100 Fed. Cl. 46
Fed. Cl.2011Background
- This is an action for partial breach of contract by utilities against the DOE for not beginning SNF disposal by January 31, 1998 under the NWPA contract.
- The Standard Contract contains two delay clauses: unavoidable delays (IX.A) and avoidable delays (IX.B).
- The government seeks to rely on the unavoidable delays defense; plaintiffs move to strike and preclude trial evidence on that defense.
- The court must determine whether the unavoidable delays defense is legally available given controlling circuit precedent (NPPD, Northern States I/II, Maine Yankee, etc.).
- The court grants the motion to strike the defense and in limine, holding the unavoidable delays defense cannot excuse breach; liability is fixed and evidence cannot be admitted to support that defense.
- The opinion discusses prior mandamus decisions and the interaction between statutory obligations under the NWPA and contract-based remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the unavoidable delays clause can excuse breach for non-performance | NPPD and Northern States I preclude use of repository nonexistence to excuse non-performance | Clause can limit damages or be used as a defense to liability | Unavoidable delays defense barred; cannot excuse breach |
| Whether total non-performance constitutes a delay under Article IX | Total non-performance falls within the contract’s breach by January 31, 1998 | Non-performance is a delay under IX.A | Total non-performance is not a delay under Article IX; breach occurred with no delay defense |
| Whether Maine Yankee controls applicability of the unavoidable delays defense | Maine Yankee’s interpretation of delays applies to avoidable delays and pre-performance breach | Maine Yankee is not controlling for unavoidable delays | Maine Yankee does not control the unavoidable delays defense; still supports that non-performance is not a delay |
| Whether res judicata effect of NPPD and Northern States I forecloses the defense here | NPPD/Northern States I preclude the defense | Res judicata does not bar contract-related issues | NPPD and Northern States I preclude the defense as to liability; contract issues resolved here |
| Whether the court should allow discovery on the merits of the defense | No discovery needed; issues resolved as a matter of law | Facts may require discovery to resolve remaining questions | Court declines further discovery; issues resolved as law; defense barred |
Key Cases Cited
- Indiana Michigan Power Co. v. United States Department of Energy, 88 F.3d 1272 (D.C. Cir. 1996) (NWPA duty to begin disposal; absence of a repository cannot excuse non-performance)
- Northern States Power Co. v. United States Department of Energy, 128 F.3d 754 (D.C. Cir. 1997) (Mandamus; repository nonexistence cannot be an unavoidable delay)
- Northern States Power Co. v. United States, 224 F.3d 1361 (Fed. Cir. 2000) (res judicata effect on avoidable/unavoidable delay issues; precludes defense to liability)
- Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000) (total non-performance not a delay; avoidable-delays clause limited to delays in delivery/transport)
- Nebraska Public Power District v. United States, 590 F.3d 1357 (Fed. Cir. 2010) (NPPD; unavoidable delays cannot be used to excuse contract breach; res judicata effect on statutory/directives)
- Southern Nuclear Operating Co. v. United States, 637 F.3d 1297 (Fed. Cir. 2011) (addressed waiver of unavoidable delays; did not resolve applicability to expectancy damages)