United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2005 Decided March 4, 2005
No. 04-5143
SOUTHEASTERN FEDERAL POWER CUSTOMERS, INC.,
APPELLEE
v.
FRANCIS J. HARVEY, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF THE ARMY, ET AL.,
APPELLEES
STATE OF FLORIDA,
APPELLANT
Consolidated with
04-5148
Appeals from the United States District Court
for the District of Columbia
(No. 00cv02975)
James T. Banks and William S. Cox, III argued the causes for
appellants State of Florida and State of Alabama. Charles J.
Crist, Jr., Attorney General, Christopher M. Kise, Solicitor
General, Parker Thomson, Lauren James Caster, Donald G.
Blankenau and R. Craig Kneisel, Assistant Attorneys General,
Attorney General’s Office of the State of Alabama, and
2
Matthew Lembke, Warren B. Lightfoot, and W. Larkin Radney
IV were on brief.
Michael T. Gray, Attorney, United States Department of
Justice, Bruce P. Brown and Clinton A. Vince argued the causes
for the appellees. Robert A. Oakley, Attorney, United States
Department of Justice, Thurbert E. Baker, Attorney General,
Attorney General’s Office of the State of Georgia, R. Todd
Silliman, William M. Droze, J. Cathy Fogel, David A.
Fitzgerald, Edward J. McGrath, Patricia T. Barmeyer and Lewis
B. Jones were on brief.
Deborah M. Murray and Mary Maclean Asbill were on the
joint brief of amici curiae Alabama Rivers Alliance et al. in
support of the appellants.
Susan N. Kelly and Wallace F. Tillman were on the joint brief
of amici curiae American Public Power Association et al. in
support of the appellees.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
KAREN LECRAFT HENDERSON , Circuit Judge: The states of
Alabama and Florida appeal the district court’s approval of a
settlement agreement among the appellees, the United States
Army Corps of Engineers (Corps), the State of Georgia, various
Georgia municipal and county water authorities (Water Supply
Providers) and Southeastern Federal Power Customers, Inc.
(Southeastern), a non-profit association that represents rural
electric cooperatives and municipal electric systems utilities that
purchase hydropower from federal projects. Under the
settlement the Corps agreed to enter into interim contracts with
the Water Supply Providers to lease them water storage space in
Lake Sidney Lanier, a reservoir formed by the Buford Dam,
which the Corps built and operates on the Chattahoochee River
north of Atlanta. In turn, Southeastern’s members, who
distribute hydropower generated by the Buford Dam, will
3
receive credits in the amount of the supply rent against the price
they pay for hydropower. After conditionally approving the
settlement agreement, the district court issued an order
dismissing the case as moot. Because we conclude that the case
is not moot, we vacate the dismissal order, dismiss the appeals
from the other, nonfinal orders for lack of appellate jurisdiction
and remand to the district court.
In 1946 the Congress authorized the Corps to design and
construct the Buford Dam project, which was completed in
1956. See Rivers and Harbors Act of 1946, Pub. L. No. 79-525,
60 Stat. 634, 635 (1946). During the 1970s and the 1980s the
Corps entered into renewable five-year contracts with several
Water Supply Providers, which contracts allowed the latter,
subject to their payment of set fees, to withdraw water either
from the Chattahoochee River downstream of the Buford Dam
or from Lake Lanier itself. Since the last of these contracts
expired in 1990, the Corps has continued to permit the Water
Supply Providers to withdraw water under the terms of the
expired contracts but in increasing amounts.
In October 1989 the Corps released a draft proposal to
substantially increase the amount of the daily water withdrawal,
prompting Alabama to file suit against the Corps in the United
States District Court for the Northern District of Alabama in
June 1990. Alabama’s complaint alleged, inter alia, that the
Corps violated the National Environmental Policy Act, 42
U.S.C. § 4332(2)(C)(i)-(v), by failing to consider the potential
environmental effects of the increased withdrawals. On
September 19, 1990 the Alabama district court, upon motion of
the parties, issued a stay order which incorporated the parties’
stipulation they would not “execute any contracts or agreements
which are the subject of the complaint in th[e] action.” JA 332-
33, 329.
On December 12, 2000 Southeastern filed this action in the
United States District Court for the District of Columbia seeking
4
to enjoin the Corps from permitting the increased water
withdrawals which, Southeastern alleged, impaired the
hydropower capacity of the Buford Dam project to
Southeastern’s financial detriment. Georgia and the Water
Supply Providers moved to intervene in February 2001.
On January 9, 2003, after lengthy mediation, Southeastern,
the Corps, Georgia and the Water Supply Providers concluded
a settlement agreement which provided for interim ten-year
contracts allocating water storage space in Lake Lanier to the
Water Supply Providers which, in turn, were to pay higher fees
for the storage to compensate Southeastern for lost hydropower.
Each interim contract was renewable for an additional ten years
and was to “roll-over” into a permanent contract if such were
authorized by the Congress or by court order. On January 16,
2003 the parties filed the settlement agreement with the D.C.
district court.
In February 2003 Florida and Alabama moved to intervene in
this action and the motions were granted on October 9, 2003. In
February 2003 they also separately moved to abate or transfer
the action in favor of the pending action in the Northern District
of Alabama. In January 2003, Florida and Alabama had filed a
motion in the Alabama action to enjoin and declare void the
settlement agreement, alleging that it violated the 1990 stay of
that action.
On October 15, 2003 the Alabama district court issued a
preliminary injunction prohibiting the Corps and Georgia from
“(1) filing the settlement agreement [in the D.C. case], (2)
implementing any part of th[e] settlement agreement, and (3)
entering into any other new storage or withdrawal contracts
affecting the Apalachicola-Chattahoochee-Flint River Basin
without approval of th[e] court.” JA 1492. On November 7,
2003 the D.C. district court denied the motion to dismiss,
transfer or abate this action. On November 24, 2003 the
Alabama district court issued an order directing that “all
5
activity” in that action be stayed until the D.C. district court
issued an order “deciding the validity of the proposed settlement
agreement.” JA 1514. The stay order further directed: “Within
thirty days of [the D.C. district court’s] order, the parties shall
meet and file with the court a status report containing a proposed
outline of how further litigation will proceed.” JA 1515.
In a Memorandum and Order filed February 10, 2004 the D.C.
district court rejected Florida’s and Alabama’s challenge and
directed that the settlement agreement “is hereby declared valid
and approved, and may be executed and filed and thereafter
performed in accordance with its terms; provided, however, that
the preliminary injunction entered by N.D. Ala. on October 15,
2003, is first vacated.” 301 F. Supp. 2d at 35. Two days later,
on February 12, 2004, the court issued an order dismissing the
action as moot in light of its approval of the settlement
agreement.
Florida and Alabama then filed these appeals challenging the
district court’s approval of the agreement. We conclude the
appeals should be dismissed for lack of jurisdiction.
“ ‘Jurisdiction is, of necessity, the first issue for an Article III
court.’ ” DSMC Inc. v. Convera Corp., 349 F.3d 679, 682 (D.C.
Cir. 2003) (quoting Tuck v. Pan Am. Health Org., 668 F.2d 547,
549 (D.C. Cir. 1981)). “The jurisdiction of the courts of appeals
to review district court actions is limited to ‘final orders,’ ”
Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000)
(citing 28 U.S.C. § 1291) (“The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts of the United States . . . .”). A “final” decision under 28
U.S.C. § 1291 is generally one “that ‘ends the litigation on the
merits and leaves nothing more for the court to do but execute
the judgment.’ ” Id. (quoting Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994) (quoting Catlin v. United
6
States, 324 U.S. 229, 233 (1945))).1 Although the district
court’s February 12, 2004 order of dismissal purported to be a
final decision conclusively resolving the merits, it was not.
In the February 12 decision the district court dismissed this
case because the court concluded that “all pending claims have
become moot” as a result of its February 10, 2004 decision
“conditionally approving a Settlement Agreement between the
parties (including the intervenors) hereto.” JA 1658 (emphasis
added). The February 12 decision dismissing the case as moot
is appealable because it terminated the action. But contrary to
the district court’s view, the February 10 decision did not render
all claims in the action moot precisely because, as the district
court observed, it approved the settlement agreement
“conditionally,” that is, only if “the preliminary injunction
entered by [the Alabama district court] on October 15, 2003, is
first vacated.” 301 F. Supp. 2d at 35. Yet the contingency on
which the court’s approval hangs—vacatur of the preliminary
injunction by the Alabama district court—while never certain,
has now been shown to be remote. After oral argument in this
case, the Alabama district court issued a memorandum opinion
and order dated February 18, 2005 declining to dissolve the
injunction and resolving to “move forward with an orderly, legal
resolution” of the case before it. It is true that the Alabama court
may yet decide to lift the preliminary injunction, as the appellees
maintain. If so, the district court can then determine the validity
of the settlement agreement and only then might the action
become moot. See Tucson Med. Ctr. v. Sullivan, 947 F.2d 971,
977 (D.C. Cir. 1991) (“A federal court lacks jurisdiction to
consider the merits of claims that are deemed ‘moot,’ because
1
Final decisions also include “ ‘a narrow class of decisions that do
not terminate the litigation, but must, in the interest of “achieving a
healthy legal system,” nonetheless be treated as “final.” ’ ” Pueblo of
Sandia, 231 F.3d at 880 (quoting Digital Equip. Corp., 511 U.S. at
867 (quoting Cobbledick v. United States, 309 U.S. 323, 326 (1940))).
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‘the judicial power extends only to cases or controversies.’ A
case is moot when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.”
(quoting Powell v. McCormack, 395 U.S. 486, 496 & n.7
(1969)). Or the Alabama district court may leave the
preliminary injunction in place indefinitely or replace it with a
permanent injunction, thereby leaving the February 10 decision
in legal limbo. In that event, Southeastern’s claims would
remain unresolved and, without the settlement agreement in
effect, as Southeastern’s counsel represented at oral argument,
Southeastern would then pursue its claims against the Corps
through trial if necessary. Thus, the district court’s conditional
approval of the settlement agreement did not render the action
moot. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 465
n.3 (1978) (“In view of the tentative nature of the settlement,
this case is not moot.”); British Int’l Ins. Co. v. Segura La
Republica, 354 F.3d 120, 123 (2d Cir. 2003) (“[W]here
settlement is tentative, the underlying dispute is not moot.”)
(internal quotation omitted). Accordingly, the district court’s
final decision that declared otherwise is wrong and must be
vacated.
This leaves us with the September 7, 2003 order denying the
appellants’ motion to abate the action and the February 10, 2004
order conditionally approving the settlement. With the February
12, 2004 dismissal vacated, these underlying orders are plainly
not final. The appellants agree that the denial of a motion to
abate is not a final order. Cf. Gulfstream Aerospace Corps. v.
Mayacamas Corp., 485 U.S. 271, 275 (1988) (“district court’s
denial of a motion to stay litigation pending the resolution of a
similar proceeding in state court” is not immediately
appealable). And, as we have discussed, the conditional nature
of the district court’s approval of the settlement agreement
means that the agreement will not be final unless and until the
future action contemplated—the lifting of the Alabama court’s
injunction—takes place. Cf. Castro County, Tex. v. Crespin,
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101 F.3d 121, 123 (D.C. Cir. 1996) (observing that dismissal
order giving parties set period of time in which to reopen case
should settlement talks fail was not final decision).2
For the foregoing reasons, the district court’s February 12,
2004 dismissal order is vacated, the appeals of the November 7,
2003 and February 10, 2004 orders are dismissed for lack of
jurisdiction and the case is remanded to the district court.
So ordered.
2
Under these circumstances, a decision on appeal would be merely
advisory, in derogation of our constitutional duty to decide only live
cases or controversies. See United States Nat’l Bank of Ore. v.
Independent Ins. Agents of Am. Inc., 508 U.S. 439, 446, (1993) (“ ‘The
exercise of judicial power under Art. III of the Constitution depends
on the existence of a case or controversy,’ and ‘a federal court [lacks]
the power to render advisory opinions.’ ” (quoting Preiser v. Newkirk,
422 U.S. 395, 401 (1975)); James v. U.S. Dep’t. of Health & Human
Servs., 824 F.2d 1132, 1136 (D.C. Cir. 1987) (“Because we view the
occurrence of these contingencies as unlikely, the declaration of rights
which appellants seek would be an advisory opinion beyond our
jurisdiction.”).