BRYSON, Circuit Judge.
This is another in a series of cases dealing with the consequences of the federal government's ongoing breach of its contractual obligation to collect and dispose of the nation's nuclear waste. Our recent precedent dictates the outcome of two of the issues raised in this litigation—the right of a non-breaching party contracting with the government to recover indirect overhead costs associated with mitigation activities, and the right of such a party to recover the costs of financing those activities. We affirm the trial court's judgment on both of those issues. There is one novel question presented by this case: whether the sale of a nuclear plant and the transfer of a decommissioning fund affects the rights of the buyer and seller to recover future damages for the government's partial breach of contract. As to that issue, we reverse the trial court and hold that a sale of assets by a non-breaching party does not alter the settled common law principle that when the breaching party has not repudiated the contract and is still expected to perform, damages are not recoverable until they are incurred as a result of the breach. In addition, we address issues involving the award of damages in connection with fees paid to the United States Nuclear Regulatory Commission
This litigation concerns the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. In 1983, appellee Boston Edison Company, which owned the Pilgrim plant at the time, entered into a contract ("the Standard Contract") with the United States Department of Energy ("DOE") under which DOE agreed to begin collecting spent nuclear fuel ("SNF") from the Pilgrim plant no later than January 1998. Boston Edison fulfilled its obligation under the Standard Contract to pay fees to the government. The government, on the other hand, has never begun collecting the SNF produced by the Pilgrim plant and thus has been in breach of the contract from January 1998 to the present. The government has breached similar contractual undertakings nationwide, leading to numerous breach of contract actions. The facts surrounding DOE's ongoing breach of the Standard Contract have been related before, and we will not repeat them here. See, e.g., Neb. Pub. Power Dist. v. United States, 590 F.3d 1357, 1360-63 (Fed.Cir.2010) (en banc); See Me. Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1337-39, 1343 (Fed.Cir.2000).
In 1997, Massachusetts enacted legislation to restructure the electric utility industry in that state. The legislation required regulated utilities such as Boston Edison either to sell their electricity generation assets and operations or to functionally separate their generation operations from their transmission and distribution operations. See Mass. Gen. Laws ch. 164, § 1A (1997). Boston Edison subsequently entered into a settlement agreement with the Massachusetts Attorney General that established a procedure for the company to sell Pilgrim and other power generation assets it held in the state. Under the agreement, Boston Edison had the option to transfer Pilgrim and its operations to an unregulated subsidiary. Boston Edison could also choose to assign responsibility for decommissioning Pilgrim and storing SNF to another party. The agreement allowed Boston Edison to value Pilgrim and the decommissioning and storage responsibilities using a competitive auction.
Boston Edison solicited several potential bidders, including Entergy Nuclear Generation Company. In addition to Pilgrim's physical facilities, Boston Edison offered to transfer a "fully-funded decommissioning fund" to cover the costs of decommissioning Pilgrim and the costs of post-decommissioning storage "until such time as the Department of Energy takes title to the fuel."
The Massachusetts Attorney General insisted that Boston Edison retain all claims against the government arising from DOE's expected breach of the Standard Contract,
The sale closed in July 1999. One day before the closing, Boston Edison brought suit against the United States in the Court of Federal Claims seeking damages for partial breach of the Standard Contract. In 2003, before the court decided that claim, Entergy filed suit against the United States seeking damages for partial breach of the contract beginning as of the date of the sale. In the Entergy action, the government counterclaimed, contending that any damages awarded to Entergy should be offset by whatever amount was awarded to Boston Edison. After consolidating the two actions, the court in 2008 awarded Boston Edison $40 million in damages. That amount represented the portion of the decommissioning fund corresponding to the projected post-decommissioning SNF-related costs that would be attributable to DOE's breach of the Standard Contract. The court found that it was reasonably foreseeable to the government that Boston Edison would transfer the decommissioning fund to a third party, and that any such transfer would need to account for the risk that DOE would continue to delay performance after Pilgrim was decommissioned. The court therefore determined that DOE had directly caused Boston Edison to pay a larger sum in order to relieve itself of its decommissioning responsibilities. The court denied Boston Edison's claim for damages related to the alleged reduction in the purchase price of Pilgrim due to the government's breach. The court deferred ruling on the government's cross-claim for an offset of Entergy's damages.
In 2010, the court addressed the cross-claims in the Entergy action. By then, Entergy had amended its complaint to request partial breach damages incurred through 2008. The court awarded Entergy $4 million in mitigation damages arising from the government's partial breach of contract. That award included direct and overhead costs associated with new spent fuel racks that Entergy had installed and fees that Entergy had paid to the NRC. The court denied Entergy's claim for the financing costs associated with mitigation activities. The court also rejected the government's cross-claim for an offset of Entergy's damages against those already awarded to Boston Edison, noting that
The government's ongoing breach of the Standard Contract gives rise to damages for partial breach, not total breach. Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1374 (Fed.Cir.2005), citing 42 U.S.C. §§ 10131, 10222; see Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268, 1280 (Fed.Cir.2008). The parties agree that Boston Edison's claim for damages is premised on a theory of partial breach of contract, but they disagree about the type of damages that are available as a remedy for that breach. The government and Entergy contend that partial breach damages are limited to expenses actually incurred by the time of trial and that they do not include damages that are expected to arise from future delays in DOE's performance. Boston Edison defends the trial court's conclusion that damages for partial breach of a contract may include the diminution in value of assets of the non-breaching party that are sold before the time of trial. Boston Edison argues that the government should have foreseen that, as a consequence of DOE's expected delay in performance, Boston Edison would need to pay Entergy more money to accept decommissioning responsibilities. Although the trial court found that Boston Edison's losses were foreseeable as a result of DOE's delay, we agree with the government and Entergy that Boston Edison cannot recover damages under a diminution-of-value theory in a partial breach setting.
In ruling that Boston Edison was entitled to damages for diminution in value, the trial court relied on two legal analogies. The court first observed that diminution in value can be used to measure damages in construction contracts if the contractor's performance is defective or incomplete. See Restatement (Second) of Contracts § 348(2) (1981). In that situation, the claim is one for total breach, and no further recovery is anticipated. See id. § 348(2), illus. 2-4 (referring to completed or repudiated contracts); see also Farnsworth on Contracts § 12.13, at 251-52 (3d ed.2004). The trial court also noted that diminution in value is commonly used in tort law to measure damages for injury to chattel. See Restatement (Second) of Torts § 928 (1979). Neither of those analogies applies here, as this is not a case of total breach, nor is it a case of a single, discrete injury, in which the single damages award is the victim's only compensation. In this case, the breach is partial, the injury is ongoing, and DOE remains liable for future damages as they are incurred.
In Indiana Michigan Power Co. v. United States, an electric utility brought suit for a partial breach of the Standard Contract seeking, inter alia, future damages for the expected construction of a storage facility for housing SNF. 422 F.3d at 1372. In denying recovery of those damages, this court held that "[b]ecause of its highly speculative nature, a claimant may not recover at the time of the first suit for partial breach, prospective damages for anticipated future nonperformance resulting from the same partial breach." Id. at 1376. We noted that in the case of a partial breach of contract, the award is limited to damages incurred as of the time of suit, but that subsequent suits may be brought as further damages are incurred, without offending principles of claim preclusion. Id. at 1376-78; see Restatement (Second) of Judgments § 26, cmt. g (1982). We extended that rule in Yankee Atomic Electric Co. v. United States, where we held that the government could not offset partial breach damages with prospective
Boston Edison argues that Indiana Michigan does not bar it from recovering damages for diminution of value in this case since it actually suffered losses associated with DOE's breach of contract when it sold Pilgrim before the time of trial. That argument, however, is fundamentally inconsistent with the rule of Indiana Michigan. Allowing Boston Edison to recover damages equal to the payment of estimated future breach-related costs to Entergy would undermine the prohibition on recovery of future damages in cases in which DOE has breached the Standard Contract. Owners of nuclear power generation facilities cannot skirt that restriction by paying buyers for the estimated value of damages expected to be caused by DOE's future breach, and then suing the government to recover the prepayment before any such breach-related expenses are incurred. Put another way, the estimated value of future damages agreed upon by two private parties should not set the amount of the government's liability for partial breach. While the figure chosen by Boston Edison and Entergy may turn out to be an accurate estimate of the harm caused by DOE if the agency continues to delay performance, that figure could also prove to be excessive. The purpose of allowing a series of recoveries for partial breach, as opposed to a single recovery for total breach, is to avoid speculation about the quantum of future damages. See Restatement (Second) of Contracts § 243, cmt. e. The actual value of the future damages attributable to DOE's continued partial breach of contract was no less speculative simply because Boston Edison and Entergy attached a price to it.
The trial court rejected the government's argument that DOE's breach of contract did not cause Boston Edison to fully fund Entergy's estimated future breach-related expenses. The court reasoned that the transfer of the decommissioning responsibilities "only affected the timing of the realization of [Pilgrim's] diminished value." That analysis, however, does not account for the significance of timing in the partial breach setting. We made clear in Indiana Michigan that "prospective damages for anticipated future nonperformance" are not recoverable in a partial breach case. 422 F.3d at 1376. Such damages are recoverable only in subsequent actions commenced after the government's continued breach of contract results in further damages. We therefore reverse the court's award of damages to Boston Edison. In light of our decision on that issue, we deny the government's cross-claim for an offset against the damages award to Entergy as moot.
The government also appeals from the trial court's award of damages based on Entergy's payment of NRC fees. The NRC imposes fees on nuclear energy facilities
As of 1998, the Commission assessed an annual fee against all operating nuclear generating facilities, including Pilgrim. 10 C.F.R. § 171.15(b) (1999). Among other things, that fee covered the NRC's general expenses related to nuclear plant decommissioning and wet storage of SNF. At the same time, the Commission imposed a separate annual fee on dry storage facilities. Id. § 171.16. Boston Edison had not constructed a dry storage facility to store fuel from Pilgrim, so it did not pay the dry storage fee.
Beginning in 1999, the NRC changed its fee structure. The revised regulations eliminated the dry storage fee and created a new Spent Fuel Storage/Reactor Decommissioning ("SFS/RD") fee. The Commission used the SFS/RD fee to recover its general expenses related to wet storage, dry storage, and decommissioning activities. See Revision of Fee Schedules; 100% Fee Recovery, FY1999, 64 Fed.Reg. 31,448 (June 10, 1999). As a result of the rule change, operating nuclear generation facilities such as Pilgrim began paying both an operating facility fee and the SFS/RD fee. 10 C.F.R. § 171.15(b)-(d) (2000). Dry storage facilities and non-operating facilities with SNF stored onsite paid only the SFS/RD fee. Id. § 171.15(c)(1). The Commission's revised fee structure remained essentially unchanged between 1999 and 2008.
The trial court determined that the NRC changed its rules in 1999 as a consequence of DOE's breach of the Standard Contract. The court also determined that Entergy was forced to pay more in aggregate fees as a result of the rule change, for two reasons. First, through the SFS/RD fee, Entergy became responsible for sharing the cost of the Commission's dry storage activities, even though it did not operate a dry storage facility. Second, the NRC's expenses relating to wet storage had changed as a result of DOE's breach, and Entergy's SFS/RD fee payments helped the Commission recover those wet storage expenses. Accordingly, the trial court awarded Entergy damages equal to the amount of the SFS/RD fees it paid between 1999 and 2008, less the portion of those fees attributable to decommissioning activities.
At trial, the government argued that Entergy should not recover any damages for fees associated with wet storage, because Entergy would have paid fees for the Commission's wet storage activities even under the pre-1999 rules. However, the government does not renew that argument in this court. On appeal, the government's only specific quarrel with the damages award is that after the change in the NRC's fee structure, the Commission's costs associated with wet storage and decommissioning were spread among a larger number of entities. Before the rule change, only operating facilities had paid fees associated with those costs; after the rule change, however, dry storage facilities and non-operating nuclear facilities that stored SNF had to pay those fees as well. The government argues that the damages award must be adjusted to reflect any decrease in Entergy's wet storage and decommissioning fees due to the fact that more entities were helping to pay the NRC's wet storage and decommissioning costs. In support of its argument, the
The trial court refused to adjust Entergy's damages award to account for the larger number of fee-paying entities. The court determined that any correlation between the decrease in Entergy's overall fees and the larger number of fee-paying entities was too attenuated to justify an adjustment of the damages award. The court explained that "[w]hile the pool of licensees to support spent fuel storage costs may have increased as a result of the rule change, those licensees brought with them added costs to the NRC, costs attributable to DOE's breach." In other words, the court reasoned that DOE's breach had increased the aggregate expenses of the NRC, and the Commission had passed those costs onto operating nuclear facilities such as Pilgrim in the form of increased SFS/RD fees.
Record testimony supports the trial court's finding that the NRC's wet storage costs increased as a result of DOE's breach of the Standard Contract. However, the trial court awarded Entergy damages corresponding to the entire portion of the SFS/RD fee attributable to wet storage, so any increase in wet storage costs was already incorporated into the damages award. It was therefore not proper for the court to treat an increase in Entergy's wet storage fees caused by the NRC's increased costs as a setoff against the reduction in wet storage and decommissioning fees caused by the increase in the number of fee-paying entities. The same would be true of any increase in the portion of the SFS/RD fee attributable to dry storage, because Entergy was awarded damages corresponding to all fees that it paid relating to dry storage as well.
In Southern Nuclear Operating Co. v. United States, 637 F.3d 1297, 1304 (Fed.Cir.2011), we explained that a non-breaching plaintiff bears the burden of persuasion to establish both the costs that it incurred and the costs that it avoided as a result of a breach of contract. The breaching party may be responsible for affirmatively pointing out costs that were avoided, but once such costs have been identified, the plaintiff must incorporate them into a plausible model of the damages that it would have incurred absent the breach. Id.; see also Energy Nw. v. United States, 641 F.3d 1300, 1307-08 & n. 5 (Fed.Cir.2011). In this case, the government has identified avoided costs in the form of a reduction in the share of wet storage and decommissioning fees paid by Entergy. Under our precedent, Entergy is responsible for incorporating those cost savings into its damages calculation. While damages need not be proved with absolute precision, see San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1563 (Fed.Cir.1997), we have insisted in prior cases that the plaintiff's model of damages incorporate reasonable assumptions about the costs that it would have incurred absent breach of contract, see, e.g., Energy Nw., 641 F.3d at 1307-08. If such a model cannot be produced without assistance from the breaching party, and the breaching party fails to
We remand for the trial court to determine whether adjustments should be made to Entergy's damages award to account for the decreased share of generic wet storage and decommissioning fees paid by Entergy as a consequence of the NRC's rule change. On remand, Entergy will be responsible for quantifying and incorporating all effects of the change in the Commission's fee structure into its damages model.
The trial court awarded Entergy overhead costs associated with the procurement of materials and capital expenditures made in connection with Entergy's mitigation efforts in response to the government's breach. The court found that Entergy's method of assigning overhead costs to those projects complied with Generally Accepted Accounting Principles ("GAAP") and Federal Energy Regulatory Commission regulations. Based on record evidence, the court concluded that the overhead costs were actually incurred and "were explicitly tied to activity involving the re-racking projects."
The government argues that in order to recover damages for indirect overhead costs, Entergy must prove that additional costs were incurred as a result of DOE's breach. We rejected that argument in our recent decision in Energy Northwest v. United States, 641 F.3d 1300 (Fed.Cir. 2011). In that case, as here, the electric utility sought to recover the portion of overhead costs (calculated using GAAP) that was attributable to mitigation projects. We held that "[o]nce a plaintiff has proved that certain work was undertaken because of the breach ... he is entitled to prove the amount of the associated cost (including both direct and indirect costs) by whatever reasonable techniques are available." 641 F.3d at 1309. The government has not shown clear error in the trial court's finding that Entergy's overhead costs were directly attributable to mitigation projects, and we therefore uphold the award of those costs to Entergy. See S. Cal. Edison v. United States, 655 F.3d 1319, 1321 (Fed.Cir.2011); Dairyland Power Coop. v. United States, 645 F.3d 1363, 1373-74 (Fed.Cir.2011); Energy Nw., 641 F.3d at 1309-10; Carolina Power & Light, 573 F.3d at 1277.
Entergy seeks to recoup the cost of securing capital for mitigation projects undertaken as a result of DOE's breach. The trial court held that Entergy's recovery of the cost of capital is barred by 28 U.S.C. § 2516(a), which provides that "[i]nterest on a claim against the United States shall be allowed ... only under a contract or Act of Congress expressly providing for payment thereof." In its briefing before this court, Entergy argued that it sought interest as a claim as opposed to interest on a claim. See Wickham Contracting Co. v. Fischer, 12 F.3d 1574, 1582 (Fed.Cir. 1994). Entergy also argues that parties contracting with the government have recovered
Our recent opinion in Energy Northwest rejected arguments identical to Entergy's and held that private parties to the Standard Contract may not recover the costs of financing mitigation projects. 641 F.3d at 1310-13 (discussing "interest as a claim" argument); id. at 1311 n. 6 (discussing prior cases). At oral argument, Entergy withdrew those arguments in light of our decision in Energy Northwest. Nevertheless, Entergy continues to argue that it is entitled to recover the cost of securing capital because DOE has "assumed the status of a private commercial enterprise." Library of Congress v. Shaw, 478 U.S. 310, 317 n. 5, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). Entergy contends that Congress waived the no-interest rule in the Nuclear Waste Policy Act ("NWPA") by compelling the government to enter into the business of collecting and disposing of nuclear waste materials.
Entergy cites the Supreme Court's decision in Standard Oil Co. v. United States, 267 U.S. 76, 45 S.Ct. 211, 69 L.Ed. 519 (1925), in support of its argument. In Standard Oil, the federal Bureau of War Risk Insurance issued a standard commercial insurance policy to a shipper to insure against the risks of war. After holding the government responsible under the policy for the loss of a steamship, the Court awarded prejudgment interest to the shipper. The Court reasoned that "[w]hen the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." 267 U.S. at 79, 45 S.Ct. 211.
The Supreme Court clarified the scope of the commercial enterprise exception to the no-interest rule in United States v. Worley, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887 (1930). Worley concerned a veteran who held an insurance policy from the government payable upon death or total and permanent disability. The Court held that the veteran's widow could not recover interest on insurance payments that had been wrongfully withheld, stating that "[t]here is nothing in the conduct of the United States in respect of life and disability insurance from which an agreement on its part to pay interest may be implied." 281 U.S. at 344, 50 S.Ct. 291. The Court distinguished Standard Oil as a case that turned on the government's contractual promise to pay the shipper's losses within a specified period of time. Id. at 342, 50 S.Ct. 291. The Court also noted that, in Standard Oil, the government had profited significantly from its shipping insurance contracts, not unlike a private commercial enterprise, whereas it did not profit from the veterans' insurance program. Id.
The commercial enterprise exception does not apply in the present case. The NWPA was designed to solve the national problem of permanent disposal of spent nuclear materials. See Neb. Pub. Power Dist., 590 F.3d at 1360. The Standard Contract effectuated the intent of Congress to assign responsibility for nuclear waste disposal to the federal government "in order to protect the public health and safety and the environment," and to ensure that the private generators and owners of the waste material bore the cost of its disposal. 42 U.S.C. § 10131(a)(4); see 10 C.F.R. § 961.11 (Standard Contract, preamble). Thus, the government's purpose in entering into the Standard Contract was not to turn a profit but to achieve public objectives. See Sandia Oil Co. v. Beckton, 889 F.2d 258, 263 (10th Cir.1989) (commercial enterprise exception limited to a "business-type activity with a