case law, the court explained that "[a] waiver of sovereign immunity authorizing jurisdiction in a district court is available when a party satisfies the requirements of both § 702 and § 704 of the APA." (Id. at 7 (citing Bowen v. Massachusetts , 487 U.S. 879, 891–93, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) ; Consol. Edison of N.Y. v. U.S. Dep't of Energy , 247 F.3d 1378, 1382 (Fed. Cir. 2001) ).) Relevant here, § 704 provides that "final agency action for which there is no other adequate remedy in a court [is] subject to judicial review." 5 U.S.C. § 704. Thus, courts interpreting the APA have held that for the APA's waiver of sovereign immunity to apply, a plaintiff must meet § 702's requirement by seeking relief other than money damages and § 704's requirement by showing that there is no other adequate remedy for the agency action in another court. (ECF No. 56 at 8 (citing Doe v. United States , 372 F.3d 1308, 1312 (Fed. Cir. 2004) ).) The court pointed out that, pursuant to the Tucker Act, 28 U.S.C. §§ 1346, 1491. the Court of Federal Claims ("CFC") might be another court in which an adequate remedy was available for purposes of § 704. (Id. ) The Tucker Act waives sovereign immunity protection and authorizes monetary claims "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 damages in cases not sounding in tort." 28 U.S.C. §§ 1346, 1491(a)(1). For claims greater than $10,000, the Tucker Act assigns exclusive jurisdiction to the CFC. See Jan's Helicopter Serv. v. F.A.A. , 525 F.3d 1299, 1304 (Fed. Cir. 2008) ; Tootle v. Sec. of the Navy , 446 F.3d 167 (D.C. Cir. 2006).

The court determined that " ‘to resolve the sovereign immunity and jurisdiction questions, the court must consider the State's claims individually.’ " (ECF No. 56 at 10 (brackets omitted) (quoting Transohio Sav. Bank v. Dir., Office of Thrift Supervision , 967 F.2d 598, 609 (D.C. Cir. 1992) ) (citing Sharp v. Weinberger , 798 F.2d 1521, (D.C. Cir. 1986) (Scalia, J.)).) The court concluded that it lacked subject matter jurisdiction over the monetary claim because the APA does not waive sovereign immunity with respect to that claim. (See ECF No. 56 at 10–17.) First, the court noted that, when examining the interplay between the Tucker Act and the APA, it is preferable to start by determining whether the CFC provides an adequate remedy for purposes of § 704. (See id. at 10–11 (collecting cases).) Interpreting the Supreme Court's seminal decision on the issue in Bowen and case law that followed,⁴ the court explained that it does not look exclusively to the form of the complaint to determine whether it states a cognizable Tucker Act claim. (ECF No. 56 at 11–12 (citing Suburban , 480 F.3d at 1123–24, 1126 ; Consol. Edison , 247 F.3d at 1385 ; Nat'l Ctr. for Mfg. Scis. v. United States , 114 F.3d 196, 199 (Fed. Cir. 1997) ).) Rather, the court asks primarily whether the complaint seeks essentially a monetary reward and considers the...