United States v. City of Fulton

9 Cl. Ct. 1422
CourtCourt of Appeals for the Federal Circuit
DecidedApril 7, 1986
DocketNo. 84-1725
StatusPublished

This text of 9 Cl. Ct. 1422 (United States v. City of Fulton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. City of Fulton, 9 Cl. Ct. 1422 (Fed. Cir. 1986).

Opinion

This case presents the question whether the Secretary of Energy violated § 5 of the Flood Control Act of 1944, 16 U.S.C. § 825s, or his contractual obligations by putting rates for hydroelectric power generated at federally owned dams into effect on an interim basis pending further review by the Federal Energy Regulatory Commission. The Court of Claims held that the Secretary’s actions exceeded his contractual and statutory authority, and granted summary judgment to respondents. 680 F.2d 115 (1982). After further proceedings, the Court of Appeals for the Federal Circuit affirmed, finding that the Court of Claims’ decision was the law of the case and correct on the merits. 751 F.2d 1255 (1985). We granted certiorari, 473 U.S. -, 105 S.Ct. 3523, 87 L.Ed.2d 649 (1985), and we now reverse.

I

A

In the Flood Control Act, Congress authorized the construction of a number of dam and reservoir projects, operated by the Army Corps of Engineers and producing large blocks of hydroelectric power. Congress had granted authority for several such projects before 1944, but had enacted no “general law governing the sale and distribution of power” so generated. S.Rep. No. 1030, 78th Cong., 2d Sess., 3 (1944). Intending “to place by law the responsibility for disposal of such power in an existing Federal agency,” ibid., Congress provided:

“Electric power and energy generated at reservoir projects under the control of the War Department and in the opinion of the Secretary of War not required in the operation of such projects shall be delivered to the Secretary of the Interior, who shall transmit and dispose of such power and energy in such manner as to encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles, the rate schedules to become effective upon confirmation and approval by the Federal Power Commission. Rate schedules shall be drawn having regard to the recovery (upon the basis of the application of such rate schedules to the capacity of the electric facilities of the projects) of the cost of producing and transmitting such electric energy, including the amortization of the capital investment allocated to power over a reasonable period of years____” Ch. 665, § 5, 58 Stat. 887, 890 (1944) (emphasis added) (codified as amended at 16 U.S.C. § 825s).

In order to sell the hydroelectric power turned over to him under that statute, the Secretary of the Interior created what eventually became five regional Power Marketing Administrations (PMAs). The PMA administrators were assigned the responsibility of preparing rate schedules and the supporting accounting and cost allocation studies. There were no formal procedures for public participation in PMA preparation of rate schedules, although some of the PMAs (not including the Southwestern Power Administration (SWPA), immediate[1425]*1425ly concerned in this suit) began to adopt such procedures starting in late 1977. See 45 Fed.Reg. 86976 (1980).

When determining whether to approve a PMA’s proposed rates, the Federal Power Commission utilized its “special expertise” and its “independent judgment” in measuring the proposal against the statutory standards. Bonneville Power Administration, 34 F.P.C. 1462, 1465 (1965).1 Because the Flood Control Act imposed no particular procedures for Commission review of rate proposals, the Commission was largely free to design its own. See Southeastern Power Administration, 54 F.P.C. 1631, 1632, n. * (1975). It developed a practice of affording notice and comment to customers and other affected parties when the Secretary submitted a rate schedule, and granting requests for oral argument or public hearing on a case-by-case basis.

The parties differ as to the degree to which Commission practice included the use of interim rates. The Solicitor General cites several instances in which the Commission did implement such rates; respondents answer that those instances were both isolated and unrepresentative. Our own examination of the historical record reveals that beginning in the 1970’s, the Commission announced its intention to examine PMA rate proposals “on the basis of evidentiary records which are developed during the course of [adjudicatory] public hearings,” Bonneville Power Administration, 54 F.P.C. 808, 810 (1975). It provided for full administrative hearings with cross-examination of witnesses.2 At the same time, the Commission adopted, in some cases, the practice of examining rates submitted to it by the Secretary and, if the rates appeared to lie within the statutory boundaries, approving them on an interim basis pending the formal hearing. It required that the PMA refund any overcharges with interest if the Commission found after a hearing that an approved interim rate had been too high. See Southeastern Power Administration, 54 F.P.C. 3 (1975); Bonneville Power Administration, 52 F.P.C. 1912 (1974); see also Bonneville Power Administration, 58 F.P.C. 2498 (1977) (Federal Columbia River Transmission System Act). The Department of the Interior initially took the view that full evidentiary hearings were inappropriate under the Flood Control Act, and that if such hearings were to be held the Commission had no power to approve rates on an interim basis. The Commission, however, explicitly rejected that position. Southeastern Power Administration, supra, at 1632-1633; see also Bonneville Power Administration, 59 F.P.C. 1194, 1195 (1977) (Federal Columbia River Transmission System Act). The Interior Department then acquiesced in the Commission’s view. See ibid.

B

This regulatory scheme was upset in 1977, with the passage of the Department of Energy Organization Act, 42 U.S.C. §§ 7101-7352 (DOE Act). That statute, designed to “assur[e] coordinated and effective administration of Federal energy policy and programs,” § 7112, eliminated the Secretary of the Interior’s role in hydroelectric power rate regulation, and abolished the Federal Power Commission entirely. The Interior Secretary’s rate-proposing function was transferred to the new Secretary of Energy, “acting by and through [the] Administrators” of the [1426]*1426PMAs. § 7152(a)(2). The Federal Power Commission’s rate approval function was transferred to the Secretary of Energy as well.3

The Secretary of Energy institutionalized an interim rate approval process for hydroelectric rates. He delegated to the Assistant Secretary for Resource Applications “the authority to develop, acting by and through the [PMA] administrators, and to confirm, approve, and place in effect on an interim basis, power and transmission rates for the five power marketing administrations.” 48 Fed.Reg. 60636 (1978) (emphasis added).4 He simultaneously delegated to the new Federal Energy Regulatory Commission (FERC) “the authority to confirm and approve on a final basis, or to disapprove, rates developed by the Assistant Secretary.” Ibid.

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