source: Caselaw Access Project

author: RANDOLPH, Circuit Judge:

license: Public Domain

text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, JEFFERSON COUNTY BRANCH, et al., Appellees, v. UNITED STATES SUGAR CORPORATION and Sugar Cane Growers Cooperative of Florida, Appellants.
    Nos. 95-5044, 95-5110.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 22, 1996.
    Decided May 28, 1996.

      Vincent C! Costantino, Assistant Counsel, U.S. Department of Labor, and John M. Simpson, Washington, DC, argued the causes for appellants. With them on the briefs were Eric H. Holder, Jr., United States Attorney, R. Craig Lawrence and Michael J. Ryan, Assistant United States Attorneys, Harry L. Sheinfeld, Counsel, U.S. Department of Labor, and Robert A. Burgoyne, Washington, DC. Robert E. Muraro and Sarah L. Schweitzer entered appearances pro hac vice for the United States Sugar Corporation.
    Edward J. Tuddenham, Austin, TX, argued the cause for appellees. With him on the brief was Robert A. Williams, Tallahassee, FL. Bruce Goldstein, Washington, DC, and Shelley Davis, Chicago, IL, entered appearances.
    Before: GINSBURG, RANDOLPH, and TATEL, Circuit Judges.
   Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

In 1982, the Jefferson County Branch of the National Association for the Advancement of Colored People and six named farm workers filed this class action against the Department of Labor in the United States District Court for the District' of Columbia. Fourteen years, three dismissals, and six Secretaries of Labor later, these plaintiffs ask us to send this case back to that court for a hearing on the Department’s interpretation of regulations governing certifications no longer sought for workers no longer employed under a pay system no longer in place for a harvesting method no longer in use. We must decline the invitation.

I

This tale of government regulation, grower certification and perpetual litigation began with apples. In 1982, plaintiffs challenged the Department’s interpretation of its temporary foreign worker program as applied to certain West Virginia apple growers. The program allowed a grower to import foreign farm workers only upon the Department’s certification that there were not enough domestic workers to meet the grower’s needs and that importing foreign workers would not adversely affect the wages and working conditions of similarly situated domestic farm workers. To implement wage protection, the Department each year calculated something called the “adverse effect wage rate,” or “AEWR,” an hourly wage which growers had to promise to pay both domestic and foreign workers in order to receive foreign-worker certification.

The AEWR worked well enough for growers who paid workers by the hour, but it presented an opportunity for abuse by growers who paid workers by the piece. Consider, for instance, a grower operating under a piece-rate system who promises to meet an AEWR of $5 per hour by paying 50 cents per bushel of apples picked. This would be acceptable only if an average farm worker picked 10 bushels per hour. But what if the AEWR increased the following year to $6 per hour? Then the grower could purport to meet it either by raising the rate to 60 cents per bushel or by representing that the average farm worker would pick 12, rather than 10, bushels per hour. To prevent the latter, the Department promulgated a regulation requiring growers to raise their rates, not their productivity expectations, when the AEWR increased. 20 C.F.R. § 655.207(c).

In their 1982 complaint, the plaintiffs alleged that the Department misinterpreted this regulation when it preliminarily certified West Virginia apple growers despite the fact that they had effectively increased their productivity expectations from one year to the next by changing the piece-rate from a per-bushel to a per-box basis. The district court agreed, ultimately entering a judgment interpreting the regulation to preclude the West Virginia apple growers from increasing their productivity expectations above the original levels they proposed in 1977 and to require growers to increase their piece-rates in proportion to the annual increases in the AEWR. NAACP v. Donovan, 558 F.Supp. 218 (D.D.C.1982). The court then ordered the Department to condition all future foreign-worker certifications upon the applicant’s conforming to those requirements. Id.

Thus ended the apple phase of the case. The sugar cane phase began in 1986, when the plaintiffs — some of whom worked as both apple-pickers and sugar-cane cutters — filed a motion for farther relief alleging that the Department was not enforcing its piece-rate regulations in the sugar cane industry. At the time, Florida sugar cane growers paid their workers according to a “task-rate” system. Under it, workers were paid per row of sugar cane harvested, with the value of any particular row adjusted to reflect the degree of difficulty in harvesting it. The Department argued that this task-rate system was not a piece-rate system and therefore was not subject to the regulation. The Department conceded, however, that the administrative record was not adequate to resolve the issue, and on September 25, 1986, the district court ordered it to gather the information necessary to determine how the sugar cane growers paid their workers, whether that method amounted to a piece-rate system, and if it did, whether the rates paid under that method comported with the court’s 1982 decision.

The Department responded with a draft report in 1987. It took another five years for the Department to prepare the final version of the report; the delay was due, in large part, to battles between the plaintiffs and sugar growers over the third-party discovery the district court had granted the plaintiffs in order to prepare their response to the draft report. During the delay, the Department replaced the original piece-rate regulation, 20 C.F.R. § 655.207(c), with a new one, 20 C.F.R. § 655.202(B)(2). In response, the district court allowed the plaintiffs to file a second supplemental complaint challenging both regulations, and then permitted United States Sugar Corporation and the Sugar Cane Growers Cooperative (“the growers”) to intervene in the case. But when the plaintiffs attempted to add the intervenors as defendants, the district court decided that, because the Department was still preparing its final report, the case should be dismissed without prejudice subject to the plaintiffs’ “right to reopen the case”'by telephoning the court’s clerk anytime after April 1993, the • court’s deadline for the Department to finish its report.

Seven months after the April 1993 deadline passed, the Department finished the report and filed it with the district court. The Department found that the sugar growers did not pay their workers by a piece-rate and that the certifications granted those growers therefore had not violated either the original or the new piece-rate regulation. The plaintiffs immediately filed a motion to re-open the case. In response, the Department and the growers moved to dismiss on various jurisdictional grounds. During a hearing on the morning of December 16, 1993, the district court said it would dismiss the case again. Later that day, the court reconsidered and issued an order vacating the dismissal and setting a briefing schedule “to govern the final disposition of this case.”

Two months later, the district court issued an opinion and order rejecting the jurisdictional arguments the defendants had raised before the dismissal and reinstatement. NAACP v. United States Sec’y of Labor, 846 F.Supp. 91 (D.D.C.1994). Thereafter, all of the parties filed motions for summary judgment. On September 22, 1994, the district court granted the farm workers’ motion for summary judgment “but only to the extent that the conclusions within the Department of Labor’s Final Report cannot be upheld.” NAACP v. United States Sec’y of Labor, 865 F.Supp. 903, 926 (D.D.C.1994). In an accompanying opinion, the court rejected the report’s conclusions as arbitrary and capricious, id. at 910, and identified certain issues left to be resolved in light of that rejection, id. at 922. The court said it was prepared to conduct an evidentiary hearing to take testimony on those issues, id. at 925, and it directed the parties to file a joint pleading setting out “an orderly framework for the presentation of all necessary issues.” Id. at 927. Upon receiving the joint pleading, the court entered an order scheduling discovery, dispositive motions, and an evidentiary hearing. The growers responded by filing an emergency writ of mandamus and something they called a “protective notice of appeal.” We denied the mandamus relief on November 17, 1994, and dismissed the appeal on March 8,1995.

On December 22, 1994, the Department filed in the district court a renewed motion for summary judgment. The motion prompted the third dismissal of the case: on February 6, 1995, the district court, apparently reconsidering the need for an evidentiary hearing, dismissed the case without prejudice and remanded it to the Department for consideration of the remaining issues raised in the court’s September 22 order. NAACP v. United States Sec’y of Labor, Civ. No. 82-2815 (D.D.C. Feb. 6, 1995). The Department and the growers filed timely notices of appeal.

II

As a threshold matter, the plaintiffs challenge this court’s jurisdiction to hear these appeals. This court has jurisdiction over appeals of “final decisions of the district courts.” 28 U.S.C. § 1291. The plaintiffs argue, however, that the district court’s February 6,1995, dismissal of the case was not a “final decision” because the district court simultaneously remanded the case to the Department.

A remand order usually is not a final decision, Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 329 (D.C.Cir.1989), even if the district court dismisses the case when it remands. American Hawaii Cruises v. Skinner, 893 F.2d 1400, 1403 (D.C.Cir.1990). However, such an order is reviewable in this court “when the agency to which the case is remanded seeks to appeal and it would have no opportunity to appeal after the proceeding on remand.” Occidental Petroleum, 873 F.2d at 330; see also American Hawaii Cruises, 893 F.2d .at 1402 n.*; Gueory v. Hampton, 510 F.2d 1222, 1225 (D.C.Cir.1974).

The situation described in Occidental Petroleum is precisely the situation here. In its remand/dismissal order, the district court made clear to the Department that it should “provide an explanation for,” “re-examine very seriously,” and “re-evaluate” certain of its conclusions, “examine carefully” certain data offered by the plaintiffs, and “take what we in the law call a ‘hard look’ at this ease.” As we explained in Occidental, an agency confronted with such a remand order “has no choice but to conduct its proceedings and to render its decision pursuant to that [order]. Unless another party appeals [the agency’s resulting] decision, the correctness of the district court’s legal ruling will never be reviewed by the court of appeals, notwithstanding the agency’s conviction that the ruling is erroneous.” 873 F.2d at 330. To avoid that situation here, the rule of Occidental gives us jurisdiction to hear the Department’s appeal now.

The growers’ appeal raises a different question. Unlike the Department, if the growers are unhappy with the Department’s proceedings on remand, they may challenge those proceedings — and the remand order requiring them — after those proceedings have come to an end. Thus, the Occidental rule does not apply to their appeal. See Occidental Petroleum, 873 F.2d at 331 (acknowledging that while “a private party may not, in most cases, immediately appeal a district court order remanding a case for further agency proceedings, the agency may do so”). Nonetheless, what matters for the purposes of our appellate jurisdiction is whether the district court’s decision — and not any particular party challenging it — is properly before us, which it is as a result of the Department’s appeal. We therefore may also consider the growers’ arguments against that decision. Cf. Railway Labor Executives’ Ass’n v. United States, 987 F.2d 806, 810 (D.C.Cir.1993).

The plaintiffs raise one other challenge to this court’s jurisdiction to review the district court’s February 6, 1995, order. Even if the order is appealable, they say, subsequent events have made any appeal from it moot. In the order, the district court dismissed the ease “without prejudice to the right of the Plaintiffs, the Defendants or the Defendant-Intervenors to re-open” it by telephoning the court’s clerk on or before June 30, 1995. The plaintiffs take this as a deadline for the Department to respond to the remand order; now that the date has passed, the remand order is, they say, “a dead letter.” We have a different view. Although the order set a deadline for requests to reopen the case, it set no timetable for the Department’s response to the remand order. Given the pace of this litigation, it is no surprise that the Department’s response has not yet come. In a June 6, 1995, letter to counsel and the district court, the . Department said it planned to defer further action on the court’s remand order until the conclusion of related litigation pending in the state courts of Florida. The remand order may be stagnant, but it is still alive. The appeal cannot, therefore, be moot, and the balance of this opinion will be devoted to deciding it.

In their second supplemental complaint, the plaintiffs sought both prospective and retrospective relief. They asked the district court first to find that the sugar cane growers’ task-rate system was actually a piece-rate system subject to the Department’s piece-rate regulation, then to enjoin the Department from granting foreign-worker certification to any sugar cane grower unless the grower (1) complies with the piece-rate regulations and (2) agrees to provide back pay to the workers to compensate them for past violations of those regulations. Largely because this case has taken so long to unfold, the plaintiffs’ claim for prospective relief is now moot, and they lack standing to maintain their claim for retrospective relief.

In the ten years since the sugar cane phase of this case began, the Florida sugar cane industry has undergone dramatic change. In an agreement reached with farm worker representatives before the 1992 harvesting season, U.S. Sugar Corporation abandoned the task-rate system at the heart of this case and began paying workers on a per-ton basis using estimates of tonnage cut, with adjustments made after the cane was weighed at the mill. During the 1992-93 harvesting season, the Department determined that this “per-ton” system had become the prevailing method of payment. As such, it became mandatory on all growers seeking foreign-worker certification for the 1993-94 season.

At least partly as a result of that requirement, most of the sugar growers who historically had sought foreign-worker certification declined to do so beginning with the 1993-94 season. Instead, they shifted to mechanized harvesting. Only U.S. Sugar stuck with the “per-ton” system for the 1994-95 season, but it too then shifted to mechanized harvesting. Thus, since the end of the 1994-95 season, no sugar grower has sought foreign-worker certification. As the Department explains, “The sugar cane task-rate system has disappeared, and none of the sugar cane growers are using the [foreign-worker certification] system.”

The plaintiffs do not challenge the Department’s statement, but they say their dispute over the proper application of the foreign-worker regulation remains alive because there is a “reasonable expectation” that the injury giving rise to their suit will recur. Honig v. Doe, 484 U.S. 305, 318-19, 108 S.Ct. 592, 601-02, 98 L.Ed.2d 686 (1988). This is a prediction, and it could come to pass only if the sugar cane growers abandoned their mechanized harvesting system, and only if they then reverted to the discontinued task-rate pay system, and only if they sought Department certification of foreign workers. At oral argument, counsel for the sugar cane growers said his clients have “no present plans” to do anything of the sort. See Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 370 (D.C.Cir.1992). The plaintiffs say, however, that the growers could be forced to return to a manual harvest “if a weather emergency arises.” Perhaps so, but that prospect is not enough. While repetition of injury need not be “demonstrably probable” to save a case from being moot, the expectation of repetition must be “reasonable.” Honig, 484 U.S. at 318 n. 6, 108 S.Ct. at 601 n. 6. We are aware of no ease holding that the mere possibility of a freakish act of nature suffices. Even if a “weather emergency” did force growers to seek foreign-worker certification, they still very likely would be bound by the Department’s determination that the per-ton system was the prevailing — and therefore required — pay system. In all likelihood, then, the growers could not return to the disputed task-rate system even if they wished to do so. The plaintiffs’ claims for prospective relief are therefore moot, and the district court erred in not dismissing them as such. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971).

A different jurisdictional defect plagues the plaintiffs’ bid for retrospective relief. The plaintiffs asked the district court to force the Department to condition any future foreign-worker certifications on the sugar cane growers’ payment of back pay for past violations. To maintain that claim — or any other — the plaintiffs must first establish that they have standing to raise it. At a minimum, that requires the plaintiffs to show that they have suffered some “actual or threatened-injury” that can be “fairly traced” to the Department’s past certifications and that is “likely to be redressed by a favorable decision” in the case. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982). The plaintiffs’ claim for retrospective relief fails the last of those tests: their “injury” from prior certifications cannot be redressed by a decision in this case. The Department has neither statutory nor regulatory authority to order the growers to provide back pay. See 20 C.F.R. § 655.110. The Department could deny future labor certifications in hopes of forcing growers to provide back pay, but Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), almost certainly would prohibit the court from directing the Department to do so. Moreover, for reasons we have just discussed, such “relief’ would be quite unlikely to redress the plaintiffs’ injury. The sugar cane growers are not exactly lining up to seek foreign-worker certification. The imposition of a back pay requirement would only diminish their desire to do so. Thus, even if back pay were made a condition of future certification, it strikes us as highly unlikely that the plaintiffs would ever benefit. Yes, it is hypothetically possible that a weather emergency could force the growers to seek certification again, but that “remote possibility” is not enough to establish that the plaintiffs’ claim for retrospective relief would be redressed by a decision in this case. See Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343 (1975).

In the face of these problems, .the plaintiffs hope to keep their retrospective-relief claim alive by arguing that they are entitled to an order for restitution from the sugar cane growers themselves. The plaintiffs did not make a claim for restitution from the growers before the district court. Indeed, the plaintiffs did not make any claims against the growers; the district court rejected their attempt to add the intervening sugar cane growers as defendants. The plaintiffs seek cover in Rule 54(c) of the Federal Rules of Civil Procedure, which requires courts to “grant the relief to which the party ... is entitled, even if the party has not demanded such relief in the party’s pleadings.” Fed.R.Civ.P. 54(c). Whether this assists them in establishing standing is far from certain. Rule 54(c) “comes into play only after the court determines it has jurisdiction- [Only after] jurisdiction is established and a claim is heard, [does] Rule 54(c) permit the court to consider relief not specifically pleaded.” Dellums v. U.S. Nuclear Regulatory Comm’n, 863 F.2d 968, 975 n. 8 (D.C.Cir.1988); see also Z Channel Ltd. Partnership v. Home Box Office, Inc., 931 F.2d 1338, 1345 (9th Cir.1991) (Kozinski, J., dissenting), cert. denied, 502 U.S. 1033, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992). In any event, Rule 54(c) applies only if the party has sought some relief from the particular opposing party. See Dopp v. HTP Corp., 947 F.2d 506, 518 (1st Cir.1991); Flannery v. Carroll, 676 F.2d 126, 131-32 (5th Cir.1982). To rely on relief plaintiffs never requested on a claim they never made would be to conclude that zero plus zero equals more than zero.

For the foregoing reasons, we remand this case to the district court with directions to dismiss. The case is largely moot. What is not, the plaintiffs lack standing to maintain. And lest there be any confusion, we wish to make it perfectly clear that curing the latter will not fix the former. That is, even if the plaintiffs can come up with a way to file a claim for back pay directly against the growers, that will not be enough to bring their claim against the Department back from the dead. What’s moot is moot, and the filing of a different claim against a different party cannot make it otherwise.

So Ordered.


author: PER CURIAM: PER CURIAM:

text:
    In re Janet G. MULLINS (Tamposi Fee Application).
    Division No. 92-9.
    United States Court of Appeals, District of Columbia Circuit.
    (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended)
    May 31, 1996.
    Before: SENTELLE, Presiding Judge, BUTZNER and FAY, Senior Circuit Judges.
   ORDER

PER CURIAM:

This matter coming to be heard and being heard before the Special Division of the Court, upon the application of Elizabeth M. Tamposi for reimbursement of attorneys’ fees pursuant to section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. §§ 591-599 (1994), and it appearing to the Court for the reasons set forth more fully in the opinion filed contemporaneously herewith, that the motion is well taken, it is hereby

ORDERED, ADJUDGED, AND DECREED that the United States reimburse Elizabeth M. Tamposi for attorneys’ fees and expenses she incurred during the investigation by Independent Counsel Joseph E. diGe-nova in the amount of $16,525.86, this 31st day of May, 1996.

Before: SENTELLE, Presiding Judge, BUTZNER and FAY, Senior Circuit Judges.

Opinion for the Special Court filed PER CURIAM:

PER CURIAM:

Elizabeth M. Tamposi petitions this court under section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. §§ 591-599 (1994) (“the Act”), for reimbursement of attorneys’ fees and expenses that she incurred during and as a result of the investí-gation conducted by Independent Counsel (“IC”) Joseph E. diGenova. Tamposi seeks reimbursement in the amount of $16,552.11 for representation from December 1992 through August 1995. After considering Tamposi’s petition, we find that her request is exceedingly reasonable and that she is entitled to attorneys’ fees and expenses totaling $16,525.86.

BACKGROUND

In the fall of 1992, during the presidential campaigns of then-Governor William J. Clinton and then-President George H.W. Bush, a rumor circulated that Clinton, while studying in England during the Vietnam War, had written a letter renouncing his United States citizenship or seeking dual citizenship for the purpose of evading the military draft. See Final Report of the Independent Counsel in Re: Janet G. Mullins, Nov. 80,1995, at 1. In response to the rumor, several news organizations filed requests with the Department of State (“State”) and the Department of Justice (“DOJ”) under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking information about Clinton’s citizenship and military draft status during the late 1960’s and early 1970’s or, more specifically, the alleged renunciation letter. Also, Congressman Gerald Solomon filed a request with State’s Legislative Affairs Office seeking information on requests for dual citizenship. Id. Around the same time, the existence of the FOIA requests came to the attention of the Bush White House staff, including Janet G. Mullins, who served as Assistant for Political Affairs to Bush and who had previously worked at State. On September 16, 1992, Bush’s Chief of Staff, James A. Baker, III, discussed the requests and State’s procedure for expediting such requests with Mullins and Margaret Tutwiler, Assistant to the President for Communications. Id. at 2.

In response to the FOIA requests, on September 30, 1992, Elizabeth M. Tamposi, the Assistant Secretary of State for Consular Affairs, directed that a search be made for passport records pertaining to Clinton. State employees conducting the search first reviewed a computerized index of passport applications and then, at Tamposi’s request, a team of three senior Consular Affairs officials went to the Washington National Records Center to conduct a manual search of passport records. While the search was in progress, Tamposi tried to contact Tutwiler at the White House but was only able to leave a message for Tutwiler, who was meeting with Mullins at the time. Tutwiler did not return Tamposi’s call. Id. Tamposi also called Steven K. Berry, Assistant Secretary of State for Legislative Affairs, to determine what he knew about the FOIA requests, and she informed him that a search was underway. Berry then contacted Mullins at the White House and told her about the search, and she, in turn, told Tutwiler, who urged Mullins to notify Baker. Id. at 2-3.

The searchers located Clinton’s passport file, which was askew in its storage box, but they did not find the rumored renunciation letter. They removed Clinton’s file from the records center and took it to Tamposi at her home that evening. She and the searchers thought that Clinton’s 1976 passport application had a suspicious tear in the upper left comer that suggested a document attached to the application had been removed. Tam-posi contacted Berry that night to tell him that no renunciation letter had been found, and she relayed her suspicions about possible tampering with the file. Id. at 3.

The next day, the searchers renewed their search at the records center and then returned to State and prepared a memorandum with Tamposi that detailed the search results, including their concerns about possible tampering with the file. That evening, Tam-posi contacted State’s Inspector General Sherman Funk, showed him the 1976 application, and turned the tampering issue over to him. Funk then contacted the Federal Bureau of Investigation (“FBI”) to handle the tampering concerns, due to the FBI’s forensic capabilities. Id. at 3-4.

On October 2, Baker warned Mullins not to have anything to do with the records search at State, and Mullins replied that while she had discussed the matter with Berry, neither she nor anyone else at the White House bore any responsibility for the search. Mullins subsequently contacted Berry to convey Baker’s comments and also asked Berry to relay a message to Tamposi from Tutwiler to the effect that while Tutwiler did not want to be rude, she would not be returning Tamposi’s call. Berry conveyed the message to Tampo-si, but added his own editorial comment that Tutwiler appreciated all Tamposi was doing. Id. at 4-5.

Shortly thereafter, Newsweek magazine published a story about the search of Clinton’s passport files and the possible tampering. When, on October 9, the FBI announced that it found no evidence of tampering, the media then began to focus on why the passport files search had been undertaken in the first place. These inquiries revealed, among other things, that the FOIA requests had been improperly expedited by State, that the search team included political appointees, and that the Operations Center at State had monitored phone calls related to the passport search. Based on these revelations, Funk began an investigation of the passport files search, through which he became aware of the connection between Mullins and Berry. Based on the apparent discrepancy in the investigators’ reports of Mullins’ interviews and the contact between Mullins and Berry, Funk concluded that Mullins may have made false statements to the investigators and referred the case to DOJ for further action. Id. at 4-6.

On December 10, DOJ Criminal Division recommended to Attorney General William Barr that he seek appointment of an independent counsel and, on December 11, Barr asked this court to do so. On December 14, one day before the Independent Counsel Act then in effect expired, we appointed Joseph E. diGenova Independent Counsel with authority to investigate and prosecute violations of federal criminal law in connection with the search of Clinton’s passport files. Id. at 6-7. IC diGenova’s investigation began in December 1992 and ended in November 1995, with the release of his Final Report. In the Final Report, IC diGenova stated that he found no evidence warranting the criminal prosecution of anyone for their conduct in connection with the passport files search, the disclosure of information from the files, or State’s investigation of the search. Id. at. 377. Regarding Tamposi specifically, he stated that no. prosecution was warranted under the Privacy Act, 5 U.S.C. § 552a, or the conspiracy statute, 18 U.S.C. § 371, because there was no conclusive evidence that Tamposi improperly disclosed information from Clinton’s passport files or that she joined with others to commit any criminal act. Id. at 415-19.

Pursuant to the Act, this court, as directed by section 593(f)(2), forwarded a copy of Tamposi’s fee petition to the Attorney General and thé IC and requested that they file written evaluations of the petition. The court expresses its appreciation to the Attorney General and the IC for submitting these evaluations, which we have given due consideration in arriving at the decision announced herein.

ANALYSIS

Tamposi is entitled to attorneys’ fees under the Act if she satisfies section 593(f)(1), which allows the “subject of an investigation conducted by an independent counsel,” “if no indictment is brought against such individual pursuant to that investigation,” to request reimbursement for “those reasonable attorneys fees incurred by that individual during that investigation which would not have been incurred but for the requirements of [the Act].” 28 U.S.C. § 593(f)(1)- As this court has previously held, a successful petitioner must thus demonstrate that:

(1) he is a “subject” of such investigation;
(2) the fees were incurred “during” the investigation;
(3) the fees would not have been incurred “but for” the requirements of the Act; and
(4) .the fees are “reasonable.”

In re North (Cave Fee Application), 57 F.3d 1117, 1119 (D.C.Cir.1995) (per curiam). We will address éach of these requirements in turn.

A “Subject” Status

Tamposi, who was not indicted, argues that based on IC diGenova’s investigation of her conduct to determine whether she violated the Privacy Act or took part in an illegal conspiracy, she clearly- qualifies as a subject under the Act. Neither the IC nor DOJ disputes her subject status. Because IC diGenova clearly focused on Tamposi’s possible criminal culpability in connection with the passport files search and the events surrounding it, we conclude Tamposi’s conduct was within the scope of the IC’s investigation and that she knew her “conduct was within that scope in such a fashion that ‘the [independent [cjounsel might reasonably be expected to point the finger of accusation’ at [her].” In re North (Shultz Fee Application), 8 F.3d 847, 850 (D.C.Cir.1993) (per curiam) (quoting In re North (Dutton Fee Application), 11 F.3d 1075, 1078 (D.C.Cir.1993) (per curiam)). Accordingly, she qualifies as a subject under the Act. Furthermore, there is no indication that her status changed prior to IC diGenova filing the Final Report.

B. Fees Incurred “During” the Investigation

Tamposi seeks fees for representation from December 23, 1992, to August 3, 1995. The court has identified the maximum time for which fees can be sought as spanning from when an IC begins an investigation of an individual through to the deadline for filing comments to the final report. See, e.g., In re Olson, 884 F.2d 1415, 1420-22 (D.C.Cir.1989) (per curiam). The relevant time period in this case is from December 14,1992, when IC diGenova was appointed, to the August 4, 1995, deadline for filing comments to the Final Report. Accordingly, we conclude the fees were incurred “during” the investigation.

C. Fees Not Incurred “But For” the Requirements of the Act

In In re Nofziger, 925 F.2d 428 (D.C.Cir.1991) (per curiam), the court identified three circumstances under which the “but for” requirement of the Act was satisfied:

First, the court has awarded fees in cases in which the subject is prejudiced by the Department of Justice’s failure to comply with the substantial protective features of the Act....
Second, fees have been awarded because independent counsel’s investigation constituted a substantial duplication of prior investigations ....
. Third, the court has awarded fees in two cases in which if the requirements of the Act, restricting the Attorney General’s preliminary investigation, did not exist, ... the case could have been disposed of at an early stage of the investigation, without seeking appointment of independent counsel.

Id. at 438 (citations omitted). Tamposi asserts that the Act’s restrictions hampered the Attorney General’s investigation and, had Attorney General Barr conducted a routine review of the Inspector General’s referral unrestrained by the Act’s limitations, he would not have requested the appointment of an independent counsel. The IC and DOJ do not dispute that the fees would not have been incurred “but for” the requirements of the Act. As we concluded in In re Mullins (Mullins Fee Application), 84 F.3d 459, 465 (D.C.Cir.1996) (per curiam), the circumstances surrounding the referral to DOJ by State and the Attorney General’s limited investigative period satisfy the “but for” requirement of the Act.

D.Fees are “Reasonable” under the Act

. As we have often observed, the fee petitioner bears the burden of establishing all elements of her entitlement. See, e.g., Shultz, 8 F.3d at 850. Tamposi must therefore demonstrate that her attorneys charged a reasonable rate and that the time they expended on her representation was reasonable. See In re North (Gardner Fee Application), 30 F.3d 143, 146 (D.C.Cir.1994) (per curiam). Based on the affidavits and other exhibits submitted by Tamposi, we conclude that the hourly rates charged by her attorneys ($165 — $300) comport with prevailing community standards and are within the realm of reasonableness. Id. We also conclude that she has provided adequate descriptions and documentation of the work performed. See National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982) (per curiam) (holding that a fee application must contain “sufficiently detailed information about the hours logged and the work done”). Accordingly, we will award the $15,611.25 in attorneys’ fees requested by Tamposi, all of which we find reasonable and reimbursable. Tam-posi also seeks $940.86 in expenses for long distance phone calls, postage, duplicating, messenger service, facsimiles, word processing, shipping, and computerized research incurred in connection with her representation during the investigation. We find all of these charges reasonable except for the $26.25 charge for word processing, which is an overhead cost not separately reimbursable under the Act. Mullins, 84 F.3d at 469-70. Accordingly, we will allow the remaining $914.61 in expenses.

CONCLUSION

Based on the foregoing analysis, we will grant Tamposi’s petition and award $15,-611.25 for attorneys’ fees and $914.61 for expenses, making a total award of $16,525.86.

Judgment accordingly.


author: HARRY T. EDWARDS, Chief Judge:

text:
    E.N. BISSO & SON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 95-1480.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 10, 1996.
    Decided May 31, 1996.
    Thomas P. Hubert, New Orleans, LA, argued the cause for petitioner, with whom William E. Hester, III was on the brief. Stephen Rose entered an appearance.
    Julie B. Broido, Senior Attorney, National Labor Relations Board, appeared to argue the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Peter D. Winkler, Supervisory Attorney, Washington, DC, were on the brief.

      Before: EDWARDS, Chief Judge, . ' SILBERMAN and TATEL, Circuit Judges.
   Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

E.N. Bisso & Son, Inc. (“Bisso” or “Company”), a company providing marine towing services, petitions for review of an order of the National Labor Relations Board (“Board” or “NLRB”) requiring it to bargain with the Seafarers International Union (“Union”). The Board’s order issued in the wake of a representation election in which the Company’s engineers and deckhands selected the Union to be their bargaining representative. See E.N. Bisso & Sons, Inc., 318 N.L.R.B. No. 120 (1995), reprinted in Appendix (“App.”) 118-20. Bisso now complains that the election was tainted by pre-election rumors, allegedly initiated by Company supervisors sympathetic to the Union. According to Bisso, the culprits who spread the rumors told employees that the Company would discharge deckhands and engineers if the Union did not win the election. Because of this alleged taint to the election, Bisso contends that the Company should not have been ordered to bargain with the Union.

In the hearing on Bisso’s post-election challenges, after listening to the testimony of numerous employees, supervisors, and members of top management, the Hearing Officer specifically discredited several witnesses whose testimony was viewed by the Company as crucial in establishing their theory of the case. See E.N. Bisso & Sons, Inc., Hearing Officer’s Report (Sept. 22, 1994) at 11-13, reprinted in App. 36-38. In short, the Hearing Officer found that the Company was unable to establish the facts necessary to support ■ its theory. Based on his credibility determinations, the Hearing Officer held that the termination rumor was not communicated by Bisso supervisors. Id. at 13, reprinted in App. 38. He also found that no employee heard a termination rumor from anyone who could carry out the threat, and so concluded that it was improbable that any employee had voted out of fear of retaliation. Id. at 15-16, reprinted in App. 40-41. Finally, he found that the Company had taken steps before the election to discredit the rumor. Id. at 15, reprinted in App. 40.

The NLRB, over Bisso’s objections, adopted the findings and conclusions of the Hearing Officer. In rejecting Bisso’s challenges to the credibility findings of the Hearing Officer, the NLRB stated a well-known rule, to wit: the Board will not “overrule a hearing officer’s credibility resolutions -unless the clear preponderance of all the relevant evidence convinces us that they are incorrect.” E.N. Bisso & Sons, Inc., Decision and Certification of Representative at 1 n. 2, reprinted in App. 76. Finding no basis to overturn the Hearing Officer in this ease, the Board issued a certification of representation on behalf of the Union.

It is quite clear that a hearing officer is “uniquely well-placed to draw conclusions about credibility when testimony [is] in conflict,” and is “also far better situated than are we to draw conclusions about a matter as ephemeral as the emotional climate of the [workplace] at the time of the election.” Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559, 1563 (D.C.Cir.1984). Thus, a hearing officer’s “credibility determinations may not be overturned absent the most extraordinary circumstances such as utter disregard for sworn testimony or the acceptance of testimony which is on its fae[e] incredible.” Id. (internal quotation omitted). In this case, there is nothing even approaching an “extraordinary circumstance” warranting judicial review.

With this record in hand, and after reviewing the parties’ briefs and the relevant case law, the members of the court assigned to hear this case were hard-pressed to imagine any legitimate basis for the Company’s petition for review. Our concerns on this score were the subject of questioning at oral argument. Counsel for the Company was asked:

QUESTION: ... Have you found any case, anywhere, any time, any place, in any court where a hearing, officer’s determination of credibility in an R[epresentation] case was in an 8(a)(5) [refusal to bargain] context reversed by a court of appeals?
MR. HUBERT: Credibility findings are very difficult to overrule and I acknowledge that as well.
QUESTION: The answer is no?
MR. HUBERT: I haven’t seen that-

Tr. of Oral Argument at 4. When pressed further, counsel conceded that he had found a couple of cases in which the NLRB itself had rejected credibility determinations of a hearing officer, but none in which a court of appeals had rejected a hearing officer’s credibility findings that had been upheld by the Board. Whether or not there are any such cases, this case surely offers no basis for the court to second-guess both the Hearing Officer and the Board on the credibility findings at issue here.

Recognizing the weakness of any position founded on an attack of the Hearing Officer’s credibility findings, counsel for Bisso switched gears during oral argument. As an apparent alternative theory of the case, counsel suggested that the court ought to be particularly scrupulous in assessing the circumstances surrounding the Union election because there are a lot of “folks out there [who are not] well versed in labor law.” Tr. of Oral Argument at 9. Counsel went so far as to insinuate that the court should carefully peruse all election campaign activities (even perfectly lawful conduct) to satisfy itself that there is no taint to the election. This is an outlandish suggestion, and one that defies both common sense and every known precept governing judicial review of NLRB decisions. See, e.g., C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C.Cir.1988) (per curiam) (“[T]he Board is entrusted with a wide degree of discretion in conducting representation elections. The scope of our review of such decisions is narrow.” (citations omitted)); Amalgamated Clothing & Textile Workers Union, 736 F.2d at 1562, 1563 (“In controlling and overseeing representation elections, the Board enjoys great discretion,” and “important in counseling deference to Board decisions in cases of this kind is the fact that the Board’s particular expertise qualifies it—rather than the courts—to decide whether to call for a rerun election.”); Amalgamated Clothing Workers, 424 F.2d at 827 (“The [National Labor Relations] Act entrusts the conduct of representation elections to the Board, which must have wide discretion in controlling and overseeing the election process.... In short, there is a heavy burden on the Company in showing that the election was improper.”).

In sum, the Company’s petition for review is at best specious, bordering on frivolous. Because the Company’s petition has absolutely no sound basis, the pursuit of this matter in the court of appeals caused counsel to come as close to the edge of sanctionable conduct as is possible without actually suffering that disgrace. See Reliance Ins. Co. v. Sweeney Corp., Md., 792 F.2d 1137, 1138 (D.C.Cir.1986) (per curiam) (“Appellate courts have the undisputed power to sanction a party who brings a frivolous appeal.... An appeal is considered frivolous when its disposition is obvious, and the legal arguments are wholly without merit.” (internal quotations omitted)); see also Garden State Broadcasting Ltd. Partnership v. FCC, 996 F.2d 386, 396 (D.C.Cir.1993) (Sanctionable conduct consists of “making objectively groundless legal arguments in briefs filed in this court.” (internal quotation omitted)); South Star Communications, Inc. v. FCC, 949 F.2d 450, 452 (D.C.Cir.1991) (per curiam) (Counsel’s pursuit of a ftivolous appeal demonstrated “conspicuously bad judgment,” and merited sanctions because his asserted obligation to his client “did not relieve him of his responsibility as a member of the bar.”).

The Company’s petition for review is denied, and the Board’s Cross-Application for Enforcement is granted. Costs shall be paid by the petitioner. The mandate of the court shall issue forthwith, without delay.

So ordered.

      . Following certification, Bisso refused to recognize the Union, again claiming that the election had been tainted. The Board relied on the findings from the representation proceeding in rejecting this claim and holding that Bisso had unlawfully refused to bargain in violation of section 8(a)(5) of the National Labor Relations Act. See U.S.C. § 158(a)(5). (1994) ("It shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees....”); Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964) ("[I]n the normal course of events, Board orders in certification proceedings ... are not directly reviewable in the courts.... Such decisions, rather, are normally reviewable only where the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed...."); Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 829 (D.C.Cir.1970) (In situations where an employer refuses to bargain with a representative union after the Board has upheld the union election, "the Board, applying its rules, has consistently and correctly refused to permit the relitigation in an unfair labor practice proceeding of 'any issue which was, or could have been, raised in the representation proceeding.’ ”) (quoting 29 C.F.R. § 102.67(f)).

      . The NLRB shall submit a statement of costs to the Clerk, with a copy to Petitioner, within 14 days of the date of this decision. See Fed.R.App P. 39 (Costs may be awarded to the prevailing party, including an agency of the United States, as ordered by the court.).


author: PER CURIAM:

text:
    William M. NICASTRO, et al., Appellants, v. Janet RENO, et al., Appellees.
    No. 95-5152.
    United States Court of Appeals, District of Columbia Circuit.
    May 31, 1996.
    William M. Nicastro and Roy D. Little, pro se.
    Eric H. Holder, Jr., United States Attorney, R. Craig Lawrence and Kimberly Nickelson Tarver, Assistant United States Attorneys, were on the motion for summary affirmance, for appellees.
    Before: WALD, GINSBURG and TATEL, Circuit Judges.
   Opinion for the court filed PER CURIAM.

ON MOTION FOR SUMMARY AFFIRMANCE

PER CURIAM:

The question presented here is whether federal prisoners who work for Federal Prison Industries, Inc. (FPI) are “employees” entitled to receive the minimum wage under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. We hold that they are not.

William M. Nicastro and Roy D. Little, federal prison inmates, applied for and were placed in industrial assignments with FPI in the United States Penitentiary at White Deer, Pennsylvania. They brought this claim under the FLSA against the Executive Directors of Federal Prison Industries, the Attorney General, and other federal officials, seeking compensation at the minimum wage rate. Applying Henthorn v. Department of Navy, 29 F.3d 682 (D.C.Cir.1994), the district court granted defendants’ motion to dismiss under Rule 12(b)(6). We affirm.

Henthom sets the criterion for determining when prisoner-laborers are “employees” entitled to the minimum wage under the FLSA. To qualify, a prisoner must have “freely contracted with a non-prison employer to sell his labor.” 29 F.3d at 686.

The district court properly determined that neither the law nor the facts support plaintiffs’ assertion that the labor they perform for FPI is voluntary. The mandatory work requirement applies to all federal prisoners who are physically and mentally able to participate. Pub.L. No. 101-647, 104 Stat. 4914 (1990), cited at 18 U.S.C. § 4121 note (1994) (Mandatory Work Requirement for All Prisoners). While inmates can request an industrial work assignment with FPI instead of an institutional job, they have not freely contracted to sell their labor. Choosing where to work is not the same as choosing whether to work. At one task or another, the prisoner “is legally compelled to part with his labor as part of a penological work assignment,” and, therefore, the complaint fails to state a claim under the FLSA. See Henthorn, 29 F.3d at 686.

The complaint fails under the second part of the Henthom test as well, see id. at 686-87: Federal Prison Industries, Inc. is not a “non-federai employer.” Accord Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1 (5th Cir.), cert. denied, 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 553 (1973). FPI is a government corporation designed to enhance the opportunity of federal inmates to learn trade and industrial skills. 18 U.S.C. § 4123 (1994). Its funds come from the United States Treasury and its profits return there. 18 U.S.C. § 4126(a). Rules and regulations promulgated by the Attorney General govern FPI’s payment of compensation to inmates. 18 U.S.C. § 4126(c)(4).

Thus, the plaintiffs are barred from asserting a claim for compensation at the minimum wage because they have not met either of the prerequisites for “employee” status under the FLSA.

So ordered.


author: GINSBURG, Circuit Judge:

text:
    OGLETHORPE POWER CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Georgia Power Company, Intervenor.
    No. 95-1482.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 9, 1996.
    Decided June 4, 1996.

      William D. DeGrandis, Washington, DC, argued the cause and filed the briefs, for petitioner.
    Joel M. Cockrell, Attorney, Federal Energy Regulatory Commission, argued the cause, for respondent. Jerome M. Feit, Solicitor, Washington, DC, Joseph S. Davie, Deputy Solicitor, and Edward S. Gelder-mann, Attorney, Bethesda, MO, were on the brief.
    Robert H. Forry argued the cause, for intervenor, with whom Benjamin L. Israel, Atlanta, GA, was on the brief.
    Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges.
   GINSBURG, Circuit Judge:

Oglethorpe Power Corp. petitions for review of two orders of the Federal Energy Regulatory Commission dismissing Oglethorpe’s complaint against Georgia Power Co. See 69 FERC ¶ 61,208 (1994); reh. denied 72 FERC ¶ 61,065 (1995). Oglethorpe claims that (1) Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for certain reserve capacity in contravention of the terms of Georgia Power’s tariff, and that (2) in the alternative, if Georgia Power properly charged Oglethorpe for this capacity, then Georgia Power must share with Oglethorpe the settlement it received from a third party that breached its contractual obligation to purchase that same capacity from Georgia Power. We hold that (1) the FERC properly construed the governing tariff to permit Georgia Power to charge Oglethorpe for the additional reserve capacity, but that (2) the agency failed to give a reasoned basis for denying Oglethorpe’s alternative claim to a share of the settlement that Georgia Power received in respect of that capacity.

I. Background

In 1975 Georgia Power filed with the Commission (then the FPC) a tariff for the wholesaling of power to partial requirements customers in the State of Georgia. This “PR Tariff’ governs the rates that Georgia Power may charge such so-called “territorial” customers for four classes of power-generating capacity, as follows.

For each contract year Georgia Power must prepare a Resource Classification List (RCL) of all its territorial capacity resources and adjust the RCL as necessary during the course of the year in order to reflect any increase or decrease in such capacity. Georgia Power must also designate its capacity resources as “base,” “intermediate,” or “peaking” and determine each customer’s requirements in each category according to the terms of the PR Tariff. “All other territorial resources,” i.e., those not required by any customer, are designated “reserve resources,” for which Georgia Power may impose a monthly charge of $4.40 per kilowatt.

In February 1982 Georgia Power entered into an agreement to sell Gulf States Utilities Co., an off-system customer, a specific quantity of power (capacity and energy) from certain of its generating units over the next ten years. Under Commission policy Georgia Power could have required its partial requirements customers to pay for that capacity, provided that Georgia Power also credited them with the revenues generated by off-system unit power sales. Instead, however, Georgia Power and its territorial customers opted out of this aspect of the regulatory regime pursuant to an agreement that Georgia Power would absorb the costs and retain the revenues associated with such off-system sales. This agreement is memorialized in a 1982 amendment to the PR Tariff and in a written agreement that the parties filed with the FERC, which together constituted the filed rate for Georgia Power’s sales to Oglethorpe when Gulf States defaulted on its obligation to pay Georgia Power in 1986.

In 1988 Gulf States, which was approximately $350 million behind in payments to Georgia Power and its affiliates, reaffirmed its previously stated intention not to make further payments because unforeseeable events had reduced its capacity requirements. In August of that year the FERC, at Georgia Power’s request, permitted Georgia Power to suspend service to Gulf States without waiving its “legal rights, remedies and claims for damages available against Gulf States”; in the FERC’s view, that is, the suspension of service did not terminate the contract. Southern Company Services, Inc., 44 FERC ¶ 61,290 (1988).

Georgia Power then “recalled”, added to the RCL, and for the remainder of the contract period (1988-92) charged its territorial partial-requirements customers for, the capacity it had previously dedicated to serving Gulf States. Meanwhile, in 1991 Gulf States paid Georgia Power approximately $95 million to settle its breach of contract claim; the FERC approved the settlement and terminated the contract between Georgia Power and Gulf States. Although Oglethorpe had by then paid Georgia Power $12 million in respect of capacity that Gulf States had been obligated to purchase between 1988 and 1992, Georgia Power refused to credit any portion of the settlement proceeds to Oglethorpe or its other territorial customers. Oglethorpe complained to the Commission, which upheld Georgia Power’s position, and then petitioned this court for review of the agency’s decision.

II. Analysis

Oglethorpe presses two claims here. First, the petitioner maintains that Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for the capacity it had reallocated from Gulf States to the RCL; the gravamen of this claim is that the reallocation contravened the terms of the PR Tariff and the 1982 agreement between Georgia Power and its partial-requirements customers. On this issue we affirm the Commission substantially for the reasons stated in its orders. There is no need to burden the Federal Reporter by rehearsing the agency’s opinion here.

Second, Oglethorpe maintains that if Georgia Power did properly charge it for the capacity re-allocated from Gulf States to the RCL, then Georgia Power must share with Oglethorpe the money it received from Gulf States in settlement of Georgia Power’s contract claim relative to that capacity. The Commission did not dispute Oglethorpe’s premise that, once Georgia Power started charging its territorial partial-requirements customers for the re-allocated capacity, it was obligated to share with those customers any revenues received in connection with an off-system sale of that capacity. Nonetheless, the Commission gave no fewer than three grounds for rejecting Oglethorpe’s claim. Oglethorpe argues that none of the FERC’s points provides a reasoned basis for denying Oglethorpe’s claim to a share of the settlement. We agree.

First, the FERC regarded the Georgia Power-Gulf States settlement as providing compensation only for damages that Georgia Power incurred prior to August 1988; because the settlement was for an amount less than Gulf States owed Georgia Power for the power it had received through that date, the FERC concluded that Georgia Power received nothing in the settlement with respect to the capacity that it re-allocated to Oglethorpe (via the RCL) for the period from August 1988 to 1992. We see no rational basis for characterizing the settlement in this way.

Gulf States contracted to purchase from Georgia Power specified quantities of power each year from 1982 through 1992 but stopped making the contractually required payments in June 1986. Georgia Power therefore had a contract claim against Gulf States not only for the damages it incurred through August 1988 but also for the value of its expectancy with respect to the power it would have delivered during the remaining term of the contract, i.e., through 1992. Georgia Power compromised both aspects of its claim for $95 million. The FERC had no valid basis for treating the settlement as though the entire amount was paid to settle the claim for the early years and none was paid to settle the claim for the later years. That the settlement was for less than Gulf States owed for power when the FERC suspended Georgia Power’s duty to perform is immaterial in the absence of any reason either to doubt the sufficiency of Georgia Power’s claim to damages beyond that time or otherwise to attribute the entire settlement to one aspect of Georgia Power’s claim.

As an alternative reason for rejecting Oglethorpe’s claim to a share of the settlement proceeds, the FERC stated that

even if the Gulf States contract never had been suspended, the unit sale nevertheless was scheduled to end in 1992, prior to the filing of Oglethorpe’s complaint. Assuming, arguendo, that Oglethorpe’s arguments for refunds were otherwise persuasive, we lack the authority to order retroactive refunds in these circumstances.

69 FERC ¶ 61,208 at 61,826/2. In its brief before this court the FERC further explains that permitting Oglethorpe to recover a share of the settlement would constitute retroactive ratemaking because Georgia Power received the settlement “to cover a particular period of time, prior to July 1988, during which [the PR Tariff] specifically barred Oglethorpe from sharing in any revenues received by Georgia Power attributable to its [off-system unit power] sales.”

As should be apparent, this purportedly alternative reason for rejecting Oglethorpe’s claim to a share of the settlement proceeds likewise depends upon treating the entire settlement as compensation for damages that Georgia Power suffered before it re-allocated capacity from Gulf States to its territorial customers. Because the FERC’s first argument fails, so must this one.

Finally, in its order denying rehearing, the FERC offered yet another reason for rejecting Oglethorpe’s claim: Oglethorpe had, in effect, already benefitted from the settlement because, to the extent that Georgia Power might have been required to pass the proceeds of the settlement along to its territorial customers, Georgia Power could in turn have raised its rates to recoup that amount from them; when the transactions were complete, the incidence of the burden associated with the unused capacity would be unchanged. 72 FERC ¶ 61,065 at 61,320-21. In its brief to the court the FERC does not defend this aspect of its decision but Georgia Power, as Intervenor, persists in trying.

Georgia Power points out that although it charged Oglethorpe for additional reserve capacity at the tariffed rate, it did not raise any of the tariffed rates to reflect the full costs associated with that capacity. Had it done so, claims the Intervenor, it would have been entitled either to keep the settlement proceeds and reduce by that amount the costs it passed along to the partial requirements customers, or to pass along both the settlement proceeds and the full costs. The parry to this thrust, as the FERC effectively concedes, is that Georgia Power could have obtained such a rate increase only if it had prevailed in a proceeding under § 205 of the Federal Power Act, 16 U.S.C. § 824d. In that proceeding Georgia Power would have had to show that the unused capacity could be properly charged to Oglethorpe as a “used and useful” addition to Georgia Power’s territorial rate base. Town of Norwood v. FERC, 80 F.3d 526, 531 (D.C.Cir.1996). Georgia Power might or might not have been able to make that showing; the quoted phrase is a term of art and its application to the capacity here in dispute cannot be assumed. In any event, Oglethorpe would have had an opportunity to oppose the putative rate increase— and Georgia Power would have had the burden of persuasion — in a § 205 proceeding. 16 U.S.C. 824d(e) (“At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate is just and reasonable shall be upon the public utility”). The Intervenor’s argument is, therefore, entirely too speculative to carry the day in this very different procedural context.

III. Conclusion

For the reasons set out above, we affirm the FERC’s orders with respect to the $12 million that Georgia Power charged Oglethorpe in connection with capacity re-allocated from Gulf States to the RCL, and vacate the orders insofar as they deny Oglethorpe’s claim for a share of the settlement that Georgia Power received from Gulf States. Accordingly, we remand the case so that the FERC may determine the share of such proceeds to which Oglethorpe is entitled.

So ordered.