United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 19, 2000
No. 99-1342
Wisconsin Electric Power Company,
Petitioner
v.
United States Department of Energy, et al.,
Respondents
On Petition for Review of an Action of the
Department of Energy and for a Writ of Mandamus
Martin P. Willard was on the briefs for petitioner.
Jerry Stouck and Robert L. Shapiro were on the brief for
amicus curiae.
Lois J. Schiffer, Assistant Attorney General, U.S. Depart-
ment of Justice, John T. Stahr, and John A. Bryson, attor-
neys, and Marc Johnston, attorney, Department of Energy,
were on the brief for respondents.
Before: Williams, Ginsburg, and Sentelle, Circuit Judges.
Opinion for the court filed PER CURIAM.
PER CURIAM: Wisconsin Electric petitions for review
and for a writ of mandamus, seeking: (1) a declaration that
the Department of Energy must provide both monetary and
non-monetary relief for having failed to begin disposing of
Wisconsin Electric's spent nuclear fuel (SNF) on January 31,
1998, as required by the parties' Contract; and (2) an order
directing the DOE to comply with this court's mandates in
Northern States Power Co. v. DOE, 128 F.3d 754 (D.C. Cir.
1997) (Northern I), and Northern States Power Co. v. DOE,
Nos. 97-1064 et al., 1998 U.S. App. LEXIS 12919 (D.C. Cir.
May 5, 1998) (Northern II). The DOE filed a motion to
dismiss on the ground that the court lacks subject matter
jurisdiction.
Wisconsin Electric claims this court has jurisdiction to
entertain its petition pursuant either to our continuing juris-
diction to enforce our mandates in Northern I and II, see
Northern I, 128 F.3d at 761 ("We retain jurisdiction over this
case pending compliance with the mandate issued herewith");
Northern II, 1998 U.S. App. LEXIS 12919, at *3-4 ("[P]ossi-
bly the award of some forms of equitable adjustment would
place the DOE in violation of the NWPA and again properly
trigger our jurisdiction"), or to the Nuclear Waste Policy Act
of 1982, s 42 U.S.C. 10139(a)(1).
I. Background
In Indiana Michigan Power Co. v. DOE, 88 F.3d 1272
(1996), we held that, under the NWPA, the DOE had an
unconditional obligation--an obligation, that is, without re-
gard to whether a repository was available--to begin dispos-
ing of SNF on January 31, 1998. See 88 F.3d at 1273, 1275-
76. The DOE acted to frustrate that decision by holding that
its failure to perform was "unavoidable" and therefore, under
the terms of the Contract, did not render the Department
liable for damages of any kind. See Northern I, 128 F.3d at
759-60. At the instance of several state public utility com-
missions and of certain utilities, including Wisconsin Electric,
we issued a writ of mandamus forbidding the DOE from
claiming, in proceedings under its contracts, that its failure to
perform was "unavoidable" because a repository was not
available. See id. at 760-61. We declined to grant further
relief to the utilities, however, because they have potentially
adequate remedies under their contracts with the Depart-
ment. See id. at 759. Accordingly, they were remitted to
their contractual remedies. See id.
In a post-judgment order, we expressly reiterated the
limited reach of our decision: "[Northern I] describes the
nature of the DOE's obligation, which was created by the
NWPA and undertaken by the DOE under the Standard
Contract. It does not place the question of contract remedies
in this court, nor set up this court as a source of remedies
outside the Standard Contract." Northern II, 1998 U.S. App.
LEXIS 12919, at *4.
II. Analysis
In its present petition Wisconsin Electric claims that the
position the DOE has taken during the negotiations over the
utility's proposed amendments to the Contract, namely that
the Department "only will consider monetary relief as a
remedy for [its] delay," violates the mandates in Northern I
and II. That is not correct. Those mandates prohibit the
DOE from interpreting the NWPA and its contracts with
utilities in a manner that would relieve the Department of its
unconditional obligation to begin disposing of SNF on Janu-
ary 31, 1998; we expressed no opinion about the relief the
DOE would have to provide for breach of that obligation. Cf.
Northern II, 1998 U.S. App. LEXIS 12919, at *5 ("While the
[NWPA] requires the DOE to include an unconditional obli-
gation in the Standard Contract, it does not itself require
performance"). Therefore, we do not have jurisdiction of
Wisconsin Electric's petition incident to the enforcement of
our mandates.
Nor do we have jurisdiction to consider Wisconsin Elec-
tric's petition pursuant to the NWPA, 42 U.S.C. s 10139(a)(1).
Insofar as it is relevant to the case at bar, that provision
grants the court jurisdiction over cases seeking review of: (1)
final action taken by the agency pursuant to the NWPA, and
(2) the agency's failure to take any action required by the
NWPA. Wisconsin Electric contends that under the terms of
its Contract the DOE has an obligation to provide it with non-
monetary relief. Although Wisconsin Electric may be correct
about that, a contract "[b]reach by the DOE does not violate
a statutory duty." Northern II, 1998 U.S. App. LEXIS 12919
at *5. The Court of Federal Claims, not this court, is the
proper forum for adjudicating contract disputes. See id. at
*4; Transohio Sav. Bank v. OTS, 967 F.2d 598, 610 (D.C. Cir.
1992). Indeed, Wisconsin Electric's petition raises issues that
are currently being litigated before the Court of Federal
Claims and the Federal Circuit. See Yankee Atomic Electric
Co. v. United States, 42 Fed. Cl. 223 (1998), appeal docketed,
No. 99-5140 (Fed. Cir.).
III. Conclusion
Accordingly, Wisconsin Electric's petition is
Dismissed for want of jurisdiction.