101 Fed. Cl. 464
Fed. Cl.2011Background
- NWPA and Standard Contract required DOE to begin SNF disposal by Jan 31, 1998, with utilities paying disposal costs.
- Northern States I held DOE’s delay could not be excused by Unavoidable Delays and issued a mandamus precluding that excuse.
- Nebraska Public Power, en banc, held the D.C. Circuit’s mandamus had res judicata effect on liability but left contract remedies to the Court of Federal Claims.
- The district court initially struck the Unavoidable Delays defense in Entergy FitzPatrick, citing Nebraska Public Power’s authority.
- Southern Nuclear subsequently held the government waived the defense by failing to raise it at trial, creating tension with Nebraska Public Power.
- This Court, in light of Southern Nuclear and Nebraska Public Power, denied reconsideration and certified the question for interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Southern Nuclear overrides Nebraska Public Power | Entergy argues Nebraska Public Power controls; Southern Nuclear conflicts | Southern Nuclear clarifies government could have raised the defense despite mandamus | Southern Nuclear cannot override Nebraska Public Power |
| Whether the Unavoidable Delays defense can be raised as a defense to damages | Nebraska Public Power prohibits use of defense to damages | Defense could limit expectancy damages under residual authority | Defense barred as to damages; not available to negate liability for breach |
| Scope of the mandamus from Northern States I | Mandamus forecloses all contract defenses under NWPA interpretation | Mandamus did not foreclose argument in the Claims Court | Mandamus precluded avoiding liability but did not bar contract litigation as limited by Nebraska Public Power |
| Whether Nebraska Public Power remains controlling precedent | Nebraska Public Power governs and Southern Nuclear cannot overrule it | Panel decisions may modify, within limits, prior controlling authority | Nebraska Public Power remains controlling precedent; Southern Nuclear cannot override it |
Key Cases Cited
- Nebraska Public Power Dist. v. United States, 590 F.3d 1357 (Fed.Cir.2010 (en banc)) (mandamus effect on liability and remedies; limits on Unavoidable Delays defense)
- Northern States Power Co. v. United States, 128 F.3d 754 (D.C.Cir.1997) (mandamus precludes claiming Unavoidable Delays as defense to liability)
- Northern States Power Co. v. United States, 224 F.3d 1361 (Fed.Cir.2000) (Northern States II; delays after performance; not a bar to damages)
- Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed.Cir.2000) (distinguishes between avoidable delays and post-start delays)
- Southern Nuclear Operating Co. v. United States, 637 F.3d 1297 (Fed.Cir.2011) (government waived unavoidable delays defense by not raising it at trial)
- Entergy Nuclear FitzPatrick, LLC v. United States, 93 Fed.Cl. 739 (Fed.Cl.2010) (this court struck the Unavoidable Delays defense pending further analysis)