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DAIRYLAND POWER CO-OP. v. U.S.

Nos. 2010-5110, 2010-5111.

645 F.3d 1363 (2011)

DAIRYLAND POWER COOPERATIVE, Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

June 24, 2011.

Attorney(s) appearing for the Case

Robert L. Shapiro , Hughes Hubbard & Reed, LLP, of Washington, DC, argued for plaintiff-cross appellant.

Harold D. Lester, Jr. , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, Alan J. Lo Re , Assistant Director, and Scott Slater , Trial Attorney. Of counsel, on the brief were Patrick B. Bryan , Trial Attorney, and Jane K. Taylor , Office of General Counsel, United States Department of Energy, of Washington, DC.

Before RADER, Chief Judge, GAJARSA and PROST, Circuit Judges.

PROST, Circuit Judge.

This case concerns the Department of Energy's ("DOE's" or "the government's") breach of its obligation to accept spent nuclear fuel from the nation's nuclear power utilities. Liability is not at issue. The parties dispute various aspects of the U.S. Court of Federal Claims' damages award.

First, the government contends that the trial court erred in awarding damages based on testimony that absent breach, the plaintiff would have successfully...

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