The regulation-skeptical judges Henderson, Randolph, and Brown today claimed the first victim of the D.C. Circuit's new year, in a super-unthrilling case that at least included a reasonable standing ruling. 

Poor FERC.  That agency loses a lot in the court of appeals, and today in Southern California Edison v. FERC, it lost a case worth less than 20,000 dollars.  Why'd SCE bother suing for that kind of money?  The utility was miffed that FERC hadn't applied California law, which was the law of a service contract with the City of Corona, to its failure to invoice Corona for some higher than expected interconnection charges within a year.  In other words, SCE wanted to be reimbursed for the late-filed charges, and thought its delay in filing the charges was immaterial under California law.  FERC applied federal law in rejecting the reimbursement request, because, it noted, SCE eventually invoiced Corona for the charges on its FERC-filed rates.  And FERC-filed rates are federal documents.  Because "accepting FERC's choice of law argument would permit FERC to disregard a choice of law provision in any FERC-approved contract," the court ruled that FERC had to evaluate SCE's reimbursement claim under California law.

Thrillsville, right?  No one ever said government contracting rocked at all times.  In my view, the opinion is notable mostly for the nuts standing argument that FERC made.  FERC argued that because SCE had delayed invoicing Corona beyond the contractual term, it didn't have standing to sue; SCE's injury was not traceable to FERC's interpretation of the contract, in other words, but to SCE's delay in invoicing.  To me, that sounds like an effort to convert a merits defense (SCE billed too late to be paid) into a jurisdictional question.  It's the sort of argument that, if credited, would keep a variety of basic breach of contract claims - the bread and butter of the first year of law school - out of court.  And thankfully, the court rejected the claim, noting that "in reviewing the standing question, the court must be careful not to decide the questions on the merits."

Crazy standing argument, right?  But don't blame FERC.  Every government lawyer is contractually obligated to challenge the standing of the plaintiff in every DC Circuit case.  And they're only obligated to do so because that court gets seduced by standing so frequently.

The opinion may be found here.

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