Plaintiff Local 3-689, Oil, Chemical & Atomic International Union ("the union") appeals the district court's dismissal of its claims against defendants Martin Marietta Energy Systems, Inc. ("MMES") and the Department of Energy ("the DOE") brought pursuant to the Energy Policy Act of 1992 ("the Energy Act") and the National Labor Relations Act ("NLRA"). The union attacks three findings of the district court: the Energy Act did not give the union a private right of action; sovereign immunity protected the DOE against the union's claims; and the NLRA did not provide the court with jurisdiction over the union's claims against MMES. For the reasons stated herein, we affirm in part and reverse and remand in part the decision of the district court.

The union and MMES entered into a collective bargaining agreement ("CBA") that covered workers at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio.1 The agreement expired on May 2, 1991, and the parties were unable to come to terms on a new contract. The union alleges that MMES subsequently changed the terms and conditions of employment for the Piketon plant. As a result, the union brought this action on June 11, 1993, contending that: 1) MMES violated an Energy Act provision that required employers at uranium facilities to comply with the terms of the existing CBA; 2) the DOE failed to require MMES to comply with this statutory obligation; 3) MMES violated the NLRA; and 4) the DOE violated a provision of the Energy Act by permitting uranium reserve stockpiles to be used for non-military purposes. Both MMES and DOE filed motions to dismiss the union's complaint for failure to state a claim upon which relief could be granted. On August 5, 1994, the district court granted these motions.

The union contends that two provisions under the Energy Act2 permit it a forum in federal courts: MMES impermissibly violated the labor provision prescribed in 42 U.S.C. § 2297b-4;3 and the DOE misappropriated the uranium reserve in violation of 42 U.S.C. § 2296b-1.4 Neither provision explicitly provides a private right of action. Thus, the union may proceed only if it has an implied private right of action under the Energy Act.

The framework for finding an implied right of action in a federal statute was initially constructed in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). Cort established four factors to consider in finding an implied right of action: (1) whether plaintiff is among the class of persons intended to benefit by enactment of the statute; (2) whether Congress indicated legislative intent to provide or deny a private remedy; (3) whether a private remedy would be consistent with the underlying purposes of the legislative scheme; and (4) whether the action is traditionally delegated to state law and would be inappropriate to imply a federal remedy. 422 U.S. at 78, 95 S.Ct. at 2087-88; see also Cabinet for Human Resources v. Northern Ky. Welfare Rights Ass'n, 954 F.2d 1179, 1182 (6th Cir.1992) (reiterating standard). Subsequent cases have clarified

that in determining whether a private right of action is implicit in a statute, the "focal point is Congress' intent in enacting the statute." Therefore, "unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist."

Ellison v. Cocke County, Tenn., 63 F.3d 467, 470 (6th Cir.1995) (citations omitted); see Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S. Ct. 2479, 2488-89, 61 L. Ed. 2d 82 (1979); Bailey v. Johnson, 48 F.3d 965, 968 (6th Cir.1995) (affirming that Cort has been modified and Congressional intent is paramount). The Cort factors are simply tools to divine the intent of Congress in the event of statutory silence. See Thompson v. Thompson, 484 U.S. 174, 179, 108 S. Ct. 513, 516, 98 L. Ed. 2d 512 (1988); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028 (6th Cir.1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 961, 112 L. Ed. 2d 1048 (1991).5A. Violation of the 42 U.S.C. § 2297b-4 collective bargaining provision

The mandate to "abide by the terms of [the] collective bargaining agreement in effect on April 30, 1991," 42 U.S.C. § 2297b-4(e)(2), undeniably benefitted a "specific and identifiable class," of which the employees of the Piketon plant were members. See Ellison, 63 F.3d at 470. The underscoring purpose of this section of the Energy Act--the creation of the United States Enrichment Corporation--was to "provid[e] enrichment services in a business-like fashion, maximiz[e] economic return to the Treasury, promot[e] private sector commercialization ... and help[ ] to maintain a reliable, domestic source of enriched uranium." See H.R.Rep. No. 102-474 (VIII), 102d Cong., 2d Sess. 112 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2330; see also 42 U.S.C. § 2297a. The collective bargaining provision was "essential to that endeavor." Ellison, 63 F.3d at 471. It was

a transition rule that was added to ensure that at the outset of the Corporation's operation, employees at facilities operated by the Corporation would be covered by the collective bargaining agreement in effect in May of 1991 at such facilities.

H.R.Rep. No. 102-474 (VIII), 102d Cong., 2d Sess. 112-13 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2330-31.6 Similarly, the provision

provides a reasonable transition of employment rights at Corporation facilities. It assures that the employees are not disadvantaged by a change in the legal definition or status of their employer. It provides a reasonable period of time to negotiate a new contract, during which the employees would be covered by their old contract.

Id. It is clear that with § 2297b-4, Congress intended to protect workers at uranium enrichment facilities.7

The purpose and the beneficiaries of the statute notwithstanding, no language in § 2297b-4 evinces a Congressional intent to create a private right of action for violations of the collective bargaining agreement. See Ellison, 63 F.3d at 470 (" '[T]he question is not simply who would benefit from the act, but whether Congress intended to confer federal rights upon those beneficiaries.' ") (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 1779, 68 L. Ed. 2d 101 (1981)); see also Touche Ross, 442 U.S. at 568, 99 S.Ct. at 2485 (" '[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.' ") (quoting Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979)). Thus, the analysis should continue "with an eye toward determining Congress' perception of the law that it was shaping." Ellison, 63 F.3d at 470 (quoting Thompson, 484 U.S. at 180, 108 S.Ct. at 516-17).

Other legislative history undermines the union's position. The union concedes that prior to passage of the Act, Congress considered and rejected a version that would have allowed a private right of action for damages. See H.R.Rep. No. 102-474(I), 102d Cong., 2d Sess. 203-04 (1992), reprinted in 1992 U.S.C.C.A.N. at 2027. "The unexplained deletion of a single phrase from a jurisdictional provision is, of course, not determinative of whether a private remedy exists. But it is one more piece of evidence that Congress did not intend to authorize a cause of action ...." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 22, 100 S. Ct. 242, 248, 62 L. Ed. 2d 146 (1979) (emphasis added). As the court below stated, "it is illogical to presume that Congress intended to accomplish by implication that which it had chosen not to enact explicitly." See Bailey, 48 F.3d at 968 (rejecting private cause of action under the Food, Drug & Cosmetic Act in part because Congress considered and rejected a private right of action); see also Thompson, 484 U.S. at 185, 108 S.Ct. at 519 (rejecting federal forum availability under the Parental Kidnapping Prevention Act in part because Congress considered and rejected this approach); Lamb, 915 F.2d at 1029 (finding that deletion of a provision which expressly conferred a private right of action under the Foreign Corrupt Practices Act was "significant").

Moreover, there is no indication that implying a federal right of action pursuant to § 2297b-4 would be "consistent with the underlying purposes of the legislative scheme." Ellison, 63 F.3d at 471 (quoting Cort, 422 U.S. at 78, 95 S. Ct. at 2087-88). The union contends that the instant statute did not provide alternative remedies to enforce future violations, distinguishing this case from others that did not imply a right of action. Cf. Transamerica, 444 U.S. at 14-15, 100 S.Ct. at 244-45 (enacting criminal penalty to enforce statute); Bailey, 48 F.3d at 967-68 (same); Ellison, 63 F.3d at 470 (same); Cabinet for Human Resources, 954 F.2d at 1182 (establishing administrative remedies for aggrieved claimants); American Fed'n of State, County and Mun. Employees, Local 506 v. Private Indus. Council of Trumbull County, 942 F.2d 376, 380 (6th Cir.1991) (same). Thus, the union alleges that failure to infer a cause of action would render § 2297b-4 nugatory. See Lamb, 915 F.2d at 1030 (discussing the merits of private cause of action being the only viable mechanism for redressing violation); cf. Touche Ross, 442 U.S. at 575, 99 S.Ct. at 2488-89 (explaining that discussion on whether an implied private remedy is necessary to effectuate the purpose of the statute may not be relevant). However, this court does not find the union's claims convincing. Congress expressly provided that the "Corporation is subject to the provision of the National Labor Relations Act." 42 U.S.C. § 2297b-4(e)(3). The fact that this provision is contained in the same subsection as the statute at issue implies a Congressional intent that disputes such as this one must be resolved through the remedial procedures of the NLRA as the sole enforcement mechanism. See also infra section IV (suggesting that the union may have a claim under the NLRA).8

The placement of § 2297b-4, codified in chapter 23 of Title 42, United States Code, further weighs against the union. Also found in chapter 23 is 42 U.S.C. § 2271(c):

No action shall be brought against any individual or person for any violation under this chapter unless and until the Attorney General of the United States has advised the [Nuclear Regulatory] Commission with respect to such action and no such action shall be commenced except by the Attorney General of the United States.

(emphasis added). This provision expressly precludes private judicial enforcement under this chapter. See, e.g., County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 59 (2d Cir.1984) (listing cases in accord). While § 2297b-4 was enacted under a separate division, both it and § 2271(c) were codified under the umbrella of chapter 23. "[P]lacement of the statute reinforce[s] th[e] conclusion" that no private right of action was intended. Thompson, 484 U.S. at 183, 108 S.Ct. at 518.

The union correctly suggests that the findings accompanying the statute indicate concern for the Piketon employees; however, "nothing in those findings suggests an intent to grant [the union] a private claim under the Act." Bailey, 48 F.3d at 968.9 This court's analysis confirms that it is "not compatible with the purpose and context of the legislative scheme to infer a private cause of action." Thompson, 484 U.S. at 183, 108 S.Ct. at 518. The union did not meet its burden of showing that Congress intended § 2297b-4 to be enforced through private rights of action. See Suter v. Artist M., 503 U.S. 347, 363-64, 112 S. Ct. 1360, 1370-71, 118 L. Ed. 2d 1 (1992) (emphasizing that burden is on proponent of implied right).

The union goes to great lengths to show that the establishment of the uranium reserve under § 2296b-1 was intended to protect the domestic uranium economy and uranium processing workers. Even were this assertion true, however, the union does not establish that Congress intended to confer any substantive rights--which could be enforced through a private right of action--when it established the uranium reserve. The above discussion applies to this provision; there was absolutely no showing that Congress anticipated that the uranium reserve provision would be enforced through private rights of action.10

Although the Energy Act fails to provide the union with a private right of action, thereby mooting the sovereignty issue as it relates to the Energy Act,11 the union contends that its non-monetary claims can be brought against the DOE pursuant to the Administrative Procedure Act ("APA").12 In pertinent part, the APA provides that

[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency ... failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States.

5 U.S.C. § 702; see, e.g., Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1107 (6th Cir.1981). No provision in the Energy Act precludes the availability of judicial review in this manner. Thus, the DOE's alleged failure to abide by the terms of the Energy Act can be reviewed under the APA framework.

The issue thus presented is whether this court will reach the merits of the union's APA arguments.13 As a general rule, this court will not consider arguments raised for the first time on appeal absent exceptional circumstances. See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir.1994); Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1072 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 1299, 127 L. Ed. 2d 651 (1994). The union has not presented this court with any exceptional circumstances. Because the union did not adequately raise this argument before the district court, we decline to consider that issue for the first time on appellate review.

The union contends that its claim against MMES can be brought under the NLRA pursuant to 29 U.S.C. § 185 (conferring federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization"). Generally, the NLRA does not confer federal jurisdiction to labor violations that occur after the expiration of a CBA; an agreement must exist before a plaintiff can bring suit for its breach. See Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (2d Cir.1988). The union, however, argues that § 2297b-4 of the Energy Policy Act extended the duration of the parties' agreement, thereby creating the possibility that MMES's actions constituted a breach cognizable under the NLRA.

MMES interprets § 2297b-4(e)(2) differently. It suggests that the statute sets the terms and conditions of employment for the union members at the Piketon facility for a specific transitional period of time coincident with the transfer of authority at the Piketon facility to the USEC. The district court, citing Derrico,14 agreed that the

situation is similar to the situation that arises upon the expiration of a collective bargaining agreement, but prior to the point where the parties reach an impasse in negotiating over a new agreement.... [I]n such a situation, by operation of law, although the contract itself is over, the terms and conditions of the expired contract continue in effect, but a district court does not possess jurisdiction for actions for breach of the terms and conditions of the expired agreement.

The union is not without support that rights under a CBA can be "preserved by statute." Enterprise Wheel & Car Corp. v. United Steelworkers of Am., 269 F.2d 327, 331 (4th Cir.1959), rev'd in part on other grounds, 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). The question thus becomes whether Congress intended to "preserve" the CBA rights with the passage of § 2297b-4(e)(2). The provision mandates that requisite employers "shall abide by the terms of a collective bargaining agreement in effect on April 30, 1991." On April 30, 1991, the 1988 CBA between the union and MMES was still in effect--it was due to expire on May 2, 1991. Congress knew of the labor difficulties at the Piketon plant. It appears that the Congress, wanting a smooth transition for the takeover by the Uranium Enrichment Corporation, intended to pre-empt any labor difficulties by extending the duration of the CBA.

This issue appears to be a matter of first impression. MMES correctly asserts that no authority exists for the proposition that the Energy Act extends the term of the CBA between the union and MMES. Similarly, however, MMES has not cited any other instance in which a substantive statute addresses the terms and conditions of labor contracts in a particular industry or in particular facilities. The union's interpretation is the most logical reading of this unique provision. Thus, the union should be able to pursue its claim under the NLRA.15

The district court's dismissals under the Energy Act are AFFIRMED, but its dismissal of the claim under the NLRA is REVERSED and REMANDED for further action consistent with this opinion. We take no action regarding the claims under the Administrative Procedure Act, as they have not yet been presented to the district court.